New South Wales Court of Criminal Appeal CITATION : Regina v Eyles [2002] NSWCCA 510 FILE NUMBER(S) : CCA 60235/01 HEARING DATE(S) : 2 July 2002 JUDGMENT DATE : 20 December 2002 PARTIES : Regina v Kenneth John Eyles JUDGMENT OF : Handley JA at 1; Dowd J at 2; Smart AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1062 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : (A) M C Ramage QC (C) P Power SOLICITORS : (A) Voros Lawyers (C) S E O'Connor CATCHWORDS : Tendency evidence incorrectly admitted as wrong test applied - highly prejudicial - inadequate warning by judge - verdict unreasonable and not supported by the evidence. LEGISLATION CITED : Evidence Act 1995 R v Johnson (1998) 45 NSWLR 362 R v BWT [2002] NSWCCA 60 R v SJB [2002] NSWCCA 163 CASES CITED: Longman v The Queen (1989) 168 CLR 79 Cramnpton v The Queen [2000] HCA 60, 75 ALJR 133 Doggett v The Queen [2001]HCA 46, 76 ALJR 1290 M v The Queen (1994) 18 CLR 487 at 493-494 MFA v The Queen [2002] HCA 53 DECISION : See para 69 IN THE COURT OF CRIMINAL APPEAL 60235/01 HANDLEY JA DOWD J SMART AJ Friday, 20 December 2002 REGINA v KENNETH JOHN EYLES JUDGMENT 1. HANDLEY JA: I agree with Smart AJ. 2. DOWD J: I have read and agree with the proposed orders and reasons of Smart AJ. 3. SMART AJ: At the conclusion of the hearing of the appeal on 2 July 2002 this Court announced that it proposed to allow the appeal and quash the convictions of the appellant but that it had not decided whether it would order a new trial. The appellant was granted bail. I now set out my reasons for participating in those orders and for declining to order a new trial. 4. Kenneth John Eyles seeks an extension of time in which to appeal against his conviction on six counts of sexual offences and to seek leave to appeal against the asserted severity of the sentences imposed upon him. Upon an extension being granted he appeals against his conviction and seeks leave to appeal against the sentences. 5. The appellant's trial extended over seven sitting days, 3-11 May 1999. He was not sentenced until 8 December 2000 because the appellant and the Crown were awaiting the resolution of other trials so that he could be sentenced for all offences of which he had been convicted at the one time. In the result the appellant had only to be sentenced for the six offences of which he was convicted on 11 May 1999. 6. The Notice of Appeal and Application for Leave to Appeal and the Application for an Extension of Time were signed by the appellant on 20 April 2001 and received in the Registry on 24 April 2001. 7. In his application for an extension of time the appellant wrote: "1. I thought that my barrister would lodge an appeal. 2. I was under the mistaken belief that my appeal was lodged. 3. Since my conviction and sentence I have (been) corresponding with my lawyer on the mistaken belief that my appeal was lodged." 8. Allowing for the 28 days which the appellant had to lodge his appeal and the Christmas vacation the delay is not gross and the appellant has provided some explanation. There are matters of substance to be argued. An extension of time should be granted. 9. The appellant was acquitted by the jury of a further five counts of sexual offences. He was acquitted by direction of the trial judge of the twelfth count of threatening JZ on 14 October 1996 with intent to induce her to withhold true evidence as a witness in judicial proceedings. The twelfth count depended on the admissibility of voice identification by JZ as to who was speaking to her on the telephone in 1996. She had not heard the appellant's voice since 1986. The judge ruled that evidence inadmissible. 10. Details of the offences, all of which allegedly occurred between 1 January-31 March 1982, on which the appellant was convicted and the sentences he received are as follows: Count Offence Sentence of Imprisonment 1 Sexual intercourse with JZ 5 years from 1/11/98 without her consent knowing (fixed term) she was not consenting, she being aged 8 years - inserting penis in vagina 2. Assault LG with act of 2 years from 1/11/98 indecency - (fixed term) touched parts of her body 3. Attempted sexual intercourse 4 years from 1/11/98 with LG knowing that she was (fixed term) not consenting, she being aged 7 years - trying to insert penis in her mouth 4. Attempted sexual intercourse 4 years from 1/11/98 with LG knowing that she was (fixed term) not consenting, she being aged 7 years - trying to insert penis in her vagina 5. Sexual intercourse with LG 7 years from 1/11/98 without her consent knowing (fixed term) that she was not consenting, she being aged 7 years - penile and anal intercourse 6. Detaining LG with intent to 2 years from 1/11/2005 hold her to his advantage (fixed term) 11. As to counts 1, 3, 4 and 5, the offences created by the Crimes Act 1900 have as an essential element that the child was under 16. The judge stated that as to the total period of nine years he fixed a non-parole period of 6 years 9 months expiring on 30 October 2005. He said that in the sentence on count 5 he expressed the appellant's "total criminality in relation to the totality of these counts" (presumably counts 1 to 6. There are difficulties with the way in which the judge has structured the sentences and the judge attributing the appellant's total criminality to one count. 12. The appellant's case at his trial was that none of the alleged events or incidents happened. 13. The appellant has challenged his convictions on the grounds of the erroneous admission of evidence capable of having a significant impact, erroneously granting leave to the Crown under s.38 to cross-examine the witness Cebula, refusing to give a warning that certain evidence was unreliable, erroneous directions in matters of importance, errors of fact in his summing-up and that the verdict of the jury was unreasonable and not supported by the evidence. As to this latter ground the appellant relied, amongst other matters, on the acquittals on counts 7-12. Count 7 alleged that between 1 and 31 December 1983 the appellant had sexual intercourse with JZ without her consent, knowing she was not consenting, she being under the age of 16 years. Count 8 was in the same terms except that the date of the alleged offence was on or about 16 July 1985. count 9 alleged that on that date the appellant detained JZ for his advantage. Count 10 alleged that on 27 March 1986 the appellant assaulted JZ and committed an act of indecency upon her. Count 11 alleged that on that date the appellant detained JZ with intent to hold her for his advantage. 14. The acquittals on counts 7-11 suggest that the evidence of JZ was not such as to satisfy the jury beyond reasonable doubt on those counts. There was no relevant supporting evidence 15. A Brief Outline of the Facts JZ and LG gave somewhat different accounts of their alleged joint encounter with the appellant in early 1982. JZ was born on 24 December 1973 and grew up in the St Marys area. While attending infants and primary school at Oxley Park Public School she lived at 163 Great Western Highway. She took a fixed route to and from school which involved passing the corner of Sydney and Adelaide Streets, St Marys. There was a house which she knew on that corner. The appellant resided there with his grandmother. She knew the appellant through her family. Her father and the appellant had some contact through their music. Prior to the first alleged offence she had been to the appellant's house no more than twice. JZ said that after 3 pm on a day early in 1982 on her way home from school she and LG, a classmate and friend, saw the appellant standing outside his gate in Adelaide Street. In her statement to the police in October 1996 JZ said that the incident occurred at the end of February or the beginning of March 1982. JZ said that the appellant was on the opposite side of the street, called out and asked them if they wanted to play table tennis. JZ regarded him as a friend so she and LG crossed the street. They entered the premises by the side gate and passed through another gate into a shed. The shed had a bedroom, a toilet and bath and a table tennis table in the middle of the shed. The two girls played table tennis for about five minutes. The appellant was standing close behind LG with his body touching her body during this time. This was part of the subject of count 2, assault with act of indecency. 16. JZ said that the appellant next asked them if they wanted to go into a room to play another game only special people play. They went into a room which was very dark. The appellant lit a candle. At some stage he removed his clothing. He dragged LG onto the table in the room. Her back was on the table at one stage; then she was kneeling. He tried to undress her. JZ tried to look but the appellant repeatedly told her to turn around and not to look. LG was crying, then JZ heard what sounded like a slap. LG cried louder. JZ said that she was scared and crying. When she turned around and looked the only thing she could see was the appellant with his erect penis in LG's mouth. He was standing on the table. This was the subject of count 3. JZ said that she tried to grab LG's arms and pull her off the table. JZ said that eventually the appellant took his penis out of LG's mouth and pushed her onto the floor. LG's account was a little different. She said that she was standing alongside the table and that the appellant tried to put his penis in her mouth but did not succeed. Hence the charge of attempted sexual intercourse. 17. JZ said that the appellant next reached out, grabbed her by her hair which was long, and dragged her onto the table. He said, "Get on the table". She replied, "No, stop it." He laid her on her back on the table. He knelt virtually on her stomach. Next, he put his hands inside her skirt and tried to pull her pants down. As he did this he had his knees on either side of her. After pulling her pants down he threw them to the floor. JZ was crying, screaming and trying to push him off. He sprinkled a substance over her and said, "I'm trying to sweeten you up". She repeatedly told him to stop. She felt something hard go into her vagina as he lay on top of her. Her feet were hanging off the edge of the table. She felt pain and burning in her vagina. There was wetness between her legs. She recovered her pants and put them back on and he got dressed. These events were the subject of the first count of sexual intercourse without consent, knowing that JZ was not consenting. 18. JZ said that the appellant told her not to tell anybody because if she did tell her parents she would not be "daddy's little girl" anymore. After the appellant opened the door to the room they ran into the room where the table tennis table was. His grandmother was standing there with two glasses of milk. JZ and LG took the glasses of milk which she offered. 19. JZ said that in the meantime her mother had entered the appellant's premises. She was standing near the gates in the yard and called out her name and "are you here?" 20. JZ said that after the drink of milk the appellant took her across to the toilet and to a ladder leading up to a trapdoor in the ceiling. He tried to take her part way up the ladder with him. Then he uttered an expletive and said, "Your Dad's here," dropped her off the ladder and let them go. He had had hold of her by her hair. 21. JZ's mother and father were outside by the gates. JZ said that her father asked her if the appellant had touched her in any way and what had they been doing. JZ replied that they were playing tennis. Her parents said that there was a funny smell about her and kept asking if anything had happened, to which she replied "No". When she undressed for her bath she noticed blood on her underpants which she rinsed. After this day her mother walked her to and from school for about the next twelve months. 22. LG was born on 18 April 1974. She said that on one occasion she was walking home with JZ. In cross-examination LG said that they walked home from school to JZ's home. JZ dropped her bag off and they started walking to LG's house. En route they walked on the side of Sydney Street on which the appellant's house was situated. He called them in. She said that she did not remember what part of the year it was. Then LG said, "I know it was in summer." Then she said it was in about the middle of the year. Her evidence creates the impression that she did not know in what part of the year the incident occurred. She did however remember the occasion when she went to a big white house on the corner of Sydney Street. A man (the appellant) whom JZ appeared to know and said was her father's friend asked if they wanted to play table tennis. They said, "Yes". She said that they went through the side gate to a little granny flat. They entered the lounge room which had a table tennis table in the middle. She said that she and JZ played table tennis for about 15 minutes. The appellant took off his clothes except his underpants and touched her on her vagina and her bottom. This is the subject of the second count of assault with act of indecency. He wanted them to take their clothes off. They kept screaming as they did not want to do so. 23. LG said that the appellant pushed JZ down onto the lounge. LG tried to help JZ but the appellant pushed her away. He said that if they told anybody he would kill their mothers and fathers and he knew where they lived. LG said that after he pushed JZ down he laid between her legs. He had his underpants down to his knees. He pulled JZ's underpants down to her ankles or took them off. As he lay on top of JZ he was rocking up and down. JZ was screaming but he kept rocking. She was struggling. LG tried to get JZ away. Eventually he stopped. These events formed the subject of count 1, sexual assault without consent, knowing she was not consenting. 24. LG said that he tried to put his penis in her mouth as she was standing alongside the table. She said that she kept moving her head and would not let him insert his penis in her mouth. He slapped her in the face with his penis. She said that she bit the appellant on the arm. 25. These events were the subject of count 3. She could not remember how they left but eventually they did so. She ran home. She did not go into the other room. She just saw what was there. LG said she saw a lady at the window of the house watching. When she got home she did not tell anyone what had happened to her. LG said that the next day as she was walking home and passed the appellant's house he grabbed her and took her into the granny flat. He ripped her clothing in the area of the zipper but her uniform did not come off. He pulled her underpants down. She was standing near the lounge. He tried to put his penis in her vagina for a while but it would not fit. She felt pain and her vagina was sore. He turned her around on the table and tried to put his penis in her anus. It entered a little amount but not for long. The anal area hurt. He stopped and something "like yucky stuff" went over her back. She was over the ping pong table. Eventually he let her out. She did not tell anyone what had happened as she did not want to lose her mum and dad. She went to the doctor after it happened on the next day or the day after. The doctor was Dr Adrian Chalker. She complained to him that when she went to the toilet it was hurting and burning. She was bleeding. He did not examine her and prescribed Ural satchels. These events were the subject of counts 4, 5 and 6, namely one count of attempted sexual intercourse (vaginal) (count 4) and one count of sexual intercourse (anal) (count 5) and one count of detain for advantage (count 6). 26. In cross-examination LG said that she was absolutely positive that nobody offered her a glass of milk on the occasion she and JZ were in the granny flat. She said that when they left the granny flat neither JZ's mother or father was present. Nobody drove her home. She could not remember whether there was a ladder in the granny flat or whether anybody climbed it. She said that she did not see anyone lighting a candle while she was in the granny flat with JZ. She said that she could not recall whether it happened. 27. JZ's mother recalled that when JZ was aged 8 and in third class she had long hair and there was an occasion when JZ was late home from school one afternoon and she went looking for her. Another friend of JZ told the mother that JZ and LG were seen going into the appellant's place. The mother went there and rang the bell on the inside gate. She estimated she did so for about 15 minutes. She then caused JZ's father to arrive after a period of time had elapsed. As the mother was talking to the father she saw the appellant bringing the two girls. They came up to the mother and father. The mother thought that JZ looked unhappy. From the expression on her face the mother knew that something was wrong. LG looked as if she had been crying. JZ's mother said to the father "She smells funny, do you think we should take her to a doctor?" The father replied, "No, it'll be all right because if he's touched her I'll kill him. The appellant replied, "No, no, I didn't touch her, we were playing table tennis." 28. Admissibility of Evidence – Cebula, KZ and LJS At the start of the trial and before the Crown Prosecutor had opened counsel for the appellant objected to the admissibility of the evidence of Cebula and portions of the evidence of KZ and LJS, the father and mother respectively of JZ. 29. Cebula gave this evidence in chief. He was introduced to the appellant by KZ as he (Cebula) was thinking of going to the Philippines. Cebula said that in 1987 he saw the appellant in the Philippines for a short time. In 1988, 1995 and 1996 he went with the appellant to the Philippines. In 1988 Cebula met a lady whom he married in February 1990. She is now his ex-wife. 30. Cebula said that during the period 1990-1995 he met with the appellant on occasions after he had returned from the Philippines. Most of the time the appellant showed Cebula photographs of the Philippines and the girls he was with. Cebula said that most of the girls appeared to be "young kids". The appellant talked about the older girls he used to pick up in the bar and the younger girls whom he was teaching to play tennis. In his last conversation he spoke about 20 kids following him as if he were a movie star. Cebula said that the appellant said he was taking them to bed. He commented about how cheap they were. 31. Cebula stated that on two occasions in about 1995 while in the Sydney metropolitan area he took the appellant to meetings of Parents Without Partners. There were many women present who appeared to be in the age range of 30 to 50 years old. The appellant described them as "grandmas and great, great grandmothers". At a different time the appellant said that he liked younger women and the younger the better. The appellant also said that St Marys was the worst place in the whole of Sydney, especially the people. 32. Cebula stated that about 1995 the appellant said words to the effect that he had had intercourse with "half of some of those St Marys kids." Cebula asserted that the appellant had told him how cheap the bar girls in the Philippines were and that he had had a good year with them. They were aged between sixteen and eighteen. He waited until their knock off time of 3 am as he got an even cheaper rate if the girl had no customers. Cebula stated that the appellant said that he picked up the younger ones from the bar who were aged sixteen. He handpicked the ones he wanted. The Crown Prosecutor was given leave to cross-examine Cebula as the judge thought that Cebula was backing off his proof "a little". In cross-examination Cebula agreed that the appellant had said "It feels nice to have sex with a young girl with no hair and a tight pac pac" (vagina). 33. In cross-examination by the appellant's counsel it emerged that Cebula believed by 1995 that his wife and the appellant were having a sexual relationship. Notwithstanding this Cebula accompanied the appellant to the Philippines in 1995, purportedly as a friend. Cebula's purpose was to spy on the appellant and gather evidence against him. The appellant had obtained an apprehended violence order against Cebula. Cebula agreed that he had been waiting for four years to get the appellant into court and that he knew JZ's father and mother. Cebula agreed that all the appellant did when he went to the Philippines with him was to pick up bar girls. They were not under age and were checked by the police and a doctor. Cebula did not see the appellant deal with other than bar girls. He agreed that in his statement he said that while in the Philippines he and the appellant got into an argument and their "friendship" broke down. Cebula agreed that after these events he set out to do the utmost damage to the appellant that he (Cebula) could. Cebula agreed that he had come to court to see the appellant convicted. 34. The evidence given by Cebula was not relationship evidence but tendency evidence. In ruling upon the admissibility of Cebula's evidence the judge adverted to the definition of probative value in the Dictionary to the Evidence Act 1995, namely, that "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." The judge held that the evidence was of significant probative value. He next considered ss.135,136 and 137 of the Evidence Act 1995. The judge said: "[Under s.137] the court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant – in this case the Accused. Section 136 is in fact a general discretion to limit the use of evidence and I do not think that would assist this or be an appropriate order in this particular instance. That the evidence is prejudicial I have got no doubt. In light of the charges against the Accused counsel for the Accused says that the evidence showing his, what is alleged to have been his attitude towards young children and his utterances to various people concerning going to Manilla and the like would no doubt be prejudicial in the light of the charges that, and however the, (sic) it would not be my view properly directed by the trial judge be it unfairly to the Accused(sic) or be misleading or confusing if the proper directions are given concerning it. Nor do I think that its probative value would be outweighed by the danger of unfair prejudice to the Accused, once again, subject to the appropriate direction." (There seems to have been either a verbal slip or a transcription error) 35. Unfortunately the judge did not refer to s.101 which applies in addition to s.97 of the Act. Section 101(2) of the Act relevantly provides "(2) Tendency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 36. The judge applied the wrong test to determine the admissibility of Cebula's evidence. The test under s.101 differs from that under s.137 and that under s.135. It could not be said that the probative value of Cebula's evidence substantially outweighed the prejudicial effect on the defendant (appellant). Its probative value was low to non-existent and its prejudicial value was high. There is no valid comparison between engaging 16 year old bar girls in the Philippines and what was alleged to have happened in the present case. 37. The prejudicial effect of the evidence of Cebula was high as it branded the appellant as being a man of low moral character. The evidence of Cebula was incorrectly admitted. 38. KZ knew the appellant well and had been to the house and the shed occupied by the appellant's grandmother and the appellant. Band rehearsals had been held in the house. KZ had been inside the main room and the toilet in the shed but not in any other room in the shed. KZ said that the appellant spoke on many occasions about going overseas. The countries included the United States, the Philippines and probably also Russia. KZ said that the appellant had been to the Philippines on numerous occasions, usually staying for two or three months. The appellant had told KZ that he enjoyed the Philippines and the culture there. He was teaching young children to play tennis. The appellant showed KZ photographs of the appellant with bar girls. KZ thought the girls looked young. The appellant told him that anything over 16 years of age was a grandmother. The appellant said he "enjoyed a tight pussy". 39. There was other evidence from KZ but its admissibility is not in question. Again, it could not be said that the probative value of the evidence of KZ as to the appellant's trips to and conduct in the Philippines substantially outweighed any prejudicial effect it may have had on the appellant. The evidence was highly prejudicial and of little probative value. It was incorrectly admitted. 40. LJ gave evidence that she first met the appellant through KZ about the time she was pregnant with JZ. She had been to the appellant's premises on a number of occasions. He talked about his trips overseas. He particularly mentioned his trips to the Philippines, his favourite place. She thought that JZ was about five or six when they were told about his trips to the Philippines. On one occasion he told her that he had had a ball in the Philippines. She said that he told them that he had a ball and that he liked the 12 year-old girls and that anyone over eighteen was a grandmother. She said that she did not have conversations with the appellant to that effect very often. She could not stand him. LJ said that the appellant went with Richard Cebula to the Philippines a few times. She said that the appellant told her how he could hold the little waists of the Philippine girls and lift them up and down. 41. The probative value of that evidence does not substantially outweigh any prejudicial effect it would have on the appellant. That evidence was incorrectly admitted 42. The incorrect admission of the evidence of Cebula, KZ and LJ means that there has at least to be a new trial. 43. Directions as to delay As at the date of the trial in May 1999 the events the subject of counts 1 to 6 in the indictment had allegedly occurred between 1 January and 31 March 1982, that is some 17 years previously. JZ first made a complaint to the police in 1996. On 11 October 1996 the appellant was charged. In May 1998 the police approached LG, who ultimately made a statement on 1 June 1998. 44. At SU21-22 the judge when dealing with delay said: "Now evidence has been given in this trial of events that are alleged to have occurred in about 1982 onwards to 1986 – some 17 years ago when the complainants were about eight years of age and continuing with JZ into 1986 (as said) when she was about twelve. Time has made it difficult for witnesses to completely recall circumstances and details. Memories can fluctuate and fade over such a period of time, quite honestly as can be seen in nearly all the witnesses called on behalf of the Crown and the accused, as well as perhaps leave scope for the dishonest if there be any. No complaint as you have heard, was made until 1996. Witnesses who may have been available at the time have died, for example the grandmother of the accused. The young girl who spoke to the father when he was out looking, and those people to whom the mother was speaking when she was out searching, have not been called and indeed no name has been given them. They are unidentified now. Investigation of course has been made more difficult. These matters may lead to a situation in which the evidence may be unreliable for a number of reasons; one, the age of some of the witnesses at the time that the incidents did occur; the other, the period of time that has elapsed from the incidents, together with the inability to call witnesses or indeed to fully investigate because of the unavailability of those witnesses, all may contribute. I have said may be unreliable – not must be. You should carefully consider the factors that I have mentioned when assessing the evidence and the witnesses. Of course you cannot speculate as to what they would be able to say or what evidence, if any, these missing people could give." 45. The appellant submitted that the jury should have been directed that as the evidence of the complainant could not adequately be tested after the passage of more than 17 years it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence of each with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied as to its truth and accuracy. 46. The Crown submitted that the judge had correctly reminded the jury that "[t]ime has made it difficult for witnesses to completely recall circumstances and details. Memories can fluctuate and fade over such a period of time, quite honestly as can be seen in nearly all the witnesses called on behalf of the Crown and the accused", that "[I]nvestigation of course has been made more difficult" and that the delay in the matter, ",may lead to a situation in which the evidence may be unreliable for a number of reasons." The Crown also pointed out that the judge drew the jury's attention to certain specific problems caused by the delay in the prosecution;. He mentioned that witnesses who may have been available at the time have died, for example, the appellant's grandmother. The judge also mentioned the young girl who spoke to the father when he was out looking for JZ and those to whom the mother spoke when she was out searching for JZ had not been called. Their names were unknown. The judge commented that investigation had been made more difficult. These latter witnesses would probably have been Crown witnesses. 47. The Crown further submitted that the jury could have been in no doubt that the delay in the matter coming to trial clearly worked to the disadvantage of both parties in presenting their cases in light of the judge's specific focus on the matter. The Crown submitted that the judge's directions were in accordance with the law as summarised by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362. 48. The Crown referred the Court to two recent decisions of this Court, namely R v BWT [2002] NSWCCA 60 and R v SJB [2002] NSWCCA 163. In R v BWT the members of this Court, differently constituted, considered the effect of Longman v The Queen (1989) 168 CLR 79, Crampton v The Queen [2000] HCA 60, 75 ALJR 133 and Doggett v The Queen [2001] HCA 46, 75 ALJR 1290. It is apparent from those cases that in any criminal trial where there has been a substantial delay in complaint of alleged sexual offences a warning must be given that as the evidence of the complainant cannot be adequately tested after the passage of [the particular period – in the present case 17 years], it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning was satisfied of its truth and accuracy. 49. More needs to be said depending on the circumstances of the case. It should be pointed out to the jury that the appellant has lost those means of testing the appellant's allegations which would have been open to him had there been no delay in the prosecution. Had the allegations been made soon after the alleged events it would have been possible to explore in detail the alleged circumstances attendant upon their occurrence and perhaps to adduce evidence throwing doubt upon the story of each complainant or confirming the appellant's denial. 50. As Gaudron and Callinan JJ pointed out in Doggett at 1297 the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage to which an unmistakeable and firm voice must be given. Thus the fairness of the trial was necessarily adversely affected so far as the appellant was concerned by the delay. These matters would usually be explained to a jury in less formal language. It would also have been necessary in the present case to warn the jury that in evaluating the evidence they had to bear in mind that over 17 years had passed since the alleged offences and that experience has shown that human recollection and particularly of events occurring during childhood is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay and that in the present case no complaint was made even when enquiries were made whether anything had happened. 51. In Doggett at 1297 Gaudron and Callinan JJ held that the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman as explained by Crampton. The Justices continued: "The correct approach … was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point that the corroboration rendered a Longman direction unnecessary." 52. At 1310 Kirby J held that the mere fact that corroborative evidence of some kind exists will not entirely remove the utility, and the necessity, of a Longman warning. At 1311 Kirby J stated that the giving of a Longman warning is not rendered unnecessary simply because the prosecution case is strong, or because there are admissions by the accused or some other evidence confirming a complainant's accusations. 53. Each of the complainants corroborated the other in respect of the visit to the appellant's premises when they were both present. However, a considerable portion of the allegedly corroborative material that is, that relating to the appellant's conduct in the Philippines, is inadmissible. The comments made by the judge in the present case were somewhat tepid. I doubt if the jury would have fully understood the extent of the forensic disadvantages suffered by the appellant from the directions given by the judge or the fragility of childhood memories. At one stage in the directions given the lapse of time was used to explain the discrepancies in the Crown case, that is, the comment, 'memories can fluctuate and fade over such a period of time as can be seen in nearly all the witnesses called on behalf of the Crown and the accused…' 54. The present case required a strong warning such as it would be dangerous to convict on the evidence of JZ and LG alone in the terms of the decisions of the High Court in Crampton and Doggett. 55. The appellant has made good his complaint that the warning given was inadequate. This deficiency would also warrant a new trial. 56. Verdict Unreasonable and Not Supported By the Evidence The appellant relied upon the following in support of this contention: a. The verdicts of not guilty in respect to five counts in the indictment showed that the jury was not prepared to accept JZ's evidence and her credibility beyond reasonable doubt. Doubts experienced by the jury as to those counts must have diminished the overall credibility of JZ both as a witness to her own allegations and as corroborating or supporting LG. It was unreasonable for the jury not to have acted upon the reservations it had in relation to counts 7 – 11 when considering counts 1 – 6. While this factor has to be taken into account there was evidence from LG as to each of counts 1 to 6 but there was no evidence from her as to counts 7 – 11. Counts 1, 2 and 3 involved an occasion where both JZ and LG were present. Counts 4, 5 and 6 involved a separate incident, probably on the following day of which LG gave evidence. JZ was not present on that occasion and did not give evidence of that incident and the offences which then allegedly occurred. b. No complaint was made at the time of the offences or remotely near that time. JZ went to the police and made her statement to them about 11 October 1996. LG did not go to the police. They contacted her. She made a statement to the police on 1 June 1998. JZ and her mother asserted that when she came out of the appellant's premises (in about February – March 1982) immediately after the alleged assault that her mother and her father were there. JZ claimed that her father asked her if the appellant had touched her in any way and what they were doing. JZ said that she told her father that they were just playing tennis. Her explanation for not telling anyone at the time was "because Ken said he'd hurt me or my family" (T30 of 3/5). c. There were significant contradictions in and between the evidence of LG and JZ: i. JZ said that the first incident involving them both was after school early in 1982 (T2, 3/5). In cross-examination she confirmed that she had told the police and was alleging that the incident occurred at the end of February, early March (T6/7, 4/5). This was important as the appellant was absent from Australia from 16 February 1982 to 9 May1982. ii. In her evidence LG said that the incidents occurred in summer; then she thought it was about the middle of the year. She related the occurrence of the incidents to her family moving out of their house in June 1983 (T22, 4/5). She could not recall how long before the move, the incidents occurred. In cross-examination she said that it was not long after the incidents that she moved. It was after the '83 class photo was taken (T49, 4/5). iii. JZ stated that they were called into the appellant's premises on their way home from school. LG said that they went from the school to JZ's house and that JZ was walking with her to LG's home when the appellant called them into his premises. iv. JZ said that they were walking on the opposite side of the road when called over by the appellant (T4, 3/5). LG said he was standing on the same side of the street. v. JZ said that they went through two gates to the appellant's shed. LG said that they went together and that she went alone the next day through one gate to the granny flat. vi. JZ said that after playing table tennis for about five minutes in the main room they were asked, 'if they wanted to go into a room to play another game that only special people play'. That was a room on the right side of where they had been playing table tennis (T7, 3/5). The appellant opened a door and they walked in (T7, 3/5). LG claimed that after she had been playing table tennis with JZ for about 15 minutes the appellant took his clothes of beside the table tennis table and 'tried to be rude with us' (T26, 4/5). She repeated that it happened in the ping-pong room (T46, 4/5). No invitation to play a game preceded it. vii. JZ stated that with the appellant they went into a room that was very dark; they asked him if they could turn the light on and he lit a candle (T8, 3/5). LG said that she did not see anyone lighting a candle (T51, 4/5). She said that they were in a room with the table tennis table, two lounges and a bean-bag with disco lights above. viii. JZ asserted that there was 'a whole stack of salami sticks' hanging in the room in which she was assaulted. LG said there was no meat in that room and that she did not go into the room with the meat. ix. JZ said that after lighting the candle, the appellant dragged LG up onto a bench-table that was on the right hand side of the room (T7, 3/5) by her hair so that LG's back was on the table. LG was kneeling on the table (T8, 3/5). LG said that the first thing that happened (which was in the table tennis room) was that the appellant took his clothes off. He was standing beside the table. He tried to touch her on her vagina and bottom and wanted them both to take their clothes off but they refused (T26, 4/5). He tried to push them onto each other (T26, 4/5). Next, the appellant pushed JZ onto the lounge (T27, 4/5). x. JZ stated that on the table the appellant was trying to undress LG. JZ said that she heard crying and something that sounded like a slap. LG cried louder (T8, 3/5). LG said that while she was standing beside the table she saw JZ pushed down onto the lounge. He laid between her legs. LG saw that JZ's underpants were down around her ankles (T27, 4/5). xi. JZ stated that when she turned around she saw the appellant standing on an old, brown work bench-table. LG was kneeling on the bench. The appellant's penis was in LG's mouth. LG was crying, choking (T10, 3/5). The appellant had his clothes off but JZ did not see him take them off (T9, 3/5). LG said that after he stopped lying on JZ and rocking, he tried to put his penis in her mouth. He was standing near the table next to her. LG kept moving her head and did not let him insert his penis. He hit her in the face with it (T28, 4/5). She bit his arm. xii. JZ stated that she tried to pull LG off the table by trying to grab her arms (T10, 3/5) and that eventually the appellant pushed LG onto the floor. JZ said that she was standing near the table. JZ said that the appellant then grabbed her by her hair and dragged her onto the table and pulled her pants off. She was crying and told him to stop. JZ said that LG was still crying as she cringed in a corner. xiii. JZ said that as she lay on the table the appellant tried to kiss and fondle her. He picked up something like little jars, which were on the right hand side of the table, and sprinkled the contents over her, saying that he was trying to sweeten her up. LG was not asked and made no mention of such actions by the appellant. xiv. JZ stated that the appellant 'let out this real loud noise and then just got off'. It was "like a shriek". LG did not mention this nor was she asked. xv. JZ claimed after the appellant opened a door which she had tried to open but had been unable to do so she and LG ran into the room where the table tennis table was. LG said that they were in that room all the time. LG made no mention of JZ trying to open the door. xvi. JZ claimed that when she and LG ran into the table tennis room the appellant's grandmother was standing there with two glasses of milk which they were invited to drink and did. LG was certain that they did not run into another adult and that nobody offered her a glass of milk (T48, 4/5). xvii. JZ said that while in the shed she saw her mother standing near the gates in the yard and calling out her name and asking, 'where are you?' JZ said the appellant climbed up a ladder, opened a trap door and dragged her part way up the ladder by her hair. JZ said that the appellant then said that her dad was there, dropped her off the ladder and let them go (T15-16, 3/5). LG could not remember any ladder in the granny flat nor anyone climbing a ladder (T47, 4/5). xviii. JZ stated that she and LG went through the gates followed by the appellant and up to her mother and father (T16, 3/5). LG said that there were no adults waiting outside for them. She was certain that neither JZ's mother nor father was there (T46, 4/5). xix. JZ said that her mother had taken her and LG home (T16, 3/5). LG said that no one drove her home. She ran home alone (T46). She and JZ parted company and went in different directions (T46-47, 4/5). d. When JZ's father asked her if the appellant had touched her in any way, and what they were doing, JZ replied that they were just playing table tennis. e. There were other contradictions in the evidence: i. JZ and LG stated that there was an interior door between the bedroom and the table tennis room. KZ stated that in 1982 there was no door, just a curtain (T2, 4/5). The lack of a door was confirmed by L. Giblin (T4, 6/5) and M. Giblin (T21, 6/5). The appellant said that there was no door until 1989. ii. JZ said that they went into a green shed made of colourbond or corrugated iron. It was certainly green (T42, 3/5). She was sure it was not white fibro (T43, 3/5). The appellant said that the walls of the premises were of white, unpainted fibro until it was replaced by corrugated iron and painted green in 1994 (T23-24, 6/5). L. Giblin confirmed that when she lived in the shed (or granny flat) from January 1984 to May 1987 the walls were not of corrugated iron nor were they green (T4-5, 6/5). KZ said that the walls were fibro. iii. As earlier mentioned JZ said that she was partly dragged up a ladder and that the ladder led to a trapdoor which the appellant opened. The appellant said that there was no trapdoor or ladder in the premises where JZ and LG claimed that they were. The appellant said he had built a trapdoor in another shed comprised of a sheet of foam where he was trying to build a sound proof recording area. L. Giblin did not remember any trapdoor or ladder in the granny flat (T4, 6/5). M. Giblin said that there was no trapdoor but thought that there was a skylight (T12, 6/5). iv. JZ's mother said that she had telephoned KZ and asked him to come to the appellant's place because she could not get them to hear her and JZ was in there. KZ did not recall any occasion when he came home from work at the request of his wife. v. KZ contradicted JZ's assertion that she came out of the appellant's premises with LG. vi. JZ said that she never went to the other end of the building block (T41, 3/5). KZ and JZ's mother both said that she came out the back double gates at the far end of the block. vii. JZ's mother stated that when the girls came out of the appellant's premises JZ appeared to be not really happy and her mother thought there was something wrong. The mother stated that LG looked as though she had been crying. KZ said that they did not look as though they had been crying. viii. JZ's mother said that at the appellant's premises KZ made threats to kill the appellant if he had touched JZ. KZ denied this. 57. The appellant pointed out that the events the subject to the 4th, 5th, and 6th counts were alleged to have happened on the day after the events the subject of counts 1, 2 and 3. The appellant submitted that LG's evidence should not be accepted for these reasons: a. The events which she purported to describe apparently took place in 1983 according to her evidence as referred to above. b. If JZ was telling the truth then LG's account of the first incident could not be accepted. This in turn should have raised doubts as to LG's evidence about a second incident on the following day. c. LG said that she had been at school on that following day and that the second incident happened as she was walking home from JZ's home. JZ said that LG was not at school on that following day, and not for a week. d. LG agreed that there was no need for her to go to the corner where the appellant's house was located. It was unlikely that she would have done so. e. LG stated that on the second occasion when the appellant dragged her into the granny flat her school uniform was ripped on the zipper. LG said that she did not tell anyone what had happened. However, she said that she went to the doctor either the next day or the day after. She complained to the doctor that when she was 'going to the toilet it was burning and hurting'. f. Her doctor, Dr A. Chalker said that LG was a patient of his from 1978 until recently. He had examined his records. From those he was able to say that on 9 January 1982 he saw LG at his surgery. She complained of burning and scalding when she passed water and a sore vagina. He obtained a culture and sent it for analysis. He prescribed medication which was suitable for either vaginitis or cystitis. He also prescribed medication for bed-wetting. She had complained of that in the previous year. Dr Chalker believed that he would have made a superficial examination of her vagina 'to write that note of vaginitis'. This was a fairly common condition and there was nothing to suggest that it arose from any sexual interference with the child. If there had been he would have reported it to the relevant authorities. Dr Chalker's evidence provides no support for that of LG. If anything, it tends to cast some doubt upon it. 58. The appellant complained that the judge directed the jury in a way which accepted that the incidents alleged had happened and that the issue was whether the appellant was involved in any of the incidents. Putting the matter in that way causes problems. If the appellant was not involved in these incidents and he was alleged to be the central player in them at his premises, he would not know whether incidents involving someone else took place. When regard is had to the additional elements, that is, that the alleged incidents took place at his home, and there was no other male there at the time his denial of any involvement in the offences carries with it in practical terms in the circumstances of the present case a denial that the incidents alleged took place. The suggestion that the incidents alleged could have occurred at his home or elsewhere involving some other person is fanciful. 59. In addition to the lengthy delay the appellant submitted that he was very restricted in his ability to meet the Crown allegations because of the death of his grandmother and the burning down of his premises while he was in custody. Despite the major handicap of the delay which occurred the appellant called evidence which cast further doubt on the reliability of the complainants. a. He was overseas from 16 February 1982 to 9 May 1982. Bearing in mind that the incidents were alleged to have happened during a school day this means that the alleged incidents could only have happened between late January 1982 and 15 February 1982. This does not fit in readily with LG's evidence that the incidents happened in 1983 nor with her evidence that she saw her doctor immediately afterwards. On that basis the incidents could not have happened during the school term. b. He was overseas from 12 December 1983 to 29 February 1984. The incident the subject of count 7 (sexual intercourse without consent between 1 December – 31 December 1983) was alleged to have occurred a few days or four days before the end of the school year on 16 December 1983. (The appellant was acquitted on this count). c. The disco lights that LG said she saw above her in the room where she said she was assaulted were not installed there but in the main house in 1983. This was confirmed by Alan Deabel, a drummer in the band with the appellant. d. The premises were not painted green until 1993. 60. The appellant pointed to various weaknesses in the evidence on counts 8, 9, 10 and 11. I do not propose to detail these. There was no supporting evidence of substance on these counts. The prosecution depended on JZ's evidence. 61. The appellant submitted that whatever doubts the jury had were swamped by the admission of some very prejudicial evidence of little probative value and these comments of the judge at SU 9-10: "Now I suppose it would be fair to say that in listening to him, he did not come across to you as a person that you might like. He is somebody that has got different moral values to those – or some of them – to those that you might hold yourself. He goes to Manila – and it is not a crime for people to go to Manila. It is not a crime for people to go to baths (?bars) and it is not a crime for people to pick up women and have intercourse with women. And indeed you do not have to go to Manila to do it – it happens and occurs every day in this city and in other cities. He has a particular like for particular types of women. You might not agree with the way he expressed himself or what he says concerning it, but that is not an offence either. You are not here trying him because you do not like his moral values or indeed the moral values of some of the witnesses that were called for the Crown; for example Mr Cebula. One would perhaps think that there was not much difference between their code of conduct, if I can use that phrase, or their moral values. That still is not a question in which we are concerned. We are concerned in whether this man has in fact committed crimes that he has been charged with, the offences that he has been charged with against these young girls at the time that has been alleged. So that to do that you have got to look at the evidence in this case coldly, rationally and unemotionally. It is not easy to do as I say in cases of this type but that is what you have got to do. You are not here to judge the moral quality of the conduct of the accused or of any of the witnesses. You must remember that, as I say, you act coldly, rationally and unemotionally on the evidence." At SU 45-46 the judge said: "And he gave evidence about his likes of going to the Philippines, the women he liked and such like and as I tell you it is not an offence to go to the Philippines and not an offence to like Philippine women. The only thing that is an offence, it is an offence to interfere with under age children and that is what you have got to be satisfied in relation to this charge. And he is somebody that you might not like from the point of view of the way he gave his evidence or his morals or his views on life but his is not charged here with being somebody you do not like, he is charged with these offences." 62. I have earlier expressed the view that certain prejudicial evidence was incorrectly admitted. That very much affects the comment by the judge which would be appropriate. If the inadmissible evidence of Cebula, KZ and LJS had not been admitted the appellant need not have given some of his evidence and there would have been no basis in the evidence for those comments. 63. The jury appears to have accepted the substance of LG's evidence on counts 1-6 (both inclusive). Much importance must be attached to the constitutional role of the jury. However, in the present case a long shadow is cast over the verdicts by the highly prejudicial and inadmissible evidence of Cebula, KZ and LJS and the lack of correct directions as earlier particularised. The long delay and the lack of complaint for so long are troubling. It was very difficult for the appellant to defend himself. 64. I have earlier outlined the differences of substance between the evidence of LG and that of JZ. These have a material bearing on counts 1, 2 and 3. As to counts 1 to 6 LG did not know when the alleged events occurred. If LG is correct that she saw Dr Chalker within a couple of days of those the subject of counts 4-6 occurring, all the incidents alleged must have occurred shortly before 9 January 1982. Thus, they could not have occurred on the afternoon of a school day as stated in the evidence of JZ and LG. At one stage of her evidence LG seemed to be saying that the alleged incidents happened in 1983. It is improbable that LG would have gone past the appellant's house on the second day, if on the previous day, the incidents alleged (and the subject of counts 1-3) had happened. LG did not have to do so and it is probable that LG would have given the appellant's house a wide berth. 65. The test to be applied in a case such as this is that set out in M v The Queen (1994) 181 CLR 487 at 493-494 as further explained in MFA v The Queen [2002] HCA 53. In the present case the quality of the evidence was poor. I very much doubt if the jury would have convicted had it not been for the evidence incorrectly admitted and the faulty directions. 66. My detailed examination and analysis of the whole of the admissible evidence, much of which has been previously discussed, has led me to the conclusion that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 1 to 6 (both inclusive). 67. Some of the other grounds of appeal do not arise in view of the conclusion that the evidence of Cebula, KZ and LJS was inadmissible. It is unnecessary to deal with the remaining grounds of appeal. 68. There are further reasons for not ordering a new trial. There has been lengthy delay, JZ did not complain until 1996 and LG had to be approached by the police. That was in 1998. Witnesses have died or are not available and evidence has been destroyed. It would be difficult, if not impossible for the appellant to defend himself adequately. 69. I propose the following orders: 1. Extend the time in which the appellant may appeal against his convictions. 2. Appeal against convictions on counts 1-6 (both inclusive) allowed; convictions quashed; verdicts of acquittal entered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.