New South Wales Court of Criminal Appeal CITATION: L.A.H. v Regina [2005] NSWCCA 400 HEARING DATE(S): 10 November 2005 JUDGMENT DATE: 24 November 2005 JUDGMENT OF: Sully J at 1; Hulme J at 41; Latham J at 51 DECISION: Appeal against conviction allowed; Appellant's conviction upon Count 1 quashed; Sentence passed pursuant to that conviction quashed; Directed verdict of acquittal upon Count 1 Crimes Act 1900 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW) R v AJG, unreported, NSWCCA 30/10/97 CASES CITED: M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 L.A.H PARTIES: Regina FILE NUMBER(S): CCA 2005/1627 G. Rowling - Crown COUNSEL: J. Manuell - Appellant S. Kavanagh - Crown SOLICITORS: S. O'Connor - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/41/0183 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1627 SULLY J HULME J LATHAM J 24th November 2005 L.A.H v REGINA Judgment SULLY J: NON PUBLICATION ORDER The Court orders that in any report of this judgment or of the proceedings in this Court, the appellant be referred to only as LAH, and the complainant only as K. Introduction 1 On 25 November 2004 Mr. H (the appellant) was presented in the District Court at Bega and before his Honour Judge McLoughlin SC for trial upon an indictment containing two counts. Count 1 charged that at a particular time and place the appellant had sexual intercourse with one K (the complainant) knowing that she was a person with an intellectual disability and with the intention of taking advantage of her vulnerability on that account for sexual exploitation. Such an offence contravenes section 66F(3) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 8 years. Count 2 was charged in the alternative to Count 1, and charged that the appellant, at the same time and place, had sexual intercourse with the same complainant, she being a close family member, namely his sister; and being above the age of 16 years, namely 57 years. Such an offence contravenes section 78A(1) of the Crimes Act, and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 8 years. 2 The appellant pleaded not guilty to each such charge. He consented to, and accordingly stood trial by, Judge alone. On 28 January 2005 his Honour found the appellant guilty as charged on Count 1. On 5 May 2005 his Honour sentenced the appellant to imprisonment for a non-parole period of 3 years with a balance of term of 2 years. The commencing date of the sentence was set at 27 August 2004. 3 The appellant challenges his conviction and seeks leave to appeal against his sentence. The grounds of the appeal and application, as notified, are: "1. The appellant appeals against his conviction pursuant to Crimes Act 1900 s 66F(3) on the ground that the trial judge erred by misdirecting himself in respect of the contradictions within the complainant's evidence. 2. The conviction was unreasonable and/or it cannot be supported having regard to the evidence. 3. The appellant appeals against his sentence on the ground that the sentencing judge erred in his application of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 4. The sentence was manifestly excessive." The Evidence at Trial 4 Evidence was given by Mr. Stephen Read, a Local Support Co-ordinator with the Department of Aging, Disabilities and Home Care, that he had been assisting the complainant for a period of "perhaps two and a half years". Mr. Read estimated that he would have been in active professional contact with the complainant "on average about once a fortnight". He expressed the opinion that the complainant "would be classified as having a mild intellectual disability". 5 Mr. Read said that on 9 June 2004 he had attended a meeting with the complainant and with one Judy Grassby "……… a sexual assault counsellor or worker ………for Community Health". On 12 July 2004 there was a further such meeting. According to Mr. Read he asked the complainant at this second meeting "…….. if she was feeling safe and if the assaults had stopped". He asked her whether it was still the case that the appellant had moved out of the house. The complainant allegedly replied: "No, it has happened again"; and went on to explain that "it" had happened on the preceding Thursday and at a time when the complainant's mother, with whom the complainant normally lived, had been absent for the purpose of shopping. 6 Mr. Read said that "……… either Judy or I, or attempted to clarify that she was referring to what we understood to be apparent from the previous counselling session". He said that he had asked the complainant whether she thought that the time had come "to talk to another family member", and the complainant replied that she would like to do that. Mr. Read describes as follows the complainant's demeanour on the occasion of the second meeting: "She was extremely uncomfortable, I think the behaviours I witnessed were some of somebody feeling shame and I believe that part of that shame was around her concerns about you know finally feeling that she did need to talk to family about it." [T 7(5)] 7 Thereafter, attempts were made to contact Mr. John H, another brother of the complainant. These attempts led to a meeting with Mr. H on 20 July 2004. 8 Mr. Read's cross-examination was brief. It was put to him that in June, July, "and probably in May", 2004 the appellant had not been living with his mother and the complainant; but "with his son in a flat". Mr. Read said that such might have been the case, but that he did not really know. He was asked whether the complainant had complained in the terms: "Leslie came over and put it in me"; and he replied that he did not recall those words. He was not re-examined. 9 The next Crown witness was Detective Snr. Constable Shayne Aitken, the officer in charge of the case. Detective Aitken identified photographs of what he understood to have been the chair in which the complainant had been sitting at the time of the alleged sexual assault upon her. He explained as follows the reason for there having been no DNA testing of the chair: "Due to the fact from the complainant there was no information that suggested that there was any ejaculation in regards to the offence and the fact that the accused previously lived at the address and visited there daily, we just believed there was, it wouldn't take the investigation anywhere if we had that DNA tested." [T 11 (20)] 10 Prior to trial the complainant had been examined by Mr. Kevin Wallace, a psychologist. The terms of his evidence-in-chief are caught adequately for present purposes in the concluding question and answer of his evidence-in-chief: "CROWN PROSECUTOR: Q. If I could ask you to turn your mind to this definition. Having examined her and conducted the psychometric test do you consider that K has an appreciably below average general intellectual function that results in her requiring supervision or social habilitation in connection with daily life activities?" A. I do." [T 20(50)] 11 Once again, cross-examination was brief. It established that the complainant's disability did not prevent her from remembering things, especially if, for example, she were to read something "that had an impact upon her"; and that she was capable "of making her own decisions". 12 Re-examination, too, was very brief. It established that Mr. Wallace was hesitant to express a view about the complainant's capacity for "abstract reasoning"; and that the complainant, if threatened with physical hurt unless she complied with some particular demand, would comply with the demand, although, as Mr. Wallace added: "…….. other people do, too". 13 At this point in the trial the taking of evidence was interrupted in order that his Honour might deal with a proposal by the Crown to lead from the complainant, and over objection, relationship evidence that the Crown Prosecutor described as follows: "Your Honour, the evidence relates to simply the complainant giving evidence of the incident she complains of. Similar incidents have been occurring since she was a teenager. She's now fifty-seven your Honour. Your Honour, this is a situation, the evidence will be that the accused comes to the house and simply disrobes, tells the complainant to take her clothes off and then intercourse occurs. He then puts his clothes back on and simply leaves. Now, in the absence of evidence that there had been other incidents, your Honour, that would appear most odd and it would be unexplained as to why it was that the complainant was going along with what had occurred. …………………" [T 22(57) – T 23(14)] 14 His Honour rejected any leading of such evidence. His Honour's reasoning, put simply, was that the proposed evidence had clear probative value, but that such value was clearly outweighed by the obvious inability of the applicant to meet fairly the proposed allegations of uncharged sexual misconduct said to have occurred a long time previously. Had the trial been by Judge and jury, the jury would have heard nothing about the existence or the scope of these further allegations. His Honour, sitting alone, and having refused to admit the proposed evidence, was bound, of course, to put wholly aside anything that had been put to him in argument about its admissibility. This Court, when making in connection with Ground 2 its independent assessment of the evidence at trial, must proceed in the same way. 15 The evidence at trial resumed with the taking of the complainant's own evidence. 16 The complainant gave evidence that on the relevant Thursday her mother had gone to a medical appointment, leaving the complainant seated in her "special chair" and watching T.V. She was wearing, she said, distinctive pyjamas, a dressing gown and moccasins. She heard a car pull up outside; and, presently, the appellant entered wearing "jeans, a T-shirt and boots". She felt "…… not too bad" when she saw the appellant, and she "wondered what he was doing there, why he came". According to the complainant's evidence-in-chief matters thereafter developed as follows: "Q. What did he do when he came into the room? A. I think he asked where mum was. I said, think, said "She's gone to the doctor's", and then he went in, I think he went into the bathroom and took his pants off. Q. Where did you see him? He went into the bathroom? A. Yeah, and then he came out without his pants on. Q. And did you say anything or did he say anything then? A. Yeah, he did, but I don't remember what he said. Q. Did you say anything? A. Not really. Q. What did you do? A. I, I said, I should have said, "I don't want to do it". I should have, like, been sterner, you know, said it in a rough sort of voice. Q. Did you say that? A. No, I didn't. I wasn't stern enough. Q. Do you remember what the words you said were? A. I didn't really want to do it. I didn't, I don't think he took no for an answer. Q. Did he say anything when you said that? A. No, no. Q. What happened then? A. I think when he done that he went and put his pants on and he left. Q. And before he put his pants on and left what happened? A. I didn't see what happened, I don't know. He went into the bathroom. Q. You said that he came out of the bathroom and he didn't have any pants on? A. Yeah. Q. Well, what happened after he came out of the bathroom? A. He, he had his pants off and then he did that to me and then after he did it he went back into the bathroom to put his pants on. Q. When you say he did that to you, what did he do? A. He pushed, he pushed his thing into my vagina. Q. When you say his thing, what -- A. Penis. Q. What position were you in, where were you when he did that to you? A. On my chair. Q. And what position on the chair were you? A. I was leaning back. Q. How did you come to be leaning back on the chair? A. Well, because I, that's the way I do it. I lean forward a bit. I was like this and then leaned forward. Q. And you said he put his penis in your vagina? A. Yes. Q. What was happening with your clothing? A. I took, I took one leg out of my pyjamas. Q. Why did you do that? A. Well, I, because I do. Got no other answer. Q. Do you know what his penis was like when he put it in your vagina? A. Yeah, it was a bit hard. Q. And how did it feel when it went in your vagina? A. It hurt. Q. And how long did he leave it in you? A. A while and then he goes and gets the stuff out. Q. Did he do that on this? A. No, no, he didn't. Q. What did he do after he pulled his, he took his penis out, what did he do? A. He did that, then he put it back in his pants. Q. What did you see him do when he pulled his penis out? A. Well, he ejaculates. Q. Where did he do that? A. In, I think he does that in the bathroom. Q. So after he pulled his penis out of your vagina where did he go? A. He went into the bathroom. Q. You were on the chair? A. Yeah. Q. And you've given, you've told us the way you were sitting. What position was Leslie in? A. Leslie, I think he, he, I think he knelt down on the ground. Q. When Leslie went back to the bathroom what did you do? A. I, I sat there till he left. He came out and then he left and then I went into my room and got dressed." [T 30(10) – T 32(2)] 17 According to the complainant she did not tell her mother about what had happened because "sometimes I get a bit scared to". The complainant said that she had told her friend Marina about the incident: "I think it was on the Thursday and I told her". She said that she had also told Mr. Read and Judy Grassby. She said that the appellant's car was "……… a Corona, it's blue and grey". 18 The complainant was extensively cross-examined. During the course of that cross-examination the complainant said a number of things that were flatly contradictory of things that she had said previously. The appellant's written submissions identify the following "seven significant contradictions within …… (the complainant's) …….. evidence": "1. Whether the complainant and the appellant's mother had spoken to the appellant before the mother left the house in the afternoon of 8 July 2004. 2. Whether the complainant looked outside the window when she said the appellant arrived at the house on 8 July 2004. 3. The period of time that the complainant said the appellant was in the house on 8 July 2004. 4. What the complainant was wearing at the time she said the appellant had sexual intercourse with her. 5. What the appellant was wearing when, on the complainant's evidence, he left the bathroom and initiated sexual intercourse with her. 6. Whether the appellant's penis was hard or soft at the time the complainant said he inserted it into her vagina. 7. Whether the appellant did indeed have sexual intercourse with the complainant on 8 July 2004." 19 In connection with each of the seven suggested contradictions the appellant's written submissions quote in detail the relevant passages of evidence. The quotations are faithful to the transcript; but they are extensive, and it is, I think, unnecessary to set them out in fine detail. There can be no doubt, in my opinion, that a fair reading of the entirety of the complainant's evidence does indeed disclose each of the seven suggested contradictions. 20 The contradictions being clearly established, it becomes a matter of critical present importance to consider: first, how the learned trial Judge dealt with them; and secondly, how this Court should now deal with them. I shall come to those questions later in this judgment; but will first complete the survey of the trial evidence. 21 Mr. John H gave brief evidence about the appellant's domestic circumstances at various times. He confirmed that the appellant sometimes used his mother's car, a 1981 model Toyota Corolla. He said in cross-examination that the complainant and her mother were very close, "almost like sisters ……….. because they've just been together so much for fifty seven years". 22 Detective Snr. Constable Aitken was recalled in order to prove the circumstances of the appellant's arrest; and in order to introduce evidence of the contents of an ERISP that had been thereafter conducted with the appellant. 23 That concluded the oral evidence in the Crown case. The appellant did not either give or call oral evidence. 24 The present appeal book does not contain a transcript of the appellant's ERISP, but his Honour described the contents thus: "The accused was interviewed and readily consented to it by the arresting police officers. He, throughout that interview, presented himself in a forthright fashion and denied the offences, leaving the Court with a picture of being forthright, not attempting to avoid the questions, and answering them readily and spontaneously." [AB 27] The Relevant Principles and their Application to the Facts of the Present Case 25 It is convenient to begin by quoting the following passage from his Honour's judgment explaining his finding of guilt on Count 1: "With those matters in the forefront, the question as to whether the complainant's evidence can be accepted or whether there is such unreliability about it that the Court in exercising its fact-finding tasks would find that there is a doubt as to whether it occurred and whether that doubt is a reasonable one. Without revisiting the evidence to which I have referred of the complainant, at all times she, except for the one concession at the end of cross-examination, maintained that sexual intercourse occurred. In my view that concession was given in circumstances where Ms H was prepared to accept propositions put to her by a person she perceived in a more senior position who may be a more reliable historian. The situation is that in her initial complaint she gave evidence of sexual intercourse between she and the accused, she gave sworn evidence of it, and she gave evidence of it in her evidence in re-examination. She gave evidence when speaking of the accused, as I have indicated, of having affection towards him. These matters are to be weighed up with the degree of unreliability of which I have directed myself. Notwithstanding the potential for unreliability, I am of the view that on the assessment of Ms H's evidence and whatever corroboration it obtains from the complaint referred to by Mr. Reid, it is evidence which even in that form may cause a doubt but on proper review of it I am not satisfied the doubt is a reasonable one to not be satisfied that the offence is not made out." [AB 27-28] 26 His Honour was clearly alive to the need to direct himself, as he would surely have been required to direct a jury had there been one, of the potential for unreliability of the complainant's evidence: see Evidence Act 1995 (NSW) s.165. It is settled law that a section 165 warning must be given in terms appropriate to the particular case rather than in the form of a standardised direction. There is no principle of universal application that the statutory warning must embody a direction that it would be dangerous to convict upon the particular evidence: R v AJG, unreported, NSWCCA 30 October 1997, per Hunt CJ at CL. 27 I can find no fault with the terms of the section 165 warning which his Honour noted. The appellant does not contend, in my understanding, to the contrary. The appellant's point is, rather, that his Honour erred in the way in which he gave effect to the warning: that is the point of Ground 1. 28 His Honour's approach to that topic is summed up in the following passage of the relevant judgment: "In relation to the evidence given in cross-examination it is my view that Ms H responds to propositions put by persons with whom she sees in authority and when put in a manner which may cause her to question that which she said, she will do so and be prepared to accept the proposition by a person she sees in a more important position than herself. In having said that it does not necessarily mean that the Court should accept the totality of her evidence. The Court must direct itself on the provisions of s 165 of the Evidence Act , in particular subs (1) (c) : "where the evidence of reliability which may be affected by the age, the ill health, whether physical or mental, injury or the like of the witness" and the Court recognises the reliability or the potential for unreliability in such evidence that arises from the disability of the complainant. The reliability or otherwise of the essential features as to whether sexual intercourse took place is the matter for determination by this Court after those warnings have been given and Ms H's evidence assessed for its reliability, bearing in mind there is no corroborations of her evidence and there is only evidence of complaint in the unsatisfactory manner to which I have referred. The confusion in answering questions, highlighted by Mr. Hoenig, indicates potential unreliability and gives a basis for this Court having to give warning to itself as the fact finder as to the acceptance or otherwise of Ms H's evidence." [AB 26-27] 29 At first blush I was inclined to think that this reasoning was ambiguous, in that it is not clear whether the purport of the reasoning is that the complainant had, in his Honour's perception, a general tendency to agree with things put to her in a leading form by anybody in an apparent position of authority; or that, in his Honour's perception, the complainant had that tendency only in cross-examination because, although the appellant's counsel at trial was plainly but one of a number of such persons, he was the only one who asked the complainant leading questions. 30 I have read the whole of the complainant's evidence and it seems to me that in fact the appellant's counsel at trial was indeed the only person in relevant apparent authority who asked, and quite properly it should at once be added, leading questions of substance. In my judgment that does not suggest misdirection as alleged in Ground 1. 31 That conclusion does not answer the appellant's submission that the complainant denied the alleged incident in a simple and responsive answer to a simple and non-leading question from his Honour himself: see at T 49. His Honour does not advert to this episode, but I would not see that as indicating that his Honour erred in the sense that he misapplied the section 165 warning that he had given himself. In my opinion Ground 1 has not been made good as a stand-alone ground. It seems to me that the real potential importance of the submissions made in connection with Ground 1 lies in their effect in the different context of Ground 2. 32 As to Ground 2, the relevant principles are now well settled in the terms laid down by the High Court of Australia in M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 494. 33 In my opinion a reasonable jury, had there been one and had it been correctly directed, ought to have had a reasonable doubt as to the appellant's guilt on Count 1. 34 First, the Crown case rested upon the version of a complainant who was handicapped by a significant intellectual disability: cf Morris v The Queen (1987) 163 CLR 454; 35 Secondly, the evidence of the complainant was unsupported by evidence independent of her; 36 Thirdly, the evidence of the complainant was repeatedly contradictory about matters of real importance, including the basal allegation that a sexual assault as charged had actually occurred; 37 Fourthly, if and insofar as it was permissible to discount contradictions elicited in cross-examination, it was at least a continuing and relevant concern that one contradiction going to the heart of the Crown case came in a clear, simple and responsive answer to a clear, simple, non-leading and non-overbearing question from the tribunal of fact; that other odd and inconsistent answers were given to simple and non-leading questions from the Crown Prosecutor; and that the psychological evidence did not support a proposition that the complainant was so profoundly and consistently suggestible that her complaint could be safely accepted, but that her contradictions could be safely disregarded; 38 Fifthly, the nature of the case was such that it was necessary to be particularly on guard not to elide a justifiable concern or even suspicion that the alleged incident might have occurred; with a finding reached beyond reasonable doubt that the alleged incident did in fact occur. 39 I have come to the conclusion that the combined effect of the foregoing considerations is such that the question whether "even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted", - see M at the citation supra ,- ought to be answered in the affirmative. 40 I would therefore uphold Ground 2. I would make thereupon orders: [1] That the appeal against conviction be allowed; [2] That the appellant's conviction upon Count 1 of the indictment upon which he stood trial be quashed; [3] That the sentence passed pursuant to that conviction be quashed; [4] That there be a directed verdict of acquittal upon the said Count 1. 41 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Sully J and I can accordingly be brief. 42 Subject to what follows, I agree with what his Honour has said. However the respects in which I differ from his Honour lead me to the conclusion that the appeal should be dismissed. 43 In so concluding I am greatly influenced by two answers in the complainant's evidence in chief which Sully J has quoted, and which bear repetition:- "Q. How did you come to be leaning back on the chair? A. Well, because I, that's the way I do it. I lean forward a bit. I was like this and leaned forward. … Q. What was happening with your clothing? A. I took, I took one leg out of my pyjamas. Q. Why did you do that? A. Well, I, because I do. Got no other answer." 44 In context, parts of the first and last of these answers strike me as exhibiting an almost child-like frankness and spontaneity and which entitled Judge McLoughlin, if he was so minded to accept them. And if these answers were accepted, little more was required for his Honour to be satisfied that intercourse had occurred. 45 The answers were of course, in response to questions but those questions were not of such a nature that the answers are explicable on the basis which led Judge McLoughlin to observe that the complainant "responds to propositions put by persons with whom she sees in authority and when put in a manner which may cause her to question that which she said …(sic)" 46 It must be recognised that the two answers seem clearly to embrace conduct on earlier occasions and his Honour had excluded particular evidence which the Crown had sought to tender relating to those occasions. But be that as it may, the evidence which I have quoted was given and not objected to. His Honour was therefore entitled to use it. 47 If that conclusion be right, the evidence provided a firm foundation for his Honour's ultimate decision to accept evidence of the complainant incriminatory of the Appellant and to be satisfied beyond reasonable doubt of the latter's guilt. 48 The test to be applied by this Court is that set out in M v R (1994) 181 CLR 487 at 494:- "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, jupon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 49 In this case the lack of credibility in some of the complainant's evidence is explicable by the manner in which it was given and to which Judge McLoughlin referred. Most of the other inconsistencies, and which Sully J has conveniently summarised, are readily explicable upon the basis that they related to matters of little consequence (or of so little consequence that they were unlikely to be remembered) or are easily explicable unless one is prepared to conclude that no similar occurrences had occurred before. If, of course, the conduct with which the Appellant as charged had occurred on other, possibly numerous occasions, then a degree of confusion as to details would hardly be surprising. His Honour's rejection of evidence that there were similar occurrences in the past, does not lead to the positive conclusion that they had not occurred. 50 Notwithstanding the views of Sully and Latham JJ, I am not led to conclude that there is "a significant possibility that an innocent man has been convicted". I would dismiss the appeal. 51 LATHAM J: I agree with Sully J. ********** 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. 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