New South Wales Court of Criminal Appeal CITATION: Sharyn Ann Munn v Regina; Thomas Miller v Regina [2006] NSWCCA 61 HEARING DATE(S): 8 March 2006 JUDGMENT DATE: 24 March 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Barr J at 3 DECISION: The appeals are allowed and the convictions appealed from by both appellants are quashed. New trials are ordered. CATCHWORDS: Criminal law - juror complains about asserted out-of-court acts of accused - whether juror biased - whether complaint appropriately dealt with - Criminal law - whether juror biased - whether irregular to receive verdicts without further enquiry - whether miscarriage of justice - Criminal law - defence counsel prevented from cross-examining complainant on her general sexual experience - Crown Prosecutor submitted in closing that complainant appeared to lack sexual experience - whether miscarriage of justice - Criminal law - delay in complaint - whether substantial - whether warning required about effect of delay on accused's ability to defend themselves - Criminal law - whether convictions unreasonable and unable to be supported by the evidence Criminal Procedure Act 1986 LEGISLATION CITED: Evidence (Children) Act Jury Act Webb v The Queen (1993 – 1994) 181 CLR 41 R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991 unreported R v Rudkowsky Court of Criminal Appeal, New South Wales, 15 December 1992 unreported Crampton v The Queen (2000) 176 ALR 369 CASES CITED: Longman v The Queen (1989) 168 CLR 79 R v BWT (2002) 54 NSWLR 241 R v NZ [2005] NSWCCA 278 R v Yates & Ors [2002] NSWCCA 520 M v The Queen (1994) 181 CLR 487 PARTIES: Sharyn Ann Munn, Thomas Miller, Regina FILE NUMBER(S): CCA 2005/2109; 2005/2091 COUNSEL: V Lydiard A Haesler SC SOLICITORS: S Kavanagh Legal Aid Commission of New South Wales LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/03/0109 LOWER COURT JUDICIAL OFFICER: Gibson J IN THE COURT OF CRIMINAL APPEAL 2005/2109 2005/2091 SPIGELMAN CJ SIMPSON J BARR J 24 MARCH 2006 SHARYN ANN MUNN v REGINA THOMAS MILLER v REGINA Judgment 1 SPIGELMAN CJ: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: The appellants, Sharyn Ann Munn and Thomas Miller, appeal against convictions which followed their joint trial in the District Court. They also seek leave to appeal against the resulting sentences. They were jointly charged with having committed an act of indecency towards a seven-year-old girl and having on two occasions had sexual intercourse with her. In addition the second appellant was charged alone with having had sexual intercourse with the complainant. 4 The complainant lived with her mother and stepsister in rural New South Wales. She and other children used to play in the driveway of a block of flats near her home. The second appellant lived in one of those flats and the first appellant, his girlfriend, often stayed there. There was an occasion when the complainant travelled to Queensland to visit her father and his wife. The complainant told her stepmother that the second appellant had sexually assaulted her. The police were called in and she was interviewed. The interview was videotaped. In the interview the complainant said that the second appellant had placed his finger inside her vagina, put his penis into her vagina and had licked her vagina. She said that the first appellant was present during those assaults. The second appellant was arrested. He denied all the allegations. 5 Later on the complainant was interviewed again. She gave further details and said that the first appellant was lying naked in bed next to her during the assaults she had described. Police therefore arrested the first appellant and interviewed her. She denied all the allegations. 6 Police again interviewed the complainant on three further occasions. She gave additional details about the assaults and acts of indecency. She also said that about the same time, early in 2001, she had had sexual intercourse with a twelve-year-old boy, whom she named. 7 At trial the Crown case was that each of the appellants had self-masturbated in front of the complainant. Those acts constituted the first count against each appellant. The second count relied on the second appellant's digital penetration of the complainant's vagina in the presence of the first appellant. The third count relied on the second appellant's penile penetration of the complainant's vagina in the presence of the first appellant. The count against the second appellant alone relied upon his act of cunnilingus at a time when the first appellant was asleep. 8 The complainant's evidence was adduced principally by playing videotapes of the several interviews she had had with the police, though she was further examined in chief, cross-examined and re-examined by means of a remote closed-circuit television. 9 The second appellant gave evidence denying that any of the assaults had happened. The first appellant did not give evidence but called an ex-partner to give evidence of good character. The Grounds of Appeal Ground 1: His Honour erred in failing to discharge the jury when it was clear that at least one juror, and potentially more jurors, had a bias against the accused. 10 On the sixth day of hearing the jury retired to consider their verdicts at 11:18am. They did not reach a decision on that day and were allowed to separate overnight. They resumed their deliberations at 9:30am on 19 November. On that day the Sheriff's officer sent messages to his Honour to the effect that the jury had reached their verdicts and that one of them had complained to the officer. The complaint had been put in writing. His Honour called the officer into court. The officer confirmed these matters and handed to his Honour the paper with the complaint written on it. His Honour read it out. It was as follows - On 18 November 2004 when I parked my vehicle in Fitzroy Street above the railway line I saw the accused. They watched me get out of my ute. I then waited until they walked ahead and then went to our entrance of the Court House. At 8:30pm at night a car parked across the road shining the lights on high beam in my lounge room for about five minutes then drove off. Five minutes later a different car came from the same direction at high speed but did not stop. As I came to … (not transcribable due to banging door) … this morning the accused followed me. 11 His Honour proposed to counsel that he should ask the juror whether he had discussed the matters canvassed in the note with any other member of the jury before they reached their verdicts. Counsel did not oppose that course. 12 The juror was called into court and this conversation took place - HIS HONOUR: Mr Juror would you just step up here please? Is that your document sir? JUROR: Yeah. HIS HONOUR: Prior to the jury coming to a decision, and I am not asking you what that decision is please, prior to them coming to a decision did you discuss this matter with any of them? JUROR: I did this morning, yes. HIS HONOUR: What did you tell them? JUROR: Pretty much what's in there. HIS HONOUR: Did you tell it to all of them? JUROR: No. HIS HONOUR: Who did you tell it to? JUROR: A lady and one young bloke. HIS HONOUR: Was there any particular reason you picked those -- JUROR: They were the ones that were there with me when we waited. HIS HONOUR: They were the ones that were with you as you waited to go into the jury room. Was it discussed in the jury room? JUROR: Not until after we had made our decision. 13 His Honour instructed the juror to return to the jury room but not to speak to anyone about the matter he had raised. When asked whether the juror should be segregated his Honour said that that was not necessary. 14 Both defence counsel immediately applied for an order discharging the jury. There was this debate - PARKER (counsel for Miller): The basis that I put it on is this that to the extent that we know from the note precisely what this juror's complaint is, it seems to be that last night there were incidents involving cars and car lights at his house, which he seems to perceive as being some form of or attempt to intimidate him and he associates that with the accused. This morning while deliberations were still going on he gave that information to at least two, well to two he said -- HIS HONOUR: Two people that were waiting with him to go into the jury room. PARKER: -- of the other jurors. Obviously I don't have any instructions as to the matters that he has raised but it's reasonably open that the events, that the cars and lights at his house last night had no connection at all, that he is wrongly identifying some form of attempt to intimidate and attributing it to the accused. He and at least two others of the jurors had that information while deliberations were going on. That's the application I make and that's the basis for it. WATSON (counsel for Munn): I make that same application also your Honour. The material, it's within more than that gentleman and it may well have prejudiced the appropriate assessment of the evidence in the trial. HIS HONOUR: Yes. Mr Crown? CROWN PROSECUTOR: Your Honour I oppose any discharge, it's not a matter which can't be dealt with. The jury has made a decision. At the most three of the people involved out of the twelve had some knowledge. It doesn't necessarily import some sinister content. HIS HONOUR: Your application is noted. I don't know what the jury's verdict is and this matter has been before the Court on other occasions. It has got a history, I don't mean of this type of thing, but it's now got a history of the trial being aborted for various reasons. This jury say they have reached a verdict and I am going to take the verdict. You application has been noted. 15 The verdicts were taken without further delay at 12:15pm. I infer that at least two hours elapsed between the time the jury arrived at court and the time they reached their verdicts. 16 It was submitted in this court that the juror's complaint involved an implicit allegation that the accused had attempted to intimidate him. He had told two other jurors about the matter and may have told others. The events described in the complaint had taken place before any of the jurors arrived at their verdicts. There was no evidence that either of the appellants had done any of the acts the juror had apparently thought they had. 17 In Webb v The Queen (1993 – 1994) 181 CLR 41 Deane J considered the doctrine of disqualification by reason of the appearance of bias. His Honour considered that there were at least four distinct, though sometimes overlapping, categories. His Honour said this at 74 - The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first ((99) e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third ((100) e.g., a case where a judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey v. New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries v. Spedley Securities (1992) 26 NSWLR 411.) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. 18 It was submitted by counsel for the appellant that what had happened fell into the fourth category identified by Deane J. It could not be said that what had happened had not affected the verdicts or that the jury would have returned the same verdicts if the irregularity had not occurred. The verdicts ought therefore to be set aside. 19 It was submitted by the Crown that no irregularity had occurred and that the complaint made by the juror did not support a case of bias. 20 I infer that the complaining juror must have believed that the appellants were trying to intimidate him and that at best the juror was likely to regard the attempt as detrimental to the appellants, whose versions he was required to evaluate. At worst the juror would regard what he had seen as tantamount to an admission of guilt. Yet there was no evidence, properly so-called, that any of the conduct attributed to the appellants had in fact taken place or had taken place with the intent that the juror must have been inferring. The risk of a miscarriage of justice was plain. By the time of the events complained of the jury had already been directed in conventional terms to judge the case fairly and dispassionately. The emphasis in those directions, however, would have been understood by the jury to be directed principally to the need to guard against an emotional approach to the evidence of a little child about such serious matters. The summing-up contained no warning against taking into account extraneous matters. 21 There were several things the trial judge could have done to attempt to remove the risk of a miscarriage. The complaining juror could have been segregated. The two jurors to whom he had spoken could have been identified and segregated. Each of the three jurors could have been examined on oath pursuant to s 55D Jury Act to ascertain whether the asserted acts of the appellants had had any effect on the verdicts. It might have been possible to enquire whether the things the juror was complaining about had an innocent explanation. It is inappropriate now to speculate about what might have resulted from proper enquiry, but it might have been possible to take safe verdicts, perhaps after discharging one or two jurors. Unfortunately, no proper enquiry was made. In my view it was irregular to go straight on and take verdicts when at least one member of the jury had apparently been influenced by the asserted acts of the appellants. 22 The test for this Court is whether the Court can be satisfied that the irregularity did not affect the verdicts: see the judgment of Gleeson CJ in R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991 unreported and R v Rudkowsky Court of Criminal Appeal, New South Wales, 15 December 1992 unreported. In my opinion it cannot be said that without the irregularity the verdicts would have been the same. I would uphold the appeal on this ground. Ground 2: (a) His Honour erred in his interpretation of s293 Criminal Procedure Act 1986 and restricting the cross-examination of the complainant. (b) If the eliciting of evidence of the complainant's prior sexual experience was properly excluded, the Crown's comments about the lack of sexual experience of the complainant led to an unfair trial. 23 The defence case was that the complainant had concocted her story. Defence counsel were concerned that the jury might think that a seven-year-old girl was unlikely to possess the kind of knowledge or experience to equip her to do so. Counsel therefore wished to explore the complainant's relevant knowledge and experience. The leave of the Court was necessary before counsel could do so. Section 293 Criminal Procedure Act is as follows - (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. 24 Counsel for the appellant Miller sought leave. The request was put in writing and marked 1 for identification. It was as follows - Pursuant to s293(4)(c) and to s293(b), Criminal Procedure Act, the accused Thomas Miller seeks leave to cross examine the complainant otherwise elicit evidence to the following effect: a) Whether in the period 1998-2000 one (name) (KW) was a boyfriend of the mother of the complainant (V). b) Whether at times KW lived in the same household as V. c) Whether at times V was left in the care of KW. d) Whether KW was a person previously convicted/imprisoned for sexual assaults against young girls. e)Whether V for a period of 3 years had been "close to KW in a way she didn't like". f) Whether KW played "wrestles" with V. g) Whether KW played "tickling games" with V and then touched V between the legs. h) Whether KW touched V "privately" in V's vagina. i) Whether KW struck V in the vaginal area with a leather belt. j) Whether during a car trip KW undid V's belt, lifted up her skirt and/or touched V on the upper leg. k) Whether KW told V about and/or showed V different types of sexual activity. l) Whether KW carried out any act(s) involving sexual penetration by KW of V's vagina. 25 His Honour decided to look at and listen to the videotapes of the complainant's interviews before deciding whether to grant leave. These passages were relevant to what his Honour had to decide- From the interview of 5 June 2001- A. And he done S-E-X to me. Q. O.K. Can you tell me what S-E-X means? A. It means when a boy and a girl get together and a man puts his thingo up the girl's private. Q. O.K. And how do you know that? A. because I've watched it on T.V. shows and… Q. O.K. A….and I've watched it. … Q. O.K. How do you know what S-E-X is? A. It's, what is it? Q. Mmm. A. Well it's when a man and a boy get together, oh, and a girl and a boy get together and they do, like, the man puts his thingo, can I say it? Q. Mmm. A. He put his dick up the lady's wee wee and then they, they go up and down. From the first interview on 10 December 2002- Q. And you've told me about something that happened with, with someone else. Is that right? A. Yeah. Q. O.K. Can you tell me everything that happened about that other person? A. Yeah. Q. O.K. What happened? A. Well I was going down to play with my friend ( name ). Q. Yeah. A. And she wasn't there, she was at her aunty's. Q. O.K. A. And the twelve year old boy was there. Q. Yeah. A. And he called me over into his dad's old Falcon car. Q. Yeah. A. And he asked me if he would like to have S-E-X, and I said, No. And he goes, it's only a little bit. Q. Yeah. A. And he pulled me into the car and then he started to do that. Q.. O.K. What did he do in the car? A. He pulled down his pants and he started to pull down, oh, sorry, pull up my dress. And he, he moved my underwear aside and he stuck his private in mine. Q. O.K. Yeah. Then what happened? A. And then he did that and I was trying to say, stop it… … Q. And he asked me to have S-E-X. Is that right? A. Uh-huh. Q. And you said, No. A. Yeah I said, No. Q. O.K. What do you think he meant by that? A .Um… Q. Had you ever heard of that before? A. Just normal. Q. Had you heard of that before? A. Yeah. Q. How did you hear about that? A. On T.V. Q. O.K. Right. Had you ever seen that before? A. No, never. … Q. Have you ever seen a man's private before, a boy's private before that day? A. (No audible reply). Q. No. O.K. All right. What did it look like? Was it, I know it's a bit embarrassing but if you try really hard to remember what, how would you describe it if you saw it? A. Well… Q. You can say anything, that's all right. A. Um… Q. Do you want me to look over here so you can, so I'm not looking at you or… A. No, oh, stiff. … Q. O.K. And he moved your underwear aside. A. Yeah. Q. How did he do that? How did he move your underwear aside? A. He grabbed that side of it and just pulled it over. Q. Pulled it across. O.K. And when you said that he started doing sex what do you mean by that? A. He just started doing the normal. Q. O.K. What's, what's the normal? A. Um… Q. Did he do something with a part of his body or, or what? A. No, only his private. Q. O.K. What did he do with his private. A. He stuck it in my private. … Q. O.K. Was it in your, was it inside your private or was it on the outside of your private that… A. Inside. Q. Inside. A. Yeah. Q. How, how far inside? A. About that much. Q. So you just showed me with your fingers there about 2 centimetres. Is that right? A. 2 centimetres, yeah. … Q. Did the twelve year old boy do anything else with any part of his body apart from… A. No. Q.….his private? A. No. 26 After his Honour had viewed the videotapes there was this debate - HIS HONOUR: Mr Crown, it is part of your case isn't it, that although the girl was penetrated by a male. CROWN PROSECUTOR: Yes Your Honour: HIS HONOUR: By two males. CROWN PROSECUTOR: Two males. HIS HONOUR: One was a 12 year old, so that he couldn't have caused the damage, the resultant damage to the hymen and that area. CROWN PROSECUTOR: That's right your Honour, that's the. HIS HONOUR: Well it seems to me, if that be so, that if there was an opportunity – there's no time limit as I understand it put on when the injuries were. CROWN PROSECUTOR: There's not your Honour, no. HIS HONOUR: Now it seems to me if that's so, the accused should be given the opportunity to ask the young girl these questions in relation to Section 293(4)(c), pertaining to the injury. Whether in the period she knew (KW). Whether he was a boyfriend of her mother I don't think is relevant as to what her understanding of what his position in the household was. But I'll allow you to ask firstly whether she knew (KW). And that, she can be asked whether at times he lived in the house with her and her mother, whether at times she was in the company of (KW), and finally, whether he at any time tried to or penetrated her in any way. CROWN PROSECUTOR: Yes your Honour, I've got no objection. HIS HONOUR: That's as far as I'll let it go Mr Parker, I'm not going to allow any other material. I think that's really what you're after, and I think that that allows a fairness to the accused to put the material that you want to put on the basis that you want to put it. I'm not going to allow it on – what submission are you going to make? Assume I allowed all of that cross-examination, what would be your submission to the jury? PARKER: The other aspect of it was -- HIS HONOUR: Well that's what I am asking. What's your submission to the jury, assume I allow all of it? PARKER: Depending on what emerged. It would probably be that here was material that the jury could regard as explaining the fact if the jury so perceived that for a girl of her young age, she had an advanced knowledge of sexual matters otherwise than attributing it to the activities of the accused. That was the other aspect of it (emphasis added). HIS HONOUR: No, I'm not going to allow that type of cross-examination. In my view that's the very type of cross-examination that this Section of the Act is aimed at preventing. And I do not think in my view that it is unfairly prejudicial to the accused to not allow that. PARKER: I understand your Honour's reason. I mean the extent to which I would put a submission like that to the jury in any event would depend I guess on the extent to which the Crown sought to make something of that idea (emphasis added). HIS HONOUR: Well I don't know, but in my view it's a fishing expedition, and it's not the type of material that would be, as I say, it's my view that the Section is aimed at that very type of cross-examination. I'm not being critical of you, I understand you've got a duty to do, but in the light of the Crown resting the material on the – in relation to the size of the penis, I think that's a proper line of cross-examination that you can – in relation to those limited questions. And I am not going to let a far ranging cross-examination so let's make it clear what I will allow. I will allow a question in relation to number A in the document that you handed up to me as to whether she knew (KW). Number B on the document that you handed up, whether at times he lived in the same household as her and her mother. Number C, whether at times she was left – or she was left in his care. And number L, whether he carried out any act or acts involving penetration of her. Now that might have to be more than one question, but I'm not going to allow a long ranging question in relation to it. It's limited to whether he had in fact penetrated her in any way or tried to penetrate her in any way. PARKER: I understand your Honour fully. HIS HONOUR: Well, I'll allow digital or penile I think. CROWN PROSECUTOR: I wouldn't object to that your Honour. HIS HONOUR: I think it doesn't really carry the matter much further in relation to the digital, but I think it may well be allowable, and I'll allow that. But that's as far as I'll allow any cross-examination of the young girl in relation to the matters referred to in the document signed by you, and which I'll just have put with the papers. All right? PARKER: Your Honour pleases. 27 There was no further response from the Crown Prosecutor. 28 The reference in the document MFI 1 to subs (4)(c) was to para (ii). The evidence the Crown had foreshadowed about the state or absence of the complainant's hymen would if accepted demonstrate that the complainant had an injury consistent with her complaint and rape. That might support the complainant's evidence. It was therefore appropriate for his Honour to grant leave to cross-examine about other ways in which that condition might have come about. 29 That was not the only consideration, however, because counsel relied on also on subs (6). The first thing his Honour had to decide was whether the subsection applied. While it was nowhere disclosed that the complainant lacked experience of the kinds of acts she described in her first interview, defence counsel obviously took the view that the very age of the complainant implied a lack of experience. Unfortunately, defence counsel did not develop his submissions in any depth and his Honour's judgment was very brief. However, I do not think that the material put before his Honour raised an implication likely to be relied on by the Crown that the complainant lacked experience. The Crown Prosecutor did not say that he intended to present the case in that way. As far as the evidence went, the Crown case was that the complainant did not lack experience. There were her references to what the twelve year old boy had done, to what she had seen on television and to what she had seen otherwise. Her answers that what the twelve year old boy had done was "normal" sex implied the opposite of a lack of experience. I do not consider that, as the Crown case then appeared, subs (6) had any application. His Honour did not err in refusing leave to cross-examine on the topics (d) – (k) in MFI 1. 30 During Mr Parker's cross-examination of the complainant there was this evidence - Q There's one other thing that I want to ask you some questions about, that's this: In the period of a couple of years before you left …, did you know a man named (KW) ? A Yes. Q At times did (KW) live in the same household as you were living in? A Yes. Q Were there times when you were left in (KW's) care? You were left with (KW) for him to look after you? A. All of us kids or just me? Q Including you? A Yes. Q At any time did (KW) penetrate your private parts, or try to do so? A. What does penetrate mean? Q Penetrate means to put something into your private parts? A No. Q Did he try to put either his penis or his finger or anything else into your private parts? A No. 31 During cross-examination by counsel for Munn there were these questions and answers- Q. Do you remember speaking to the same police officer that I've just asked you about, the Queensland police officer, Sheree on 5 June 2001 and it was played on tape yesterday, and do you remember the police officer asked you about what you meant by sex? A. Yes. Q. Do you remember that? A. Yes. … Q. The police officer asked you this: "Can you tell me what sex means?" and your answer was, "It means when a boy and a girl get together and a man puts his thingo up the girl's private." The next question from the police officer was, "Okay, and how do you know that?" and your answer was, "Because I've heard it on TV shows". The police officer, says, "Okay". And the remainder of your answer was, "and I've watched it". Do you remember that, being asked those questions? A. Yes. Q. And giving those answers? A. Yes. Q. Now was that the truth? A. Yes. Q. That you've seen sex on TV shows? A. Yes. Q. Does that mean on television at home? A. Yes. Q. In Queensland? A. No. Q. In … A. Yes. Q. Was it on video? A. No. Q. But you saw men and women having sex? A. Yes. Q. On different shows was it? A. yes. Q. And it was enough for you to know that what you were watching was a boy and a girl together with a man with his thingo in the girl's private? A. Yes. Q. You also said to the police officer that you've watched it? A. Yes. Q. Was that – that wasn't on television was it? A. No it wasn't. Q. Was it in real life? A. Yes. Q. Did sex, did that mean putting other parts of his body into a girl's private? A. No. Q. So as you said in your answer to the police officer, it meant a boy and a girl get together and a man outs his thingo, which you mean by penis, is that right? A. Yes. Q. Up the girl's private, and the girl's private being, meaning the vagina? A. Yes. Q. Is that right? A. Yes. Q. You saw more than that specific act though didn't you? A. Yes. Q. Both on television and at home? A. Yes. 32 There were these questions and answers in re-examination - Q. When Mr Parker was asking you questions on Friday he asked you a question about when you had seen S-E-X. Do you remember that question? A. Yes. HIS HONOUR: It was Mr Watson. CROWN PROSECUTOR: Q. Mr Watson, I'm sorry, Mr Watson. Are you able to tell the court how many times you've seen S-E-X? A. Yes. Q. How many times? A. One time in real life but a couple of times on TV. Q. And the one time in real life, do you know who it was between? A. Yes. Q. Who was it? A. Between my mum and her boyfriend (name). Q. What could you see? A. I could see their heads and the doona over the top and the clothes on the floor. Q. Sorry, the doona? A. The doona over the top of them and the clothes on the floor. 33 During his closing address the Crown Prosecutor said this - She said in answer to the police in Queensland that she'd (had) sex on TV and she'd seen her mother, she'd seen it once otherwise. You've all probably seen television shows where some sort of sexual act was depicted. She says that the time she saw her mother it was with, … and they were under the doona, so she could just see the heads,…. You don't see fellatio, you don't see masturbation, you don't see digital penetration on television. But you look at the video, the one in Queensland, the second one, the one in August 2001 between the male police officer and her, and look at what she's describing, look at what she's showing you on that video. Graphically, but you might think accurately, the little girl is describing, showing, demonstrating what happened to her. She hasn't got that from TV. She hasn't got that from watching her mum under a doona. She's got that, I suggest to you, from what these accused did to her. She describes masturbation, digital penetration, penile vaginal penetration and oral intercourse. You might think things out of the experience of just about any seven year old, or eight year old you could think of. (emphasis added) 34 No application was made to his Honour to require the Crown to withdraw the part of the speech that I have emphasised or to say anything to the jury about what the Crown had submitted. 35 It was submitted in this court that the Crown was aware that the defence were precluded from raising material that might inform the jury how a seven year old had knowledge of sexual matters and that it was unfair in the circumstances to invite the jury to assume that the complainant lacked experience and was therefore unlikely to have concocted her story. 36 In my opinion this second part of the ground has been made good. The case had been restricted in accordance with the requirements of s293 and his Honour's judgment. The evidence adduced in cross-examination was accordingly restricted. It was inappropriate for the Crown Prosecutor to use the words I have emphasised in his closing address. The jury would have understood the Crown Prosecutor as saying in effect that the complainant would not have had the experience to enable her to give evidence in the kind of detail necessary to establish the different charges. Even though the evidence showed that the complainant had some experience, it did not show that she had experience of acts like those she said the appellants had committed. The possibility that the complainant might have had experience of such other matters was one which defence counsel had been prevented from raising. It was quite unfair to make such a submission, particularly because when the matter had been raised before the complainant gave evidence the Crown Prosecutor had nowhere indicated that he intended to put the case as he did in his closing address. I think that a miscarriage of justice resulted. 37 Since no point was taken at trial, leave is needed to rely on this part of the ground. It is difficult to see how the situation could have been retrieved, however, once the idea of the complainant's general lack of experience had been planted in the minds of the jurors. Perhaps that was why counsel thought it better not to raise the matter at all. I would grant leave to argue this part of the ground and uphold this ground of appeal. Ground 3: His Honour failed to properly caution the jury of the potential for prejudice caused by delay in complaint. 38 The terms of the complaint did not enable the Crown to assert precisely when the acts relied on took place. They all happened on one day, but the Crown could not say other than that the events must have taken place between 10 and 20 April 2001. The indictment was framed accordingly. It appeared at trial that the appellant Miller had not been informed about the complaints made against him until 29 June 2001. The position with Munn was the same. Before the summing up commenced, counsel for Miller pointed out the delay that had taken place between the time the events were said to have taken place and the first time Miller had been informed, so as to realise that he might want to account for his acts and movements at relevant times. The relevant times for these purposes were between two and one half and three months before the appellants were told of the allegations. Counsel made clear that he was asking for a direction in limited terms as in Crampton v The Queen (2000) 176 ALR 369. There was this debate- "I'm not going to give that direction in a case in which the matter alleged is April and they've been involved in June, come on. What's the disadvantage that's flowed from it? PARKER: Had the complaint been brought to the accused's notice straight away, firstly he would know what date the offence was alleged to have been committed. HIS HONOUR: Well he wouldn't be in any better position because the child gives the evidence of the compliant. PARKER: But had the police say approached the accused the next day… HIS HONOUR: The next day from when? PARKER: The day after the offence. HIS HONOUR: There's no suggestion that they were aware of it. PARKER: The accused wouldn't be left to rely on records and imperfect memory as to what he was doing during the weekdays in that period. HIS HONOUR: You are really asking me for a Longman direction… PARKER: I'm asking your Honour for a direction along the lines of Crampton actually. HIS HONOUR: It sounds to me like a Longman direction you're asking for that, and I'm, not going to give it. PARKER: Your Honour please. WATSON: Can I just raise an issue regarding Miss Munn on that point because… HIS HONOUR: Of Miss Munn on what point? WATSON: On the point of a Crampton direction, because she was interviewed on 29 June… HIS HONOUR: Yes they were both interviewed on 29 June. WATSON: The case against her didn't unfold until I think it was December 2002. Allegations of the masturbation etcetera, other details came along with various interviews and contact between the police and the complainant and that's where the unfairness arises. HIS HONOUR: Why? Because she said from the start, 'I didn't do it.' There's no question of her being misled or a problem in relation to that. Her answer is, it never occurred. WATSON: I understand that, but what she isn't apprised of until some months later is the actual allegations. But I can see your Honour's against me on that. HIS HONOUR: I haven't said a word yet. WATSON: Non-verbal communication, but… HIS HONOUR: I'm sorry, I wasn't aware that I was non-verbally communicating. What have I got to sit here with a stone face have I? WATSON: No your Honour. I can understand your Honour will be against me on the submission. HIS HONOUR: Well I haven't heard the Crown yet. WATSON: Thank you. HIS HONOUR: Mr Crown? CROWN PROSECUTOR: Your Honour she was charged sometime, I think it was 27 August 2001 and true it is that the specific allegation in relation to the count one on the indictment wasn't raised until 2002. She was well aware from the time she was interviewed in June 2001 that she would have been involved to some extent in the allegations. HIS HONOUR: Yes. And it's as I say the – it's not – there's no suggestion of an alibi. They were given the opportunity at a particular time, as at 29 June they knew that allegations were being made and that their defence then and now is that it didn't occur, it never happened and there's no suggestion of an alibi being raised or that we've deprived of the opportunity to raise an alibi in my view, or to lose witnesses or the like. No I wouldn't give that direction, but you've each made your submissions, they've been noted and you've got the benefit of them. 39 Delay in complaint may give rise to two entirely separate questions at trial. The first is whether and how a jury may assess the evidence of a complainant in the light of any delay they consider has taken place in reporting the facts giving rise to the charge. This appeal is not concerned with that question but with the second, namely whether and how any delay in complaint may of itself make it more difficult for an accused person to defend himself. 40 Longman v The Queen (1989) 168 CLR 79 was concerned with the question whether under the Criminal Code of Western Australia it was necessary to warn the jury that it was unsafe to convict a person on the uncorroborated evidence of the complainant. Clearly, Mr Parker and Mr Watson were not asking for a direction of that kind. However, Longman v The Queen expressly did not affect the requirement to give a warning where it was necessary to do so to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case: Brennan, Dawson and Toohey JJ at 86; Deane J at 95. 41 Mr Parker drew to his Honour's attention the judgment of the High Court of Australia in Crampton v The Queen. Gaudron, Gummow and Callinan JJ said at 45- An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakeable and firm voice must be given by appropriate directions. 42 Speaking of the effect of substantial delay, Wood CJ at CL said this in R v BWT (2002) 54 NSWLR 241- Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way. The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross-examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence. 43 The question whether there has been substantial delay is, in the first place, one for the trial judge. The cases cited have involved delays of years, giving rise to obvious, I would say presumptive, prejudice to any accused person wishing to gather information with which to instruct and defend the case. Delays of a lesser order may not give rise to the kind of disadvantage that calls for a warning. The purpose of warning juries in such circumstances is in part to inform them of difficulties which they may not otherwise readily appreciate. To my mind a delay of as little as two or three months would not give rise to any difficulty in meeting a charge that any reasonable juror would not recognise and understand. In fact it might not give rise to any difficulty at all. The position might be different if delay worked difficulty because of the peculiar circumstances in which an accused person found himself. For example, an important document might have been lost or an important witness might have become unavailable for interview. However, there was no suggestion of any difficulty of that kind. The appellant Miller gave evidence. He knew where he was living at the time, where he was spending his days during the week and what he was doing and where he was spending his weekends. He had computer, tax and diary records that he could consult. No suggestion was put forward that the passage of two or three months between April and the end of June 2001 had given rise to any particular difficulty on the part of either appellant to answer the allegations. His attitude was simple. He did not deny that he was in the premises where the complainant said that the acts took place during the period of time charged in the indictment. He did not deny that the complainant went to that place. He simply denied that any of the acts described by the complainant ever took place. 44 The notice that Munn had of the allegations was not practically different. She knew that on 29 June 2001 Miller had been arrested and charged with sexual offences committed on the complainant. Munn herself was not arrested but she was interrogated and must have realised by what she was asked that the complainant was alleging that she, Munn was present when the offences were committed. She knew then that it was in her and Miller's interests for her to recall everything that she could about her and his whereabouts and activities in April. The fact that she was not arrested until 27 August, following the complainant's second interview, made no practical difference. 45 Munn's attitude at trial was the same as Miller's. She did not give evidence. She denied that any of the events complained of had happened. 46 I do not think that there was any "substantial delay" as that term was used by Wood CJ at CL in R v BWT or the kind of delay with which the other cited cases have been concerned. I do not think that any special warning was necessary and I do not think that his Honour erred in refusing to give a warning. Ground 4: (a) The tender as Exhibits of only a portion of the complainant's evidence was unfair. (b) His Honour failed to properly direct the jury in relation to the fair use of the complainant's evidence tapes and transcripts. 47 The trial was held before this Court published its reasons in R v NZ [2005] NSWCCA 278. In this ground of appeal the appellants criticised the procedure followed at trial by which the videotapes of the complainants' interviews with police officers and transcripts of what was said in those interviews were tendered and made available to the jury in a way disapproved in R v NZ. They also complained that the warning that his Honour gave did not comply with the requirements of s14 Evidence (Children) Act. 48 I do not think it necessary to deal with this ground because, for reasons expressed elsewhere in this judgment, I have come to the view that the Court ought to order a fresh trial. Such a trial would take place in accordance with the law then applicable including the judgment of this Court in R v NZ and s14 Evidence (Children) Act. Ground 5: His Honour failed to caution the jury about the potential for prejudice in the complainant being shown only one photograph of a stomach. 49 During an interview with a police officer the complainant had said that the appellant Munn, whom she called Sharyn, had a mole on her body. She indicated the position as near the sexual organs. She said that the mole was brown. It was apparent to the Crown and the police that Munn denied having such a mole. Evidence to that effect was adduced at trial. In fact Munn had a scar on her abdomen in a place which could have been the one identified by the complainant. In June 2004, not long before the trial began, an investigating police officer conferred with representatives of the Crown. As a result a solicitor instructing the Crown Prosecutor had a conversation with the complainant. The solicitor handed the complainant the photograph of Munn's abdomen, showing the scar, and there was this conversation- SOLICITOR: What's that? COMPLAINANT: That's Sharyn's belly. SOLICITOR: You spoke about a mole in your interview. COMPLAINANT: That, that scar is what's different. SOLICITOR: What do you mean by different? COMPLAINANT: I didn't have one, Tommy didn't have one but Sharyn did. 50 An application was made for the exclusion of the evidence as unfairly prejudicial. That application was refused. 51 The complaint on appeal was that his Honour failed to warn the jury about the dangers inherent in the procedure undertaken in the conversation I have summarised. It was submitted that in R v Yates & Ors [2002] NSWCCA 520 it had been held that a procedure of that kind was a matter of identification. 52 However that may be, it seems to me that that is not the way the evidence was used at trial. There was no more issue about the identification of the appellant Munn then about the identification of the appellant Miller. The real issue arising at trial out of the discrepancy, if that is what it was, between a "brown mole" and a "scar" was not that it might throw doubt on the identity of any person responsible but that it might throw doubt on the reliability of the evidence in general of the complainant. In my opinion the cases dealing with the difficulties of identification evidence have no application. Presumably that is why defence counsel did not ask for the direction now contended for. I would refuse leave to appeal on this ground. Ground 6: There was a miscarriage of justice and the conviction was unreasonable in all the circumstances. Particulars: (a) The combined result of his Honour's exclusion of evidence and failure to adequately direct the jury was unfair. (b) There was insufficient evidence for the jury to conclude that the offences had occurred in the time frame alleged in the Indictment. (c) The guilty verdicts against Munn could not be supported by the evidence. (d) The guilty verdicts against Miller could not be supported by the evidence. 53 The sixth ground of appeal raises a number of matters which are said in combination to have produced convictions which were unreasonable. Some of those matters complain about the exclusion of evidence and what is said to be a failure adequately to direct the jury. They have been dealt with under the other grounds of appeal and can be put aside for present purposes. Those that have succeeded do not warrant the entry of verdicts of acquittal. 54 The thrust of the submissions under this ground was that the quality of the evidence was such that this Court ought to conclude that it was not open to the jury on all the evidence to be satisfied beyond reasonable doubt of the guilt of the appellants. Reference was made to M v The Queen (1994) 181 CLR 487. 55 First, it was submitted that the evidence was not capable of satisfying the jury beyond reasonable doubt that the offences were committed within the time limited in the indictment. The evidence of the complainant was that she was wearing her school uniform on the day of the offences. It was accepted that her school holidays had begun on 12 April and extended beyond 20 April, the day on which she travelled to Queensland to visit her father. If the events happened within the time limited, therefore, they must have taken place on 10 or 11 April. That was said to be inconsistent with evidence of the complainant that the trip to Queensland had been delayed "a long time" so that she and her mother could speak to the police about what the appellant Miller had done. It was submitted that the complainant was also unsure about when the twelve year old boy had attacked her. At one time she said it happened three days before she went to Queensland and at another two to three weeks before she went to Queensland. 56 It was submitted on behalf of the appellant Munn that in her first interview, on 5 June 2001, the complainant said that Munn was in bed with Miller but did not otherwise allege that she had joined in Miller's misconduct. During her third interview on 9 December, however, the complainant said that Munn had stuck her finger into her vagina. That assertion was not included into the compliant to the complainant's mother or sister. There was no medical support for Munn's involvement. Munn was a person of prior good character. The complainant's story "improved" over time. 57 During the second of the interviews the complainant told the police that the first appellant had a brown mole on her body. That matter was not raised until after the police had interviewed the first appellant, so she was not asked about any mole. There was evidence that there was no such feature on her body but that she had a scar on her abdomen. The police showed the complainant a photograph of the first appellant's abdomen. She saw the scar and said that that was the mole that she had been talking about. The complaint at trial was that it was unfair to the appellants for the police to show the complainant a single photograph. 58 On behalf of the appellant Miller it was submitted that medical evidence showed that on examination the complainant had only a small remnant of hymen. The Crown case was that her condition was explicable only by the penetration of an adult penis. During one of the later interviews, however, the complainant told the police that the before the events with which the appellants were concerned she had had penile-vaginal sexual intercourse with a twelve-year-old boy. The Crown case was that that activity would not of itself satisfactorily account for the complainant's condition. Evidence was called from two medical practitioners. The evidence of one was that whatever the boy had done would not explain the complainant's condition. The opinion of the other was not so clear. It was submitted that it was a reasonable possibility that the condition of the hymen was accounted for by the activity of the twelve year old boy. 59 The evidence of complaint was criticised. The complaint to the sister lacked detail. The complaint to the mother was about what the twelve-year-old boy had done but did not mention the appellants. 60 Against this, it was put, both appellants had denied any wrongdoing when charged by the police. The second appellant said as much on oath. 61 I have considered the whole of the evidence. The clear statements made from time to time by the complainant, if accepted at face value, were sufficient to prove the acts upon which the charges were based. Essentially the question was whether the complainant was truthful and accurate in giving her accounts of the acts done by the appellants. It seems to me that it was open to the jury, notwithstanding the criticisms raised against her, to be satisfied beyond reasonable doubt that the complainant was giving an accurate and truthful account of the events central to the charges. This ground of appeal has not been made good. 62 I propose the following orders- 1. The appeals are allowed and the convictions appealed from by both appellants are quashed. 2. New trials are ordered. ********** 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.