Reported Decision : 163 A Crim R 242 New South Wales Court of Criminal Appeal CITATION: Daniel Gerard OLDFIELD v REGINA [2006] NSWCCA 219 HEARING DATE(S): 21 June 2006 JUDGMENT DATE: 25 July 2006 JUDGMENT OF: Giles JA at 1; Grove J at 54; Hidden J at 55 DECISION: Appeal allowed, convictions quashed and a new trial ordered. CATCHWORDS: Alleged sexual assaults - four counts - events in one episode - verdicts of guilty on two counts and not guilty on two counts - whether inconsistent verdicts - whether logical and reasonable explanation for differentiation - whether direction required that if reasonable doubt in relation to one or more counts that must be taken into account in assessing complainant's truthfulness and reliability generally - accused's counsel failed to put instructions on certain matters to complainant - Crown Prosecutor's cross-examination of accused included questions about not putting the matters - implicit that accused's evidence of those matters was made up - whether cross-examination permissible - whether warning required that may be explanation for failure to put instructions which did not reflect upon accused's credibility. D LEGISLATION CITED: Crimes Act 1900, s 60J(1) Criminal Appeal Act 1912, s 6(1) Mackenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Pike v R [2006] NSWCCA 32; R v Abdullah [2001] NSWCCA 506; R v Birks (1990) 19 NSWLR 677; R v Bonat [2004] NSWCCA 240; CASES CITED: R v Cornwell [2006] NSWCCA 116; R v Dennis [1999] NSWCCA 23; R v GAR [2003] NSWCCA 224; R v Manunta (SASR, 28 July 1989, unreported); R v Markuleski (2001) 52 NSWLR 82; R v Picker [2002] NSWCCA 78; R v Scott [2004] NSWCCA 254; Weiss v The Queen (2005) 80 ALJR 444. PARTIES: Daniel Gerard OLDFIELD v REGINA FILE NUMBER(S): CCA 2006/563 CCAP COUNSEL: P Strickland SC - Appellant P Ingram - Crown SOLICITORS: S O'Connor (Legal Aid Commission of NSW) - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 04/41/0261 (Goulburn) LOWER COURT JUDICIAL OFFICER: Williams DCJ + jury of 12 LOWER COURT DATE OF DECISION: Verdict - 28 February 2005 Sentence - 1 July 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2006/563 CCAP DC 04/41/0261 (Goulburn) GILES JA GROVE J HIDDEN J Tuesday 25 July 2006 Daniel Gerard OLDFIELD v REGINA Judgment 1 GILES JA: The appellant was charged with four counts of aggravated sexual assault under s 60J(1) of the Crimes Act 1900. The four counts were in identical terms - "On the 12th day of September 2004, at Bowral, in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent, knowing she was not consenting, and at the time of the sexual intercourse maliciously inflicted actual bodily harm on [the complainant]." 2 At the hearing of the appeal a non-publication order was made in respect of evidence which identified or tended to identify the complainant. 3 The appellant pleaded not guilty. His trial before Williams DCJ and a jury commenced on 16 February 2005. On 28 February 2005 the jury found him guilty on counts 1 and 3 and not guilty on counts 2 and 4. 4 On 1 July 2005 the judge sentenced the appellant to a term of imprisonment of ten years consisting of a non-parole period of six years to date from 12 September 2004 and expire on 11 September 2010 and a balance of term of four years to date from 12 September 2010 and expire on 11 September 2014. 5 The appellant appealed against conviction. His grounds of appeal were - Ground 1 : The verdicts of guilty on counts 1 and 3 are unreasonable and cannot be supported in light of the not guilty verdicts on counts 2 and 4. Ground 2 : A miscarriage of justice occurred by reason of the trial judge's failure to direct the jury that where they have a reasonable doubt in relation to one or more counts, that must be taken into account in assessing the reliability and truthfulness of the complainant's evidence generally. Ground 3 : A miscarriage of justice occurred because the appellant's counsel did not properly put the appellant's instructions to the complainant. Ground 4 : A miscarriage of justice occurred as a result of inadmissible questions which the Crown Prosecutor asked the appellant. The offences 6 The complainant went to a number of hotels on the evening of 11 September 2004, and consumed a large quantity of alcohol. At the last of the hotels she and her fiancé met the appellant, who bought the complainant a drink. 7 After waiting at a taxi rank the complainant began to walk home along the road. On the Crown case, at a point on the road home she came upon the appellant, who crossed the road to join her, and - (a) the appellant pushed her down on a concrete driveway under a street light and digitally penetrated her vagina (Count 1); (b) the appellant dragged her across the road and down an embankment and - (i) digitally penetrated her vagina (Count 3); (ii) attempted penile penetration of her vagina and briefly succeeded (Count 2); and (iii) digitally penetrated her anus (Count 4). 8 The appellant did not dispute the digital/vaginal penetration on the driveway, but said that what there occurred was consensual. He said that he stopped when the complainant asked him to stop, and denied sexually assaulting her on the other side of the road down the embankment. He said that the complainant ran from the driveway onto the road, that he took hold of her to get her out of the way of an approaching car and tripped and fell with her down the embankment, and that he took hold of her again to stop her running back up the embankment lest she be hit by another car. 9 It is not necessary to describe in these reasons much of the detail of the evidence, which was fully and helpfully canvassed in the written submissions. Ground 1: The verdicts of guilty on counts 1 and 3 are unreasonable and cannot be supported in light of the not guilty verdicts on counts 2 and 4. 10 The appellant submitted that there was no logical or reasonable explanation for the differing verdicts. If the jury was not satisfied beyond reasonable doubt of the truth or reliability of the complainant's evidence concerning counts 2 and 4, he said, they could not rationally be satisfied beyond reasonable doubt of the truth or reliability of her evidence concerning counts 1 and 3, given the short period of time over which all events occurred. The appellant's admission that the digital penetration in count 1 occurred did not explain the differing verdicts, because there was no like admission of the digital penetration in count 3, and if the jury did not find true or reliable the complainant's evidence in relation to counts 2 and 4 they could not rationally find true or reliable her evidence that what happened on the driveway was non-consensual. 11 In the appellant's submission, the likely explanation for the differing verdicts was that there was a compromise. The jury retired at 3.08 pm on 25 February 2005. Shortly before 4.47 pm on that day the judge received a note from the jury in the terms, "Four jurors have doubts, two will definitely not change their mind. Are we a hung jury?" His Honour asked the jury to deliberate further, but including that they should not agree "out of expediency or anything like that". After the intervening weekend, on the morning of 28 February 2005 he did the same. The jury returned the verdicts at 12.47 pm on 28 February 2005. In his remarks on sentence the judge said, "I must say that I found the jury's verdict to be somewhat difficult to understand and suspect there may have been a compromise reached after they received a Black direction from myself on 28 February 2005". 12 The jurisprudence on inconsistent verdicts was exhaustively considered in R v Markuleski (2001) 52 NSWLR 82. Spigelman CJ accepted at [80] that an acquittal contrary to the complainant's evidence did not necessarily mean that the complainant's general credit was undermined, and at [125] that it was necessary to pay regard to "the full range of relevant circumstances". The High Court had earlier said, in Mackenzie v The Queen (1996) 190 CLR 348 at 367, that respect for the jury's function brought reluctance to find relevant inconsistency, and that "if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted". In R v Bonat [2004] NSWCCA 240 Sperling J, with whom Sheller JA and Adams J agreed, said - "106 I would summarise the principles laid down by these authorities as follows: (1) There is no hard and fast rule. It all depends on the circumstances of the case. (2) A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable explanation for differentiation as a matter of logic and reasonableness. (3) A likelihood that the jury has been satisfied of guilt in relation to the verdict or verdicts in question and has otherwise acquitted the accused because the verdict or verdicts of guilty were thought to be sufficient to serve the interests of justice should be excluded. (4) In deciding whether to substitute a verdict or verdicts of acquittal rather than order a new trial, a likelihood that compromise provides a complete explanation for the inconsistency should be excluded. (5) Where there are factors additional to the inconsistency between verdicts, tending to make the verdict or verdicts in question unreasonable, that weighs in favour of quashing the verdicts in question and in favour of substituting a verdict or verdicts of acquittal rather than ordering a new trial." 13 In the present case, in my opinion there was a rational and reasonable explanation for the differentiation. Sexual penetration was an essential ingredient of each of the four counts, and the complainant's evidence of penetration was clear and supported by other material as to counts 1 and 3 but not as to counts 2 and 4. The jury was directed that penetration, even partial, was an essential ingredient of the sexual intercourse in the charges, and in discharging their function would have attended to whether or not for each of the counts penetration had been proved beyond reasonable doubt. The differentiation was open on the evidence. 14 The complainant's evidence of digital/vaginal penetration on the driveway was not in question, because on the appellant's evidence it had occurred but what had happened was consensual. As to count 3, the complainant's evidence was forthright and graphic. That there had been digital/vaginal penetration was supported by medical evidence of abrasions to the mucosal surface of the posterior fourchette: it could not be excluded that the abrasions occurred in the digital/vaginal penetration the subject of count 1, but on the complainant's evidence the penetration at the bottom of the embankment was greater, with the appellant's hand using four fingers, and the medical evidence was that the injuries would have required a considerable amount of force and were consistent with the history that a hand was inserted into the vagina several times. The digital/vaginal penetration at the bottom of the embankment was further supported by the finding of an apparently used but not weathered tampon a short distance from the bottom of the embankment, it having been the complainant's evidence that in the digital/vaginal penetration which there occurred the appellant removed or dislodged her tampon but the appellant's evidence that it had been removed during the consensual activity on the driveway. The tampon was not tested to establish use by the complainant, but its finding could be regarded by the jury as significant. 15 The complainant's evidence in relation to count 2 was that the appellant was "trying to get [his penis] into my vagina", and that despite her resistance and "backing up" he "managed to get in some of the way", and penetrated "probably a second". According to an ambulance officer, however, the complainant answered no to the question whether full penetration had occurred, and said that the appellant "didn't get it all the way in there"; a statement by the officer recorded that the complainant "said that penetrative intercourse had not occurred". Perhaps of more significance, when the complainant was asked by a police officer "Did the man penetrate you?" she answered, "I think he was a bit dodgy down there", and the complainant told the doctor who examined her within a short time that the offender had attempted penile/vaginal penetration but that she had resisted. The complainant was intoxicated at the time, and given these differing responses shortly after the events it was open to the jury to have entertained a reasonable doubt as to the reliability of her evidence of the partial or brief penetration. 16 In relation to count 4, the complainant's evidence of the digital/anal penetration was rather confused. She began by saying that the appellant "tried to" put his fingers into her backside. She said that "he put his finger there", but when asked how she answered, perhaps understandably enough, "I don't know, just did". That was the extent of the evidence in chief. In cross-examination the complainant answered a number of questions premised on insertion of a finger in her anus, but there was no further description. However, the complainant told the doctor, according to the doctor's evidence, that the appellant "tried to put his penis into her anus but she resisted and stopped him", with no reference to digital penetration. There was no evidence of reporting digital/anal penetration to the ambulance officers or the police at the time. In these circumstances, it was again open to the jury to have a reasonable doubt as to the digital/anal penetration. 17 Considering the circumstances more widely, there were some matters available to cast doubt on the truth or reliability of the complainant's evidence, being her intoxicated state; her telling the 000 operator that she had been molested by someone she did not know when in fact she knew the appellant; her evidence that she did not see the appellant between the taxi rank and their encounter on the roadway when there was evidence that she left the taxi rank with the appellant and was seen sitting and walking with him thereafter; and her differing versions of what occurred on the driveway side of the road given to the doctor and initially to the police. There were also matters available to support preference for the complainant's evidence of sexual assault over the appellant's evidence of a consensual happening on the driveway and nothing further. The complainant had damage to her clothing and bumps, cuts, bruises and abrasions which could readily have been regarded as more consistent with her account of events. She made immediate complaint. An earring worn by the complainant was found down the embankment, and some hair on a barbed wire fence at the bottom of the embankment. Consistent with the complainant's evidence that she bit the appellant's hand when he had his hand in her mouth, the appellant had a bite on his hand; his evidence was that the complainant bit his hand while he was restraining her from running back onto the road, but again the bite could be regarded by the jury as significant. 18 All these were matters appropriate to be considered by the jury in coming to the verdicts, but there was not a balance of unreasonableness in the verdicts of guilty and it remains that there was a rational and reasonable explanation for the differentiation in the verdicts. I am not persuaded that ground 1 has been made out. Ground 2: A miscarriage of justice occurred by reason of the trial judge's failure to direct the jury that where they have a reasonable doubt in relation to one or more counts, that must be taken into account in assessing the reliability and truthfulness of the complainant's evidence generally. 19 The judge directed the jury that - " … it is a matter of common sense probably that where there is only one witness to essential ingredients of an offence, and that witness is the complainant, and the essential ingredient of the offence is denied by the accused, which is the case here, you should look at the evidence of the complainant with great care before coming to a conclusion as to what in fact occurred was what she says based on her evidence alone". 20 His Honour's further directions concerning the jury's task and the Crown's burden of proof beyond reasonable doubt included that the jury "should not find the accused guilty solely on the evidence of the complainant unless you are satisfied beyond reasonable doubt that the complainant is a credible and a reliable witness". 21 His Honour directed the jury that they had to consider each count separately, but did not give a direction to the effect that where they had a reasonable doubt in relation to one or more counts, that had to taken into account in assessing the reliability and truthfulness of the complainant's evidence generally. At the conclusion of the summing-up counsel for the appellant raised a number of matters, but did not ask that such a direction be given. 22 The appellant drew attention to observations of Spigelman CJ in R v Markuleski at [186]-[191], in which his Honour suggested that it was "desirable" that in a word against word case reference be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. The direction the subject of ground 2 was one form of words said to be "often … appropriate", and his Honour said at [191 ]- "The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought to be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts." 23 The Chief Justice said at [187] that such a direction should be given "as a general rule", and that its absence is not necessarily fatal; he specifically endorsed that the general rule did not apply "where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness". 24 In R v GAR [2003] NSWCCA 224 it was made plain that such a direction may be quite inappropriate where it is open to the jury to convict on one count and to acquit on another. It was pointed out at [33] that it had been said in the High Court in MFA v The Queen (2002) 213 CLR 606 that it did not follow from a verdict of not guilty on one or more counts that the complainant was untruthful or unreliable, and that the whole of the circumstances had to be considered in order to determine whether a direction to the jury ought to have been given to the effect that a reasonable doubt as to the complainant's credibility on one count ought to be considered in assessing the complainant's credibility generally or in relation to the other count. 25 The present case was not simply a word against word case. There had been digital/vaginal penetration on the driveway, the issue being whether or not it was consensual. There was evidence beyond the complainant's word going to whether or not there had been sexual assaults at the bottom of the embankment. It is understandable that counsel appearing for the appellant did not ask for the direction presently in question, since it would necessarily have caused the jury to focus on other evidence which supported (as well as detracted from) the truthfulness and reliability of the complainant's evidence, both as to whether or not the incident on the driveway was consensual and as to whether there had been sexual assaults at the bottom of the embankment rather than restraint lest the complainant be struck by a car. 26 It is an ordinary process of reasoning that a reasonable doubt about a complainant's evidence in one respect should be taken into account when considering the truthfulness and reliability of the complainant's evidence in another respect. The jury received comprehensive addresses on the evidence, and a summing-up which could have left the jury in no doubt that they should critically assess the complainant's evidence against matters which supported or detracted from its truthfulness and reliability. For the reasons I have given, on the evidence differentiation in the verdicts could logically and reasonably be come to, and the jury were directed to look at the complainant's evidence with great care. I am not satisfied that in the present case it was necessary that the direction in question be given in order to reinforce the ordinary process of reasoning. Ground 3: A miscarriage of justice occurred because the appellant's counsel did not properly put the appellant's instructions to the complainant. Ground 4: A miscarriage of justice occurred as a result of inadmissible questions which the Crown Prosecutor asked the appellant. 27 These grounds may conveniently be considered together. The "instructions" were as to the taking down of the appellant's jeans and the removal of the tampon; the "inadmissible questions" were questions to the appellant to the effect that his counsel had not put to the complainant his account of those matters. The context was that counsel for the appellant had not fully put to the complainant the appellant's account of the digital/vaginal penetration on the driveway, and what follows includes that context. 28 The complainant gave evidence that on the driveway, despite her protesting and trying to push him off, the appellant had put his hands down her jeans and fondled her in the area of her vagina and had put his fingers in her vagina. She said the fingers were there for about three minutes. 29 In cross-examination counsel for the appellant put to the complainant that she and the appellant began kissing and cuddling on the driveway, that the appellant placed his hand down the front of her jeans and touched her vagina and "he then attempted to put his fingers inside your vagina and you said 'No'". The complainant did not agree. A little later in the cross-examination counsel put - "Q. The kissing and cuddling that I suggest took place on the driveway side of the road not only involved him putting his hand down your pants, but him opening your jeans and pulling them down towards your knees so that he could open your legs and put his hand in between your legs. What do you say? A. No." 30 When the appellant gave evidence, he said that they got to the driveway and lay down on the ground, and - "Q. And what happened? A. Continued kissing [the complainant] and I started touching her in around her breast area and that, then continued down to touching her on the genitals and --- Q. Did anything happen in relation to her clothing? A. I started, I took her jeans down to about her knees and underpants and I also had her top up at one stage. Q. What, if anything, do you recall what was the street lighting like at this stage? A. It wasn't real brilliant street lighting, but there was a slight amount of light about. Q. And what reaction, if anything, did you get from [the complainant] while you were effectively opening up her clothing? A. Nothing at that stage. Q. Did she say anything to you about it? A. No. OBJECTION. CROWN PROSECUTOR: This hasn't been put to [the complainant] - HIS HONOUR: Well there are a number of things that haven't been put to [the complainant] -- CROWN PROSECUTOR: I appreciate that, and I raise this at this point your Honour. HOARE: I'm aware of that your Honour. HIS HONOUR: It's no use saying you're aware of it. HOARE: Well I'm sorry your Honour am I do, is your Honour making a ruling about my questioning in any way. HIS HONOUR: Well something is going to have to be said to the jury eventually about those matters. HOARE: I understand certainly that I put to [the complainant] that her jeans had been opened and had come down. Q. Her jeans came down somewhat is that correct? A. Yes that's correct. Q. And what were you doing at that stage? A. I was touching her around the genital area and I also had my jeans part the way down. Q. When you say touching her around the genital area, we're referring to her vagina are we? A. Yes that's correct. Q. And what were you doing with your hand or your finger or fingers at that stage? A. I was rubbing her and did put my fingers inside her. OBJECTION. CROWN PROSECUTOR: Your Honour this clearly was not put to the complainant. HIS HONOUR: I think it was. CROWN PROSECUTOR: Well what was put to the complainant that the hand was put down the front of her pants and she said, 'Don't go any further' or words to that effect and the hand was withdrawn. HOARE: I wouldn't have thought my friend would have been dreadfully distressed about an admission as to penetration with great respect, but the question was, 'the driveway you rolled over in the bush and the accused penetrated you with his finger', 'Yes'. Those are my solicitor's notes of 18 February. HIS HONOUR: Well what was said was, it was put to her that he attempted to put his fingers in her vagina, but you said, 'no stop', she disagreed with that. Anyhow that's been said now. CROWN PROSECUTOR: That's certainly my memory of it your Honour. HOARE: Q. What reaction did you get when you started touching this woman's vagina and put your finger in? A. To start with for may be a minute or so I got no reaction and after that she asked me to stop. Q. What happened them? A. I stopped and started to get off [the complainant]." 31 At the conclusion of the appellant's evidence in chief, and after a short adjournment, in the absence of the jury counsel for the appellant said that he was in error in putting to the complainant that the appellant attempted to put his fingers into her vagina. He said that after discussion with the Crown he proposed to indicate to the jury that the mistake was made and that it was conceded that had the "specific question" been put to the complainant she would have denied it. The judge clarified, "Well she would have said that fingers were put in her vagina, but that was never consensual". There was some discussion, and the Crown Prosecutor said that he had "agreed to [counsel's] resolution of the issue". 32 Then in the presence of the jury counsel for the appellant said - "Your Honour I do thank your Honour and the ladies and gentlemen for this rather length [sic] morning tea adjournment, during which time my friend and I had the opportunity to listen to the tape recording of the evidence of my questioning of [the complainant], and I must stand here and admit error on my part in that the question was not, 'he put his fingers inside your vagina', the question was, 'he attempted to put his fingers into your vagina', that was as I indicated an error on my part, that word 'attempt' should not have been used on my instructions and clearly that particular suggestion that he put his fingers inside was not asked of her by me, it should have been. Your Honour there are one or two ways in which this problem can be resolved in my submission. One is that this young lady be recalled and that I put specifically that question to here [sic]. There are a number of reasons in my submission as to why that's not the most appropriate course. Because I clearly make the concession on behalf of the accused that had I asked the correct question, namely, he put his fingers inside your vagina and you said, stop and he did, the answer would have been, he put his fingers inside my vagina, but I never at any stage consented to him doing so. And in fact I think her evidence was that throughout the course of this part and other parts she was screaming in relation to it. So I apologise for my error and I trust that clarifies the matter satisfactorily to my friend and to your Honour. This is a case, as I understand it, where the Crown case is very very clear. And that is that there was never any form of physical contact at all between [the complainant] and the accused other than where he grabbed and attacked her and that she made her lack of consent abundantly clear to him by screaming and fighting and resisting." 33 This responded to the Crown Prosecutor's second objection that there had not been put to the complainant the appellant's evidence that he "did put my fingers inside her". There was left the first objection that there had not been put to the complainant the appellant's evidence about opening up the complainant's clothing without any reaction. It was a dubious objection, in that it had been put to the complainant that the kissing and cuddling involved taking the complainant's jeans down, clearly enough meaning without objection from the complainant. It is unlikely that the jury would not have understood the appellant's case that what happened on the driveway was consensual, and unlikely that after counsel's statement to them the jury would have understood that his case was that there was no more than an attempt at penetration. But the objection was later taken up. 34 The cross-examination by the Crown took matters further in relation to what happened on the driveway, to other matters which had not been put to the complainant. It should not be forgotten, however, that these were only parts of a lengthy cross-examination, occupying nearly sixty pages of the transcript and dealing with a great many matters. 35 The cross-examination included - "Q. So the picture is, [the complainant] is on the driveway with you, she's got her jumper up around her breasts, her pants around her knees or thereabouts, undies still on is that right? A. No her underwear was down with her jeans. Q. Down with her jeans? A. Yes. Q. What so the underwear was down near her knees as well was it? A. Yes. Q. When did you pull the underwear down -- HIS HONOUR: He has already answered that question several times. CROWN PROSECUTOR: Q. You see none of this was suggested to [the complainant] the other day was it – it was never suggested to her that you'd pulled her pants down to her knees in the driveway, do you remember being asked that [sic]? HOARE: I certainly recall asking her, he pulled the jeans down. HIS HONOUR: I think it was suggested to her. Yes there was, pulled and pants down, it was suggested to her. CROWN PROSECUTOR: Q. How are you dressed at this point, did you have all your clothes in tack [sic: intact] or had you taken any article of clothing down or loosened them? A. My jeans were down partly as well. Q. How far were they down? A. They were sort of just above my knee area. Q. What about your underpants? A. They were with my jeans. Q. They had come down as well? A. Yes. Q. So both of you were effectively naked in the middle of that driveway is that right, from the waist down to about your knees? A. From about my waist to in around my knee area I was, yes. Q. Correct me if I'm wrong, but I don't recall [the complainant] being asked whether or not you had your jeans down? A. No I can't recall that being asked ." (emphasis added) 36 The Crown Prosecutor was incorrect in relation to the complainant's jeans. It was correct that the complainant was not asked about the state of the appellant's jeans at this time. It is not obvious that she should have been, and the appellant had not given evidence in chief on that matter. 37 The appellant gave no evidence in chief about the tampon. He was asked about it in cross-examination, and said that it came out during the activity on the driveway when he removed his fingers on being asked to stop: that was the effect of quite an extensive passage of cross-examination. The cross-examination on that matter included - "Q. Look I'll be corrected if I'm wrong I don't recall [the complainant] being asked whether or not a tampon was removed, or came out at that point in time? A. No, I can't recall her being asked that, no. HOARE: With respect there was no questions about when it came out at all, or a matter of it being suggested that there was some other scenario." 38 It was correct that the complainant had not been asked about removal of the tampon in the activity on the driveway. This was of more significance, since she had given evidence of its removal in the digital/vaginal penetration at the bottom of the embankment. 39 The appellant submitted that, in the circumstances of failure by the appellant's counsel to put to the complainant the matters of the appellant having his jeans down and the removal of the tampon during the activity on the driveway, the cross-examination was "impermissible and highly and unfairly prejudicial to the appellant's case". The words are taken from R v Picker [2002] NSWCCA 78 at [41], where they were explained - "42 The gist of the cross-examination was unmistakable, namely because the appellant's counsel had not questioned the complainant about the specified matters, the appellant was telling lies. He had made up his evidence on these points. 43 In R v Birks (1990) 19 NSWLR 677 at 691 Gleeson CJ referred to the views of King CJ in R v Manunta SACCA, unreported, 28 July 1989, namely: 'I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omissions which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of the questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds' ." Gleeson CJ continued at 691-692: "I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth.' 44 McInerney J agreed with Gleeson CJ. Lusher AJ in separate reasons, agreed that there had to be a new trial. Birks was cross-examined vigorously by the Crown prosecutor that his counsel had not cross-examined the appropriate witnesses about certain points upon which Birks had given evidence and about his instructions to his barrister. It was put to Birks that he was lying about such points and that his barrister's failure to cross-examine the complainant demonstrated that the appellant had never told his barrister about the matters in question (p681). Gleeson CJ observed in Birks that both in the address to the jury of the Crown Prosecutor and in the summing-up considerable emphasis was placed upon the failure of the appellant's barrister to cross-examine the complainant about two particular points and that it had a very important bearing on the appellant's credibility." 40 It is necessary, however, to appreciate that R v Birks and like cases require caution and circumspection; they do not prohibit cross-examination to suggest that, because the accused's counsel did not put a matter to the complainant, the accused's evidence of that matter is false. As a general rule, counsel should put to the complainant matters which are to be contradicted, for reasons of fairness in giving an opportunity to meet the challenge; lawyers know this as the rule in Browne v Dunn. There can therefore be an available inference that a matter not put to the complainant was recently made up, and depending on the circumstances the Crown is not barred from so suggesting. The point made in R v Birks was that, in such a situation, the judge should draw to the attention of the jury other possible reasons for the inconsistency between what was put to the complainant and the accused's evidence, such as misunderstanding or error on the part of the accused's counsel, since the jury is unlikely to be familiar with the forensic process (including the rule in Browne v Dunn) or conscious of forensic pressures. 41 This point was made, after examination of a number of the cases, in R v Scott [2004] NSWCCA 254. Hulme J, with whom Sully and James JJ agreed, said - "60 What conclusions flow from the cases upon which counsel for the Appellant relied? There is nothing in R v Birks to suggest that an accused can not be cross-examined on apparent differences between his evidence and his case as presented in his counsel's cross-examination. In that case the Chief Justice indicated that caution and circumspection were required but that is not inconsistent with such cross-examination occurring. Indeed, if such cross-examination were not permissible, there would be little occasion, as was indicated in R v Birks should occur, for the trial judge to draw to a jury's attention, as possible explanations for the inconsistency, factors other than unreliability on the part of an accused. 61 In R v Abdallah [[2001] NSWCCA 506], it was not the fact of reliance on the inconsistency between counsel's address and the accused's evidence that led to the success of the appeal but rather the lack of circumspection and caution and the failure to bring to the jury's attention other possibilities. In R v Dennis [[1999] NSWCCA 23], again it was not the fact of cross-examination on apparent inconsistency but rather that the circumstance did not justify doing so. As I have said, Smart AJ did not indicate what it was about the cross-examination in Picker v R that led him to characterise it as "impermissible and highly and unfairly prejudicial". In the light of the other authorities to which I have referred, I do not regard Smart AJ's remarks as extending beyond the facts of that case or as providing any guidance here. 62 Furthermore if one accepts, as the Chief Justice's endorsement of the quoted remarks from R v Manunta makes clear one may accept, "that it is legitimate ... to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or witnesses subsequently depose", in cases where it is intended to contrast that failure with evidence subsequently given by an accused, the rule in Browne v Dunn itself make it obligatory to put to an accused the inferences or conclusions which it will be suggested should be drawn, in order that the accused may provide such explanation as he is able." 42 Thus the circumstances of the particular case must be examined to see whether the Crown Prosecutor's cross-examination was admissible, whether the cross-examination and the use made of it in address conformed with caution and circumspection, and ultimately whether the jury should have been assisted by reminder that there could be explanations for the inconsistency between what was put to the complainant and the accused's evidence other than that the accused's evidence was recently made up. 43 I have described as dubious the objection that there had not been put to the complainant the appellant's evidence about opening up the complainant's clothing without any reaction. The Crown Prosecutor took that up in cross-examination to the extent of the appellant pulling the complainant's jeans down, but it was pointed out that counsel for the appellant had asked about pulling the jeans down. 44 The follow-on in the cross-examination was that the complainant had not been asked whether or not the appellant had his jeans down. This should not have been raised. Compliance with the rule in Browne v Dunn had not called for the appellant's counsel to ask it, and while the state of the appellant's jeans at this time may not have been irrelevant it was far from central. 45 Inclusion in the cross-examination concerning the tampon of the question about asking the complainant whether or not the removal was on the driveway was, however, in a different position. When and where the tampon was removed was an important issue. Counsel for the appellant should have put his instructions to the complainant. An available inference was that the appellant was cobbling together his story in the witness box; the question so suggested, although not directly, and it was open to the Crown Prosecutor to ask it. It was also open to the appellant to give or call evidence to negate the inference, for example by his solicitor giving evidence that the appellant's instructions had always been that the tampon was removed in the activity on the driveway. Nothing of that kind was done. 46 Going to the use made of all this in addresses, unlike R v Picker the Crown Prosecutor did not in his address to the jury suggest fantasy and total fabrication on the part of the accused (in R v Picker the Court said at [62] that the "florid address capitalised on the impermissible cross-examination"). It was, however, used. The Crown Prosecutor's account of "the accused's version" of what happened on the driveway included "that he had his fingers in her vagina, and you'll recall it wasn't put to the complainant …", and that "the accused says, and again it was not put to [the complainant] when she gave evidence 'At about the time that she told me to stop I took my fingers out and took her tampon out as well'." Nothing more was said to the effect that the appellant's evidence was less believable because the complainant had not been asked about the jeans and the tampon, but the impact on the jury can not be regarded as of no moment. 47 The judge did not in his summing-up refer to what was not put to the complainant, by warning the jury that there might be many reasons why counsel did not put in cross-examination something which the appellant later said in evidence or at all. Although counsel for the appellant raised a number of matters at the conclusion of the summing-up, he did not ask for such a warning. 48 The Crown submitted that, in the light of counsel's confession of error in giving effect to his instructions in the question about the appellant attempting to put his fingers in the complainant's vagina, the jury could not but have attributed the absence of questions about the jeans and the tampon also to counsel's error. In substance, it was said that while the Crown Prosecutor's cross-examination was undesirable, it must have been the perception of all concerned that the jury would not have drawn an inference adverse to the appellant, because counsel for the appellant did not attempt further to shoulder the burden of error, the Crown did not plainly invite the jury to draw an adverse inference, the judge did not question whether a warning should be given, and counsel for the appellant did not ask that a warning be given. The circumstances, it was said, were very different from those in R v Picker, and there was no disadvantage to the appellant because (so it was said) it was left unclear what instructions had not been put. 49 There was some prominence in the Crown's conduct of the trial on inconsistency between what had been put to the complainant and the appellant's evidence. It began with the taking of objections on that ground in the presence of the jury, and continued in the cross-examination of the appellant. Counsel for the appellant made his mea culpa, in relation to the complainant's jeans it would have been apparent to the jury that the Crown Prosecutor was mistaken, and in relation to the tampon it was open to the Crown Prosecutor to put the question implying that the appellant was making up his evidence. In relation to the appellant's jeans, however, the question should not have been put. Although not in a florid way, the implication was translated into the Crown Prosecutor's address, including as to the insertion of the appellant's fingers into the respondent's vagina notwithstanding that the Crown had "agreed to [counsel's] resolution of the issue" by the mea culpa, without reservation of entitlement to comment. 50 The combination of (a) frequency of raising failure to put matters to the complainant, including the objections five occasions; (b) at least two of the occasions being unwarranted; and (c) including in the Crown Prosecutor's address failure to put to the complainant that the appellant had his fingers in the appellant's vagina, in my opinion squarely raised the need for assistance to the jury in the process of reasoning it invited. The need was made imperative by the availability of the process of reasoning because the complainant had not been asked about the tampon. That was not peripheral, but of considerable importance in the jury's assessment of where truth and reliability lay between the complainant and the appellant. I do not agree that unclarity as to what instructions had not been put removed the vice; if anything, counsel's obscure intervention when the appellant was cross-examined about the tampon would have led the jury to believe that he was unable to extend his mea culpa, but the unclarity itself called for assistance to the jury. A warning was necessary of the kind referred to in R v Picker. In its absence, there was a miscarriage of justice. 51 The grounds of appeal were not in terms of the directions to the jury, but for the reasons I have given that was their substance. So far as rule 4 applies, leave should be granted. 52 The Crown submitted that if the Court held that a miscarriage of justice had occurred the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied, referring to the discussion of the principles in Weiss v The Queen (2005) 80 ALJR 444 at [39]-[47], Pike v R [2006] NSWCCA 32 and R v Cornwell [2006] NSWCCA 116 at [108]-[111]. I do not feel able to conclude that the evidence properly admitted at the trial proved beyond reasonable doubt the appellant's guilt on counts 1 and 3, and decline to apply the proviso. Orders 53 In my opinion the appeal should be allowed and the convictions quashed, and a new trial should be ordered. 54 GROVE J: I agree with Giles JA. 55 HIDDEN J: I agree with Giles JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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