Reported Decision : 162 A Crim R 517 New South Wales Court of Criminal Appeal CITATION: LAB v REGINA [2006] NSWCCA 202 HEARING DATE(S): 11 April 2006 JUDGMENT DATE: 30 June 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 102; Johnson J at 103 DECISION: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss that appeal. CATCHWORDS: CRIMINAL LAW - sexual assault - whether Department of Community Services documents were admissible - whether Crown should have been permitted to split its case - application of the proviso - whether directions sufficiently corrected submissions regarding corroboration and motive to lie - whether directions failed to warn against reasoning towards guilt from findings on individual counts LEGISLATION CITED: Evidence Act ASIC v Rich (2005) 216 ALR 320 Conway v The Queen (2002) 209 CLR 203 Crofts v The Queen (1996) 186 CLR 427 F (1995) 83 A Crim R 502 Johnson v The Queen (2004) 78 ALJR 616 Killick v The Queen (1981) 147 CLR 565 KRM v R (2001) 74 ALJR 550 Longman v The Queen (1989) 168 CLR 79 National Australia Bank v Rusu & Ors (1999) 47 NSWLR 309 Palmer v The Queen (1998) 193 CLR 1 CASES CITED: Papakomas v The Queen (1999) 196 CLR 297 Pearce v The Queen (1998) 194 CLR 610 R v Cook [2004] NSWCCA 52 R v E (1996) 39 NSWLR 450 R v Jovanovic (1997) 42 NSWLR 520 R v Lozano (unreported, NSWCCA, 10 June 1997 R v Milton (2004) NSWCCA 195 R v ST (1997) 92 A Crim R 390 Roach & Ors v Page & Ors (No 27) [2003] NSWSC 1046 The Queen v Chin (1984) 157 CLR 671 Weiss v The Queen (2005) 223 ALR 662 PARTIES: LAB (Appl) The Crown FILE NUMBER(S): CCA 2005/2384 COUNSEL: P Hammill SC (Appl) D Arnott SC (Crown) SOLICITORS: Merrick Spicer & Associates (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/1115 03/21/1099 LOWER COURT JUDICIAL OFFICER: Andrew ADCJ LOWER COURT DATE OF DECISION: 21 December 2004 IN THE COURT OF CRIMINAL APPEAL 2005/2384 McCLELLAN CJ at CL HOEBEN J JOHNSON J FRIDAY 30 JUNE 2006 LAB v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was tried before Andrew ADCJ and a jury on 5 charges of serious sexual assault of his adopted daughter, P, and one charge of assaulting her. He was convicted of all six charges. He appeals against his conviction. The counts were pleaded as follows: Count 1 Between 14 September 1997 and 31 October 1997, at Luddenham, in the State of New South Wales, did in circumstances of aggravation, have sexual intercourse with [the complainant], without her consent, knowing she was not consenting thereto, she then being under the authority of the said [the appellant]. Count 2 Between 1 November 1997 and 25 December 1997, at Luddenham, in the State of New South Wales, did in circumstances of aggravation, have sexual intercourse with [the complainant], without her consent, knowing she was not consenting thereto, she then being under the authority of the said [appellant]. Count 3 On or about 2 August 2001, at Wagga Wagga, in the State of New South Wales, did in circumstances of aggravation, have sexual intercourse with [the complainant], without her consent, knowing she was not consenting thereto, she then being under the authority of the said [appellant]. Count 4 On or about 4 August 2001, at Wagga Wagga, in the State of New South Wales, did in circumstances of aggravation, have sexual intercourse with [the complainant], without her consent, knowing she was not consenting thereto, she then being under the authority of the said [appellant]. Count 5 On 7 August 2001, at Wallacia, in the State of New South Wales, did assault [the complainant]. Count 6 On 8 August 2001, at Wallacia, in the State of New South Wales, did in circumstances of aggravation, have sexual intercourse with [the complainant], without her consent, knowing she was not consenting thereto, she then being under the authority of the said [appellant]. 2 The appellant was sentenced on 21 December 2004. Concurrent sentences of nine years with a non-parole period of six years were imposed in respect of counts 1, 2, 3, 4 and 6. Each sentence was ordered to commence on 29 October 2004 with the non-parole period to expire on 28 October 2010. In respect of count 5, a concurrent sentence of six months was imposed. In the event that the appeal against conviction fails, leave is sought to appeal with respect to sentence. The Prosecution case 3 The prosecution case rested upon the evidence of the complainant. Her evidence in respect of the sixth count was corroborated by DNA evidence. 4 The complainant was born on 16 December 1983. The appellant is her second cousin. She said that she and her twin brother PB, who gave evidence in the defence case, were around seven years of age when they went to live with the appellant and his wife. This followed the death of her grandmother who had been caring for them until that time. 5 The appellant and his wife had a son of their own, B, born some years after they adopted the children. When the family lived at Luddenham, according to the complainant, her bedroom was at the end of the hallway. Along this hallway was the bedroom occupied by the appellant and his wife, the bathroom, then their son's room and then the complainant's room. Although the appellant's son was only 3 years old, according to the complainant in 1997 he had a double bed because he often would not sleep by himself and either the appellant or his wife slept with him. The complainant's twin brother slept in a caravan on the property. 6 The complainant said that between 14 September and 31 October 1997, the appellant entered her room after she had gone to sleep and undid her pyjama top, rubbed her breasts, pulled down her pyjama pants, rubbed her vagina and then had sex with her. She said the appellant told her that it was a secret, that nobody would believe her and that it would ruin the family if she told anyone. This was the first count in the indictment. 7 In relation to the second count, the complainant said that between 1 November and 25 December 1997 she was watching a video in the lounge room when the appellant came into the room and put on a pornographic video called "Chopstix" which featured men working on a worksite and "ladies putting frankfurts in their vaginas." The appellant put his hand on her leg, lifted her skirt and pulled her onto him so that she was sitting on top of his penis. She told him it hurt and he said it would only hurt for a bit. She said that the appellant would always say that to tell other people would ruin the family and leave B, the youngest child of the household and the appellant's natural son, without a father. 8 The complainant gave evidence that following the second count, there developed an ongoing sexual relationship that happened "all over the house" at least "once or twice a week." She also gave evidence of an incident at a soccer field when she was with SL, her boyfriend at the time, and BH a friend of both her and her boyfriend. The appellant was furious and threatened to kill the boys and slapped the complainant and pulled her hair. The complainant said that she had been forbidden to associate with these young men as a result of some money going missing. 9 The complainant's evidence was that the events relating to the third count occurred on a Thursday night around 2 August 2001 when she was in Wagga Wagga with the appellant working on a trade show. By this time the complainant was seventeen years of age. She said the appellant came into her room, told her to go into his room and then had sexual intercourse. The complainant said she told the appellant that she did not want to do it. 10 The fourth count was also alleged to have occurred on the trip to Wagga Wagga. The complainant said that it occurred at around 2 am on 4 August shortly before they were to pick up a young female employee named LJ from the train station. 11 The fifth count was an allegation of common assault in the home at Wallacia on 7 August 2001. The complainant said the appellant hit her on both sides of the face and that she had swollen gums. 12 The sixth count was alleged to have occurred before school, in the home at Wallacia, on 8 August 2001. The complainant alleged that sexual intercourse took place with the appellant ejaculating inside her vagina. 13 After this incident the complainant went to her friend, BH's home where she spent the day. Between 5 and 6 pm she spoke to SH, her friend's mother. It was during this conversation that complaint was made. The police were called and the complainant went to the hospital where she was medically examined. The DNA evidence 14 Dr Andrew Wong gave evidence of his examination of the complainant which took place on the evening of 8 August 2001. He took a "high vaginal swab" which was provided to police for examination. The DNA profile of semen samples taken from the swab matched the DNA profile of a hair sample taken from the appellant. Other witnesses in the prosecution case 15 The complainant's friend, BH, gave evidence of his contact with the complainant and SL, her boyfriend at the time, in the period leading up to 8 August 2001. He gave evidence of meeting with the complainant at 2 am at the end of her driveway and on another occasion of driving with her to Warragamba. He also gave evidence of the incident at the football field and said that "the appellant threatened to kill us" and that he saw the appellant hit the complainant. He was reminded in cross-examination that he had previously given evidence that he "didn't see any assault of any description." He also gave evidence that the complainant came to his house on the afternoon of 8 August 2001. He said that she was a "bit shaky" but gave no evidence of the complaint. His mother came home that night and spoke with the complainant. He denied that he had ever told the complainant's ex-boyfriend that "It's a set up. I helped her set it up." 16 The complainant's boyfriend at the time gave evidence of the incident at the football field and said that he saw the appellant hit the complainant with an open hand and that the appellant then said to him and BH "if I see you again I'll kill you." He was also at their home on 8 August 2001 when the complaint was made to BH's mother. 17 When the appellant's premises were searched the police found a video tape entitled "Chopstix" which contained images of the kind described by the complainant. A summary of the defence case at trial 18 The appellant gave evidence in which he denied each of the allegations in the indictment as well as the history of the relationship given by the complainant. In relation to the DNA evidence, the appellant said that on the morning of 8 August 2001 he was watching a "blue movie" and masturbated, ejaculating into some tissues which he left on the floor. The complainant came down the hallway at that time. He left the room and when he returned to put the tissues in the bin they were gone. He suggested that the complainant must have inserted the tissues in her vagina thereby explaining the presence of his DNA. He agreed that he owned the pornographic movie "Chopstix" in 1997. Evidence of good character 19 The Crown Prosecutor conceded that the appellant had no prior criminal history. TR, a family friend, said he had known the appellant for twenty-one years and described him as honest, loyal to his wife and a good family man. LJ, an employee, said she had worked for the appellant for twelve to eighteen months and never found him to be "sexually aggressive" and never thought that he was looking at her inappropriately. The complainant's twin brother who remained in the home said he saw the appellant and his wife "like father and mother role models" and refuted the suggestion that he was treated like a slave (a proposition put by the Crown in cross-examination of the appellant) and generally gave a very different account of life in the household to that given by the complainant. KA, another family friend, said the allegations were so at odds with the appellant's character that they were hard to believe and that the appellant was honest, sincere, a hard worker and a loving father. Other evidence in the defence case 20 MT, another employee in the appellant's company, was at the football field during the incident when the appellant argued with the complainant's friends. She did not see the appellant strike the complainant. She said the complainant had told her that she was going on a trip to Wagga Wagga to work off a "phone bill" and that the complainant did not begrudge going (the complainant had denied this). She gave evidence of a conversation with the complainant in November 2001 in which the complainant told her the appellant was saying that "he was in his lounge room and watching an X-rated video and he was masturbating and that he must have dropped some on the floor and [the complainant] came along, picked it up with the tissue and then inserted it into herself." On the defence case, the complainant could not have known this at the time of the conversation. 21 The employee, LJ and her mother gave evidence of the latter's trip to Wagga Wagga in August of 2001. LJ said that she noticed nothing abnormal about the complainant when she met her that morning. 22 The appellant's wife gave evidence of the appellant's inability to have sex in certain positions. She gave evidence of the sleeping arrangements and beds in the relevant houses. She said that she would have heard the two having sex in the room next door if it had occurred with the frequency suggested and that she heard nothing and suspected nothing. She denied the proposition that she drank too much or was an alcoholic. She said that at the end of 1997 the appellant's mother stayed with the family and slept in the complainant's room. She said that she never thought the complainant was afraid of the appellant and never saw her distancing herself from him. She gave evidence of catching the complainant watching the video "Chopstix" when the family was living at Wallacia. 23 The appellant's mother, AH, gave evidence of staying with the family, including the period in the latter part of 1997. She said that she stayed in the complainant's bedroom. When cross-examined she denied that she had made telephone calls to the Department of Community Services expressing concerns about the welfare of the twins. The significance of this issue will emerge when discussing the grounds of appeal 24 Apart from the specific counts in the indictment the complainant gave evidence of numerous incidents of uncharged acts of sexual intercourse. She said it occurred: "at least once to twice a week when we were living at Luddenham", and "on a regular weekly basis" at Wallacia. 25 The complainant was aged 20 years when she gave evidence. She said that the appellant: "would always say to me that if I ever said anything no-one would believe me and I'd ruin the family and if he ever went to gaol I'd leave B without a dad." She also said: "he used to make me feel like I had to do it because they'd taken care of – me and my brother, that I owed it to him." At another point she said: "I didn't like him for what he'd done but I was still grateful to him and his wife for looking after me." Grounds of appeal Ground 1: The learned trial judge erred in admitting, over objection, the documents which comprised exhibit E, during the cross-examination of the appellant's mother, AH. Ground 2: The learned trial judge erred in permitting the Crown to split its case. 26 These two grounds of appeal are related and accordingly it is appropriate to deal with them together. 27 As I have indicated the appellant's mother was called by the defence. 28 Some documents of the Department of Community Services were tendered and admitted into evidence as Exhibit E. The documents comprised a record of alleged discussions with the appellant's mother and in summary contained the following representations made by her: (a) the complainant's brother lived in a bus on the property and was not allowed in the house except for meals and bathing; (b) the complainant's brother was depressed and acting like a zombie; (c) the appellant's wife was an alcoholic; (d) the appellant and his wife were having financial difficulty with their business; (e) the house and bus were always filthy; (f) the complainant was given a birthday party whilst her brother was not; (g) the complainant looked after the appellant's son; (h) the complainant and her brother missed school to clean the house and yard. 29 There were other matters in the documents which had the children's school as their source. They were: (a) both children, often on the same days from February 1998 to mid May 1998 had missed quite a number of days of school and were perpetually late for school; (b) the complainant had school work currently outstanding, which was unusual; (c) the school had no concerns for either child. 30 In her evidence the appellant's mother denied contacting the Department and denied expressing concerns to a Departmental Officer. 31 The trial judge ruled that exhibit E was admissible because, firstly, it went to the credit of the appellant's mother and, secondly, it went to a fact in issue described by the trial judge as "the manner and upbringing of the children as relevant to the circumstances in which it is alleged that the complainant was sexually assaulted." 32 His Honour also gave directions in relation to the use which the jury could make of the document. At one point his Honour said: "Further there is evidence of the calls to the Department of Community Services which AH denied, yet there are clearly recorded calls of a person of her name and address making those calls." 33 This was of course a reference to the use which the jury might make of the document in relation to the credit of the appellant's mother. His Honour continued: "Those are before you as an exhibit and contain information which it is put to you, is consistent with the complainant's evidence and directly contradicts what the accused and his witnesses have said." 34 The reference to witnesses in the plural may be a mistake. The document could only be relevant to the evidence of the appellant's mother. His Honour continued: "I should direct you that that evidence discloses that a person saying they were AH and giving her address made those calls to the Department. AH denies it was her. Those are matters for your decision as to what you make of that evidence." 35 The appellant submitted that exhibit E should not have been admitted for the following reasons: (a) the trial judge erred in his approach to s 69 (Business Records) of the Evidence Act ; (b) the trial judge, in allowing the evidence, wrongly permitted the prosecution to split its case; (c) the trial judge erred in his approach to ss 135 and 137 of the Evidence Act and specifically (i) failed to apply the proper tests under each of those provisions; (ii) failed to address s 137 of the Evidence Act at all; (iii) effectively failed to give reasons for rejecting the objection under ss 135 and 137 of the Evidence Act ; (iv) failed to give effect to his stated view that the prejudicial (effect of the evidence) was "not outweighed by its probative value"; (v) failed to distinguish between relevance and probative value and failed properly to assess the probative value of the evidence; (vi) failed properly to consider, or failed to consider at all, the nature of the unfair prejudice attendant upon the admission of the evidence. 36 The appellant gave evidence that during the time count 1 was alleged to have occurred his mother had been staying in the home with them. He gave evidence that his mother slept in the complainant's bedroom where there was a queen sized bed, whilst the complainant slept in the room with his son where there were double bunk beds. His mother gave evidence which confirmed this account. 37 The complainant, on the other hand, gave evidence that although the appellant's mother had stayed at their home, it had not been continuous, and she had also visited other friends and family in Sydney at that time. The complainant gave evidence that in her bedroom there were bunk beds split into an L shape positioned against different walls. The complainant slept in one of them. The double bed was in the appellant's son's room because he was a bad sleeper and someone normally slept with him. The complainant said that during the appellant's mother's stay she, the complainant, slept in the double bed in B's room. Her evidence was silent as to where B slept during the appellant's mother's stay. 38 In cross-examination the Crown Prosecutor put to the appellant's mother, which she denied, that she had slept in B's room and not that of the complainant. The following exchange also occurred: "Q. I put to you AH that you didn't stay in one spot for three months between 12 September and towards the end of November but in the three months period you did actually visit friends or relatives? A. No, I didn't. Not that I can remember. If I had anyone it would have been my sister. No-one else. … Q. Okay. If you had visited your sister D, was she in a position to put you up for the night? A. If I slept with her, yeah. She was working too. So I'm sure I didn't see her at that time she was working." 39 When objecting to the tender of exhibit E defence counsel submitted that the documents had no relevance other than: "to criticise the credibility, the believability of this witness in terms of was he sleeping in the complainant's bed and was the bed in that room. What else can be the probative value of the documents?" The Crown prosecutor's response was as follows: "Once your Honour reads the documents, your Honour will see that it not case (sic)." 40 There was no elaboration which explained this statement. Admissible as relevant to credit? 41 The appellant submitted that because exhibit E was relevant only to the credibility of the appellant's mother it was inadmissible having regard to s 102 of the Evidence Act. I am not satisfied this was the case. 42 Section 102 makes inadmissible evidence which is relevant only to a witness's credibility. However, both evidence adduced in cross-examination and evidence in rebuttal of denials are specific exceptions to the "credibility rule." 43 Although the Crown submitted that exhibit E was admissible as "evidence adduced in cross-examination" (s 103) I do not believe this to be the case. Rather than being adduced in cross-examination the exhibit is evidence of statements by the appellant's mother which are contrary to the oral evidence she gave. The exhibit contained evidence of prior inconsistent statements which were, in substance, denied by her. In these circumstances the "credibility rule" would not apply (s 106(c)). Was the document a business record? 44 Section 69 of the Evidence Act provides an exception to the hearsay rule with respect to certain documents. Provided a document meets the preconditions in s 69 it may be admissible. In his submissions on this appeal the appellant submitted that exhibit E should not have been admitted because the person who allegedly made the representation denied making it and there was no evidence from the person to whom the representation was allegedly made (see National Australia Bank v Rusu & Ors (1999) 47 NSWLR 309 per Bryson J at 312 para [17]; Roach & Ors v Page & Ors (No 27) [2003] NSWSC 1046 per Sperling J; ASIC v Rich (2005) 216 ALR 320 per Austin J at paras [98]-[99], [117]-[119]). 45 This point was not taken at the trial, where the matter was argued by defence counsel upon the assumption that the record was authentic, but the caller may not have been. In these circumstances, I would deny leave to argue this aspect of the matter in this appeal. It is unnecessary to consider whether the decisions on which the appellant relied would be of assistance in denying the admissibility of the document. Splitting the case 46 The Crown accepts that exhibit E should have been tendered in the Crown case in chief. The document contains representations about the condition of the appellant's premises, the health of the children and their treatment by the appellant and his wife. It also contained representations about their schooling, some of which were clearly favourable to the appellant. In particular the school had no concerns for the complainant or her brother. Only the matters which related to prior statements by the appellant's mother could have been relevant to her credit. Otherwise the Crown should have anticipated that matters going to the quality of parenting and the physical living conditions were an issue at the trial. Furthermore, the statement in exhibit E that the appellant's wife was an alcoholic was relevant as possibly explaining the appellant undertaking his alleged sexual exploits whilst his wife was in the house. There was the possibility that the wife's senses might be dulled by the effects of alcohol or an alcohol induced sleep. The allegations of the complainant were not confined to the counts in the indictment but included many instances of uncharged acts. 47 The general rule is that unless there are exceptional circumstances the Crown should not be allowed to reopen its case: Shaw v The Queen (1952) 85 CLR 365 at 380. 48 In The Queen v Chin (1984) 157 CLR 671 at 676-677 Gibbs CJ and Wilson J said: "The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless perhaps it was no more than marginally, minimally or doubtfully relevant: R v Levy & Tait (1966) 5 Cr App R 198 at 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue." 49 See also Killick v The Queen (1981) 147 CLR 565 at 568-572. 50 In the present case the Crown should have foreseen the issues raised in exhibit E. In fact, the Crown had already raised some of them in cross-examination of defence witnesses before the evidence of the appellant's mother and the tender of the exhibit. For example, questions were asked of the appellant's wife as to her drinking habits although it was not put to her that she was an alcoholic. Questions asked of the complainant's brother suggested that his room under the house at Wallacia was a "concrete cell" and that the conditions in the bus at Luddenham were squalid. He was asked if he was jealous of the complainant because she seemed to be the favourite. He was also asked if he and the complainant were forced to stay home from school to clean the house and yard. 51 In these circumstances if exhibit E was to be admitted it should have been tendered in the Crown's case. The Crown should not have been permitted to split its case. Sections 135 and 137 52 In the appeal, a number of criticisms were levelled at his Honour's approach to ss 135 and 137. In the course of his reasons for admitting the exhibit his Honour said: "I would agree that the evidence is prejudicial, but in my view, it is not outweighed by its probative value." 53 On the hearing of the appeal counsel for the appellant agreed that if correctly transcribed his Honour had made a slip. It is clear that by admitting the evidence his Honour intended to say that the probative value of the evidence outweighed any prejudice. 54 The appellant accepted that exhibit E only went "to peripheral issues in the case." This is undoubtedly correct for nothing in the exhibit related directly to the allegations which the complainant made in respect of the appellant's actions. 55 Section 135 provides a discretion in the Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. 56 Section 137 provides a requirement that the Court "must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 57 Both section 135 and section 137 require a judgment to be made which weighs the probative value of the evidence against the possibility of unfair prejudice to the defendant. Unfair prejudice does not arise merely because it makes it more likely the defendant's conviction. However, if there is a real risk of danger that the jury may adopt an illegitimate form of reasoning or give the evidence undue weight it may be excluded (see R v Yates & Ors [2002] NSWCCA 520 at [252]). The evidence may be unfairly prejudicial to a party if there is a "real risk that the evidence will be misused by the jury in some unfair way." R v BD (1997) 94 A Crim R 131 at 139 and 151: see Papakomas v The Queen (1999) 196 CLR 297 at [91] and [98]. 58 The risk of the jury misusing the evidence must be assessed having regard to the whole of the evidence tendered in the case. This will include not only the evidence of the prosecution but the evidence, if any, adduced by the defendant to explain the evidence sought to be excluded. (see R v Cook [2004] NSWCCA 52 at [37]). 59 The submission made on the appeal was that the evidence in exhibit E was capable of inflaming the jury against the appellant, causing them to form a prejudice against him leading to conviction. 60 I do not accept this submission. Considerable evidence was tendered at the trial of the family circumstances and the physical conditions in which they lived. There was evidence of conflict between the appellant and the complainant and of their domestic arrangements, including the fact that the complainant's brother lived in a converted bus (caravan) when they lived at Luddenham. There was also evidence given by a number of persons as to the quality of family life in the appellant's household. His wife, mother, the complainant's brother, and KA, a family friend, gave evidence of a close-knit family where the parents exercised love and care for both their natural child and the adopted children. 61 Although the evidence in exhibit E was capable of supporting contrary inferences to my mind it was not likely to have diverted the jury from a proper assessment of the veracity of the complainant's account of the relevant events. Many of the observations in relation to the family living conditions were put to witnesses and denied. The appellant's wife was asked about her drinking habits. Questions were put to the complainant's brother about his living conditions, particularly about his room at Wallacia being a "concrete cell" and about the conditions in the bus being squalid and "not fit to put a dog in." As I have previously indicated he was asked if he was jealous of the complainant because she seemed to be the favourite and whether he was forced to stay home from school with the complainant to clean the house and yard. 62 In these circumstances I am not persuaded that his Honour erred in the judgment required in relation to s 135 and 137 of the Evidence Act. The submissions made by the prosecutor and the directions given by the trial judge confined the relevance of the evidence to the question of the credit of the appellant's mother. The evidence was probative of that issue and in my opinion was not outweighed by any prospective unfair prejudice to the appellant. The proviso: Section 6(3) of the Criminal Appeal Act 63 The Crown submitted that even if wrongly admitted the Crown case was such that no substantial miscarriage of justice has actually occurred: see Weiss v The Queen (2005) 223 ALR 662 at 674-5 especially [43]-[47]. 64 Although I am of the view that exhibit E should not have been admitted I am entirely satisfied that the appellant did not thereby lose the chance of an acquittal. I have already indicated that the document had only incidental relevance in the Crown case and did not have any significant impact on the evidence of either the complainant or the appellant in relation to the central allegations at the trial. 65 Apart from count 6, where the DNA evidence was available, those allegations required the jury to consider whether to accept the complainant's account having regard to the appellant's denials. It is clear that the jury accepted the complainant. Having regard to the strength of the Crown case, and after reviewing the evidence I am satisfied that this is a case where the proviso should be applied. Ground 3: The trial miscarried as a result of erroneous submissions made by the learned Crown Prosecutor and the failure of the trial judge to correct those submissions in his charge to the jury. 66 There are a number of complaints made by the appellant under this ground of appeal. 67 Section 164 of the Evidence Act abolished the common law requirements with respect to corroboration except in relation to offences of perjury or similar related offences. Section 164(3) provides that if there is a jury it is not necessary that the judge: "(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effects; or (b) give a direction in relation to the absence of corroboration." 68 However, this provision does not prohibit a warning that it would be dangerous to convict on uncorroborated evidence (Conway v The Queen (2002) 209 CLR 203 at 53) and a warning may still be necessary "to avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case" (Longman v The Queen (1989) 168 CLR 79 at 86). That obligation is a reflection of the fact that the judge must ensure that the accused has a fair trial (Crofts v The Queen (1996) 186 CLR 427 at 451). 69 There can be no doubt that in a trial involving allegations of sexual assault it is preferable if possible to avoid reference to corroboration in any manner which may raise the difficulties which the common law previously identified. At common law corroboration was a technical concept and the use of the expression could lead to "arid arguments arising as to whether that evidence amounted to corroboration" (see R v Lozano (unreported, NSWCCA, 10 June 1997 at 7; see also R v ST (1997) 92 A Crim R 390 at 393; R v Milton (2004) NSWCCA 195 at [42]). 70 The appellant complained that in the course of her submissions to the jury the Crown Prosecutor repeatedly referred to evidence which was said to corroborate the complainant and invited them to "prefer the evidence of the complainant to that of the appellant." On one occasion the Prosecutor submitted that the evidence of the mother of the complainant's friend "corroborates everything the [complainant] has told you." Elsewhere the prosecutor submitted that the witness TR, a family friend, "corroborates [the complainant]." The evidence of the young female employee, LJ, to the effect that the complainant was acting normally was said to corroborate the complainant. Elsewhere the prosecutor said that the family friend, TR's evidence corroborates or assists the Crown case whereas the appellant submitted the evidence in question (that the family friend used to come over for dinner) was consistent with both the defence and prosecution case. The appellant emphasised that on one occasion the Crown Prosecutor suggested that the inability of the defence witnesses to rule out absolutely the evidence of opportunity "also corroborates the complainant." 71 The appellant submitted that none of the evidence to which reference was made was capable of amounting to corroboration in the common law sense of that word. 72 It was further submitted that the Crown Prosecutor's address, in the absence of a firm correction by the trial judge, misled the jury by inviting it to "prefer" the evidence of the complainant and suggesting that such preference would lead to satisfaction of the appellant's guilt beyond reasonable doubt. As an illustration of this submission the appellant draws attention to the Crown Prosecutor's remarks: "In relation to the first count other than what I put to you is her very credible evidence, you have nothing against which to compare it other than if we listen to the accused and you feel that perhaps he's less than honest with you, you might then think that you'd prefer her evidence and that her evidence would satisfy you beyond reasonable doubt." 73 On another occasion the Crown Prosecutor in her address said, in relation to the evidence of the complainant's friend's mother, who was the adult who received the complaint from the complainant which caused her to go to the police, "you might think that she would have no reason to lie." It was submitted that this submission invited the jury to engage in impermissible reasoning: see Palmer v The Queen (1998) 193 CLR 1; R v Jovanovic (1997) 42 NSWLR 520; F (1995) 83 A Crim R 502; R v E (1996) 39 NSWLR 450. 74 The appellant submitted that although the prosecutor cautioned the jury that the trial judge would correct her if anything she said was wrong, the judge never did this. It was submitted that the judge repeated the complainant's submissions in relation to corroboration and although defence counsel told the jury that the matters referred to by the Crown were not corroboration, the trial judge failed to refer to counsel's submissions and failed to instruct the jury, that as a matter of law, the defence submission was correct. 75 An examination of the transcript of the Prosecutor's address discloses, in my opinion, that the expression "corroboration" or "corroborative" were used colloquially to mean "consistent with", "not contradicted by", "supportive of", or "confirms." I am satisfied that both the Crown Prosecutor and his Honour when outlining to the jury the submissions which the prosecution had made used the expression in a non-technical sense. I do not think the jury would have understood the expression otherwise. The substantial effect of the Crown submission was that there was a body of evidence which was not inconsistent with the complainant's allegations. 76 The appellant also complained about another aspect of the Crown Prosecutor's address. It was submitted that the prosecutor's comments would have had the effect of undermining the Longman direction which the trial judge gave to the jury. Particular complaint is made about the following remark: "His Honour will also direct you that in relation to the first count, it is also dangerous to convict because all you have is one person giving you that evidence, with (sic) you might think, is no corroboration." 77 When his Honour came to deal in his summing up with the earlier counts, which had occurred three and a half to four years before the complainant reported the matters to the police, he was careful to highlight a number of effects which delay may have had on the ability of the appellant to defend himself. His Honour said that one of these was the fact that "the prosecution case is confined to the evidence of the complainant." 78 Shortly thereafter his Honour said: "Further, because of the passage of time of several years it would be dangerous to convict on the complainant's evidence alone unless you are satisfied of its truth and accuracy having scrutinised that evidence as I have said, and with much care considered the circumstances relevant to its evaluation and paid careful heed to this warning. I am not suggesting to you that because there was a failure to complain of the events alleged that you could not thereby believe the complainant's evidence. What you make of her evidence of course is entirely a matter for you. It is the Crown case that on the facts the complainant was only thirteen at this time or thereabouts that she was clearly bewildered and confused in the situation where her guardian, or person that she thought of as her father, was suddenly on the first count touching her breasts and vagina and having sexual intercourse with her in a situation where he said it was all right to do so and in circumstances where she was told it may harm the family if she reported it … There are clearly circumstances in the Crown case explaining why she did not complain at the time. Those are questions of fact. That was the Crown case that was put to you." 79 His Honour also gave directions as to the use which the jury could make of the complaint to the complainant's friend's mother, SH and said: "Evidence of recent complaint relates to statements allegedly made to SH in the past outside the courtroom. It is referred to at law as hearsay evidence. The witness SH has merely repeated in court what she says the complainant said to her about the alleged incidents. She was not present to observe what allegedly occurred. Accordingly she could not give direct evidence to you of that. You will therefore necessarily approach her evidence with caution. However, bear in mind this warning, if you accept that the complaint was made to SH then you may take that into consideration as some evidence of the fact that the sexual assault alleged actually took place. The fact that the complaint was made may assist you in that task because the Crown says it shows a consistency of conduct on the part of the complainant and that she complained to a person to whom she might reasonably have been expected to complain if she had been sexually assault. The Crown says that such is the conduct of a truthful person whose been sexually assaulted. In other words the evidence is also relevant to the credit of the complainant as a witness and that it may increase the weight which you give to her evidence as to the sexual assault with which the accused has been charged. Of course I remind you that the accused says that no such sexual assault took place. You should consider the reasons and arguments put forward by the parties to determine for yourselves what weight should be given to the complainant's evidence in the case." 80 As the Crown pointed out in submissions, when giving these directions his Honour was careful not to refer to "corroborated" or "uncorroborated" evidence but rather used the expression "it would be dangerous to convict on the complainant's evidence alone." This adequately avoided the jury linking the direction to the question of corroboration in the way in which that expression had been used by the Crown. 81 The appellant also submitted that his Honour should have repeated to the jury a portion of defence counsel's address as a current statement of the law. Defence counsel addressed the jury in the following terms, referring to count 2 and regarding the inconsistent account given by the appellant and his wife: "What they did is gave you versions inconsistent between the two of them. Left open the opportunity, that's all, opportunity … The complainant says this act occurred and these witnesses can't say it was impossible. That's it. They in no way corroborate the complainant. They certainly don't corroborate the complainant with respect to the allegation." 82 It is clear in this passage that defence counsel was using the expression "corroboration" in its technical common law meaning. This was different to the way in which it was used by the Prosecutor and repeated by the trial judge. 83 It is important that although defence counsel addressed in these terms the trial judge was not asked to give a similar direction or explain the concept of corroboration or the use of that word by either the prosecutor or by his Honour in his summing up. Accordingly, r 4 applies. 84 Having regard to the fact that the expression "corroboration" or similar expressions were frequently used by the prosecutor and a comprehensive reference was made to the prosecutor's submission by the trial judge, the failure to seek a direction cannot have been through inadvertence. The explanation must be that neither the submissions of the prosecutor, nor, the directions of the judge raised any concerns. I would decline leave to argue these matters. 85 With respect to the submission by the appellant that the Crown Prosecutor's address invited the jury to lower the standard of proof, I am satisfied that his Honour gave a clear direction in relation to these matters. It was in the following terms: "It is and always has been a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is known as the presumption of innocence and this expression proved beyond reasonable doubt is an ancient one. It needs no explanation from trial judges. The Crown does not have to prove however every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt and I shall subsequently outline to you the elements of each charge." 86 Finally in relation to the evidence of SH, the complainant's friend's mother, the appellant submitted that the Prosecutor invited the jury to reverse the onus of proof when she stated that the jury "might think she would have no reason to lie about anything that she said." 87 Although the submission in other circumstances may have given rise to difficulties this was not the case in the present matter. The cross-examination of SH was brief and her evidence was not challenged. She was questioned about one topic, whether or not she told the complainant she had to report to the police any allegations she might make of sexual assault. Her reply was that she could not remember. SH's evidence was uncontroversial and no redirection was sought by defence counsel. This is hardly surprising. I would also decline leave in relation to this aspect of the matter. Ground 4: The trial judge erred in his summing up in failing to warn the jury against reasoning towards guilt in relation to counts 1-5 on the basis of its finding in respect of count 6. 88 The appellant submitted that an error was made when the trial judge failed to direct the jury that if they disbelieved the appellant's account of how his semen came to be found inside the complainant's vagina that should not conclude the issue regarding the other counts. It was submitted that the jury should have been told that they needed to be satisfied regarding the truth of the complainant's evidence on those other counts beyond reasonable doubt. It was submitted that there was a real danger that the jury would reason backwards from a finding of guilt in respect of the final charge. 89 The appellant made particular complaint about the following passage in the trial judge's summing up: "The Crown case is that you could not accept the accused as being truthful. It is put to you that the inescapable fact is that his semen was detected in her upper vagina. You would, it is put to you, have no doubt as judges of the facts in determining that the accused version of how the semen got there is simply unbelievable. The Crown case is that you would be satisfied beyond reasonable doubt that the accused is guilty of all five counts including the charge of sexual assault." 90 In his introductory remarks to the jury at the commencement of the trial his Honour was careful to tell the jury that they would need to consider each count separately. This caution was repeated in his Honour's summing up when he said to the jury: "It may not follow that because an accused is guilty or not guilty of one of those charges that he is guilty or not guilty of the others." His Honour further instructed the jury that "you must not reason that because the accused may have done something wrong to the complainant on other occasions he must have done so on the occasions with which he is charged." Although this was a direction specifically directed to the use which the jury might make of evidence of uncharged acts it nevertheless reinforced his Honour's directions that the jury needed to consider the evidence in relation to each charge separately. 91 The passage in respect of which particular complaint was made came at the end of his Honour's summary of the Crown Prosecutor's arguments which had been put to the jury. His Honour was repeating the prosecutor's submission that there were shortcomings in the testimony of the appellant and a number of witnesses called by him. The origin of the semen was one of these shortcomings. His Honour had already dealt separately with the evidence in respect of each count. 92 At the trial defence counsel sought only one direction of the trial judge being a KRM direction (KRM v R (2001) 74 ALJR 550) relating to the relevance of an acquittal on any count to the jury's assessment of all counts. His Honour gave the following direction: "Accordingly, if for any reason you have a reasonable doubt about her truthfulness and reliability or credibility in relation to one charge you must take that into account in assessing her truthfulness and reliability or credibility as a witness in relation to the other charges. It may not follow that because an accused is guilty or not guilty of one of those charges that he is guilty or not guilty of the others. You will need to consider each of the charges separately. I give you a further direction to the effect that where there is only one witness asserting the commission of a crime the evidence of that witness must be scrutinised with great care before a conclusion is arrived at and a verdict of guilty should be brought in." 93 No application was made for any further direction and again r 4 applies. In my opinion no further direction was required and I would decline leave. Ground 5: The sentencing proceedings miscarried and a less severe sentence was warranted in law and ought to have been imposed. 94 The appellant submitted that the sentencing proceedings miscarried as a result of the trial judge failing to assess the criminality involved in each of the individual offences: Pearce v The Queen (1998) 194 CLR 610. It was submitted that error is reflected in the fact that his Honour imposed exactly the same sentence in relation to each of the five sexual offences. 95 It was submitted that the offences charged in counts 1 and 2 were far more serious than the offences in counts 3, 4 and 6 due to the age of the victim at the time of each offence. In respect of the first two counts an additional aggravating feature (that the victim was less than 16 years old) existed which did not pertain to the later counts. 96 The Crown accepted that counts 1 and 2 were the more serious sexual offences. However, it was submitted that the sentences imposed for these offences were particularly generous, as was the overall result. 97 The sentencing judge imposed the same sentence for the counts of sexual intercourse of 9 years imprisonment with a non-parole period of 6 years and made the sentences concurrent with the same commencement date. A fixed term of imprisonment of 6 months imprisonment was imposed for the assault. 98 Although it may be that error has occurred in the application of Pearce there can be little doubt that his Honour was aware of the principles provided by the High Court (at 624). He was referred to them by counsel during the sentencing proceedings. Pearce must be applied having regard to what the High Court later said in Johnson v The Queen (2004) 78 ALJR 616 at [26]. A sentencing judge, when sentencing for a number of offences, may, as a proper exercise of the sentencing discretion, lower each individual sentence in order to have appropriate regard to the principles of totality. 99 In my opinion the sentences imposed on counts 1 and 2 were, having regard to the age of the victim, less severe than might otherwise have been appropriate. In fact, having regard to the serious and sustained abuse of the victim which was proven to have occurred on a number of occasions over a period of years, the overall sentence imposed by his Honour was arguably inadequate. If error has occurred, and it was necessary to resentence, a more severe sentence may be appropriate in relation to counts 1 and 2 and, with some accumulation, a greater total sentence may be appropriate. 100 Although I would grant leave to appeal against sentence I would dismiss that appeal. Orders 101 In my opinion the following orders should be made: 1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss that appeal. 102 HOEBEN J: I agree with McClellan CJ at CL. 103 JOHNSON J: I agree with McClellan CJ at CL. ********** 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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