Reported Decision : 167 A Crim R 484 New South Wales Court of Criminal Appeal CITATION: RELC v REGINA [2006] NSWCCA 383 HEARING DATE(S): 6 October 2006 JUDGMENT DATE: 29 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 86; Howie J at 87 DECISION: 1. The appeal is allowed; 2. The convictions and sentences are quashed; 3. Order a new trial. CATCHWORDS: CRIMINAL LAW - Appeal against conviction - act of indecency - sexual intercourse - child under ten years - miscarriage of justice - warnings to jury relating to evidence-in-chief given by recording - warnings to jury relating cross-examination by CCTV - whether error in allowing recordings and transcript to be taken to jury room - disproportionate weight - no adverse inference - whether proper procedure followed for allowing recordings and transcripts to be taken to jury room - improper cross-examination - evidence of children - warnings on unreliability - whether a warning appropriate - whether contemplated under s 165 of the Evidence Act Evidence Act 1995 LEGISLATION CITED: Evidence (Children) Act 1997 Evidence Legislation Amendment Act 2001 (NSW) Jones v R [2005] NSWCCA 443 R v DBG (2002) 133 A Crim R 227 CASES CITED: R v NZ (2005) 63 NSWLR 628 R v Stewart 52 NSWLR 301 Wilson v R [2006] NSWCCA 217 PARTIES: RELC (Appl) The Crown) FILE NUMBER(S): CCA 2006/861 COUNSEL: A Francis (Appl) P Barrett (Crown) SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0024 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 12 August 2005 IN THE COURT OF CRIMINAL APPEAL 2006/861 McCLELLAN CJ at CL ADAMS J HOWIE J WEDNESDAY 29 NOVEMBER 2006 RELC v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant appeals against his conviction and seeks leave to appeal his sentence in relation to three counts: Count 1: That he on or about 24 July 2004, at Gordon in the State of New South Wales incited CED, being a person under ten years, namely seven years and who was under the authority of RC to commit an act of indecency with RC. Count 2: That he on or about 24 July 2004, at Gordon in the State of New South Wales did have sexual intercourse with CED a person then under the age of ten years, namely seven years. Count 3: That he on or about 24 July 2004, at Gordon in the State of New South Wales did have sexual intercourse with CED, a person under the age of ten years, namely seven years. 2 The appellant was sentenced on 12 August 2005 as follows: Count 1: Imprisonment for eighteen months to commence on 3 June 2005 and to expire on 2 December 2006. In relation to this count the sentencing judge declined to set a non-parole period because the sentence of imprisonment was to be served concurrently with terms of imprisonment with longer non-parole periods. Counts 2 and 3: 3 Imprisonment for six years and six months to commence on 3 June 2005 and to expire on 2 December 2011 with a non-parole period of 4½ years commencing on 3 June 2005 and expiring on 2 December 2009. The Crown case in summary 4 The Crown case was that on Friday 23 July 2004 the complainant, a seven year old girl, slept over at the house of her best friend LC. The appellant is LC's father. The complainant and LC initially went to sleep in LC's bedroom. At some point in the evening LC woke up and went to her father in his bedroom. He slept alone having separated from his wife who slept in another room in the house. 5 The Crown alleged that the complainant followed LC into the appellant's bedroom where the appellant told the girls to play with his penis. The appellant then put hand lotion on both the complainant's and LC's hands and both girls touched his penis. Both girls then washed their hands in the bathroom, before returning to the appellant's bedroom. When the complainant and LC got back into the appellant's bed the appellant allegedly grabbed the complainant, pulled her pants down and inserted his fingers into her vagina. The appellant then lay on top of the complainant and put his penis into her vagina. 6 The appellant told the complainant that he loved her and gave her and LC treats that were kept in a cupboard in his bedroom. The appellant, LC and the complainant slept the remainder of the night in the appellant's bed. The following morning the appellant told the complainant not to tell anyone what had happened the night before or he could go to gaol. 7 The complainant did not immediately report the events to an adult. However, on 22 August 2004 she told a family friend, DY, about the events of the 23 July. She was interviewed for the first time by the police on 27 August 2004. On 28 August 2004 she told her mother and father about what had happened. The complaint evidence 8 Three witnesses gave evidence of the complainant's report of the events. DY gave evidence that she was driving to the St Ives showground when the complainant made remarks to LC which alerted her and she asked the complainant what the secret was that they were discussing. The complainant responded: "When I sleep over, [the appellant] makes me put cream on his wee wee and if I do it good, then he gives me lollies." 9 In her evidence DY said that after this conversation she told the children about a doctors and nurses story. However, when cross-examined she agreed that she had told the police that she had told the children a doctors and nurses story before she heard of the complaint. The inconsistency was emphasised by the appellant in an attack on the reliability of DY's account. It was also submitted that it was evidence of suggestion made by DY which initiated the complaint. 10 On 28 August 2004 the complainant's father spoke to her and asked: "[the appellant] did something to you can you tell me what it was?" 11 The complainant said: "He put his willy in me." He said 'We heard about some cream. What happened there?' 12 The complainant responded: "[the appellant] got LC and me to put cream on his willy first, then he grabbed me and said 'get it in, get it in.' I screamed a bit and he said 'be quiet' and he kept putting his willy in me". 13 The complainant's mother gave evidence that she spoke to the complainant on the same day and the complainant said to her: I wish I didn't go into to [the appellant's] room and I could rewind the tape so I never went into his room." 14 She also said that the complainant said: "[the appellant] put his willy into my private parts and it really hurt. I screamed a lot but was told to be quiet because J might wake up. She said [the appellant] kept saying to me 'let him in, let him in' I wanted to get away but I couldn't." 15 The complainant said that LC was screaming at the appellant to "move his fat arse off C" and banging on his back with her fists. The complainant's mother asked her "how long did it go on for?" She said: "About ten minutes and it really hurt." The complainant said: "at the end, [the appellant] gave me an LCM and a roll-up. She said that [the appellant] said to her that he really, really loved her and that is why he did it." The evidence of the appellant's daughter - LC 16 LC gave evidence in which she denied sexual misconduct on behalf of her father. She was first questioned by the police on 27 August 2004 and again on 2 September 2004. The interview she gave on the first occasion was generally exculpatory of any sexual impropriety on behalf of the appellant. She told the police that the "[the complainant] pulled down my Dad's pants and touched his penis and she made me touch it." During the interview she made no mention of any other activity. 17 In her second interview LC corroborated aspects of the complainant's account of the relevant events. This was, of course, contrary to the material in her first statement. 18 When she gave evidence LC said that she had lied in the second record of interview because the complainant had told her that if she did not say what the complainant wanted the complainant would tell the school about what had happened. The Crown submitted that the jury might reject LC's explanation for her earlier lies because, in particular, when challenged she could not recount when or where the complainant told her she would tell the school if she did not change her evidence. 19 When giving evidence LC said that she and the complainant had put cream on her father's penis but that this was the complainant's idea. When her father woke up he told them to "stop," she said that the complainant said "well LC sexed B" to which her father said "we all make mistakes". LC said that she started to cry because of what the complainant had said and agreed they were given sweets. 20 In neither of her interviews did LC give an account of observing events in the nature of digital or penile penetration. The defence case 21 The appellant gave evidence. He denied the complainant's account and said that he was asleep when the girls entered his room and awoke to find them massaging his penis with lotion. He was shocked and told them to stop and rolled out of bed. In doing so he went over the top of the complainant. He said that he told them that they ought not to have done what they did and the complainant said something along the lines of "well LC sexed B." The appellant said that he was told by his daughter that the activity was the complainant's idea. 22 The appellant gave evidence that he had an erectile dysfunction, low libido and a back condition which made the allegation against him impossible as he was unable to do push ups on the top of the complainant in the manner she alleged. The evidence of JC 23 JC, the appellant's wife was called in the defence case. She gave evidence that she had separated from the appellant in about 2000 but they continued to live together under the one roof with their two children. She said that the complainant had slept at their house at various times over several years. JC said that she was present on the night of the alleged incident but did not hear anything consistent with the complainant's account. In giving evidence of the layout of the house she said that it echoed a lot because of the wooden floor boards and that she was a relatively light sleeper. She said that she did not hear the complainant scream out. She also gave evidence that the complainant had spent a night at their home after the alleged incident and that she had joined the family that night at a restaurant while celebrating their son's birthday. 24 Defence counsel sought to elicit from JC whether she had read either of the police statements that her daughter had given. The Crown objected to the question and it was withdrawn. However, JC said that she spoke with her daughter after the appellant was arrested and said (using C to symbolise the complainant): "She told me that she'd had a nightmare, she went into dad's bedroom, she told me that C followed her, she wanted to go to sleep, C didn't want to sleep, so she got up and pulled [the appellant's] pants down, got the hand lotion, put her hand on R's penis and then placed L's hand on [the appellant's] penis, then apparently Dad woke up, Dad asked 'who's responsible for this? LC said 'C' and C apparently said 'but LC had sex with B.' Then apparently dad was very upset, so he told them to stay in this room, do not go anywhere and go to sleep, and apparently C asked for some treats, which he gave them, and he left the room and the girls went to sleep." 25 JC also gave evidence that some time after LC had changed schools LC had told her that she had given a different account to the police but that she had only done this because the complainant had threatened to tell everyone at school what had happened. JC also gave evidence of the appellant's bad back and how it impacted upon his mobility. She gave evidence of conversations with the family doctor which were consistent with the appellant having problems with erectile function. 26 The Crown cross-examined JC and attacked her credibility. A central element of the attack was based on the circumstance that she had not told the police that she was aware that the complainant had lied in her second interview and only revealed that knowledge when she gave evidence. JC said that, amongst other reasons, she had not told the police because they had warned her not to talk to her daughter about her evidence and she was afraid of any repercussions. The following exchange occurred: "Crown Prosecutor: Q. You didn't tell the police that your daughter, an important witness in this case had changed her evidence. Is that correct? A. Yes. Q. And is that because you didn't think that was important? A. No. Q. In fact, Mrs C, it's because you knew that what she told the police the first time on [sic] her interview in 2 September was correct. Is that not right? A. No. Her Honour: I'm sorry, can you put that question again, Madam Crown? Crown Prosecutor: I will, your Honour. Q. The reason you didn't tell the police that your daughter was going to change her story is because you knew she told the truth the first time to the police? A. No. Her Honour: Which one? Crown Prosecutor: I'll try again, your Honour. Her Honour: That's why I asked you to ask the question again Madam Crown. Crown Prosecutor: The reason, Mrs C and I think you know where I'm going with this -- Greenhill: I object to that comment. Her Honour: Madame Crown stop making comments to the witness. Crown: Yes your Honour. Her Honour: Ask questions and stop making comments. Crown Prosecutor: The reason that you didn't tell the police that your daughter was going to change her evidence is because you knew that when she gave her interview to the police on 2 September she told the truth? A. No. Q. It wasn't true, what you said yesterday, that you knew nothing about the matter is it. A. I don't understand. Q. When you told Mr Greenhill that you didn't want to give a statement to police because you knew nothing -- A. Yes. Q. -- about this matter, that wasn't right, was it? A. I didn't know anything about the incident. Q. But you did know that your daughter was going to change her testimony? A. I didn't know. Q. Well you knew - A. Well - Q. -- that she was – she had told you -- A. I told my daughter to tell the truth. Q. You also know that she had told the police something else? A. Yes. Q. But you didn't think that was sufficiently important to tell the police, is that right? A. I was frightened to tell the police. Q. Frightened to tell the police about the truth, is that right? A. I was frightened to tell the police because they had told me – LM had told me on three separate occasions if I was to influence L to change her statement I could be charged with witness tampering, my children taken away from mum, and that they hadn't yet finished laying charges against L – against R about L. Q. Mrs C, didn't you think it was important that the police know that L is going to change her evidence in this serious court case? A. I sought legal advice." Grounds of appeal 27 There are four grounds of appeal. Ground 1: the trial miscarried because of the failure to deal properly with the evidence of the complainant by particularly: (a) allowing the transcript and the video of the complainant's evidence to go into the jury room; (b) the failure on the part of the trial judge to give a warning and directions with respect to not giving the evidence of the complainant's video taped interview disproportionate weight at such time as they were invited to listen to it again. Ground 1(a) 28 The complainant's evidence-in-chief consisted largely of the video of her interview with the police which was played to the jury. It was then tendered without objection. The video was provided to the jury and both the video and the transcript of it went into the jury room when they retired to consider their verdict. 29 Apart from the video evidence the complainant gave additional oral evidence-in-chief and was cross-examined utilising closed circuit television (CCTV) pursuant to the relevant provisions of the Evidence (Children) Act 1997 ("the Act"). 30 The appellant submitted that the trial judge erred in allowing the transcript and recording to go into the jury room. It was submitted that the preferred procedure set out in R v NZ (2005) 63 NSWLR 628 in the joint judgment of Howie and Johnson JJ (at [210]), was not followed. This, of course, is not surprising for the trial commenced on 13 May 2005 and concluded on 10 June 2005. The judgment in NZ was not delivered until 17 August 2005. 31 Section 15A of the Act provides: "The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of the evidence of a previous representation to which this Part applies made by a child that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury's comprehension of the evidence." 32 The appellant's trial counsel objected to the transcript being provided to the jury and submitted that there was a risk of it being given undue weight. However, the trial judge allowed it only as an aide-memoire and directed the jury in the following terms: "The transcript is being provided to you as an aide-memoir. It is not the evidence. The evidence is the video that you're about to see and hear, and that will be the evidence that you should turn to in determining what you find proved in this trial. The transcript is there as an aide-memoire to assist you understand the video as it is being played to you." 33 This direction was appropriate. The jury were clearly told that the transcript was not the evidence which was contained in the video. This ground of appeal is not made out. 34 No objection was taken by trial counsel to the tender of the complainant's recorded interview and its provision to the jury and accordingly r 4 applies. 35 In Wilson v R [2006] NSWCCA 217 Latham J at [78] emphasised that notwithstanding the fact that this Court has indicated that video tape evidence should not be sent with the exhibits to the jury on retirement, if this occurs it "does not necessarily resolve the question whether an irregularity in the conduct of the trial has occurred, such that the verdict of the jury must be set aside. The question that arises, where the preferred procedure has not been adopted, is whether there has been a miscarriage of justice." 36 It is accepted by the appellant that as in NZ the recording in the present case reveals an unemotional and unremarkable account of the complainant's allegations. Furthermore, it is not unimportant that the jury retired to consider its verdict at 2.40 pm and returned on the same day with guilty verdicts at 3.44 pm. The interview with the complainant ran for 44 minutes. Other tapes of the interview with the appellant's daughter ran in relation to the first interview as edited 20 minutes and the second, as edited, ran for 59 minutes. It is accordingly, impossible for the jury to have played all 3 recordings and in practical terms inconceivable that they viewed the whole of the complainant's interview and unlikely that they viewed any part of it. 37 In the circumstances, although the procedure subsequently provided by this Court was not followed, I am not persuaded that a miscarriage of justice has occurred. I would refuse leave to raise this matter. Ground 1(b) 38 When evidence is given by playing the video of a recorded interview s 14 of the Act provides as follows: "Warning to Jury If a child gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Part in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way." 39 Although the trial judge gave an appropriate warning when the evidence was tendered it was not repeated in the summing up to the jury 40 As it happens, her Honour gave the warning required under s 14 on more than one occasion. Before the first witness was called her Honour said to the jury: "They [the complainant and another child witness] will also, each of them, be giving their evidence in chief which is the first part of their evidence called by the Crown by a system of pre-recorded interview with them in accordance with the laws of their [sic] State. Now one thing I need to say to you about that, and I'll warn you about it again, is that, that's done simply because the laws of this State allow the evidence to be called in that way for children in cases such [as] this. And you're not to draw any inference adverse to the accused or to give the evidence any lesser or greater weight just because it's called in that way. It's just the way it's allowed to be done in New South Wales as a result of some more recent laws." 41 Before the complainant was called the trial judge said: "I should say to you about that evidence I'll just repeat what I said I think it was yesterday. That is that this evidence is given in this form because the legislation of the State allows for that to occur. You should not draw any inference adverse to the accused because the evidence is being given in this way, nor should you give the evidence any lesser or greater weight because it is being called in that way. It is simply happening because it is allowed to happen that way as a result of the legislation of this State." 42 Trial counsel did not seek a further warning from her Honour in accordance with s 14 during the summing up and accordingly r 4 applies. 43 In R v DBG (2002) 133 A Crim R 227 Howie J emphasised that it is preferable that a trial judge gives any information or warnings required in relation to particular evidence either immediately before or immediately after the giving of that evidence rather than wait until the summing up. His Honour said: "For my part, I believe it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing-up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing-up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given." 44 As his Honour points out providing information or warnings to the jury at that time is likely to have a greater impact than if left until the end of the trial. In my view this was clearly the case in this trial where I am satisfied that the warnings given must have had a significant impact on the approach which the jury took to the relevant evidence. This must also have been the view of trial counsel. In my opinion a miscarriage of justice has not occurred and I would refuse leave to raise this ground. Ground 2: The trial miscarried because of the failure to deal properly with the evidence of the appellant's daughter by particularly: (a) allowing the transcripts and the video and audio of her interviews to go to the jury room; (b) failing to give warnings concerning not giving disproportionate weight to the interviews; (c) failure to warn the jury that no adverse inference was to be drawn against the accused because the witness was utilising the CCTV facility pursuant to s 25 of the Evidence (Children) Act . 45 Neither of the interviews conducted with the appellant's daughter was recorded on video tape. However, an audio recording was made and was tendered without objection. The transcript of the first interview was also tendered without objection. Although the transcript of the second interview was not specifically marked as an exhibit it would appear that it was provided to the jury as an aide-memoire. 46 I have already concluded that the tender and provision of the video recording of the complainant's evidence to the jury did not bring a miscarriage of justice. For the same reasons I am of the view that the audio tapes and transcripts, admitted without objection, had no capacity to cause a miscarriage of justice in the circumstances of this trial. The audio tapes occupied 2 hours of time. There was insufficient opportunity for the audio tapes to be listened to by the jury. No objection was made by trial counsel to the course taken by the trial judge. I would refuse leave to raise this matter. 47 Complaint is made by the appellant that there was a failure to give warnings to the jury that it should not give disproportionate weight to the interviews with LC. Before the appellant's daughter was called by the Crown the trial judge said: "And so ladies and gentlemen this evidence-in-chief from [LC] with the audio tapes is in much the same category as the evidence that [the complainant] gave, to the extent that it's been given in this form because that's what the law of this State says can happen. It was an audio recording, not a video recording. I warn you that you are not entitled to draw any inference adverse to the accused as a result of the evidence being given in that form, or give that evidence any greater or lesser weight as a result of it being given in that form." 48 The trial judge gave a further warning on the next day of the trial. "The same warning I gave to you in relation to the audio visual interview with the complainant applies equally to the interview of this witness. The evidence has been called in this way in chief because it can be as a result of the laws of this State you must not form any view adverse to the accused because it is happening in that way nor must you give the evidence any greater or lesser weight as a result of it being led that way. As I said to you earlier it is simply being led in that way because the laws of this State enable that to occur in relation to the evidence of children." 49 When summing up to the jury the trial judge referred to the audio tapes of LC's interviews acknowledging that the quality of the first tape was limited the second being "a little more audible." Her Honour also referred to the fact that the transcripts were available "as evidence to read" in relation to the first interview and "to assist your understanding of the audio tape" in relation to the second interview. 50 Although at this point the trial judge did not repeat the warnings which had already been given, no objection was taken and her Honour was not asked to give a further warning. Mindful of the time which the jury took to deliberate and the clear warnings which had been given I do not believe a miscarriage of justice has occurred. I would decline leave to argue this matter. 51 Complaint was also made by the appellant that the trial judge failed to comply with s 25 of the Act. That section provides: Warning to jury (cf Crimes Act s 405H) (1) In any criminal proceeding in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 18), the judge must: (a) inform the jury that it is standard procedure for children's evidence in such cases to be given by those means, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology. (2) In any criminal proceeding in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 19), the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology. (3) In any criminal proceeding in which arrangements are made for a person to be with a child giving evidence (by virtue of section 20 or 27), the judge must: (a) inform the jury that it is standard procedure in such cases for children to choose a person to be with them, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the presence of that person. (4) In any criminal proceeding in which alternative arrangements for the giving of evidence by a child are made (by virtue of section 24 or 28), the judge must: (a) inform the jury that it is standard procedure in such cases for alternative arrangements to be used when children give evidence, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements." 52 It was accepted that the directions which her Honour gave conformed with s 14 but it was submitted that her Honour did not warn the jury "not to use in any way adversely to the accused that the witness was utilising the CCTV facilities." This submission overlooks the fact that when giving the warning to which I referred in [41] her Honour also said: "The complainant who the Crown has already told you is now an eight year old girl will be giving evidence by a closed circuit television system and there is another witness who is also a child who will be giving her evidence by a closed circuit television system." 53 Her Honour then continued as I have previously related. 54 In these circumstances the complaint made by the appellant has no justification. No further warning was sought from the trial judge and I would refuse leave to raise this matter. Ground 3: the trial miscarried on the basis of improper cross examination of the appellant's wife on the part of the Crown Prosecutor. 55 The appellant submitted that it was improper for the Crown to have attacked JC's credibility on account of her not having said anything to the police about the fact that her daughter had told her that she had lied to the police in her second interview. Reliance is placed upon s 89 of the Evidence Act 1995 which prohibits the drawing of an inference unfavourable to a party from that party's or person's failure or refusal to answer questions or representations made in the course of "official questioning." 56 This section is in the following terms: Evidence of silence (1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person in the course of official questioning. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: inference includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a party's credibility." 57 The section was considered by this Court in Jones v R [2005] NSWCCA 443. In that case the question was whether or not a person who had been involved as a witness to a violent assault and remained silent when questioned by the police but who at the appellant's trial gave evidence that she herself had committed the assault, could be criticised for her failure to tell the police, when questioned about the matter, that she had carried out the offence. 58 In my judgment (Simpson and Hoeben JJ agreed) I emphasised that s 89 has been carefully drafted to confine its operation. It only applies to a failure to answer or respond in the course of "official questioning" which means "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". In that case Ms Innes was arrested at the scene of the crime and later questioned by police. She did not tell the police officer of the events which she recounted in evidence. 59 In the present case JC said that she was told by her daughter that she had lied in her second statement because of pressure from the complainant in November 2004 before the police asked her to make a statement in April 2005. Accordingly, the opportunity to have told the police that her daughter had told her that she had lied was available otherwise than in the course of official questioning. In these circumstances s 89 has no application. The challenge to JC was not in terms, "why did you not respond to questions asked in the course of official questioning," but rather, "why did you not go to the police and tell them your daughter's second statement was not true." 60 Although JC was asked by the police whether she wished to make a statement there was no relevant occasion when it could be said she failed or refused to answer questions or respond to a representation. Although in her evidence she accepted that she had information which was relevant to her daughter's statement to the police, there was no occasion which constituted evidence of her silence as contemplated by s 89. 61 In any event the explanation which JC gave for not having told the police was both rational and, in my view, capable of being accepted by the jury. It was perfectly understandable that having been warned not to speak with her daughter about her evidence she would not want to disclose the fact that she had lest she be accused of having influenced the evidence her daughter would give. She also said that she sought legal advice. The Crown did not challenge that evidence, although they could have sought evidence from the lawyer. In these circumstances if the jury otherwise thought JC was a credible witness there is no reason why the jury should not have accepted her explanation. 62 The issue played little, if any, part in the Crown's final address in which the Crown said of JC's evidence, amongst other matters: "Strangely, her evidence was that even though she knew that L had lied to police, she didn't tell the police about that. What you make of that is up to you, members of the jury." 63 When summing up to the jury the trial judge said of this issue: "The Crown in relation to that evidence puts to you that you would not place much weight on the evidence of [JC] and suggests to you that, in some respects, you would form an adverse view about her because discovering that her daughter claims to be telling lies to the police, she did nothing to bring that to the attention of the police. You know the evidence that the Crown got in the case was that the police asked her for a statement but, as I understand the evidence it was about March this year that the statement was asked for from [JC] and that she declined to give that statement to police. Her explanation for that, you know in her evidence, was that she did not think she had anything to add because she had not heard anything. She also said to you that part of the reason why she did not tell police anything about what [LC] had said to her was because she was frightened of the police and gave you some evidence about that had been said to her when she went to pick up [LC] on 2 September in which she was warned not to talk to her about the interviews that she had given and that, if she did, she could be in trouble and possibly have her children taken away from her. Now make what you will of that evidence ladies and gentlemen but you might think that if there was much to be made of that, it might have been put to Detective Marshall when she was being cross-examined on behalf of the accused. On the other hand, you might equally think that if the police really wanted to get a statement from [JC] about what happened that night, they might have asked her well before March 2005. It is a matter for you ladies and gentlemen what to make of that evidence." 64 No objection was taken to the cross examination and no direction was sought confining the use of the evidence or any inference to be drawn from it. As the remarks of the prosecutor indicate, and the trial judge confirmed, the prosecution did not identify the issue as being of significance or urge any particular finding. Leave is required to argue the matter. I would refuse that leave. Ground 4: the trial miscarried on account of the trial judge's directions concerning the evidence of JC. 65 The appellant complained on the appeal that the trial judge's directions concerning the evidence of JC were unfair. In particular complaint was made with respect to the suggestion that her evidence that she did not approach the police because of a warning from them that she should not talk to her daughter should not be accepted because that matter had not been raised with the relevant police officer in cross-examination. 66 Her Honour's statement was in the following terms: "Now make what you will of that evidence ladies and gentlemen but you might think that if there was much to be made of that, it might have been put to detective Marshall when she was being cross-examined on behalf of the accused." 67 At the trial counsel for the appellant requested that that part of the directions be withdrawn. The trial judge responded to that request and a further direction was given to the jury. Her Honour said: "The other issue that I wish to correct, and to withdraw from you, is a direction that I gave you in relation to the evidence of [JC], and when I was going through with you her evidence in response to the Crown's questions as to why she did not feel it necessary to tell the police that [LC] had told her some time after she moved schools that in fact she had told lies to the police in her interviews. You remember the evidence that I was referring to, in which she said that, well, she was scared of the police because Detective Marshall had told her that she should not talk about what [LC] said in the interview and if she did she might be in trouble, including having her children taken away from her. I said to you that when taking into account whether or not you accept that as an explanation by her and therefore whether you reject the Crown's submission to you that you would not regard her as a witness whose evidence was of great weight, that you might think that if there was going to be anything made of that, that would have been put to Detective Marshall. Well, I withdraw that direction to you. You are not entitled to take that into account, for this reason, and that is that when [JC] gave that evidence, she gave that evidence in response to a question from the Crown in cross-examination. She was not asked that in chief. She did not volunteer that information. She gave it in response to a question from the Crown, and there is no evidence in the trial that the counsel for the accused ought to have known that is what she was going to say and therefore had any obligation to put that to Detective Marshall. So that it is not right that you ought to take that into account, that it was not put to Detective Marshall. The fact is that on the way the evidence has come out in this Court, there was no evidence that Mr Greenhill or his client knew that that is what she was going to say." 68 No further complaint was made about the direction. In my opinion, the problem identified by trial counsel was adequately dealt with by her Honour. In the absence of any further complaint I would refuse leave under Rule 4 to raise this ground of appeal. Ground 5 69 The appellant was granted leave to amend ground five of the appeal. The amended ground reads as follows: "(a) the trial judge's directions, warning the jury that the evidence of the appellant's daughter may be unreliable were erroneous. (b) the trial judge erred in the circumstances of this case by failing to give an unreliability warning in respect of the complainant's evidence pursuant to s 165B Evidence Act. " 70 The Crown made an application at the trial for her Honour to give an "unreliability warning" in relation to the evidence of LC on the basis that LC had given different versions of events and admitted that one statement she gave to the police was untrue. The Crown did not seek a direction that her evidence was unreliable on account of her age. The application was made pursuant to s 165(1) of the Evidence Act. 71 Counsel for the appellant initially contended that the evidence given by LC in response to cross examination by the Crown ought to attract an unreliability warning but this submission was withdrawn. Counsel for the appellant also opposed an unreliability warning being given solely in relation to LC and suggested that s 165B of the Evidence Act applied to the evidence of both children and that a warning as required by that section should be given. It was further submitted that a warning was required in relation to the complainant's evidence. 72 The trial judge ultimately concluded that there were specific factors that warranted an unreliability warning in LC's case but that these factors were not present in respect of the complainant's evidence. She gave a warning in relation to LC's evidence which was in the following terms: "You must asses [LC] as a witness and decide what, if any of her evidence, you accept is reliable, that is truthful and accurate. In relation to [LC's] evidence, ladies and gentlemen, I must warn you that for a variety of reasons her evidence may be unreliable. Those reasons are that she comes to court as a young girl of eight, giving evidence against her father, in circumstances where she has, you know, given different versions of the events, some of which are inconsistent with each other, and in circumstances where she has told you that so far as at least one of them is concerned, she lied to the police in the interview. Furthermore, in relation to some of the answers she gave you, it was in responses to questions asked by way of cross examination of her by the Crown after I allowed that to occur when it became clear that she claimed that what was in her interviews was untrue. It is for these reasons that I warn you that her evidence may be unreliable, and you should take this warning from me into account when assessing what if any of her evidence you can accept in this trial." 73 Apart from the matters to which I have referred in [72] the appellant's counsel specifically opposed her Honour giving a warning on the basis that LC was the appellant's daughter and submitted that this fact did not bring her evidence within a class of witness contemplated by s 165(1). It was submitted that the jury were in a position to determine what weight to give that fact. It was further submitted that the directions concerning the inconsistencies in LC's evidence were factors which, consistent with authority in this Court, did not to warrant a direction pursuant to s 165(1) of the Evidence Act. 74 It was submitted to this Court that her Honour was in error to have found, for the reasons that she did, that LC's evidence was of a kind that may be unreliable and caught by s 165(1). The appellant relied on the decision in R v Stewart 52 NSWLR 301 where Howie J (with whom Hulme J agreed) stated at [99]: "In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone 'evidence of a kind that may be unreliable.' However, as I will indicate later, these types of matters might be made the subject of comments by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused." 75 Sections 165A and 165B of the Evidence Act, which deal specifically with the category of evidence given by children, were not considered by this Court in Stewart in which judgment was delivered on 5 September 2001. Sections 165A and 165B were introduced by the Evidence Legislation Amendment Act 2001 (NSW) the commencement date for which was 26 July 2002. 76 The relevant sections provide: " 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B. Note. The Commonwealth Act does not include subsection (6). 165A Warnings about children's evidence (1) A judge in any proceeding in which evidence is given by a child must not warn a jury, or make any suggestion to a jury, that children as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a general warning to a jury of the danger of convicting on the uncorroborated evidence of any child witness. (3) Sections 164 and 165 are subject to this clause. 165B Warnings about a particular child's evidence (1) This section applies to evidence given by a child in proceedings before a jury. (2) A judge in any proceedings in which evidence to which this section applies is given may: (a) warn or inform the jury that the evidence of the particular child may be unreliable because of the child's age, and (b) warn the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it. (3) Such a warning or information may be given only: (a) if a party has requested that it be given, and (b) if that party has satisfied the court that there are circumstances particular to that child in those proceedings that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (4) This section does not affect any other power of a judge to give a warning to, or to inform, the jury." 77 It was submitted to this Court that having given a warning pursuant to s 165(1) in respect of LC's evidence, unless a warning was given in relation to the complainant's evidence an unfair imbalance would be created. It was submitted that the prejudice thereby created could only be addressed by a direction in relation to the evidence of the complainant, which should have warned the jury that, on account of the witness's tender age of seven at the time of the incident, together with the possibility that her evidence was the result of suggestions made to her, her evidence may be unreliable. 78 If the appellant was wrong concerning the necessity to warn the jury about the evidence of the complainant it was submitted that, in any event, the directions given pursuant to s 165 were unfairly balanced against the appellant and improperly impugned the evidence of LC. 79 In Stewart this Court was divided as to whether s 165 should be understood having regard to the common law origins of warnings or seen as a "fresh start". It is not necessary to enter upon that debate to resolve this appeal. However, it is plain that when a judge gives a warning it will commonly be seen by the jury to be of importance with a potential to significantly influence the jury when it is considering whether or not to accept that witness's evidence. This must have been the case in the present matter. 80 For this reason although the justification for a warning is not exhaustively provided by s 165(1), to my mind, careful reflection is necessary before accepting that evidence which falls outside any of the categories identified in the section should be the subject of a warning. Furthermore, if in a particular case the evidence of a witness is the subject of a warning, care should be exercised to ensure that evidence of another witness, whose evidence may be thought to have similar characteristics justifying a warning, is also made the subject of a similar warning. This is particularly the case if the witnesses are perceived to be separately favourable to the Crown or the defence. Unless this course is taken the potential for a warning to influence the jury is so great that the trial may become unfair. 81 The warning which the trial judge gave in relation to LC raised a number of matters for the jury's consideration. The reference to her age implied, in my view, that being aged only eight the jury should for that reason alone consider whether her evidence may be unreliable. However, the direction went significantly further and carried with it warnings because: · She was giving evidence against her father (this should I believe have referred to "for her father"); · She had given inconsistent accounts of the events; · She told the police that she had lied to them; · She had given untrue answers in cross-examination after the Crown had been allowed to attack her evidence. 82 Leaving aside the matter of her age, each of the other matters referred to by the trial judge required careful consideration by the jury. Any one of them, or a combination of them, may have caused the jury to reject her evidence, at least where it was favourable to her father. However, there was nothing about any of the matters which brought them within the kind or type of evidence which may be unreliable as contemplated in s 165. The jury may have concluded that her evidence was unreliable, but, they should have been left to form that judgment for themselves, without the burden of a warning from the trial judge. 83 To my mind the warning which the trial judge gave in the present case with respect to LC's evidence was not justified by s 165 and, either alone, or, together with the failure to give a warning in relation to the evidence of the complainant has occasioned a serious injustice. Although LC and the complainant were relatively young there was nothing in their evidence which, by reason of their age, justified a warning to the jury. If a warning was justified, a warning was required in relation to the evidence of both children because they were of similar ages. However, I am satisfied that a warning was not required and the case should have been left to the jury without a warning in relation to either child's evidence. 84 Any chance which the appellant had of an acquittal was significantly influenced by the approach which the jury took to his daughter's evidence. If it was rejected, the likelihood of the jury accepting the complainant's evidence was overwhelming. In these circumstances I am satisfied that the appellant lost the chance of an acquittal and a new trial should be ordered. 85 It is unnecessary to deal with the sentence matter. Orders 1. The appeal is allowed. 2. The convictions and sentences are quashed. 3. Order a new trial. 86 ADAMS J: I agree with McClellan CJ at CL. 87 HOWIE 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.