New South Wales Court of Criminal Appeal CITATION: Perez v Regina [2008] NSWCCA 46 HEARING DATE(S): 05/02/08 JUDGMENT DATE: 6 March 2008 JUDGMENT OF: Beazley JA at 1; James J at 2; Kirby J at 3 (1) Appeal against conviction dismissed DECISION: (2) Leave to appeal against sentence granted (3) Appeal allowed and sentence imposed on 5.12.06 quashed and, in lieu thereof, the appellant is sentenced as follows: On Counts 1 & 2: Imprisonment for 4 years commencing on 26.6.06 and expiring on 25.6.10, with a non parole period of 3 years commencing on 26.6.06 and expiring on 25.6.09; both sentences to be served concurrently. On Count 3A: Imprisonment for 6 years commencing on 26.6.07 and expiring on 25.6.13, with a non parole period of 4 years and 3 months commencing on 26.6.07 and expiring on 25.9.11. On Count 4A: A term of imprisonment consisting of a non parole period of 4 years and 3 months, commencing on 26.6.07 and expiring on 25.9.11, with a balance of term of 1 year 9 months commencing on 26.9.11 and expiring on 25.6.13; such term to be concurrent with the term in respect of count 3A The first day on which he shall be eligible for parole will be 26.9.11. CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - appeal against conviction and sentence - Longman direction - delay up to 4 years - whether Longman necessary - relevance of length of delay to content of warning - Markuleski direction - no objection by counsel - Rule 4 - whether inconsistent verdicts - error on sentence - whether lesser sentence warranted in law (s6(3) Criminal Appeal Act). Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v Murray (1987) 11 NSWLR 12 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187 DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583 Longman v The Queen (1989) 168 CLR 79 Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400 Tully v The Queen [2006] HCA 56; (2006) 167 A Crim R 192 Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 CASES CITED : R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 R v WSP [2005] NSWCCA 427 R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 R v Johnston (1998) 45 NSWLR 362 R v Saffron (1989) 17 NSWLR 395 R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340 Tekely and Nagle v R [2007] NSWCCA 75 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 Jones v The Queen (1997) 191 CLR 439 FV v R [2006] NSWCCA 237 PARTIES: Jorge Perez (App) Regina (Resp/Crown) FILE NUMBER(S): CCA 2006/5276 COUNSEL: M Paish (App) D Arnott SC/L Wells (Resp/Crown) SOLICITORS: Chris Outzen (App) S Kavanagh - DPP (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/1020 LOWER COURT JUDICIAL OFFICER: O'Reilly ADCJ LOWER COURT DATE OF DECISION: 05/12/06 IN THE COURT OF CRIMINAL APPEAL 2006/5276 BEAZLEY JA JAMES J KIRBY J Thursday 6 March 2008 Jorge PEREZ v REGINA Judgment 1 BEAZLEY JA: I agree with Kirby J. 2 JAMES J: I also agree with Kirby J. 3 KIRBY J: In October 2006, Jorge Perez ("the appellant") stood trial before O'Reilly ADCJ and a jury. The Crown alleged that he had a sexual relationship with the complainant, then a child, during a four year period (28 March 2000 to 13 June 2004). According to the Crown, the relationship began when the complainant was 10 years old and continued until she was 14 years. 4 The Crown relied upon five incidents, the last (on 13 June 2004) giving rise to count 5, an alternative count 5A, and count 6. The indictment against Mr Perez can be summarised as follows: Count 1: That between 28.3.00 and 31.12.00 he committed an aggravated indecent assault against a child aged 10 years, contrary to s 61M(1) Crimes Act 1900; maximum penalty: imprisonment for 7 years. Count 2 : That between 28.3.01 and 28.3.02 he committed an aggravated indecent assault against a child aged 11 years, contrary to s 61M(1) Crimes Act 1900. Count 3 : That between 28.3.01 and 31.12.01 he committed aggravated sexual intercourse (that is, without consent ) with a child aged 11 years, contrary to s 61J Crimes Act 1900; maximum penalty: imprisonment for 20 years. Count 3A: (in the alternative) That between 28.3.01 and 31.12.01 he had sexual intercourse with a child aged 11 years, contrary to s 66C(1) Crimes Act 1900; maximum penalty: imprisonment for 8 years. Count 4 : That between 28.3.02 and 30.6.03 he committed aggravated sexual intercourse (that is, without consent ) with a child aged 12 years, contrary to s 61J Crimes Act 1900. Count 4A: (in the alternative) That between 28.3.02 and 30.6.03 he had sexual intercourse with a child aged about 12 years, contrary to s 66C(1) Crimes Act 1900. Count 5 : That on 13.6.04 he attempted sexual intercourse with a child aged 14 years, contrary to s 66D Crimes Act 1900; maximum penalty: imprisonment for 8 years. Count 5A: (in the alternative) That on 13.6.04 he committed an aggravated indecent assault upon a child aged 14 years, contrary to s 61M(1) Crimes Act 1900. Count 6 : That on 13.6.04 he committed a further aggravated indecent assault upon a child aged 14 years, contrary to s 61M(1) Crimes Act 1900. 5 Mr Perez pleaded not guilty to each count. After a trial lasting about one week he was found not guilty of counts 3, 4, 5, 5A and 6. He was convicted on the remaining counts (counts 1, 2, 3A and 4A). He was thereafter sentenced by O'Reilly ADCJ to a term of imprisonment of 7 years with a non parole period of 5-1/2 years, the sentence being as follows: Counts 1 and 2 (aggravated indecent assault): Imprisonment for 7 years commencing 26.6.06 and expiring on 25.6.13, with a non parole period of 5 years between 26.6.06 and 25.6.11. Counts 3A and 4A (sexual intercourse with a child) Imprisonment for 6 years commencing 25.12.06, with a non parole period of 5 years (25.12.06 to 24.12.11). 6 Before dealing with the grounds of appeal, I should describe the evidence presented during the trial, including the evidence in respect of counts where the appellant was acquitted. The evidence at trial. 7 The appellant came to Australia approximately 20 years ago. His native tongue is Spanish. Once in Australia, he met the complainant's family, who likewise spoke Spanish, they having come to Australia some years before. Mr Perez and the complainant's parents became friends. He frequently visited their home. The complainant knew him as "a family friend". 8 During the year 2000, when the complainant was 10 years old, her parents separated. Her father left the family home. The complainant and her mother remained at the family home, as did her brother who was much older. In the years that followed (before June 2004) others periodically moved into and out of the house for short periods, including a cousin and her partner, as well as the complainant's maternal grandmother. The complainant's brother also moved out for a time and later returned. 9 After the complainant's parents separated, Mr Perez continued to come to the family home. He worked for a building company operated by the father. The complainant's brother worked for the same company. According to Mr Perez (ERISP Q85), throughout 2000 and until December 2001, the truck he was required to drive for the company was parked at the family home. Each day he would pick it up from that location and return it at the end of the day. It was also common ground that, even when that job finished (in December 2001), and before mid June 2004, he came to the family home regularly. 10 The allegations against Mr Perez came to the notice of the police on Wednesday 16 June 2004, as a result of a telephone call from the complainant's brother. The complainant wrote an undated note to her brother, which was in these terms: (Ex D) "I hope you don't get angry with me but I have something important to tell you. I have had sex with Jorge since I was ten, please don't tell mom or dad & don't kill him just cause of rage. Your (sic) the only one I have told & please don't be upset with me. please help me, I feel so alone & helples (sic)." 11 Arrangements were made the same day (16.6.04) for a medical examination by Dr Norrie, a doctor experienced in the examination of persons said to have been sexually assaulted. Dr Norrie obtained a history from the complainant. The history suggested that the last assault by Mr Perez was on Sunday 13 June 2004, although it had not involved penetration. 12 The complainant, however, said that there had been penetration on earlier occasions. A physical examination was then undertaken. Dr Norrie's report included the following: "This genital medical examination, 3 days after an alleged sexual assault, showed there was a healed partial thickness hymeneal transection. This may have occurred as a postpubertal traumatic injury but may have occurred prepubertally. There were no acute changes except for some non-specific genital redness. This medical examination is consistent with the history given by (the complainant) of vaginal penetration by a blunt object such as a penis." 13 The complainant told Dr Norrie that there had been no accidental injury to the external genitalia, which was confirmed by the complainant's mother`. In cross examination Dr Norrie said she thought that the injury to the hymen was an "old injury". The reddening was probably caused by irritation or inflammation or a chemical allergy. 14 On 23 June 2004, the complainant was interviewed by the police. The interview was recorded by video. The video became the complainant's evidence in chief at trial. The complainant was able to fix the time of five incidents, which became the subject of the various counts in the indictment set out above. 15 On 22 July 2004, the police interviewed Mr Perez. They put to him the complainant's allegations, which he denied. The ERISP of that interview was played as part of the Crown case. The appellant did not give evidence. 16 The complainant said that the first incident occurred between her tenth birthday (28 March 2000) and Christmas that year (count 1). The appellant came to the house whilst her family was out. He took her by the arm and led her to the study. Once in the study he pulled down her pants. He then rubbed his erect penis on the outside of her vagina. Shortly after, he put his hand under her top and touched her breasts. The interview included the following questions: (p26) "Q215 Right. How did you feel when he was doing this? A. Weird. Q216 In what way? A I don't, I didn't know what was going on, I didn't know what the hell he was doing, I just felt, like a bit shocked and didn't know what was going on." 17 This episode became the charge of aggravated indecent assault in count 1 in respect of which Mr Perez was convicted. 18 The second incident occurred when the complainant was 11 years old. She said that the appellant came to her home. No-one else was at home. They were outside in an area which she referred to as "the foyer" or "the garage". She told the police that he removed her pants and pushed her up against a brick wall. He undid his trousers and began rubbing his erect penis against her vagina, holding her by the waist, simulating intercourse. Again, on her account, he told her not to tell anyone what had happened, or indeed that he had been there. The episode was the aggravated indecent assault in count 2. The appellant was found guilty. 19 The third incident, according to the complainant, also occurred when she was 11 years old. She thought that it happened during term 4, towards the end of the school year. Again no-one was home. She said she and the appellant were in the garage. She was standing alongside her brother's ute, which she said was white. The appellant was in front of her and pulled her pants down. He took a condom from his pocket, which he put on his erect penis. He then guided his penis towards her vagina which he penetrated, moving back and forth (Q369-370). The complainant described what happened in these words: (p44) "Q371 OK. How long did that go for? A. Not long really, because it hurt and I went, no, and tried to push him. Q372 M'mm. And what happened when you said no and tried to push him? A. He had a puzzled look on his face. Q373 M'mm. A And --- Q374 Did he do anything? A. Hm? Q375 Did you do anything? A. I was crying, so he held me. Q376 M'mm. A. And he was trying to calm me down." 20 This incident became the subject of the charge of aggravated sexual intercourse with a child (that is, without consent) in count 3, and the alternative charge of sexual intercourse with a child, count 3A (where consent is not an element). The jury returned a verdict of not guilty in respect of count 3 and guilty of count 3A. 21 The fourth incident was said to have occurred when the complainant was about 12 years old. She was in year 7 at school. She and the appellant were at home alone. However, she said her mother was out shopping and was expected home. The appellant guided her to a couch from which he could look out the window. He wished to check whether the mother had returned. She said he pulled her pants down. He lay on top of her and inserted his penis in her vagina (Q408). Intercourse took place for about five minutes. The incident occurred at a time when her brother had moved out of home. 22 The fourth incident was the foundation for count 4, aggravated sexual intercourse with a child (that is, without consent) and count 4A, sexual intercourse with a child. The jury, as with count 3, was clearly not satisfied on the issue of consent. It returned a verdict of not guilty in respect of count 4 and guilty in respect of count 4A. 23 According to the complainant, the appellant had a girlfriend when the complainant was about 13 years old and therefore left her alone. 24 The final incident was date specific. On the Crown case, a series of assaults occurred on Sunday 13 June 2004, the indictment so alleged. The assaults were said to have occurred shortly before the complainant wrote the note to her brother, who then drew the matter to the attention of the police. The complainant was 14 years old at the time. She explained that her mother was at the hospital because the complainant's grandmother was gravely ill. No-one else was home apart from Mario Ferero, who was fixing gyprock on an extension to the house. The extension was separate from the house. Mario Ferero, incidentally, was not called to give evidence. Evidence was given that he had left Australia and was overseas. 25 The complainant alleged that the appellant took her to her mother's bedroom. He then removed her pants and told her to lie on the bed. He then rubbed his erect penis against her vagina. In the police interview, the complainant described what happened in these terms: (p58) "A491 And he just, after, like two minutes of him just putting his penis outside and up and down --- Q492 M'mm. A --- he, no, yeah, he was, like against, he, he was trying to put it in. Q493 M'mm. A That time, but he, he just ended up getting at the skin on the outside and he kept on dragging it." 26 This was the assault, on the Crown case, giving rise to count 5, the attempted sexual intercourse with a child, and the alternative, count 5A, aggravated indecent assault upon a child. It will remembered that the appellant was acquitted of both charges. 27 The complainant asserted that, having failed to have intercourse, the appellant then rolled her over so that she was on her stomach. He put his penis between her buttocks and ultimately ejaculated. This allegation gave rise to count 6, aggravated indecent assault upon a child, in respect of which the appellant was also acquitted. 28 The complainant's mother gave evidence that she had received a telephone call from the hospital that her mother was dying. She got the call, on her recollection, on 13 June 2004, the day before her mother died. Before leaving for the hospital she phoned the appellant. She asked him to come to the house to keep an eye on the complainant because her son was out playing soccer. The mother gave evidence that she arrived home at 10.00 pm that day, Sunday 13 June 2004. 29 The appellant, when interviewed by the police, acknowledged that the complainant's mother had called him. He said this: (ERISP p16) "Q96 OK. Well, it's alleged that you were at the house on the 13th of June, because (the complainant's) mother rang you and said, 'I'm at the hospital and you go to our house and look after (the complainant) because there's a handyman there working.' Do you remember that? Did you go to the house then? A. When the mother, grandmother die, you know, yeah, (the mother), she, she call me from the hospital, you know. Q97. Yeah. A. Grandmother die at 1.30, she call me maybe 2 o'clock and she, she told me, you know, 'Go to, to my house, you know, because Mario is a carpenter working, doing some renovation. And I said (the complainant) there and my son, …, you know.'" 30 The grandmother died at about 1.00 pm on Monday 14 June 2004. If the appellant's version were accurate, his visit to the house and the suggested offence, must have occurred on Monday 14 June, not Sunday 13 June as alleged in the indictment. This was an important issue during the trial, which I will come back to when examining one of the grounds of appeal. 31 Let me turn to the grounds of appeal. The grounds of appeal. 32 The notice of appeal is a lengthy document identifying four alleged grounds referable to the convictions and two grounds relating to sentence. In substance the grounds can be paraphrased as follows: Ground 1 : The trial miscarried because the Crown prosecutor incorrectly and unfairly misdescribed one of the exhibits, suggesting that the appellant had lied in respect of it. Ground 2 : The Longman warning concerning delay was inadequate. Ground 3 : The Markuleski direction concerning the complainant's credibility was wrong and misleading. Ground 4 : The verdicts were inconsistent, such that the guilty verdicts cannot stand. Ground 5 : (on sentence) The trial Judge wrongly assumed that there was a standard non parole period in respect of the offences in counts 1 and 2. Ground 6 : (on sentence) The sentence was manifestly excessive. 33 I will deal with each ground in turn. Ground 1: Misstatement by the Crown suggesting the appellant had lied. 34 It will be remembered that, on the Crown case, the first three incidents occurred in the period between 28 March 2000 and 31 December 2001 (counts 1, 2, 3 and 3A). The appellant, when interviewed by the police in relation to these offences, denied any wrongdoing saying, in effect, that he was working seven days a week and very long hours. He therefore had no opportunity to commit these crimes. He said this: (ERISP p11) "A80. Because I have thought I lost my shop you know, in, yeah, in January 2000, I think, you know. I don't go for 3 months, I start working 14 hour a day with his father in that time, in March or April, I can't remember exactly what month." 35 After a description of the complainant's allegations in respect of the third incident been had provided to him, Mr Perez said this: (ERISP p13) "A84 No. I'm very confused with this story. This here story, I don't know, how something, a book or something like that. Q85 And what is it that confuses you about it? A. First thing, first thing when I just start working with (the complainant's) father was in March or April 2001. OK. I, I workin' 10 hour, 12 hour, 14 hour sometimes, I pass too many everyday for his house, … because I need my ute in that house, in (the complainant's) house, no. In the morning I pick it up the truck I working all day with the truck, in the afternoon I leave the truck and pick up my ute, you know, well, his father, his mother, too many people and I don't know, I don't know." 36 The complainant's brother was the manager of his father's building company. When he was cross examined, he was shown 14 payslips of Mr Perez', seven relating to the year 2000 and seven relating to the year 2001. The earliest from 2000 was dated 27 April 2000 (Exhibit 2) and the last for 2001 was dated 6 December 2001 (Exhibit 3). They recorded irregular hours, usually seven days a week. According to the appellant, the mean number of hours each week was 68.17. The complainant's brother agreed at first that the appellant had worked for his father's company from mid April 2000 until the company ran out of work in December 2001. Once shown the documents, however, he doubted their authenticity, pointing out that they were not signed (although provision was made for a signature) and that the company logo was different. He stated that, on reflection, he was "fairly certain" that Mr Perez was no longer working for the company in 2001. The Crown, in his final address, made the following submission in relation to this material: (31.10.06: T4) "In my submission you would not accept what the accused has said in his record of interview as being sufficient to raise a reasonable doubt. …" 37 The Crown continued: (T4) "In my submission to you he was untruthful in that record of interview. It may only be a minor matter , but he says he worked for (the complainant's father) in 2001, says that at question 85. Well you know from the records that have been put into evidence through (the brother) that he actually worked there in 2000. You may think that's not a big thing but it's clearly untrue . He was at pains to say that he had no opportunity to be with (the complainant). Early on he said 'Well look how could I? I was working ten, 12, 14 hour days. Maybe it was 3 o'clock or 4 o'clock in the morning I might have had time.' I mean he puts up as his explanation he didn't have time to commit the offences. … " (emphasis added) 38 It was submitted that the Crown prosecutor had misstated the evidence (suggesting he had not worked for the company in 2001) and his misstatement was fundamental. The misstatement was the basis for the suggestion that the appellant had lied in his answers to the police. It was acknowledged that, since no complaint had been made to the trial Judge, leave would be required under Rule 4. It was submitted that leave should be given because the misstatement had caused the trial to miscarry. 39 The Crown answered these submissions by suggesting, first, that the Crown had not misstated the evidence. The brother, when cross examined, had ultimately doubted that the appellant had been working for his father's company in 2001, notwithstanding the payslips. Alternatively, the Crown said that if there had been a misstatement, it was a minor matter, and had been so described by the Crown prosecutor in his address. It certainly did not cause the trial to miscarry. Leave should be refused (R4). 40 Here, the payslips, Exhibits 2 and 3, appear to be authentic, notwithstanding the brother's evidence. I am prepared to assume that the Crown inadvertently misstated the evidence, and incorrectly suggested that the material provided a basis for inferring that the appellant had lied about working in 2001 for the father's company. Was the mistake fundamental, as the appellant has suggested, or was it, as the Crown said to the jury, "only a minor matter" and that the jury may think "that's not a big thing"? Was there the possibility of a miscarriage of justice? 41 A number of observations should be made concerning the payslips and their relevance to the question of the appellant having no opportunity to commit the offences charged. First, Mr Perez' case, at its highest, suggested that he had been employed and was working long hours in the years 2000/2001, whereas the indictment extended from March 2000 to 13 June 2004. Secondly, the records of the company, relied upon to prove the absence of opportunity, did not cover the whole period 2000/2001. They were a sample, with seven payslips from each year. Thirdly, the payslips, far from establishing no opportunity, demonstrated that on many occasions Mr Perez finished work quite early and, often finished after only two or three hours work. It was clear that he had not worked 10 or 12 hours a day, as suggested in the record of interview. There were opportunities, in terms of his working hours, to visit the complainant's home, had he wished. Further, he had said to the police that he picked up his truck from outside the complainant's home each day and parked it there each night. He also acknowledged in the same interview that he did work at the complainant's house, which included cleaning, cutting the grass, tiling and other jobs (Q181-185). On any view, therefore, the wage material did not exclude opportunity, although it was relevant to counts 1, 2 and 3A in respect of which Mr Perez was convicted. 42 That being the context, it is significant that counsel for Mr Perez immediately answered and corrected the Crown misstatement. He said this: (31.10.06: T9) "Now the Crown said something which I must say I'm a little confused about in terms of the accused's record of interview. In the accused's record of interview as was the case when (the brother) was being cross-examined by me it was suggested to him, and indeed shown to him in the form of exhibits 2 and 3, that the accused worked for (the father's company) from 2000 until the end of 2001. Now I may have misheard the Crown when he referred to page 5 of the interview that he ceased work in 2001 but when you examine, and no doubt you will examine, the invoices or the working records it shows that the first invoice in 2001 commences the week 5/1/01 and goes through to the end of 6 December 2001. Now this was a document produced by the accused to counter any suggestion that he had carte blanche access to her, as it were. He worked with the father of (sic) the company, he worked with (the brother), the hours speak for themselves. This was either an individual who was able to synchronise his movements in and out of the house to make sure that it was the right time that (the complainant) was home, and again we don't know these times, the right time that she was at home on a particular day of the week, and if it wasn't the day of the week, the right time during the weekend when no-one would be home, when grandma wouldn't be home perhaps. This was a person that was able to synchronise so that he wouldn't be caught out by the father who utilised the foyer/garage area for storage of building material." (emphasis added) 43 The jury was provided with the exhibit. It would have been immediately apparent that Exhibit 3 contained payslips for 2001. Counsel for Mr Perez sought no further direction from the trial Judge. The prosecutor's mistake did not, in my view, give rise to the possibility of a miscarriage of justice. 44 I would refuse leave under Rule 4 in respect of ground 1. Ground 2: The Longman direction. 45 The terms of the notice of appeal in respect of ground 2 are as follows: " Appeal Against Conviction: There was a miscarriage of justice as a result of the learned Trial Judge's failure to relate and link his direction warning the jury of the need to be persuaded of the truth and accuracy of the evidence of the complainant to his comment to the jury as to the effect of delay in the trial, the trial Judge failed to use language of warning in delivering the portion of his summing up concerning the disadvantages suffered by the accused where there as delay in complaint. (a) The Trial Judge failed to use language which showed that his words in the issue bore the weight and authority of the court, and (b) The Trial Judge failed to adequately inform the jury of the inability of the accused to test the evidence of the complainant caused by such delay in the circumstances of the trial which included: (i) The inability of the complainant at trial to provide a time frame for the said offences, and (ii) The uncertainty of the periods of unemployment and hours of work performed by the Appellant on behalf of the complainant's brother in the relevant periods and the lack of records relating thereto, and (iii) The inability, due to the effluxion of time to ascertain the precise times that other persons resided at premises occupied by the complainant during the timeframe of the alleged offences." 46 Let me first examine what was said by his Honour in the summing up. He drew attention to the fundamental importance of the complainant's evidence. He said this: (SU: 5/6) "As a matter of commonsense, you will appreciate that there is one witness in this case who is essential to the proof of the crown case and that is (the complainant). There are - subject to two other matters which I will mention shortly. One is the letter to the brother, I will come back to that and the other is the evidence given by Doctor Norrie but those other matters, in a sense, pale into insignificance when one considers the fundamental question." 47 There followed what may be termed a "Murray direction" (R v Murray (1987) 11 NSWLR 12 at 19), given in conventional terms: (SU: 6) "There is no doubt that (the complainant's) evidence is essential to the proof of the crown case. You would need to, and you should, examine and scrutinise her evidence with great care before you decide whether you accept her evidence. Since it is for the crown to prove its case beyond reasonable doubt, the evidence given by that witness, is the only evidence relating to essential matters which the crown must prove and it follows that you must be satisfied beyond reasonable doubt that you should accept the evidence of (the complainant) otherwise the accused must be found not guilty." 48 His Honour reminded the jury that it must examine, not only the complainant's honesty, but her reliability (SU: 6). He then foreshadowed a direction on delay, which he would come to shortly. He said this: (SU: 6/7) "On the other hand, the defence argues that there has been a long delay and I will give you a direction about that. Most of these events happened some three or four years before the police came into it. I will give you a direction about that and the crown submits that you would, as I have said, you would rely on (the complainant). It is not for the accused to show that she is either dishonest or unreliable." 49 His Honour then dealt with other issues, including the fact that the appellant had not given evidence, and that the complainant had given her evidence in chief by video. He then returned to the issue of delay. The summing up proceeded as follows: (SU: 11) "You have heard evidence then that on or about that date I just mentioned, 14 June 04, the complainant wrote that letter to her brother. Mr Nematalla (counsel for Mr Perez) has made some submissions to you about delay and its result on his case and I will come to that in a moment." (parenthesis added) 50 The summing up continued: (SU: 11/12) "So far as the events charged in relation to 13 June 04 are concerned, you can have regard to the terms of that complaint as being consistent, if that is the view you take, as being consistent with the complainant's evidence. That approach does not come into operation in respect of the four earlier events, that is to say events charged in counts 1, 2, 3, 3A, 4 and 4A because of the delay factor and the reason for that is that the complaints were made so long after the event and it is the law that late complaint in this particular case has deprived Mr Perez of the ability to test (the complainant's) truthfulness by reference to recent events. For example, had there been an immediate complaint, there could well have been medical examination which would have assisted in up-to-date objective evidence about whether there was any sign of injury - fresh injury to the genitalia. Additionally, of course, where there is a delay of some years, one loses the opportunity to turn up diaries and other contemporaneous material which might assist in cross examination. It might also assist in alibi defences I suppose or assist in at least determining where the accused was from time to time." 51 His Honour thereafter began dealing with each count. Before concluding the summing up there was an adjournment (SU: 17). During the adjournment, counsel for Mr Perez raised a number of issues. He was well prepared. He had a document which was marked MFI 6, which set out the directions he was seeking. These directions included a Longman direction. Counsel raised with his Honour the need for a direction concerning the failure of the complainant to complain in respect of all but the last incident. In that context, the following exchange occurred: (SU: 18) "HIS HONOUR: I thought I'd said that -- CROWN PROSECUTOR: In very great detail, you told them you wouldn't be able to turn up documents, check diary entries, check witnesses. You said it very clearly your Honour. HIS HONOUR: -- Longman, isn't it? NEMATALLA: Well that's a Longman your Honour. What I'm asking is, in terms of Johnson. We're talking about credibility as opposed to disadvantages your Honour and this is not just splitting hairs, the Court of Criminal Appeal specifically turned its mind to the issue of credibility in Johnson's case. Now if your Honour's obviously of the same view as my friend, I can't take the matter further but you certainly gave the Longman direction but not in terms of what I've requested in point 2." (emphasis added) 52 Point 2 of MFI 6 was concerned not with Longman, but Johnson. Counsel's note was in these terms: (MFI 6) "2. In addition to the statutory direction as to the absence or delay in complaint (s294 Criminal Procedure Act 1986) the Jury should be directed that in evaluating the evidence of the Complainant and in determining whether to believe her, it could take into account her failure to make a complaint at the earliest reasonable opportunity as reducing her credibility (see Johnson (1998) 45 NSWLR 362)." 53 His Honour thereafter resumed the summing up. He gave the Johnson direction as requested. He also included a commentary upon counsel's submissions. In the context of the defence submissions, he said this: (SU: 22/23) "Mr Nematalla (counsel for Mr Perez) said to you, quite accurately, that suspicion plays no part in these matters, put that completely aside. The onus rests on the crown and the standard of proof required is beyond reasonable doubt. He made the criticisms based on delay, I think I have dealt with that already, I do not think I need go through that again. There is no doubt that where there is a delay of some years in reporting these matters there is no doubt whatever that the accused is under a disadvantage in a number of respects, not the least of which is being able to turn up diary entries and the like, perhaps locating alibi type witnesses, et cetera. He made the criticism based on the number of comings and goings of other people around the house, that what seemed to be happening was that the accused would need to synchronise his movements to perhaps reverse correspond with the arrivals and departures of others into and around the house." (parenthesis and emphasis added) 54 His Honour added: (SU: 23) "He criticised the complainant for her lack of recollection of the events which are the subject of count 3 because this was the first occasion where full intercourse apparently took place. In his submission the complainant should have been able to provide more detail in that respect. … " 55 Against that background, the appellant says that the Longman direction was not adequate. It fell far short of the suggested direction in the Bench Book. There was no real warning. His Honour did not tell the jury how delay was relevant to their assessment of the Crown case. The written submissions of the appellant included the following: (Appellant's Subs: p11) "In short such a warning needs to focus the Jury on an examination and assessment of the complaints evidence and have regard to the limitations that now exist to test or contradict the same because of the effluxion of time. It is submitted the essential link was missing in the Trial Judge's comment." 56 The delay in respect of count 1 was approximately four years. It was submitted that the appellant had been disadvantaged by delay in a number of ways that made a warning appropriate. First, the opportunity to commit the crime depended, in part, upon his working hours four years before, which were uncertain. Secondly, there was the related issue, also relevant to opportunity, concerned with those living in the house at any given time. People moved in and out of the house, including the complainant's father and brother. It was difficult after so many years to be precise as to their movements. Thirdly, there was uncertainty as to when each offence had been committed, again in part the product of delay. The prosecution had been obliged to frame all counts, apart from the last three, as covering a span of time. The complainant frankly acknowledged in cross examination that she "was not good at remembering dates". The fourth aspect concerned the evidence of Dr Norrie. Dr Norrie said the partially ruptured hymen was an old injury. However, she was unable to say when it had occurred (26.10.06: T33). 57 The Crown responded by drawing attention to the relatively short delay between the alleged offences and the time Mr Perez had been apprised of the complainant's allegations, the latter date being important to the potential prejudice suffered by him (Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at 211 at [140]; JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187 at [64]). The delay, expressed in approximate terms because all but counts 5, 5A and 6 involved a span of time, can be summarised as follows: Count 1 : About 4 years. Counts 2 & 3 : About 3 years. Count 4 : Between 1 and 2 years. Counts 5 & 6 : Prompt complaint. 58 The jury, according to the Crown, was warned. His Honour said, "It is the law that late complaint in this particular case has deprived Mr Perez of the ability to test (the complainant's) truthfulness by reference to recent events" (SU: 11). "Recent events", in that context, meant "contemporaneous events". The jury had already been told of the need for caution ("You should examine and scrutinise her evidence with great care.") shortly before, although not immediately before. His Honour described particular difficulties which Mr Perez faced caused by delay. According to the Crown, the warning his Honour gave was stronger than that in other cases where there had been comparable delay, such as DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583 (where the delay was one month short of four years). 59 Finally, the Crown emphasised that counsel for Mr Perez made no complaint at the trial. Counsel was in a much better position to judge the "temperature" of the trial and the need for further directions. Indeed, counsel said to his Honour during the summing up that he was satisfied with the Longman directions that had been given. Rule 4 applies. There was, according to the Crown, no miscarriage. Leave should be refused. 60 Three issues should be examined: · First, was a Longman warning necessary having regard to the delay in respect of counts 1 to 4A? · Secondly, assuming a warning was required, or required in respect of one or more counts, what needed to be said? · Thirdly, having regard to these requirements, did the summing up involve error? 61 Dealing with the first of these issues, it should be noted that the Longman warning was formulated in the context of gross delay, that is, delay of more than 20 years (Longman v The Queen (1989) 168 CLR 79). In the cases that followed, where the High Court re-emphasised the importance of the warning, the delay in each case was at least significant (Crampton v The Queen (19 years delay) [2000] HCA 60; (2000) 206 CLR 161; Doggett v The Queen (12 to 19 years delay) [2001] HCA 46; (2001) 208 CLR 343). The court emphasised that a warning was important because the disadvantage to the accused may be obvious to a judge, who had the benefit of the accumulated experience of courts, but not obvious to a jury (Longman (supra) at 91 (Brennan, Dawson and Toohey JJ)). The jury therefore needed to be told of that experience. 62 It is worth pausing, momentarily, to consider the nature of the disadvantage to the accused where there is significant delay. In Crampton v The Queen, Gaudron, Gummow and Callinan JJ said this: (at 181) "45. … An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. …" 63 In R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89, the following was said: (at 138) " The potency of cross examination as a means of exposing unreliable evidence diminishes significantly with time. In Saporen (1939) 205 Minn 358 (quoted in McCormick on Evidence , 2nd Ed (1972), page 602), the following was said: 'The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. ...' The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion: (compare Kirby J in Doggett (at 440, [118]))." 64 In DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400, the delay was a matter of months on some counts and up to three years on others. Spigelman CJ described the case as "at best a borderline case for a Longman warning" (at [4]). In DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583, the appellant was convicted of aggravated sexual assault upon a 12 year old girl. At the time of the alleged offence, the appellant had a relationship with the girl's mother and was living in the same house. It was the Crown case that the offence had taken place on 25 October 2000 after the complainant had attended a school dance. She said the appellant came into her room, took off her shorts, and as he did so inserted his finger into her vagina. She did not, however, tell her mother until March 2004. There was further delay before the allegation was brought to the appellant's attention. The delay was one month short of four years. The trial judge purported to give a Longman warning. It was submitted by the appellant that the direction fell so far short of the requirements of Longman that there had been a miscarriage of justice. The Court (Hunt AJA, Barr and Johnson JJ), however, dismissed the appeal. It approached the matter upon the assumption that a Longman direction was required. However, the extent of the delay was material to the terms of the warning which was necessary. I will return to the Court's reasoning when considering "the second issue", that is, the content of the warning. 65 Shortly after DPW v R, the High Court handed down its decision in Tully v The Queen [2006] HCA 56; (2006) 167 A Crim R 192. It was an appeal against conviction in respect of a number of sexual offences where the complainant was aged between nine and ten years at the time of each alleged offence. She had not complained for some two and a quarter years. The trial was then delayed for several years so that it took place four to five years after the conduct giving rise to the charges. No Longman direction was sought, nor given. On appeal, it was argued that the particular facts, involving such a young complainant, required a warning both in terms of Longman v The Queen (1989) 168 CLR 79 and Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162. The majority (Callinan, Heydon and Crennan JJ) dismissed the appeal. Kirby and Hayne JJ would have allowed the appeal, although Kirby J agreed that a Longman warning was not required. Callinan J said this: (at [132]) "[132] … I am unable, however, to find that there were facts or circumstances in this case, or in the conduct of it, and having regard particularly to the appellant's failure to ask for it, that demanded that a Longman direction be given. … " 66 Crennan J (Heydon J agreeing) emphasised that, in circumstances of delay, not being gross delay, the calculus for determining whether a warning was required was rather more complex. Her Honour said this: (at [179]-[180]) "[179] Not unnaturally, the practical application of Longman in some trial situations has not always proved easy, particularly in respect of clarifying how great a delay might give rise to an imperative to give a warning. As stated in Doggett this is not a question purely of mathematical precision. Further, there is a distinction to be made between an inexplicable delay in reporting (as in Robinson ) and an explicable delay as here, which may elicit comment but not necessarily require a warning ( Longman ). Intermediate courts of appeal have essayed various distillations of the principles to be applied to particular cases at hand. [180] As the reasons of the majority in Longman make clear, it is not imperative to give a warning because the circumstances include allegations of sexual misconduct or because the complainant is young at the time of the events alleged (or at trial) or because there is some delay in complaint to, for example, a mother. While the purpose of a warning in accordance with Longman is to ensure a fair trial and to avoid a miscarriage of justice, the purpose of the relevant legislation is to ensure balance in jury instruction, without proscribing warnings when it is in the interests of justice to give them." (footnotes omitted) 67 Her Honour added: (at [184]) "[184] No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of delay, or because the evidence is uncorroborated evidence of sexual misconduct, or because of the complainant's youth." (footnotes omitted) 68 Part of the explanation for the delay was that the appellant had threatened the complainant on a number of occasions, even showing her guns. The complainant said that, but for these threats, she would have told her mother earlier (at [183]). Crennan J, in this context, concluded her judgment as follows: (at [186]-[187]) "[186] There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant's evidence, could all be evaluated by the jury in the light of their own experiences. Therefore, it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice. Conclusions [187] I agree with Callinan J that there was nothing in the circumstances of this case which made it imperative for the trial judge to give a warning in accordance with Longman . I also agree with his Honour that there were no errors in relation to the trial judge's directions which could have led to a miscarriage of justice and I agree that the appeal should be dismissed." 69 Turning to the minority judgments, Kirby J believed that there was a need for a warning in accordance with Robinson v The Queen (which was concerned with a complaint by an eight year old child). On the question of a Longman warning, his Honour said this: (at [60]) "[60] Inapplicability of Longman warning : In this appeal, I would not have disturbed the jury's verdicts, or the convictions that followed, on the basis of an omission on the part of the trial judge to give a warning to the jury of the kind required by Longman v The Queen . That is a decision that concerns (as many others have) the particular problem, in certain cases of complaints of sexual offences, of very long delays between the time of the alleged offences and the first complaint and subsequent trial. Such was not this case. Longman is thus a distracting red herring. Whatever directions were sought at trial, at the hearing of the appeal in this court the appellant's counsel agreed that the appeal was not about a Longman warning. Accordingly, Longman , as such, was not an issue before this court." (footnotes omitted) 70 Hayne J likewise believed a warning was appropriate. He said this: (at [89]) "[89] … What Robinson , and Longman , hold is that there are cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt. … " (footnotes omitted) 71 His Honour added the following: (at [90]) "[90] Lengthy delay in making a complaint is often an important reason for concluding that a warning should be given. But as Robinson shows, delay measured in decades (as it was in Longman ) is not the only reason for concluding that it is appropriate in the interests of justice to warn a jury of the dangers of acting on the uncorroborated evidence of a complainant. That is why the convenient shorthand description of a warning as a ' Longman direction' will mislead if it is understood as requiring that a warning be given only if the facts of the instant case are generally similar to those that were considered in Longman ." 72 Approaching the matter in the manner suggested by Crennan J, the delay here was relatively short, and akin to that in Tully (two and a quarter years) and DPW v R (almost four years). Whilst the explanation for the delay was not as dramatic as in Tully v The Queen, an explanation, nonetheless, was given. The complainant said that the appellant had asked her to remain silent, which she did for four years until she wrote the note to her brother. When interviewed by the police, she said this: (p26) "Q217 Did you tell anyone what happened this first time? A. No, Afterwards, like before he left, he, he always tells me not to tell anyone that he was there, so I never tell anyone that he was there. Because I like to keep my promises." 73 Was there disadvantage arising from delay which would not have been obvious to the jury? The appellant, in submissions, argued that there had been prejudice in various ways (supra at [54]). However, I am not persuaded there was disadvantage, apart from the inability to carry out medical examinations in a timely way, a matter which his Honour emphasised. The appellant had employment records which, on his case, showed the pattern and intensity of his hours. There was no evidence that he had attempted to obtain the complete employment records on subpoena, only to find that they had been destroyed or were unavailable because of delay. It was the Crown case that the offences (except in respect of counts 5, 5A and 6) were committed when the appellant was alone in the house with the complainant. It was the defence case that the complainant was deliberately fabricating her account. Who was living in the house was relevant to opportunity, but of limited importance, and certainly not determinative. The complainant, her mother and brother, readily acknowledged in cross examination that there were others living in the house at various times. No-one else from the house was called. There was no evidence of an attempt to locate those who had lived in the house, who, through delay, were no longer available. More precise information was unlikely, whenever the prosecution was brought. Further, it was unsurprising that the complainant was unable to identify a particular date in respect of each incident, apart from the last. On the Crown case, the offences were committed by an adult against a child, who had been told not to tell anyone. They were committed in the context of a sexual relationship, where there were other uncharged acts (cf Crennan J in Tully v The Queen (supra at [187]). Such prejudice as there was arising from delay was either obvious or the subject of a specific direction (in the case of the medical examination) by his Honour (SU: 11) (supra at [48]) and (SU: 22) (supra at [51]). 74 It is questionable, in these circumstances, whether a Longman warning was required. Nonetheless, the parties and the trial Judge approached the matter upon an assumption that such a direction was required. I will therefore make the same assumption. 75 I pass to the second issue, the content of the warning. The formulation by the High Court in Longman v The Queen (supra) was analysed by Sully J in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 (Wood CJ at CL and Dowd J agreeing), where the following was said: (at 273) "… first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction." 76 In R v WSP [2005] NSWCCA 427, Spigelman CJ pointed out that Longman was not a statute. The warning must be fashioned to reflect the circumstances of the particular case. In JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187, it was said that in the years following R v BWT a number of courts in varous states had seen the need for greater flexibility in applying Longman v The Queen, that the formulation of Sully J in R v BWT would appear to allow (at [43]). In DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400, Simpson J observed that no definitive statements as to the minimum requirements of a Longman direction had yet emerged (at [59]). Barr J in DPW v The Queen (supra) said, nonetheless, that a number of comments could be made with confidence. One was that the length of the delay will affect the content and strength of the warning. His Honour said this: (at 588) " … the charge to the jury should take into account all the relevant circumstances of the case before the jury. One circumstance will be the length of time which elapsed between the events and the accused's appreciation of the accusation. In cases of gross delay, the charge will need to be strong. It is not irrelevant that the strong warnings called for in Longman and Crampton resulted from delays approaching and exceeding twenty years. See also Sheehan v The Queen (2006) 163 A Crim R 397, another case in this Court calling for a strong direction, which was concerned with delays varying between seventeen and twenty-two years." 77 In that case, it was relevant that the trial Judge had given a "strong Murray direction" on the need for caution when examining the complainant's evidence, and that counsel then appearing for the accused had not objected, nor sought any further or stronger direction (at [33]). 78 Turning to the third issue, the adequacy in this trial of the Longman warning, his Honour (accepting the invitation of counsel for Mr Perez) characterised a number of matters as "disadvantages to Mr Perez arising from delay". For the reasons I have given, I do not believe that some of these matters were, in fact, disadvantageous or, if they were, that it was not obvious. To that extent, the directions given by his Honour were favourable. As in DPW v The Queen, a Murray direction was given, warning the jury that there was a need to scrutinise the complainant's evidence with great care. Whilst it would have been better had the Murray warning been immediately followed by a discussion of delay, and the difficulties it created for Mr Perez, no complaint was made by counsel. No further direction was sought. In my view there was, in these circumstances, no error. 79 I would dismiss ground 2. Ground 3: The Markuleski direction. 80 In R v Markuleski ([2001] NSWCCA 290; (2001) 52 NSWLR 82), Spigelman CJ said this: (at 121) "186 In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." 81 The Chief Justice added: (at 122) "191 The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought to be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts." 82 Wood CJ at CL added the following comment: (at 134/135) "257 On the other hand, there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts." 83 Grove J, said this in respect of the proposed directions: (at 138) "280 … Whilst I consider that it would be prudent to give such a direction in some cases I am apprehensive that language incorporating the concept of cruciality will be interpreted as mandatory. For my part I would refrain from expression in any terms which might be so interpreted. There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges." 84 Simpson J dissented and Carruthers AJ agreed with the Chief Justice. 85 Here, the appellant's complaint arose out of the following passage in the summing up: (SU: 20) "I think I have said something already about the delay in complaining about the earlier matters, I have given you some directions about that. I should add to that in this form, regarding those, I will call them the four events, that give rise to those early counts in the indictment, you are entitled to take those matters, that is the delay in complaining, you are entitled to take that into account when you are assessing the complainant's credibility, that is in relation to the earlier charges, that is up to and including count 4A. You are also entitled to take into account, if you get to the stage, for example if you find that you have a reasonable doubt as to whether the crown has proved its case in respect of one count, leading to a verdict of not guilty, you are entitled to take that finding into account when you are assessing the complainant's reliability generally on the other counts." 86 These directions were given immediately after the adjournment, which was taken part way through the summing up. During the adjournment, counsel for Mr Perez handed his Honour a document (MFI 6) setting out the directions he sought. The first paragraph of the summing up, set out above, reflected the direction based upon R v Johnston (1998) 45 NSWLR 362 which counsel had sought on the appellant's behalf. The second paragraph was the Markuleski direction. 87 His Honour did not, as such, tell the jury that they must consider each count separately, although it was implicit in the instructions he gave on onus, and his commentary upon each count. This was clearly an oversight, since the standard direction had been discussed with counsel, and his Honour had said that he intended to give it. Neither counsel referred to the matter at the end of the summing up. However, in his preliminary instructions to the jury, at the beginning of the trial, his Honour said this, having referred to the indictment: (24.10.06: T11) "There'll be discussion as to the various components of these charges during the trial, but you'll have to consider each one separately. They're all individual charges. Don't draw any inference against the accused because of the number of charges. Each one needs to be looked at separately and at the end of the day, you'll be invited to consider whether the Crown has made out its case beyond reasonable doubt in relation to each charge." 88 Counsel for the Crown, in opening, said much the same thing: (T14) "You all have a copy of the indictment which is just the charges that the accused faces. When you look at it, there are six counts on the indictment. Of those, three of the counts have alternative counts. That's - the alternative counts being 3A, 4A and 5A. As his Honour said to you, you have to consider each count individually. They're being run together as a matter of convenience. You can't use the evidence in one in deciding about the evidence in the other. You have to look at them separately … " 89 The final addresses of counsel were framed with this requirement in mind, dealing separately with the evidence in relation to each count. 90 Two complaints were made by the appellant, concerning the Markuleski direction. First, attention was drawn to the limitation in the first paragraph (the Johnston direction). It related to "the four events, that give rise to those early counts in the indictment". Coupling that direction with the paragraph that followed, the Markuleski direction, meant that it would not have been apparent to the jury that the Markuleski direction related to the whole indictment, including counts 5, 5A and 6. The appellant, of course, was acquitted in respect of counts 5, 5A and 6, and that finding was available to the jury when considering the remaining counts. It was important that the jury appreciate that they could take those acquittals into account when considering the earlier counts. 91 I am quite unpersuaded by this argument. As the Crown pointed out, the subject matter in the two paragraphs of the summing up was quite different. The early paragraph was talking about delay by the complainant in making her complaint. There had been no delay in respect of the last incident, so that the instruction to the jury was appropriately limited to the first four episodes. The Markuleski direction, on the other hand, was not dealing with delay. It was dealing with whether the Crown had proved its case in respect of each particular count. The direction was of general application. His Honour expressly said so. A reasonable doubt on one count, leading to a verdict of not guilty, could be taken into account when "assessing the complainant's reliability generally on the other counts". No complaint was made by counsel for Mr Perez. No request was made for a redirection. 92 Moving to the second complaint, attention was drawn by the appellant to the insertion in the Markuleski direction of the words "for example". Counsel said, correctly, that these words were not part of the direction and should not have been used. It was acknowledged that the instruction given to the jury was otherwise appropriate. However, the inclusion of these words, according to the appellant, meant his Honour had opened up an impermissible line of reasoning. The jury could have reasoned that it was appropriate to use a guilty verdict in respect of one count when considering other counts. 93 However, again I am not persuaded that the intrusion of the words "for example" carried that danger. Again, no complaint was made by counsel that his Honour's words carried that implication or that danger. That is a reasonably reliable indicator that there was no reasonable cause for concern (R v Saffron (1989) 17 NSWLR 395 (at 434); R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; Tekely and Nagle v R [2007] NSWCCA 75 at [89]). Had the jury resorted to that mode of reasoning, you would have expected a conviction on counts 5 or 5A and 6, whereas the appellant was acquitted of those charges. 94 Again, I would refuse leave to argue this ground under Rule 4. Ground 4: Inconsistent verdicts. 95 The notice of appeal expressed ground 4 in these terms: "The jury, acting reasonably in all the circumstances should have entertained a sufficient doubt as to the guilt of the appellant upon Count 1, 2, 3a and 4a especially having regard to the acquittals by the jury on counts 3, 4, 5, 5a and 6." 96 The appellant suggests that, in accordance with s 6(1) of the Criminal Appeal Act 1912, the "verdict of the jury should be set aside on the grounds that it was unreasonable". The issue for this Court was expressed by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487, as follows: (at 493) "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (footnotes omitted) 97 The appellant acknowledged that the test was one of "logic and reasonableness" (MacKenzie v The Queen (1996) 190 CLR 348, per Gaudron, Gummow and Kirby JJ at 366). In that case, the following was said: (at 367) "… Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted ( R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury ( Hayes v The Queen (1973) 47 ALJR 603 at 604-605)." 98 Did the not guilty verdicts damage the credibility of the complainant, such that the only reasonable conclusion is that the jury was not satisfied beyond reasonable doubt of the truth of her evidence in those counts where a verdict of not guilty was returned? (Jones v The Queen (1997) 191 CLR 439, per Gaudron, McHugh and Gummow JJ at 453). 99 Here the jury was not satisfied on the issue of consent in counts 3 and 4, returning a guilty verdict in respect of counts 3A and 4A, where consent was not an issue. On that aspect, counsel for the appellant, in written submissions, made the following concession: (Appellant's submissions: p20) "It is conceded that the acquittal by the jury of counts 3 and 4 and the conviction to counts (3a) and (4a) may simply reflect that the jury were not satisfied to the requisite standard that (the) Appellant knew the complainant was not consenting to the sexual intercourse or was reckless in relation to his state of mind." 100 Although there was some retreat from that concession in argument, I believe the concession was properly made. The real issue concerned the not guilty verdicts returned on counts 5, 5A and count 6. On those counts, as the appellant submitted, the evidence was more precise and detailed, the incident having occurred immediately before the matter was drawn to the attention of the police. The complainant's account was supported by a recent complaint to her brother and the history she had provided to Dr Norrie. In these circumstances, the appellant, in written submission, said this: (p24) "It is submitted that there is no rational explanation available on the evidence which could explain the Jury convicting on counts 1, 2, 3a and 4a while acquitting on counts 5, 5a and 6. The position of the Jury being not satisfied in regard to the later date specific counts, it is submitted, would mean that they should have also held a reasonable doubt regarding counts 1, 2, 3a and 4a." 101 The Crown answered these submissions by drawing attention to the terms of the indictment, which was date specific in respect of counts 5, 5A and 6 (13 June 2004). His Honour had expressly directed the jury (at SU: 1), "… as you look at each count you would need to be satisfied beyond reasonable doubt that the events occurred within the time frame indicated in each count". Here, according to the Crown, the evidence revealed great uncertainty as to the date of the last incident. 102 It will be remembered that the complainant's note to her brother was undated. The brother gave evidence that he got the note "a couple of days before his grandmother's death" (25.10.06: T59). He then corrected that evidence saying that he meant a couple of days after his grandmother's death (T60). His grandmother died on Monday 14 June 2004 at about 1.00 pm. The brother said he came home at about midnight and saw the envelope containing the note. He contacted the police the next morning. The following was put to him: (T76) "Q. Yes. Could you be wrong about that date? A. Not really, no, again it has all been documented and the police turned up that day and that's what happened." 103 The police came on Wednesday 16 June 2004, which would suggest that the brother got the note at midnight on Tuesday 15 June 2004, the day after his grandmother died. 104 The account given by the complainant's mother in her evidence in chief suggested that she had been summoned to the hospital by her cousin on Sunday 13 June 2004, having been told that her mother was dying (25.10.06: T88). She immediately called Mr Perez and asked him to keep an eye on the complainant (T89). Her mother, as mentioned, died the next day, Monday 14 June 2004 (T88). 105 However, when cross examined, the position became much less certain. She acknowledged that her mother had been admitted to hospital on Thursday 10 June 2004. She accepted that she would have visited her each day. It was put to her in cross examination that Mr Perez had been at the family home on Saturday 12 June 2004 and again after her mother's death. The cross examination included the following: (26.10.06: T15) "Q. … you are just simply mistaken about the 12th and the 13th because it was a distressing time? That's what I'm suggesting to you? A. Well I can't say, I can't say that I was mistaken in anything because it was a very, very - a very stressful situation yes it was because I was coping with my mother's death and also what was happening on the assault of my daughter … and it was taking its toll. How can I remember exactly every day time and everything?" (parenthesis added) 106 The complainant's evidence was no more certain as to the date, although she did give a history to the police and Dr Norrie on 16 June, suggesting that the fifth incident had occurred on Sunday 13 June 2004. In cross examination, the complainant said this: (25.10.06: T39) "Q. … in fact this allegation occurs on 13 June according to you, is that right, 2004? A. I can't remember the date. Q. You tell the police when you were being interviewed, which is 23 June 2004 that it occurred a couple of weeks prior to being interviewed? A. Yeah." 107 The cross examination continued: (T48) "Q. Well is there any significant event, was there an anniversary, a birthday, anything unusual, a cartoon programme that allows you to remember this event on that particular weekend? A. The death of my grandma. Q. When did that occur in relation to this event? A. I don't know. I can't remember the exact --- Q. Was it days before, the day that it happened, days after? A. I don't know." 108 The appellant, as mentioned, did not give evidence. However, his answer to the police in the ERISP suggested that he had been called by the complainant's mother on the day the grandmother died, Monday 14 June 2004. It is convenient to set out again part of his answer: "A96 When the mother, grandmother die, you know, yeah, (the mother), she, she call me from the hospital, you know. Q97. Yeah. A. Grandmother die at 1.30, she call me maybe 2 o'clock and she, she told me, you know, 'Go to, to my house, you know, because Mario is a carpenter working, doing some renovation. And I said (the complainant) there and my son, …, you know.'" 109 The only witness called in the appellant's case, Jorge Saliadarra, gave evidence that he had known the appellant for five or six years within the Spanish community. He said they were not friends. He had been to the appellant's house on two or three occasions. He recalled the long weekend in June 2004. On Sunday 13 June 2004, he and a friend drove to the appellant's home, arriving at about 2.00 pm. They picked oranges for about 45 minutes. The appellant was at home. That evidence did not, as such, furnish an alibi, since the complainant had suggested that the last assault occurred after 5.00 pm. Nonetheless, it was evidence inconsistent with the account given by the complainant's mother, who had said that she had summoned the appellant shortly after 1.00 pm on Sunday 13 June 2004, the day before her mother had died. 110 Counsel for Mr Perez, when addressing the jury, dealt at some length with the uncertainty surrounding the date of the alleged assault. He submitted that the jury could not be satisfied beyond reasonable doubt that the complainant had been assaulted on Sunday 13 June 2004, as suggested by counts 5, 5A and 6. 111 Having concluded his address and before the judge began summing up, the jury sent a note. The note was in these terms: (SU: 1) "(As) a matter of law if we believed an act occurred but the allegations give the wrong date can we find the accused guilty?" 112 The Crown, on this appeal, attached great importance to that note. It provided, in the Crown's submission, a logical and plausible explanation for the rejection by the jury of counts 5, 5A and 6, which did not reflect adversely upon the complainant's credit. 113 I accept the Crown's submission. I believe the jury verdicts were not inconsistent. The guilty verdicts in counts 1, 2, 3A and 4A were not unreasonable. 114 I would dismiss ground 4. Accordingly, the appeal against conviction fails. I therefore turn to the application for leave to appeal against sentence. Appeal against sentence. 115 It will be remembered that the appellant relied upon two grounds in the appeal against sentence: Ground 5 : The trial Judge wrongly assumed that there was a standard non parole period in respect of the offences in counts 1 and 2. Ground 6 : The sentence was manifestly excessive. 116 Mr Perez was convicted on two counts of aggravated indecent assault, s 61M(1) Crimes Act. Count 1 related to the period 28.3.00 to 31.12.00, when the complainant was 10 years old. Count 2 was referable to the period 28.3.01 to 28.3.02, when the complainant was 11 years. 117 The maximum penalty was 7 years imprisonment. His Honour was informed by the Crown that there was a standard non parole period of 5 years. In fact, the amendments to the Crimes (Sentencing Procedure) Act 1999, introducing Div 1A of Pt 4 and standard non parole periods for certain offences, did not begin operation until 1 February 2003. It had no application to counts 1 and 2. 118 The error plainly affected the sentences imposed. His Honour said this: (ROS: 4) "The most difficult part of the whole exercise, to my mind, is the fact that a standard non-parole period of five years applies in respect of what I will call the indecent assault charges, whereas there is no standard non-parole period in respect of the charges which deal with actual penile vaginal intercourse." 119 His Honour added: (ROS: 8) "… Now, I have endeavoured to look carefully at that - all the material in the case and certainly if it were within my power, I would have imposed a less non-parole period than five years. In fact, probably more of the order of two and a half to three years, but it seems - as I have indicated, it seems to me that I am simply compelled to impose a five year non-parole period in relation to counts 1 and 2." 120 His Honour then imposed the maximum penalty in respect of counts 1 and 2, that is 7 years imprisonment with a non parole of 5 years, both sentences concurrent. 121 The Crown on this appeal conceded error. However, it drew attention to the sentences imposed in respect of counts 3A and 4A (sexual intercourse with a child contrary to s 66C(1)), where the maximum penalty was 8 years imprisonment. On each count his Honour imposed a sentence of 6 years, with a non parole period of 5 years, both sentences to be concurrent. He fixed a starting date for the sentences on counts 1 and 2 of 25 June 2006 and a commencement date in respect of counts 3A and 4A of 25 December 2006. The accumulation was only 6 months. The overall sentence was 7 years, with a non parole period of 5 -1/2 years. The Crown submitted that no lesser sentence was warranted (s 6(3) Criminal Appeal Act 1912). 122 It is clear, in my view, that the sentencing discretion miscarried. There is a need to resentence, if only to restructure the sentences imposed. The issue is whether, in resentencing, a lesser sentence is warranted. 123 I turn, then, to ground 6 and the submission that the sentences were manifestly excessive. The offences have been described. Count 1 was committed against the complainant when she was 10 years old. Section 61M(1) of the Crimes Act concerns an offence against children aged between 10 and 16 years. As a generality, the younger the child, the more serious the offence (FV v R [2006] NSWCCA 237 at [59]). At the time the offence was committed, Mr Perez was 45 years old. There was an enormous difference in age and maturity between the appellant and the complainant. He removed her pants. He then rubbed his penis against her vagina. He also put his hands under her top and felt her breasts. Count 2 was a distinct offence, later in time. The complainant was 11 years old. Again, the appellant removed her pants. He simulated intercourse with his erect penis against her vagina. The Crown argued that, being distinct offences, there should be some accumulation. 124 The offence in count 3A was also committed when the complainant was 11 years old. It involved penile penetration and was plainly serious. There was some planning. The appellant had a condom. He caused the complainant pain, although he desisted immediately she complained. Count 4A occurred at a time when the complainant was 12 years old. It will be remembered that the appellant guided the complainant to the couch so that he could keep watch through a window because the complainant's mother was expected home. The offence involved penile penetration. The maximum penalty in respect of each count is 8 years imprisonment (s 66C(1) Crimes Act 1900). 125 Turning to the subjective case, the appellant did not give evidence on sentence. He was a married man, although he had since separated from his wife. He came to Australia from Uruguay as a refugee in 1984. He had convictions for stealing (1987) and larceny (1999), as well as mid range PCA. The Crown conceded that these convictions had little relevance. There was no evidence of remorse (ROS: 6). His Honour did not feel that he had material before him which would allow a finding that it was unlikely Mr Perez would re-offend or that he had good prospects of rehabilitation. This is Mr Perez' first custodial sentence. 126 The offence of aggravated indecent assault of a child (counts 1 and 2) covers a broad range of sexual misconduct. It comprehends inappropriate touching of a child who still has his or her clothes on, to much more serious misbehaviour. Here the misconduct in each count was at least mid range in terms of seriousness. Counts 3A and 4A, where there was penile penetration of a child aged 11 and then 12 years, were plainly very serious. 127 Whilst the appeal should be allowed, and the sentence restructured, I do not believe that a lesser term of imprisonment than 7 years (being the effective total term) is warranted. His Honour fixed a non parole period of 5-1/2 years, which was a small departure (3 months) from the usual statutory ratio (s 44(2) Crimes (Sentencing Procedure) Act 1999). No reasons were given or required. However, but for the misinformation provided to the sentencing Judge, and the distortion it caused to the sentencing discretion, it is reasonable to suppose that the usual ratio would have been fixed. I think that, in fairness to the appellant, in re-sentencing an adjustment (which in other circumstances would amount to "tinkering"), should be made and the statutory ratio should be restored. Order. 128 I would propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal allowed and sentence imposed on 5 December 2006 quashed and, in lieu thereof, the appellant is sentenced as follows: On counts 1 and 2 : Imprisonment for 4 years commencing on 26.6.06 and expiring on 25.6.10, with a non parole period of 3 years commencing on 26.6.06 and expiring on 25.6.09; both sentences to be served concurrently. On count 3A : Imprisonment for 6 years commencing on 26.6.07 and expiring on 25.6.13, with a non parole period of 4 years and 3 months commencing on 26.6.07 and expiring on 25.9.11. On count 4A : A term of imprisonment consisting of a non parole period of 4 years and 3 months, commencing on 26.6.07 and expiring on 25.9.11, with a balance of term of 1 year 9 months commencing on 26.9.11 and expiring on 25.6.13; such term to be concurrent with the term in respect of count 3A. The first day on which he shall be eligible for parole will be 26 September 2011. ********** 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.