Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AF v R [2016] NSWCCA 180 Hearing dates: 15 February 2016 Date of orders: 19 August 2016 Decision date: 19 August 2016 Before: Hoeben CJ at CL [1] Fullerton J [2] RS Hulme AJ [3] Decision: (i) Appeal Allowed. (ii) Quash the conviction of the Applicant that occurred on 14 June 2013 and the sentence imposed by McClintock SC DCJ on 9 May 2014. (iii) Order that there be a new trial. Catchwords: Criminal law – no evidence from accused – failure to give Azzopardi direction – accused old and non-parole period served but acquittal not appropriate Legislation Cited: Criminal Appeal Act 1912 Criminal Appeal Rules 1996 Cases Cited: Azzopardi v The Queen [2001] HCA 25, 205 CLR 50 Burke v The Queen [2013] VSCA 351 Giotas v R [2006] NSWCCA 358 Glennon v The Queen (1993) 179 CLR 1 Johnston v R [2007] NSWCA 133 Papakosmas v R [1999] HCA 37; 196 CLR 297 R v Bevin [2008] QCA 310 R v Burns [2003] NSWCCA 30; 137 A Crim R 557 R v Colville [2003] NSWCCA 23; 137 A Crim R 543 R v GAJ [2011] QCA 141 R v Graham [2005] NSWCCA 127 R v Macris [2004] NSWCCA 261 R v Richards [2002] NSWCCA 38; 128 A Crim R 204 R v SMR [2002] NSWCCA 258 R v Wilson [2005] NSWCCA 20 Sever v R [2007] NSWCCA 339 X7 v Australian Crime Commission at [2013] HCA 29; 248 CLR 92 Category: Principal judgment Parties: Regina AF Representation: Counsel: Mr H Baker (Crown) Mr W Hunt with Mr T Ramrakha (Applicant) Solicitors: Solicitor for Director of Pubilc Prosecutions NSW Legal Aid Commission NSW File Number(s): 2011/343508 Publication restriction: No Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 09 May 2014 Before: McClintock DCJ File Number(s): 2011/343508 Judgment 1. HOEBEN CJ AT CL: I agree with RS Hulme AJ. 2. FULLERTON J: I agree with RS Hulme AJ. 3. RS HULME AJ: After some earlier proceedings which it is unnecessary to recount, the above named Applicant was, on 31 May 2013 arraigned on 4 charges which, summarised, were: 1. Between 31 January and 18 July 2011 assaulting and committing an act of indecency on the complainant. 2. Between 17 January and 24 September 2011 assaulting and committing an act of indecency on the complainant. 3. Between 17 January and 24 September 2011 assaulting and committing an act of indecency on the complainant. 4. Between 17 January and 24 September 2011 committing an act of indecency on the complainant. 1. At the times alleged the complainant was a female and aged 6 or 7 years. 2. The gravamen of the complaints was that on the first two occasions the Applicant had touched the complainant's genitalia with his hand and on the third had done so with his exposed penis. The fourth suggested offence was that he had ejaculated. 3. On 14 June 2013, a jury convicted the Applicant on all counts. On 9 May 2014 McClintock SC DCJ sentenced the Applicant to an aggregate non-parole period of 15 months commencing on 9 May 2014 with an aggregate additional term of 1 year 9 months. In arriving at that sentence, his Honour indicated that the sentence appropriate for each of the first three charges was of imprisonment for 27 months including a non-parole period of 12 months and the sentence appropriate for fourth charge was imprisonment for 18 months. 4. The primary evidence of the commission of the offences was constituted by:- 1. Two recorded interviews between the complainant and police, one on 11 October 2011 and a second on 26 October 2011. 2. Some oral evidence from the complainant, both in chief and in cross-examination. 1. There was in addition some supporting evidence principally from the complainant's mother, father, the father's cousin, and Detective Senior Constable Pollard but, absent acceptance of the substance of the complainant's account, this further evidence was not sufficient to support any of the convictions. 2. Also tendered by the Crown Prosecutor, was the record of an ERISP in which the Applicant had participated on 27 October 2011. In this ERISP the Applicant had firmly denied the offences and suggested a reason why the complainant's mother may have induced the complainant to make up allegations against him. 3. The grounds of appeal are:- 1. A miscarriage of justice was occasioned as a consequence of the trial judge's failure to direct the jury concerning the Applicant not giving evidence at trial. 2. The convictions are unreasonable and cannot be supported having regard to the evidence. 1. As the first ground suggests, the Applicant did not give evidence and the trial judge did not give to the jury the customary direction to the effect that there was no obligation on the Applicant to do so and his failure in this regard could not be used against him. No application was made that such a direction be given. 2. It should be noted that when towards the end of the trial, his Honour raised the question of what directions should be given to the jury, Mr Glennon, then counsel for the Applicant, indicated that he would be seeking a Jones v Dunkel direction in respect of two persons not called and who, according to some of the evidence, may have been able to give evidence concerning some of the events. The topic was canvassed and then during one of the luncheon adjournments in the absence of the jury, his Honour returned to the topic observing to Mr Glennon that if the request was pursued, he would give the direction but that it had occurred to him that "if you say a person didn't give evidence and wouldn't have assisted the Crown case, I am just concerned that with your client not giving evidence that might rebound on you." 3. Mr Glennon then withdrew the request for a Jones v Dunkel direction and none was given. 4. Earlier, prior to the ERISP being tendered, Constable Pollard gave evidence of the arrest of the Applicant and of telling him that he did not have to say or do anything if he did not wish to. The transcript of the ERISP contains a similar statement. When the ERISP was tendered, nothing was said concerning the weight that might be given to it and when the Crown referred to it in his address again nothing was said concerning its weight or the fact that the Applicant's answers were not on oath. 5. In his address, the Crown referred to what the Applicant had said in the ERISP but it is important to note that the Crown's remarks dealt solely with the content. 6. In his summing-up, his Honour emphasised on numerous occasions that the Crown bore the onus of proving the case brought and that there was no onus on the accused to prove anything or to prove his innocence. Inter alia, he remarked:- "… the totality of the evidence, that is the evidence of (the complainant) in the interviews and in the extent of her evidence-in-chief and then the cross-examination and then the re-examination is really substantially the whole of the Crown case. That is, in order for you to find the accused guilty beyond reasonable doubt in a case such as this there is effectively one witness who is the foundation of the Crown case. In order for that to happen you would have to be able to believe her in respect of each of the elements beyond reasonable doubt because she is, in essence, the beginning and end of the case. 1. In addressing the topic of the ERISP his Honour said:- Now I just want to take you to the, I think it is exhibit G, which was the ERISP given by Mr Fiorentino. That is a version of events that was given and recorded with investigating police. As was indicated to you, the accused, Mr Fiorentino, did not have to say anything to the police. He could have waited until he got a lawyer before he attended to say anything to the police. You should bear in mind that he, that is the accused, Mr Fiorentino, is not required to prove that his account is true and you would understand that from the previous directions that I have given you. It is not a contest of words. What it is, is the requirement that the Crown prove their case beyond reasonable doubt. They must satisfy you that their account – the account in respect of the elements of the offence, is proved beyond reasonable doubt. … There is no obligation on an accused person to prove their innocence or to prove why another person might manufacture an account or, indeed, to do anything more in order to raise a doubt than to raise a reasonable doubt as to the truthfulness and accuracy of an account. 1. Later, his Honour remarked:- The position so far as the defence case was concerned and as I indicated to you previously, the defence simply do not have to have a case in one sense. All they say is that you would not be able to rely on (the complainant) beyond reasonable doubt in respect of the allegations in the indictment but further they say that you would accept that Mr Fiorentino did everything that an innocent man would do. That he volunteered to answer questions without the assistance of legal advice. That the only thing says Mr Glennon that can be done in such a situation is a denial that the matter occurred. He suggests to you that he does not have to prove, which is correct, that the proposition that this may have been made up for the reason to do with the mother and to protect herself possibly from an allegation of dishonesty when she was doing an accounting course. That may be, the defence says, a possibility but they do not have to prove that. 1. The latter remarks echo part of Mr Glennon's address. 2. In Azzopardi v The Queen [2001] HCA 25, 205 CLR 50 at [51] the majority of the High Court observed:- In the course of argument of the present matter it was suggested that if a judge says nothing to the jury about the fact that an accused had not given evidence, the jury might use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. 1. Later, authorities make it clear that the significance of the omission of an Azzopardi direction must be assessed in light of the circumstances of, and the directions given, in the particular case. Furthermore, in light of rule 4 of the Criminal Appeal Rules 1996, the failure of counsel to ask for the direction means that leave to rely on the omission will only be given when the Applicant can demonstrate that the omission of the direction led to a miscarriage of justice in the sense that the Applicant may have lost a chance fairly open to him of being acquitted – R v Wilson [2005] NSWCCA 20 at [20] et seq. and cases cited. See also Papakosmas v R [1999] HCA 37; 196 CLR 297 at [27]. Given what the jury were told, is the test set out in R v Wilson met? 2. Many if not most of the cases in this area are ones where some but not all of the four aspects of the suggested direction in Azzopardi were given and I find the decisions in most of those cases of no significant benefit here where the summing-up directed no attention to any of the aspects. 3. The Court was referred to a number of authorities. In R v Richards [2002] NSWCCA 38; 128 A Crim R 204 the Court was concerned with the complete absence of directions on the topic. Levine J accepted that the right of silence was fundamental but did not accept that an absence of a direction necessarily or in that case amounted to a fundamental irregularity so as to justify the grant of leave under Rule 4. His Honour observed, at [29], that:- … even in Azzopardi the High Court cannot be taken to have ruled that in every case it is compulsory let alone desirable, in term of the fundamental requirements of justice, for a direction of the kind now sought, to be given. 1. His Honour also pointed out, at [30], that mis-directions on matters said to be "fundamental" neither necessarily or as a matter of course can be characterised as a fundamental defects. See also Glennon v The Queen (1993) 179 CLR 1 at p8. His Honour concluded that: In the circumstances of the instant trial the non-direction (as opposed to any mis-direction) on the subject of complaint, in the context of the trial's course, the weight of the evidence against the Applicant, simply does not lead me to the view that there was an error that goes to the core of the matter or which amounted to a fundamental flaw, and an entitlement to leave under r 4. 1. His Honour's remarks were concurred in by Hodgson JA and Howie J and the appeal was dismissed. 2. In R v SMR [2002] NSWCCA 258 it was submitted that the jury might have engaged in impermissible reasoning relating to the failure of an accused to give evidence and in particular provide an explanation for his fingerprints in a book. The Court again took the view that in Azzopardi the High Court had not said that such a direction was mandatory in every case and some element of discretion was left to the trial judge. It was pointed out that in not every case counsel would consider his client well served by such a direction, particularly as in the instant case where effectively the record of interview was constituted by denials. The Court took the view that the absence of a direction along the Azzopardi lines did not constitute a possible miscarriage of justice and leave under rule 4 to rely on the ground was refused. 3. In R v Colville [2003] NSWCCA 23; 137 A Crim R 543 the judge had pointed out to the jury that the accused had the opportunity of giving evidence but, as occurred, he was perfectly entitled not to do so and that what he had said in his interview with police was in effect what he said to the jury in trial. His Honour went on to emphasise that it was for the Crown to prove the accused's guilt. The relevant ground of appeal was that these directions were not adequate. 4. Sully J, with the concurrence of Handley JA and Buddin J referred to the remarks in Azzopardi at [51] and [52] and shortly afterwards remarked:- 63. As has been previously noted herein, the Applicant's trial was short, and was clearly and simply focused. It was, certainly, necessary to warn the jury against the natural temptation for the lay-mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged. The way in which that was required to be done did not depend, however, upon taking such statements as have been quoted from Azzopardi, and using them as some kind of routine check-list to be intoned mantra-like to the jury. 1. The decision was that the directions that were given were adequate. Neither R v Richards nor R v SMR was referred to. 2. In R v Burns [2003] NSWCCA 30; 137 A Crim R 557 at [50] Sully J, this time with the concurrence of Hodgson JA and Buddin J, echoed what he had said four days earlier in R v Colville. In this case the Court held that the directions the trial judge had given concerning the accused's right to remain silent were sufficient. 3. In R v Graham [2005] NSWCCA 127 the trial judge is recorded as having given "firm and impeccable directions concerning the necessity for the Crown to discharge its onus of proof". However no Azzopardi direction had been sought or given and the trial judge did not refer to the absence of evidence from the Applicant. The Accused had participated in a lengthy recorded interview denying knowledge that a parcel with which she had been involved contained drugs and her counsel had announced at the end of the Crown case that "The accused will be relying on her record of interview and other evidence in the case so far as her case is concerned". The trial judge had also remarked:- The record of interview has been played for you and that is evidence in the case which you taken into account in the same way as you evaluate any other evidence that you have heard. 1. In refusing leave to rely on the ground of an absence of an Azzopardi warning, Grove J, with the concurrence of the other members of the Court, referred to a number of prior cases where the point had been made that in Azzopardi the High Court had clearly indicated that the direction suggested as desirable was not mandatory. 2. His Honour also observed, at [25]:- Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice. 1. The trial judge from whom an appeal was brought in R v Wilson [2005] NSWCCA 20 pointed out to the jury that the accused had a right not to give evidence and no inference could be drawn from that fact. In this Court counsel sought to complain that the other ingredients referred to in Azzopardi, viz. that the accused's silence could not be used to fill gaps in the evidence tendered by the Crown and could not be used as a make-weight in assessing whether the Crown had proved its case beyond reasonable doubt had not been drawn to the jury's attention. Hunt AJA with whom Grove and James JJ agreed, pointed out that in Azzopardi, the High Court had not made it compulsory in every case, or even in almost every case for the direction it had suggested to be given. His Honour also said that desirability was not established by demonstrating merely that there was nothing in the facts that made such a direction inappropriate. His Honour took the view that the absence of those ingredients would not have led to the loss of any chance fairly open to the Applicant of acquittal and that leave to rely on the ground should be refused:- 2. In R v Wilson an earlier case in this Court, R v Macris [2004] NSWCCA 261 was overruled. In R v Macris it had been held that where a direction concerning an accused's failure to give evidence was required, the omission of two of the four ingredients of the direction referred to in Azzopardi constituted error. 3. In Johnston v R [2007] NSWCA 133 at [13] in an ex tempore judgment McClellan CJ at CL, with whom Hislop J and I agreed, remarked:- "It has to be recognised, as in my opinion, must be plain, that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation. Although the ordinary person may not conclude from the mere fact of an accused person's silence that he or she is guilty, if there is evidence indicating that an accused may have committed the crime a failure to respond would make it, at least, more likely that a person would conclude that the accused committed the crime. 1. In his remarks in that case the trial judge did not address at all the issue of the Accused's failure to give evidence but reminded the jury of a Crown submission that the accused had lied in his ERISP and of the submission that he had done so "because Mr Johnson knew the truth of the matter about which he lied would implicate him in the offence …". McClellan CJ at CL observed that, "Given this, although I would otherwise be of the view that an Azzopardi direction should have been given, the need for it became undoubted." 2. Again, neither R v Richards nor R v SMR was referred to although R v Burns, R v Wilson and two other cases, R v Dodd [2002] NSWCA 418 and R v Sabbah [2004] NSWCCA 28 were. Having regard to the not insubstantial directions that the trial judges in those cases in fact gave to the juries, those last two cases are of no present significance. 3. In Giotas v R [2006] NSWCCA 358 there was an issue whether sexual intercourse was consensual and whether it has occurred on two occasions or one. Hall J with the concurrence of McClellan CJ at CL and Hidden J, remarked, at [50], and [52]: I am of the opinion that it was both desirable and in the particular circumstances of this case, necessary that an Azzopardi direction be given. I accept the submission made by Mr Thangaraj of counsel that this was a case, involving alleged sexual assault where the dispute in large measure involved the acceptance of the complainant over the denials of the appellant. Furthermore, I accept the submission that this was a case in which a full Azzopardi direction was warranted. ... This is not a case in which an accused, not having given evidence, had the benefit of the admission into evidence of any exculpatory account given by him during the course of a police interview unlike, for example, occurred in SMR (supra); Graham (supra) and Wilson (supra) as discussed in paragraph [49] of this judgment. In the circumstances of these proceedings, the strong challenge made to the credibility of the complainant, the failure by the appellant to vive evidence, and the absence of a full Azzopardi warning, were all factors which support the proposition that the jury may well have impermissibly used the silence of the appellant to his detriment, in particular, with respect to his failure to effectively verify his claimed version of events as related to Mr Ford. 1. His Honour's conclusion was reinforced by, but as I read his remarks not dependant on, the fact that in the course of his summing up, the trial judge had commented:- As to the question of how many acts of sexual intercourse were concerned, there is only evidence before you that there were two acts of sexual intercourse. There is no actual evidence that there was only one act of intercourse other than the note taken by Dr Larsen. That is the evidence before you. But in the version that the accused gave to Mr Ford, he does not go into details. (emphasis added) 1. In Sever v R [2007] NSWCCA 339 this Court set aside a conviction where the trial judge had given the jury no direction on the topic of the Accused's failure to give evidence and counsel had said that his client was content to rely upon what he had said in a video-taped interview by police which was before the jury. The Court took the view that by the omission the accused had lost a fair chance of acquittal. 2. In an ex tempore judgment Grove J, with whom Simpson J and I concurred, concluded that the failure of the trial judge to give an Azzopardi or like direction led to the conclusion that the Applicant had lost a fair chance of acquittal. His Honour adverted to the fact that Azzopardi did not mean that the giving of such a direction was in all cases obligatory but said that given the calling of a number of witnesses in the defence case "the absence of the Applicant must have been glaringly obvious to the jury". On the topic his Honour referred to the decision in R v Johnston but to no other authority. 3. This Court was referred to some interstate authorities. In Burke v The Queen [2013] VSCA 351 the Victorian Court of Appeal observed at [69]:- The law regarding the precise circumstances in which each and everyone of the directions set out in Azzopardi will be required to be given is perhaps uncertain. However, this Court has never expressed any doubt, since Azzopardi, that as the High Court laid down in that case, it will 'almost always be desirable' for the trial judge to warn the jury that the accused's silence in court is not evidence against him, and that the absence of evidence from the accused cannot be used to fill gaps in the prosecution case. In our opinion, the Crown's contention that the requirement to give an Azzopardi direction was dependent on whether there was something about the case that required such a direction, is to approach the issue from the wrong starting point. The correct view is that such a direction is desirable unless there is some feature of the case that renders it unnecessary or inappropriate. 1. In R v Bevin [2008] QCA 310 Cullinane J, with the concurrence of the other members of the Court repeated remarks in an earlier case of R v DAH [2004] QCA 419 at [83] that "… if a judge makes no comment on the failure of the defendant to give evidence, the jury may well use that silence to the defendant's detriment" and described a failure to given any direction on the topic as "a serious defect". His Honour then, obviously relying heavily on R v Macris, held at [52] that the failure to give such a direction must be taken to have resulted in a miscarriage of justice. 2. In R v GAJ [2011] QCA 141 the Queensland Court of Appeal referred to R v DAH and R v Bevin and took the view, at [42] that "whilst no precise form of words is necessary, the failure to give directions covering these matters" (i.e. the failure of an accused to give evidence) ordinarily constitutes a fundamental irregularity in a trial requiring appellate courts to set aside resulting convictions and order a retrial". Their Honours considered and rejected the conclusion in R v Richard and R v Graham that the absence of a direction was not a fundamental irregularity. 3. It may be accepted that the trial judge emphasised to the jury that the burden on proof lay on the Crown and would only be satisfied by proof beyond reasonable doubt. However, as Hayne and Bell JJ in X7 v Australian Crime Commission at [2013] HCA 29; 248 CLR 92 at [102] make clear, that principle is not the same as the entitlement of an accused to remain silent. 4. The differing results in the authorities to which I have referred do not make easy the decision as to what should occur in the instant case. However it is important to distinguish those which turned on rule 4 of the Criminal Appeal Rules and the need for leave to rely on a point not taken below and those which turned on the absence or inadequacy of a direction on the topic of an accused not given evidence. 5. I do not accept the remarks of Sully J in R v Colville concerning "… the natural temptation for the lay-mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged." I do not see how in the face of a plea of not guilty a failure to give evidence could reasonably be so construed and in many cases there will often be denials in recorded interviews and the like which would also have to be taken into account. 6. However the embracement in Azzopardi of the proposition that a jury might use an accused's silence in court to his or her detriment, the views expressed in R v Johnston to the effect that "that most people would assume that if a person who has been accused of a crime remains silent it is because they cannot adequately explain the situation" leads to the conclusion that, absent something to rebut the assumption or significantly reduce the possibility adverted to the Azzopardi, a direction concerning an accused's silence should be given. Such a conclusion, recognising the possibility of additional material, is not inconsistent with the reference in Azzopardi to "almost always … desirable". 7. The additional material might be, as in R v Graham, an accused's answers in a recorded interview which the jury were instructed was evidence to be evaluated as any other evidence although R v Sever suggests that absent such an instruction a recorded interview would be insufficient. Some factors. e.g. the trial judge's repetition of a Crown submission as to the accused lying as in Johnston v R, remarks in Giotas v R concerning the "only" and "actual" evidence or a direction or the calling of other defence witnesses in Sever v R may strengthen the need for a direction. 8. Furthermore the requirement in rule 4 of the Court of Criminal Appeal rules for leave to rely on a point not taken below does not mean that the absence of a direction where one should have been given means that at appeal will succeed. The Applicants in R v Richards, R v SMR and R v Wilson failed on that ground. 9. Returning to the circumstances of the trial under consideration here, there was in evidence the Accused's ERISP in which he denied the allegations against him. That document was also referred to in his Honour's summing up. However, the reference was to it being a "version of events". It was not equated to the evidence of the complainant. There was nothing else that impinged on the desirability of a direction concerning the failure of the Applicant to enter the witness box and accordingly a direction concerning that and the absence of any inference arising should have been given. 10. But did the absence of any such direction amount to a miscarriage of justice in the sense that the Applicant may have lost a chance fairly open to him of being acquitted? Here the evidence for the Crown was not overwhelming and, as is made clear when I deal with Ground 2, there were a number of unsatisfactory features of the complainant's evidence. An inference drawn from the failure of the Applicant to give evidence might reasonably have made the difference between conviction and acquittal. In these circumstances the failure of the judge to give an appropriate warning on the topic did constitute a miscarriage of justice and this ground of appeal must be upheld. 11. Ground 2 12. The conclusion at which I have arrived in respect of Ground 1 makes it strictly unnecessary for me to pursue this ground. However, particularly as in considering that ground I have relied on the nature of the evidence of the complainant it is appropriate that I refer to a deal of it. 13. Most of the difficulties relied on under this ground are fairly summarised in the course of McClintock DCJ's summing up. His Honour said:- "There was an issue in the case about negative questions, that is, questions framed in the negative which for persons who are not sophisticated English speakers create some difficulties, even for some sophisticated English speakers they constitute some difficulties. However, it is a common place in courts particularly for counsel when they are putting their case to a witness to put it in a negative form. That is, you know, "That didn't happen, did it?" or something like that. The difficulty in this case was that because (the complainant) had difficulty comprehending that form of question, that the questions had to be modified so that she for the most part could – or at least we could hope that she could – understand what the questions was. Now Mr Fiorentino is not to be saddled with the disadvantage, if I could put it that way, of the fact that the questions had to be phrased in a positive way wherever possible. The difficulty that became apparent during the evidence was that it was often difficult to understand what (the complainant) was actually answering. You should be very careful when you look at that material in the transcript of her evidence and also in the material that she gave in relation to the two interviews with the JIRT officers, to work out what exactly she is answering… And later Now I also think I need to give you a direction in respect of her evidence in relation to the fact that there were a number of real difficulties in the interpretation of her evidence. There were inconsistencies. There was a lack of specificity in some of her evidence. Sometimes she just did not answer at all and sometimes she gave descriptions of things, and particularly one example was used of the "white stuff", which may or may not have had a consistency and a rationality. You will have that description with you when you have the MFI in front of you and in the light of those matters and in the light, effectively, of the proposition which has been put to you but which is true of all witnesses, you do not have to – a witness may be truthful in the sense that they believe what they are telling is the truth but they may be unreliable. Witnesses can believe what they say is truthful and accurate but it may be unreliable. … The position in respect of (the complainant) is that in the circumstances, the criticism as I understand it that is made of her is not necessarily that she is not truthful or does not believe in what she is saying but that the quality of the evidence and its reliability is such that you would not be able to rely upon it beyond reasonable doubt. Now that issue is a matter for you and for you alone. What I can say to you is that you should scrutinise her evidence with great care with a view to making the decision about whether you can rely upon it beyond reasonable doubt." 1. At one stage in the absence of the jury, his Honour remarked:- "…it is almost impossible to put the case fairly to the witness and get a response." 1. It is unnecessary to detail all of the examples relied on by counsel for the Applicant but some may be mentioned. The first interview between the police and the complainant extended for some 440 odd questions and answers, the second to almost 300. There can be no doubt that both contained a number of answers that were not helpful to the Crown case. For example in the first interview that complainant said that she did not know why she was at the police station, nobody had touched her on that part of her body that corresponded with circled genitalia on a drawing of a girl, that, after saying that the Applicant had touched her, she did not know what part of his body was used to do so, and that he had not touched her on any other time. Later, having said that the part of the Applicant's body that pees touched her she said she didn't know what that part looked like. 2. On the other hand in the first interview there were the following questions and answers:- Q60 So (the Complainant) tell me what you've come to talk to me about tonight? A I'm scared. Q61 You're scared. Tell my why you're scared? A Because I don't want tell anybody. Q62 Why don't you want to tell anybody? A Because I, I ... Q63 Pardon? A I was very scared. Q64 What, what are you scared of? A Of what he say to me, what I say to you. ... Q135 Has anyone touched you on that part of your body? A No body. ... Q143 So you told me before that that part where, where you pee when I asked who's allowed to touch you on that part you said mum and no one else and has anyone touched you on that part of your body? A I don't know ... body. Q144 Pardon? A I don't know what that part of the body. Q145 So that part where you where you pee, has anyone touched you on that part of your body? A Like in here. Q146 In here. The part that pees on the body. A No audible reply. Q147 It's OK. If you don't understand what I'm talking about. Do you not understand my question or you don't want to tell me what the answer is? A I don't want to tell the answer. Q148 OK Can I ask you why you don't want to tell me what the answer is? A No. ... Q189 You don't know? OK. So (the complainant) I've been told that you told, that you told your mum about something that Armando did. Did you tell your mum something that Armando did? A Yes. Q190 Yeah. Can you tell me what you told your mum that he did? A (No audible reply). Q191 No? is that no you don't know what he did or no you don't want to tell me what he did? A No don't want to. Q192 Pardon, can you use a big loud voice so Lisa and I can hear you? A No don't want, I don't want. Q193 You don't want, you don't what to tell me? A Yes. Q194 Can I ask you why you don't want to tell me? A Yes Q195 Why, why don't you want to tell me?] A Because I'm scared. ... Q243 So when Armando touched you on this part of your body that part on the, on the girl that pees. What that, how what did he use what part of his body did he use to touch you or did he use something else? A I don't know. Q244 Well how did, how did he touch you? A I don't know. Q245 Did a part of his body touch you? A No audible reply. Q246 No? A I don't know. Q247 OK Are you saying you don't know cause you don't understand my question or you don't know the answer? A I don't know the answer. ... Q283 How old were you on the day when you went into Armando's, Armando's bedroom and he touched you on this part of your body? A I was still 7. Q284 And did that happen before your last birthday or after your last birthday? A I don't know. Q285 OK. And has, has this ever happened before with Armando other than the time we just talked about? A (No audible reply). Q286 Has Armando ever touched you on your body any other times other than what we just talked about? A No. ... Q403 When you, when this was happening with you? A Yes. Q404 --- Did the part on Armando that pees? A No. Q405 You didn't see it? A Yes I'd seen it. Q406 Yes and what did it look like? A I don't know. 1. (Between answer 303 and question 367 some 4 pages of the transcript of the interview are missing, presumably in consequence of editing although the full record of proceedings was not before this Court. One may infer that in those missing parts the complainant had made some reference to the part of the Applicant's body that pees.) 2. In her second interview when taken to this topic she said she had seen nothing. Q56 So can we talk about the hand firstly. So when Armando used his hand to touch you what part of your body did he use the hand to touch you? A (No audible reply). Q57 And what part of the girl is that? A For pee. ... Q67 OK. So when he used this part that pees to touch your part that pees, is that the same time that he used his hand to touch your part that pees or a different time? A I don't know. ... Q80 What could you see when Armando used this part of his body that pees to touch your part of your body that pees? A Mmm? Q81 Would could you see? (sic) A ... nothing. ... Q123 And when Armando used his part of his body that pees to touch your part of your body that pees was he wearing clothes, or not wearing clothes, or something else? A Wearing clothes. Q124 And what was he wearing? A I don't know. Q125 And what could you see when he did this? A I don't know. 1. That part of the transcript of the second interview as dealt with the topic of ejaculation included the following:- Q141 So when Armando was using this part of his body that pees to touch your part of your body that pees how did that end? A When end, when he… got like white things. Q142 So tell me more about the white thing? A The white thing is like white… like water but this white like that is fall to the carpet. Q143 So it's like water and falls on the carpet. Is that what you said? A Yes… fall because on the, like kids can do that and, and his white like, the things things, his white things in his… this here because it's wet. Q144 It's wet? A Yeah, because of the white things. … Q148 And what part of… A … kids, when it's too long and… white thing fall down to everywhere, can be everywhere. Q149 And when, when you talk about the white thing that falls on the carpet and everywhere from this part of the boy that pees - - - A From, be everywhere in the bricks or everywhere like carpet, bricks and everywhere in like a room, can be room, bricks and carpet and garden too everywhere. Q150 Can you tell me more about what you mean by everywhere? A Everywhere like in the table, kitchen table in the sofa like that can be everywhere. Q151 So you told me before that the white bits go on the carpet --- A Can be go to this... can be... everywhere, everywhere in the house or in the room but not in ... in the room... carpet but he can wipe it like a tissue or this things. Q152 And what's that thing? A ... like, like a towel a little towel. ... Q161 OK And when Armando uses the little towel to wipe the white stuff on the part of his body that pees is he wearing pants, or no pants or something else? A No pants. ... Q168 So (the complainant), before you see the white thing fall onto the carpet what was happening just before you saw the white thing? A Nothing. ... Q203 We were just talking before about the white thing that goes on the carpet on the part of Armando that pees. What do you, what were you doing when you saw the white thing go on the carpet? A Just watch TV and relax. Q204 And where were you when you saw the white stuff? A In the bed. Q205 And before you saw the white stuff what was Armando doing? A Wiping... like this things. Q206 Wipe that thing. And what was he using to wipe that thing? A ... ... a little towel. Q207 OK. And before he used the little towel to wipe the white thing on this part what was his body doing? A Do nothing just wipe. Q208 Before he wiped though, before he used the little towel to wipe what was he doing? A Before I don't know. ... Q220 And what happened just before the white things? A I don't remember. Q221 When you see the white things is Armando still using his part that pees to touch your part that pees? A I don't know Q222 Are you saying you don't know because you don't want to tell me or because you don't remember? A Because I don't know. Q223 Because you don't know? A (No audible reply). ... Q266 And you know how we've been talking about the white thing did that happen any other times other than what we were talking about? A I don't know. Q267 Did it happen more than one time, or only one time, or something else? A I... I think every time when, when... Q268 Every time what, sorry Alison couldn't hear your? A I don't know... Q269 Are you able to tell me what you've just said then, can you repeat what you just said because we missed it? A I, I forgot. Q270 Every time when? A When he's doing that to me. Q271 And how many times were he doing that to you? A I don't know. Q272 Was it one time, or two times, or more than two times, or something else? A I don't know Q273 OK A ... ... 1. Examples from the transcript of the complainant's evidence at the trial include: Q You didn't know? A (No verbal reply). Q See when you said you didn't know, that was because he didn't touch you, that's right, isn't it? HIS HONOUR Q Do you understand the question (the complainant)? A No. GLENNON Q You told the police officer Louise that you didn't know which part of Armando touched you, that's what you told her, isn't that right? A Yes. Q And that is because he didn't touch you where you said he touched you? A (No verbal reply). HIS HONOUR Q Do you understand the question? A No And later GLENNON Q Whereabouts on your body do you say he touched you? A (No verbal reply). Q Are you able to say which part? A I don't know the name of the part. Q What does the part do? A (No verbal reply). … Q Do you know what the part is? A No. Q Could you show the part on a diagram or drawing? A (No verbal reply). Q If you were given a drawing, could you circle the part? A (No verbal reply). Q Do you understand my question, (the complainant)? A No. And later Q Can you remember whether your mum was upset? A No Q You can't remember, or she was not upset? A (No verbal reply). HIS HONOUR Q Do you understand the question, (the complainant)? A No. And later Q Did [the applicant] ask you to come into his room? A (No reply). HIS HONOUR Q Do you understand the question, (the complainant)? A No. 1. Despite these sorts of problems there were answers by the complainant which were firm and implicated the Applicant in the offending charged and while at one level the complainant's evidence on the topic of ejaculation seems bizarre it may be that a deal of what has been quoted above on the topic represents an attempt by her to explain what she meant by "everywhere". Her description of the "white things" and definiteness about them falling on the carpet provides grounds for not rejecting all of what she had to say on the topic. 2. It is also virtually impossible to avoid the conclusion that the "white things" she referred to were ejaculate and hard to accept that if she had not seen such material emanating from the Applicant she would have known about it. 3. On the other hand, after the complaint came to the attention of the police a forensic examination of the room in which the assaults were alleged to have occurred was conducted. This examination included study of the carpet, the removal of a section of it that appeared to be stained and its transmission to the Department of Analytical Laboratories. No semen was detected. 4. Clearly this evidence created difficulty in accepting some of what the complainant had said. However, this and the other problems with the complainant's evidence must have been apparent to the jury. The passages quoted from the summing up cannot but have drawn the issue of her credibility and reliability and any difficulties for the Applicant to their attention. An obvious explanation for at least some of the complainant's answers was a reluctance to speak and for others, her age. Be that as it may, I am not persuaded that the jury's decision to convict the Applicant was unsafe or that the Applicant's conviction was unreasonable or cannot be supported. 5. I would dismiss this ground of appeal. 6. However, as I have indicated, the Applicant is entitled to succeed on Ground 1. In the ordinary course the nature of his success would lead to a retrial. However he has served the non-parole portion of his sentence and been released from custody. His total sentence expires on 8 May 2017 and given the delays in the Court System any retrial may well not occur much if anything before then. He is 81 years of age has no significant record. It is inconceivable that a sentence including any further custody would be imposed. 7. By reason of s 306C et seq. of the Criminal Procedure Act 1986 there would be no need for the complainant to give further evidence unless she wished and that seems unlikely. Accordingly any retrial would occur on the fairly unsatisfactory basis of a transcript of her evidence. 8. Section 6(2) of the Criminal Appeal Act 1912 provides that in the event an appeal against conviction is allowed a verdict of acquittal shall be entered although s 8 provides that the Court may order a new trial if it considers that a miscarriage of justice can be more adequately remedied by such an order than by any other order. Given the evidence against the Applicant and notwithstanding the matters to which I have referred it does not seem to me that the Court should direct an acquittal but should order a new trial leaving it to the Director of Public Prosecutions to decide whether to pursue that avenue. 9. Accordingly I propose the following orders:- (i) Appeal Allowed. (ii) Quash the conviction of the Applicant that occurred on 14 June 2013 and the sentence imposed by McClintock SC DCJ on 9 May 2014. (iii) Order that there be a new trial. ********** Amendments 16 October 2020 - Trial completed 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. Decision last updated: 16 October 2020