R v TJF [2001] NSWCCA 127 (12 April 2001)

Last Updated: 18 April 2001

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v TJF [2001] NSWCCA 127

FILE NUMBER(S):

60517/98

HEARING DATE(S): 13 March 2001

JUDGMENT DATE: 12/04/2001

PARTIES:

Regina v TJF

JUDGMENT OF: Beazley JA Studdert J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/1024

LOWER COURT JUDICIAL OFFICER: Mitchelmore DCJ

COUNSEL:

P. Hock (Crown)

J.W. Fliece (Appellant)

SOLICITORS:

S.E. O'Connor (Crown)

Hovan & Co (Appellant)

CATCHWORDS:

CRIMINAL LAW

trial by jury

indictment charging commission of sexual offences

whether counsel's conduct incompetent and, if so, whether miscarriage of justice. EVIDENCE OF COMPLAINT

failure to direct that such evidence may be unreliable

whether good reasons for judge declining to warn

consideration of warning required

Evidence Act, s 165.

LEGISLATION CITED:

Evidence Act

Criminal Appeal Act

DECISION:

Appeal against conviction allowed; conviction and sentence quashed; judgment and verdict of acquittal entered.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60517/98

BEAZLEY JA

STUDDERT J

SPERLING J

Thursday 12 April 2001

REGINA v TJF

JUDGMENT

1 BEAZLEY JA: I agree with Studdert J.

2 STUDDERT J: The appellant, TJF, stood trial before his Honour Judge Mitchelmore and jury in the Penrith District Court in July and August 1998 following the presentation of an indictment which charged him with the commission of two sexual offences. The first of these was a charge of aggravated indecent assault and the second charge was one of sexual intercourse without consent knowing that the victim was not consenting and in circumstances of aggravation. The jury disagreed in relation to the first count but the jury found the appellant guilty on the charge of aggravated sexual intercourse without consent.

3 By his notice of appeal the appellant appealed against conviction and he also made an application for leave to appeal against sentence, but the application for leave to appeal against sentence has not been pursued. The appellant was sentenced, following conviction on the second count, to a minimum term of eighteen months penal servitude commencing on 3 August 1998 and expiring on 2 February 2000 and an additional term of eighteen months penal servitude to commence on 3 February 2000 and to expire on 2 August 2001. The significance of this sentence is that the appellant has already served the minimum term and more than two-thirds of the additional term, and this feature alone explains why the application for leave to appeal against sentence has not been pursued. Why the appellant was so slow to pursue this appeal has not been satisfactorily explained.

4 It was the appeal against conviction only that was argued before this Court.

5 The alleged victim of the aggravated indecent assault was a sister of the alleged victim of the more serious offence in respect of which the appellant was convicted. I shall refer to the alleged victim of the aggravated indecent assault as SM and the alleged victim of the more serious offence as CM.

6 SM was born on 19 March 1986, CM was born on 25 November 1981, and the two children were two children of a family of four. They had a sister C and a brother J. All four children lived with their parents in an outer suburb of Sydney.

7 The appellant was a friend of the family. The complainants' mother gave evidence at the trial that she had known the appellant for some eighteen years and he frequently visited and stayed overnight at the family home.

8 SM gave evidence that on an occasion in some past winter school holidays she was awakened in her bed to feel someone's hand, down her nightie and outside her underpants, touching her vagina. SM observed that this was the appellant. She left her bed and went to sleep on the floor near her chest of drawers. SM could not recall how old she was or what class she was in at school when this happened but her evidence was that it was two years later when she first complained about the incident.

9 The evidence concerning CM's case was more specific. On 16 March 1996 the appellant set off with CM's family to travel in the appellant's vehicle to Dubbo where J was to play football. The appellant's vehicle broke down and the appellant returned to Sydney by train, taking the three girls with him whilst J and his mother and father went to Dubbo for the football.

10 According to CM, the three girls and the appellant spent the night of 16 March at their home and the girls went to bed in their parents' bedroom. The appellant joined them in the same bed. According to CM, she asked him to sleep in one of the other bedrooms but he declined. The evidence of CM was that when she woke up in the morning the appellant was lying beside her under the blanket and that his finger was inside her vagina. CM said that the appellant kept his finger there for about five minutes. She said that she then made a noise as though she was waking up and the appellant left the bed and the room. Nothing was said between them as to what had occurred, and CM said that when she woke up her sisters were no longer in the bed or the bedroom.

11 CM's evidence that the appellant slept in the same bed as the children was supported by her sister C.

12 It was not until October 1996 that there was any complaint by either complainant. To the detail of the various complaints, I shall refer in the course of considering ground 1.

13 Evidence was given by the parents of the complainants, their mother, GM, and their father, JM. Their evidence was that they had a number of conversations with the appellant after hearing the complaints made by their children. In the course of one of these conversations, according to JM, the appellant admitted offending against CM.

14 Evidence was given by JM that the appellant made an offer to pay money and that JM and GM were willing to accept money as "an out of court settlement" concerning what it was claimed by the children had taken place. There was evidence of a number of recorded telephone conversations in which JM, GM and the appellant participated concerning the payment by the appellant of money, and which led to both JM and GM being charged with demanding money with menaces and the failure to report a serious offence. Each parent was convicted in the Local Court and at the time of the appellant's trial had an appeal pending in the District Court.

15 The appellant made a statement to the police on 24 October 1996 in which he denied having committed either of the offences charged. He also gave evidence at his trial to the like effect, and denied making the admission attributed to him by JM. The appellant's evidence was that he was so distressed by the allegations made against him by the children that he decided to commit suicide and that he telephoned JM informing him that he could have half his (the appellant's) superannuation. It was subsequent to this, on the appellant's account, that the sum of $40,000 was demanded by GM and later the sum of $60,000 instead was demanded by JM.

16 Against this brief review of the evidence, I turn to consider the various grounds of appeal.

THE GROUNDS OF APPEAL

Ground 1: The trial miscarried by reason of trial counsel's errors and incompetence

17 Four points have been taken concerning the conduct of this trial as supporting this first ground:

(a) the failure to apply for separate trials

(b) conduct in respect of the complaint evidence

(c) the failure to object to the admission allegedly made to JM

(d) the failure to apply for directions under s 136 of the Evidence Act.

The failure to apply for separate trials

18 It was submitted that reasonably prudent counsel would have been expected to apply for separate trials as a means of ensuring that the appellant received a fair trial on each count, because for the charges to be heard together involved the risk that the evidence on the one count might prejudice the jury in relation to the other count. Reference was made to De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 in support of the submission that the two counts should not have been joined in the one indictment.

19 It is relevant to consider the history of the appellant's prosecution, which is recorded in a judgment of Judge Coleman QC on 21 April 1998. From that judgment, it appears that the appellant was arraigned in April of the previous year on an indictment that contained two counts, ie one in relation to each of the complainants I have earlier identified. However, the Crown later decided to proceed on separate indictments with back-to-back trials and on 20 April 1998 the appellant was called for trial in relation to an indictment charging an offence against CM only. Because of the nature of the cross examination of CM during that trial, the Crown applied to have the jury discharged and a fresh trial on an indictment in the form in which it was ultimately presented before Judge Mitchelmore. Counsel appearing for the appellant in April 1998 did not oppose a joint trial and had no objection to the Crown's application. Judge Coleman expressed himself to be satisfied that a joint trial was necessary in the circumstances, having earlier observed:

"In the present situation the defence case requires exploration of the dealings between the parents of the complaints [sic] and the accused and between those parents and the complainants and between the complainants themselves."

20 Counsel who appeared for the appellant before Judge Coleman did not represent the appellant at the trial before Judge Mitchelmore and was not counsel against whom the submission of incompetence has been made.

21 This Court received an affidavit sworn by the appellant in which he complained that counsel to whom ground 1 relates did not discuss with him the disadvantages of having but a single trial. Plainly counsel should have done so, but it does not automatically follow from this that the trial miscarried.

22 The principles relevant in considering this first ground of appeal as expressed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685 are these:

"The relevant principles, may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of `flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

23 The trial which led to the appellant's conviction and to this appeal proceeded after yet another jury had been discharged. The reasons for that discharge assume no significance for present purposes but, in the course of his reasons for deciding to discharge that jury, Judge Mitchelmore referred to the "forensic decision" of counsel for the appellant (at the trial before him) "to run the two complaints of [SM] and [CM] together in one trial."

24 Consideration of the transcript of evidence at the trial supports the conclusion that counsel determined that tactically the better course was to have the two charges determined together. The very considerations referred to by Judge Coleman in the passage set out above were relevant considerations for counsel in determining how best to conduct the appellant's defence.

25 The appellant's case at trial was that the complaints by both children were fabrications and that their evidence was false. Consideration of the transcript makes it clear that counsel had determined that the appellant's prospects of acquittal would be enhanced by allowing into evidence complaints of the two children, albeit belatedly made, in order to take advantage of asserted inconsistencies in the detail of the complaints. Emphasis was given to the different accounts of the complaints given by GM and JM. In addition, the doctor who examined each of the children after the complaints were made was cross examined to elicit the different versions of the complaints as relayed to her by the parents. Further, GM was cross examined as to what she told the police had been said by her daughters by way of complaint.

26 Coupled with this was the asserted discreditable conduct of the parents in demanding money from the appellant. Such conduct provided an explanation as to why the complaints may have been pursued when otherwise the relationship of the appellant, and the complainants and their parents seemed to be one of longstanding friendship.

27 Counsel also relied upon assertions by the complainants and their parents to the effect that there was no discussion between SM and CM about what each claimed had happened to her and no family discussion either. The jury was invited to decide that evidence to such effect was not to be believed.

28 The issues above addressed could effectively be pursued in proceedings where both counts were dealt with at the same trial.

29 Doubtless, different counsel may well have decided that the appellant's interests would have been better served by making application for separate trials, but a recognition of this does not compel the conclusion that the appellant's counsel demonstrated incompetence in the decision he reached, nor does it lead me to the conclusion that the trial miscarried.

The conduct of counsel in respect of the complaint evidence

The failure of counsel to apply for directions under s 136 of the Evidence Act

30 It was submitted before this Court that the decision to allow into evidence the evidence of complaints made by the children was erroneous and demonstrated incompetence.

31 This trial was conducted after the Evidence Act 1995 took effect. Mr Fliece submitted that even though the trial took place before the decision of the High Court in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, counsel nevertheless demonstrated incompetence in not objecting to the complaint evidence because, at the time the complaints were expressed in each case, the events complained of were not fresh in the memory of the respective complainants. In the case of the complainant SM, the claimed misconduct had occurred two years prior to the complaint, and, in the case of CM, the claimed misconduct had occurred seven months before she spoke to her mother.

32 Even if counsel's decision to allow the evidence of complaint to be introduced did not demonstrate incompetence, at the very least what counsel ought to have done was to ask for a direction pursuant to s 136 of the Evidence Act so as to limit the use that might be made of the complaint evidence to the issue of reliability of the complainants' testimony. The jury ought not to have been allowed, Mr Fliece submitted, to weigh the complaint evidence as evidence of the substance of the complaints.

33 Had objection been taken to the complaint evidence, it ought properly to have been excluded. In SM's case, the complaint was two years old and in CM's case, the complaint was seven months old. Neither complaint was therefore fresh for the purposes of s 66 of the Evidence Act. Nor is it to be assumed that had objection been taken to the evidence of complaint being introduced, it would have been admitted under s 108(3) of the Evidence Act. However, the conduct of trial counsel was governed by the deliberate tactical decision to draw on the perceived inconsistencies in the complaint evidence in order to discredit the complainants and to undermine the prosecution case, and it is to be considered in this way.

34 So, too, is the failure of counsel to seek a direction limiting the use to which the jury could put the complaint evidence. Mr Fliece submitted that counsel should have sought a direction that the jury be permitted to have regard to such evidence only in assessing the reliability of the complainants and that the evidence was not to be taken as evidence as to the truth of the substance of the complaint.

35 However, again, it does not seem to me that the failure of counsel to seek a direction to such effect necessarily bespeaks incompetence. Again, the point has to be considered having regard to the decision which counsel had made as to how this trial was to be conducted and how the evidence of complaint was to be used. Counsel may very well have determined that the appellant's prospects of acquittal would not have been enhanced in the atmosphere of this trial by having the judge refine in such a manner the use to which the complaint evidence might be put.

The failure to object to the admission allegedly made to JM

36 JM gave evidence that in a telephone conversation the appellant expressed contrition for what he had done and said he was going to put "half his superannuation into a trust fund for [CM]". In the course of that conversation, according to JM, the appellant said "I can remember doing it to [CM], but I can't remember doing it to [SM],because I was too far gone." It was submitted that counsel demonstrated incompetence in allowing this evidence without objection. What JM claimed the appellant said to him was in context evidence that could be regarded as evidence of an admission. However, Mr Fliece has submitted that, if objection had been taken, the evidence would have been excluded. In support of that submission, Mr Fliece relied upon provisions of the Evidence Act.

37 The first of the provisions to which Mr Fliece referred is s 85. Section 85(1) defines the scope of the application of the section:

"(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning, or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued."

38 Section 85(1) was not enlivened in the circumstances under consideration. The admission made was not in the course of official questioning, nor was it made in consequence of any act by JM. JM's evidence was that it was the appellant who made the telephone conversation and that the appellant volunteered the admission. Moreover, whilst the fact that JM was able to give evidence of the alleged admission may have been a factor in determining whether to proceed against the appellant or not, it did not follow from this that JM was a person "capable of influencing the decision whether a prosecution... should be brought" for the purposes of s 85(1)(b): see R v Truong (1996) 86 A Crim R 188.

39 Alternatively, Mr Fliece relied upon s 90 of the Evidence Act under which the Court may refuse to admit evidence of an admission if "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." The circumstances identified by Mr Fliece as calling for the discretionary exclusion of the admission were these:

(i) that the admission was made after GM had threatened him (according to his account of events to the police in the statement admitted into evidence as Exhibit H);

(ii) the circumstances revealed in the transcripts of the intercepted telephone conversations, in which the parents of the complainants sought to obtain the sums of money referred to earlier by way of out of court settlement;

(iii) the evidence that the complainants' parents had pleaded guilty to demanding money with menaces;

(iv) the appellant's evidence at the trial that his mental state at the time of making the admission was such that he was contemplating suicide.

40 I am by no means persuaded that any of the above circumstances would have warranted the exclusion of the evidence of admissions under s 90. So far as the appellant's state of mind was concerned, no medical evidence as to his mental state at the relevant time would appear to have been available and GM's accusation levelled at the appellant and her assertion as to what was going to happen to the appellant preceded the telephone conversation initiated by the appellant in which the admission was allegedly made. I am not persuaded that trial counsel was in a position to establish that to admit the evidence of admission would have been "unfair" for the purposes of s 90. Still less am I persuaded that a decision not to object to the evidence established incompetence by counsel having regard to the way in which he had decided to conduct this trial.

41 It has not been shown that trial counsel was equipped to persuade the court that the evidence of admission ought to have been excluded under s 135 upon the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. Nor has it been established that counsel was in any better position to persuade the court to exclude the evidence under ss 137 or 138.

42 For the above reasons, I do not consider ground 1 has been established.

Ground 2: That the directions on the use which could be made of the evidence of complaint were erroneous and inadequate

43 For the purpose of considering this ground and ground 3, it is appropriate to record the terms of the directions which the trial judge gave to the jury on the evidence of complaint (SU11-13):

"I now turn to give you some directions about what is called complaint evidence. I direct you, if you find there was a delay in making a complaint, the delay in complaint does not necessarily indicate the allegations that the offence was committed is false. Secondly, there may be good reasons why victims of sexual assault may hesitate in making a complaint.

[SM] said she was scared. This was the reason that there was a delay of somewhere around two years before she spoke to her sister about what she said had happened to her.

Evidence of complaint is to be considered both as evidence of the allegation made in the complaint and as evidence of consistency of the conduct of the alleged victims with the allegations made by them.

There was evidence of complaint by both [SM] and [CM] to their father in mid-October 1996 on his return from Singapore. [C] gave evidence of a conversation in October 1996 when she said [SM] told her [the appellant] put his hands down her pants. [C] said `Why didn't you tell Mum?' [SM]'s alleged to have said `Because I was scared.' [CM] said then [SM] told [GM] what had happened.

I also direct that should you find there has been a delay in making a complaint that fact can be taken into account by you in evaluating the evidence of the complainants and whether you believe them or either of them.

Now because someone said a thing happened does not mean the event happened. The source of complaint is still the complainant.

You must remember that when assessing the evidence of [C] and the other evidence of complaint which has been given to you during last week in this Court.

I repeat, complaint still has its genesis in the complainant you must give it close attention and careful scrutiny.

I remind you that complaint is not evidence independent of the complainant. It is, I repeat, evidence which has its genesis or its origins in the complainant. It is what the complainant said and in this case what the complainants said.

Complaint is not independent supportive evidence, confirmatory of the accused committing the offence or offences.

..............

The witness [SM] said that she did not complain until two years after the incident. It seems [CM] did not complain about the alleged instant [sic] which was said to have occurred in March 1996 until October 1996. That is roughly seven months.

Delay makes difficult for the accused to instruct his lawyers in relation to the charges. Try and remember your way of life two years ago. It is not easy. Likewise it is not easy to remember your way of life seven months ago.

The accused does not have to prove anything, I told you that. But trying to assemble material relevant to the accused case is made very difficult by the lapse of time between the alleged events and the complaint.

It makes the testing of the Crown case and the presentation of the accused's case most difficult.

You must bear in mind when assessing the evidence that has been put before you. You must scrutinise the Crown case with great care."

44 Mr Fliece has submitted that the above directions suffered from these deficiencies:

(i) that the jury was not alerted to the fact that the complaint of CM was not spontaneous but rather that it was elicited on questioning by her mother;

(ii) that the direction was erroneous to the extent that his Honour told the jury that the complaint evidence was to be considered

"both as evidence of the allegation made in the complaint and as evidence of the consistency of the conduct of the alleged victims with the allegations made by them";

(iii) that the jury was not directed as to the inconsistencies in the various accounts of the terms of the complaint of CM;

(iv) that the jury was not told that complaint evidence could be used to cast doubt on the reliability of the complainants.

45 Ground 3 raises a discrete matter which I shall shortly address, but for the purposes of Ground 2, it is to be observed that counsel at the trial did not seek any further direction as to any of the above matters. Rule 4 thus applies.

46 It is evident that counsel dealt with the issue of the evidence of complaint in pursuance of a plan. Leave is not ordinarily granted where failure to take a point at trial may be explained as a tactical decision: see R v PAH (unreported, NSWCCA, 18 December 1988), R v Gillard [1999] NSWCCA 21; (1999) 105 A Crim R 479 and R v Ali [2000] NSWCCA 177. I would not grant leave to rely upon this ground in the present circumstances.

Ground 3: Failure to adequately direct the jury that the evidence of complaint may be unreliable and failure to properly identify the matters that may have caused that evidence to be unreliable

47 Counsel did ask for a further direction after the summing up which the transcript records was expressed in the following way:

"...with respect to the reference of complaint, your Honour did in fact indicate to the jury reasons why that evidence may not be regarded as independent evidence. Your Honour didn't mention the word `unreliable' in the context of s 165 of the Evidence Act that there may be good reasons why the evidence is unreliable. I'd ask your Honour to indicate that to the Jury, particularly in relation to [CM] because most of your Honour's directions on complaint were in respect of [SM]'s delay of two years."

48 The transcript records his Honour's response:

"HIS HONOUR: I don't propose to give that direction."

49 It does not appear that counsel was asked to identify or that he did identify those "good reasons" why the evidence may have been unreliable.

50 Section 165 of the Evidence Act identifies various categories of evidence "of a kind that may be unreliable". Those categories include hearsay evidence (s 165(1)(a)) and evidence of complaint falls within that description.

51 Section 165(2) provides:

"(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

52 Section 165(3) provides:

"(3) The judge need not comply with subsection (2) if there are good reasons for not doing so."

53 In my opinion, the request of counsel sufficed to activate sub-s (2) so as to require the judge to give appropriate warning and information, unless there were good reasons for not doing so.

54 What matters were there that may have caused the evidence of complaint of CM to be unreliable? Mr Fliece suggested a number of matters:

(i) the lateness of the complaint;

(ii) the fact that it was not made spontaneously but at the prompting of the complainant's mother. CM's evidence was:

"Q. Can you tell me how you came to tell someone about it?

A. I was in the kitchen with my mum and dad and I was making my brother's birthday cake and--

Q. So what time of year is this?

A. October.

Q. Do you know what the date was?

A. October 18, I told my mum, and then I told mum. Mum asked me `[CM], has [the appellant] ever made a pass at you' and she goes `You can tell me the truth' and then my face went red and I said `Yeah' and she goes `Where did he touch you?' and then I started crying and I couldn't tell her and she goes `Did he touch you on your vagina?' I said `Yes' and then she started crying and she rang up my nan."

(iii) there were the different versions of the complaint. CM's version of what was said to her mother differed from GM's version, and JM's version of the complaint was different again.

55 By its very nature, evidence of complaint, being hearsay evidence, may be unreliable for a number of reasons expressed in the report of the Australian Law Reform Commission which led to the enactment of the Evidence Act 1995. Those reasons are identified in Uniform Evidence Law by Odgers, 4th ed. at p 413 and may be restated as follows:

"(a) The potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand.

(b) The statement to the witness not be testable by cross-examination.

(c) The statement made to the witness not being made in a court environment and thus potentially more susceptible to pressures which might result in a false account.

(d) The statement made to the witness not being made on oath or affirmation in the solemn context of proceedings in court."

56 In the present case, consideration (a) applied, in particular but not exclusively, by reason of delay in complaint (as the appellant's counsel said it did). Consideration (b) did not apply because the complainants were called as witnesses and were accordingly available for cross examination on what they allegedly told others. Consideration (c) applied, in particular but not exclusively, because of the circumstances in which the complaint by CM was made (as counsel for the appellant said it did). Consideration (d) applied to the hearsay evidence of complaint in the circumstances of this case.

57 Those considerations (a), (c) and (d) should have been the subject of a warning under s 165 unless there were good reasons for a warning not to have been given. I would add that if warning was to be given, I consider it ought to have extended to alerting the jury to the different versions of the complaint. Inconsistencies in a complainant's evidence as to complaint were considered to require the judge to give a warning under s 165(2) in R v Mayberry [2000] NSWCCA 531: see in particular the judgment of Beazley JA at para 62.

58 Since the learned judge did not accede to counsel's submission, the question arises as to whether there were good reasons for his declining to do so. Whilst s 165(3) does not specifically require the judge to whom a request is made to state his reasons for declining it, it is generally desirable that reasons be given: see R v Beattie (1996) 40 NSWLR 155 (in particular at 160), R v Fernando [1999] NSWCCA 66 and R v Stanton (unreported, NSWCCA, 24 July 1998).

59 "Good reasons" may be found elsewhere than in reasons given at the same time as the expression of refusal to warn under s 165(2). Thus in Fernando it was held that it was legitimate to look for what his Honour considered to be good reasons in a judgment delivered elsewhere in the same proceedings: see paras 106-108 of the judgment.

60 In R v Flood [1999] NSWCCA 198 the trial judge declined to give a warning under s 165, indicating at the time of refusing his intention to direct the jury in his summing up in a particular way. It was held that this was capable of constituting good reasons for not giving a warning in the precise terms of s 165(2). Spigelman CJ, with whose judgment Bell J agreed, said at para 16:

"His Honour does not refer expressly to his power under s165(3) to refrain from giving a warning where `there are good reasons for not doing so'. However, his Honour's reference to his intention to direct the jury in his summing-up in a particular way is capable of satisfying this test. In a case such as the present, when the reliability of a single witness is the kernel of the Crown case, the issue of reliability is best handled in the circumstances by detailed directions rather than by the incantation of a statutory formula. This in my opinion is capable of constituting "good reasons" for not giving a warning in the precise terms of s165(2)."

61 Whilst in the present case, the learned trial judge did not state his reasons for refusing to give the warning under s 165, the Crown has submitted that directions were given, the effect of which constituted compliance with the need recognised by s 165(2).

62 The Crown drew attention to these features of the directions as to complaint set out in para 42 above:

(i) attention was drawn to the considerable delay in complaint by each complainant;

(ii) the jury was instructed that this could be taken into account in assessing their credibility;

(iii) the jury was instructed that such evidence was "not independent supportive evidence confirmatory of the accused committing the offence or offences";

(iv) further, the jury was instructed "You must scrutinise the Crown case with great care".

63 To those passages to which the Crown has directly referred may be added another passage in the summing up where the judge emphasised the importance of the complainant's evidence and the need for careful assessment of it. The jury was given the following direction later in the summing up (SU17):

"You must likewise scrutinise with great care the evidence of [CM]. [CM] is the focal point in the Crown case relating to Charge Two. You must examine with great care and close attention the evidence of [CM].

Again if you are not satisfied beyond reasonable doubt her version of events is truthful and accurate then you acquit the accused. On the other hand if you are satisfied, beyond reasonable doubt, of the truth and accuracy of what [CM]'s told you in the witness box it is your obligation to convict the accused, that is to find him guilty."

64 Whilst the jury was adequately instructed upon the need for caution in assessing the evidence of the complainant CM and the need to be satisfied beyond reasonable doubt that her version of events was truthful and accurate, the jury was also instructed as to how they could approach the evidence of complaint in their task. The jury was instructed that the complaint evidence could be considered by them "as evidence of the allegation made in the complaint" and also "as evidence of consistency of conduct". Accordingly, any matter that may have impacted upon the reliability of the complaint evidence assumed significance and it is in this context that the necessity for a warning is to be addressed.

65 Whilst the jury was told that it was proper to take into account delay in making a complaint in evaluating the evidence of the complainant, the jury was not specifically directed that the complaint evidence may be regarded as unreliable because of those features which I have addressed in paras 54 and 55 above.

66 I am not satisfied that there were good reasons for the learned judge not to give a warning under s 165(2) which drew attention to the above features in an appropriate way. In a trial of this nature, it may very well be that counsel in address reminded the jury of those features of the evidence, but what counsel may have said in address and what the judge may have said in his summing up by way of reminding the jury of the submissions of counsel, does not substitute for a direction of principle, stated by the judge to be such, in the context of informing the members of the jury of the principles of law which they were required to apply to their deliberations.

67 I have concluded that this ground of appeal has been established. I do not consider, having regard to the nature of the omission from the summing up, that the proviso to s 6 of the Criminal Appeal Act is applicable. Had relevant instruction been given, the jury may have taken a different view of the complaint evidence, and, in consequence, a different view as to how the complainant's evidence was to be regarded. It follows that, in my opinion, this conviction cannot stand.

Ground 4: The verdict of the jury is unreasonable or cannot be supported having regard to the evidence

68 For the sake of completion, I refer briefly to this ground.

69 No point was taken that the jury was unreasonable in convicting on the second count when it was unable to agree on the first count. There was an obvious explanation for the absence of agreement on the first count concerning SM. That complainant was unable, with any precision, to say when the offence had been committed, and the jury was reminded in the summing up that the Crown had acknowledged that the appellant had to be acquitted on the first count if the jury was unable to eliminate any real possibility that the offence occurred in 1994.

70 Mr Fliece did not seek to support ground 4 as a separate ground. It adds nothing to grounds 1-3.

PROPOSED ORDERS

71 I propose the following orders: that the appeal against conviction be allowed and that the conviction and the sentence imposed be quashed.

72 In view of the fact that the appellant has served the entire minimum term and much of the additional term imposed, an order for a new trial would seem inappropriate and I propose that a judgment and verdict of acquittal be directed to be entered.

73 SPERLING J: I have read in draft the judgment of Studdert J in this appeal. I agree with the orders proposed by him. With a relatively minor exception, I also agree with his reasons.

74 The exception is this. His Honour is of the opinion that the warning pursuant to s165 ought to have extended to alerting the jury to the different versions of the complaint (as counsel for the appellant submitted it should have done).

75 I respectfully disagree. Section 165 applies - as specified in subs (1) - to "evidence of a kind that may be unreliable". If a party so requests, the judge is to warn the jury that the evidence may be unreliable and inform them of the matters that may cause it to be unreliable.

76 When one looks at the kinds of evidence in subs (1) which are listed as examples of the kinds of evidence to which the section relates, it is apparent that the purpose of the section is to provide the jury with the benefit of the accumulated experience of the judiciary concerning the potential for unreliability associated with some kinds of evidence.

77 The reasons why one kind of evidence may be unreliable are different from the reasons why another kind of evidence may be unreliable. For example, the reasons why hearsay evidence may be unreliable are different from the reasons why identification evidence may be unreliable, and different again from why evidence from a prison informer may be unreliable. The section is directed to ways in which evidence of various kinds may be unreliable for reasons associated with a particular kind of evidence.

78 Inconsistency between versions of events is as much a reason why direct evidence of events may be unreliable as it is a reason why hearsay evidence of events may be unreliable. The inconsistency between versions of complaint in the present case was a reason why the evidence of complaint might be unreliable, but it was not a reason associated with the hearsay character of the evidence.

79 A trial judge should, of course, relate his or her observations to the evidence when giving a warning concerning hearsay evidence pursuant to section 165, specifying how it is that the evidence in question may be unreliable in ways associated with its hearsay character. But the section does not extend to a feature of the evidence which may make the evidence unreliable for other reasons.

80 In the present case, the trial judge was at liberty to warn the jury that the evidence of complaint might be unreliable in view of the inconsistency between versions, but s165 did not require that to be done.

81 In Mayberry [2000] NSWCCA 531 Beazley JA (with whom Greg James and Kirby JJ agreed) said at [62]:

Counsel at trial did not seek a direction under s165. However, the inconsistencies in NRD's evidence, particularly in relation to complaint, were such as required the judge to give a warning which encompassed the type of matters specified in s165(2). In particular, he should have warned the jury the NRD's evidence may be unreliable, pointed out for them the matters which might cause the evidence to be unreliable and given a warning to the jury of the need for caution in assessing whether to accept the evidence and the weight to be given to it.

It was not argued in the present case that such a warning was required otherwise than by operation of s165. Mayberry was not referred to by either side. The present case is, therefore, not a suitable vehicle for reconsideration of what was said in Mayberry concerning the need for a warning where there are inconsistencies in complaint evidence otherwise than by operation of s165.

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LAST UPDATED: 12/04/2001