R v JJN

1. [1]

   MASON P: I agree with Hulme J.

2. [2]

   HULME J: On 30 April 2001 the Appellant was convicted on four counts of indecent assault and four counts of sexual intercourse with his niece. The events, the subject of all charges were alleged to have taken place between 1 August 1998 and 12 January 1999 when the complainant was aged 10.

3. [3]

   On 24 August 2001, Solomon DCJ sentenced the Appellant on the indecent assault charges to concurrent fixed terms of 2 years and 6 months and on the sexual intercourse charges to imprisonment for concurrent terms of 6 years and 3 months. The sentences on the sexual intercourse charges were made cumulative on those imposed in respect of the indecent assaults. A non-parole period of 6 years was set.

4. [4]

   In respect of the first six counts, the only evidence relied on was that of the complainant. The offences, the subject of the seventh and eighth counts were said to have occurred while the complainant and Appellant were in his bed on 12 January 1999. Evidence additional to that of the complainant relating to these charges was provided by some hearsay statements of the complainant’s mother who purported to recount statements made to her by a George Christou who had either been living at the same premises or was at least there fairly often. The complainant’s mother’s evidence was to the effect that in early January the complainant had told her that the Appellant had been touching her. She, that is the mother, asked Mr Christou to watch the complainant and on 13 January Mr Christou had reported that he was walking quietly on a balcony towards the relevant bedroom and he saw the complainant and Appellant in the bed. Mr Christou said he saw the blanket moving. The complainant saw him and he went “ssh”. Mr Christou then sneaked back downstairs and came up again, this time walking into the room and saying “what am I missing out on” to which the Appellant replied “nothing much, we are just watching TV.”

5. [5]

   At the time of the trial, Mr Christou was deceased.

6. [6]

   The first ground of appeal is that:-

7. [7]

   There are two aspects to the complaint. It is submitted that His Honour failed to direct the jury regarding essential matters. Secondly it is said that His Honour inappropriately diluted the force of the warning he gave. The matters said to have been essential were taken from the Australian Law Reform Commission report which led to the passing of the Evidence Act, viz:-

8. [8]

   What His Honour said was this:-

9. [9]

   The fact that the evidence of Mr Christou’s observations was hearsay meant that, in the circumstances of the case a warning was required if requested. A request was made. Section 165(2) of Evidence Act obliged the judge to:-

10. [10]

    His Honour clearly complied with paragraphs (a) and (c). However he did not comply with paragraph (b). All he said in that connection was “the evidence could not be tested by the accused because Mr George Christou is dead.” While that circumstance may tend to prevent any unreliability in the evidence being ascertained and was properly mentioned by his Honour, the absence of testing of Mr Christou was not the primary cause of any unreliability in the hearsay evidence. Rather do the causes of any unreliability lie in, for example, any imperfection in Mr Christou’s honesty, perception of the event, and accuracy of recounting of it together with any imperfections in the complainant’s mother’s honesty, perception of what Mr Christie told her, memory of that and accuracy of recounting. Nor was there any reference to the fact that sometimes memory of what is heard is not as reliable as memory of what is seen.

11. [11]

    It may well be that, as counsel for the Appellant submitted, mention should also have been made of other of the matters referred to in paragraph 6 above but I do not need to decide that. The wholesale failure of his Honour to refer to the matters mentioned in the immediately preceding paragraph means that s165(2) was not complied with.

12. [12]

    I am also of the view that, in the context of what he did say, his Honour’s remarks did tend to dilute the effect of the warning he did give. While no objection could legitimately be taken to his Honour saying that he gave the warning because he was required by law to do so and not because he had any personal concerns or views as to the reliability of the evidence, the statement that he was required by law to give the warning was made 3 times. As the reasons for judgment of Howie J in R v Stewart (2001) 52 NSWLR 301 (at [140]), with which in this respect I agreed (at [35]), demonstrate, that is not the end of the matter and the context must be considered. However here, if one puts aside other matters not relevant to the comparison, his Honour’s statement as to why he was and was not giving the warning occupy more words than the whole of the warning itself. When one has regard also to the deficiencies to which I have referred above, that is certainly to dilute its effect.

Ground 2

1. [13]

   The second ground of appeal is that the trial judge’s direction concerning the motive of the complainant to lie was inadequate. In that regard His Honour said:-

2. [14]

   To appreciate this ground it is necessary to refer to some matters of evidence and one part of the Crown Prosecutor’s address which are relied upon. It was accepted that at no time did the Crown Prosecutor specifically ask the accused “why would the complainant lie” but it was submitted that the purpose or effect of some of the questions asked of the accused had a similar import:

3. [15]

   Evidence had been adduced by the Prosecutor from the complainant on similar topics, for example:-

4. [16]

   Reliance was also placed on the last, and unresponsive, answer by the complainant in the following group:-

5. [17]

   The part of the Crown Prosecutor’s address on which reliance was placed was in these terms:-

6. [18]

   The questions concerning, and the evidence of, the Appellant’s relationship with the complainant are easily dealt with. That evidence provided an explanation for the delay which occurred before the complainant made any complaint about the Appellant’s actions and helped to explain why the Appellant had the opportunity for repetition of his conduct. The fact that it may also have argued in favour of the absence of motive for making false allegations of misconduct did not render the evidence inadmissible or, in the circumstances of the case, provide any sufficient ground for its exclusion under, for example, sections 135 and 137 of the Evidence Act.

7. [19]

   The topic of the complainant’s unresponsive answer can also be dealt with shortly. In the context of the overall trial, it was a minor event. It probably went no further than to express a question the jury was likely to have had in any event. The remarks of Gleeson CJ in R v F (1995) 83 A Crim R 502 at 511 to the effect that the question “why would a complainant lie” is a question, often left unspoken which hovers over cases of this nature, provide support for this view. It is likely that had his Honour directed attention to the answer specifically, the result would have been to give it greater prominence and in any event His Honour was not asked at any time to deal with it.

8. [20]

   Part of the Crown prosecutor’s address in not so easily dealt with. There was evidence of drunkenness on the part of the Appellant and of him having assaulted the complainant’s mother. It was suggested by counsel for the Appellant that the complainant’s mother wanted the Appellant out of the house and the reason the complaints of sexual assault were made was furtherance of that desire. Accordingly the topic of motive was a live one in the trial. R v Uhrig (unreported, CCA, 24 October 1996) makes it clear that in that situation there is no reason why motive should not then have been the subject of address and appropriate reference in the summing-up.

9. [21]

   The first part of the passage I have quoted from the Crown Prosecutor’s address reflected evidence that the Appellant had ceased to live with the complainant and her mother on or about 12 January 1999 and evidence given by the complainant’s mother as follows - T160:-

10. [22]

    The first part of the submission therefore was, when one recognises the liberty inherent in advocacy, a legitimate reminder of this evidence and argument against the motive suggested on behalf of the Appellant.

11. [23]

    The second part of the submission should not however have been made. In R v E (1996) 39 NSWLR 450 at 464 Sperling J, with whom the other members of this Court agreed, said that the issue of “why would the complainant lie?” should not be raised for the jury’s consideration. In R v Uhrig a differently constituted Court agreed, Hunt CJ at CL saying, “The danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case”. His Honour went on to make it clear that this was not to exclude “arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case”.

12. [24]

    This approach received the endorsement of the majority of the High Court in Palmer v R (1998) 193 CLR 1 at 9 despite, if I might say so, the logic of the contrary view expounded by McHugh and Kirby JJ at p25 and 39 respectively and was recognised by this Court in R v F in the passage to which I have referred. The approach must therefore be taken as correct. It was again endorsed by this Court in R v Smith [2000] NSWCCA 468.

13. [25]

    Although not following the same words the second part of the Crown’s submission quoted is to similar effect - “Why would the complainant say what she has, give the evidence she has if it were not true?” As I have said, this second part should not however have been made.

14. [26]

    However it must be recognised that the approach was not endorsed by his Honour or even repeated as a submission of the Crown. Indeed no complaint is made about what his Honour did say to the jury in this regard. The complaint is that, particularly in light of the Crown submission, his Honour did not tell the jury:-

15. [27]

    The first, and most obvious, answer to this submission is that his Honour was not asked to give any of these directions, a fact which is an indication that in the context of the trial, they were not thought necessary.

16. [28]

    Indeed there is a deal to be said for the view that, if the jury were not persuaded by the suggestion that the complaint about the Appellant was inspired by a desire to have the Appellant out of the household, the less said about motive to lie the better for the Appellant. Thus while the first of the 3 propositions just stated may be accepted as far as they go, they are calculated to also bring to mind the unspoken hovering question to which Gleeson J referred. It may be that considerations along these lines were why no re-direction was sought.

17. [29]

    A second answer is that, although the propositions for which authority is cited are contained within that authority, neither they nor any other decision or statute require directions to the effect suggested.

18. [30]

    The question which arises it seems to me is whether, in the context of the trial where a motive was suggested, the inappropriate submissions of the Crown led to the trial necessarily being a miscarriage of justice or, if that was to be avoided, it was necessary for his Honour to say more than he did. In my view this question should be answered in the negative. I am influenced to that view by the limited prominence given to the topic in the Crown’s address, by the fact that his Honour did not endorse the question and by the fact that I regard it as inevitable that the jury will consider it in any event. The failure of counsel to ask for re-direction also argues towards this conclusion. So does the approach of this Court in R v Smith (supra).

19. [31]

    Accordingly this second ground fails.

The Proviso

1. [32]

   Ground 1 having been established the question arises whether, pursuant to the proviso to s6 of the Criminal Appeal Act, the Court should dismiss the appeal upon the ground that there has been no substantial miscarriage of justice. I am of the view that the Court should not. The errors the subject of that ground were important corroboration of the complainant’s evidence. Although directly relevant to only the seventh and eight counts, indirectly it was calculated to have an impact on all. In fact the trial judge told the jury that the evidence of Mr Christou’s observations was the only corroboration. I am not sure that is so for the complainant’s mother also gave evidence of hearing conversations between the Appellant and complainant which may also be corroborative of her story. Nevertheless, it is clear that the suggested statements of Mr Christou were important.

Sentence

1. [33]

   There was also an application to appeal against sentence. In light of the Appellant’s success on the issue of his conviction, it is unnecessary to consider this further topic.

Orders

1. [34]

   The orders which should be made are:-

2. [35]

   SIMPSON J: I agree with Hulme J.