AK v R

1. [1]

   HOEBEN CJ at CL: I have read the first draft judgment of Adams J and am grateful for his Honour’s review of the evidence and issues in the trial. I have also read his Honour’s further draft judgment. Regrettably, however, I am unable to agree with his Honour’s conclusion. There is nothing in his Honour’s further draft judgment which would lead me to change my judgment.

2. [2]

   The issue on appeal is the admissibility of expert evidence from a gynaecologist to the effect that it was unlikely that the complainant was pregnant in late 2011. It was not the Crown case that the complainant was pregnant or miscarried, or believed at the time of the heavy bleeding, that she was pregnant or miscarried. The complainant’s evidence was that when she gave a recorded interview in October 2012, and recounted an episode of heavy menstrual bleeding in late 2011, she wondered retrospectively whether the bleeding might have been a miscarriage.

3. [3]

   Second-hand hearsay evidence was led from Detective Jelsma that the complainant’s mother told her (in September 2012) that the complainant had told her mother the previous week that she had been pregnant in late 2011, that the appellant knew of the pregnancy and that he aborted the baby. Detective Jelsma’s account was denied by the complainant. The complainant’s mother said that she could not remember saying any such thing to Detective Jelsma. The evidence of Detective Jelsma was admitted as relevant only to the credit of the complainant and her mother. It was not admitted as evidence of the truth of the representation and the jury were so directed.

4. [4]

   The evidence of an incident where particularly heavy bleeding occurred (which was part of the recorded interview, MFI 9) was only led by the Crown at the request of the defence. It was defence counsel in cross-examination who introduced the word “foetus” and expressly cross-examined the complainant on the basis that she had told her mother that she had had a miscarriage (which was not her evidence nor that of her mother but that of Detective Jelsma). It is clear from that cross-examination of the complainant (T.130.19) that she adhered to her account in the recorded interview, MFI 9, and that she was referring to the “black lumpy blood” which she described cleaning up.

5. [5]

   Adams J in his judgment expressed some scepticism about the evidence of the complainant’s mother that she did not recall telling Detective Jelsma that which had been attributed to her. His Honour extended that scepticism to the evidence of the complainant on that issue. While I accept his Honour’s conclusions as to Detective Jelsma and the complainant’s mother, there was nothing inherently unlikely in the evidence of the complainant on this issue.

6. [6]

   Detective Jelsma made a contemporaneous note of her conversation with the complainant’s mother and given the seriousness of the issue, that note is likely to be accurate. That being so, I agree that it is inherently unlikely that the complainant’s mother would not remember providing information of such significance to the detective. Accordingly, this reflects unfavourably on the credibility of the complainant’s mother. It does not necessarily follow that if the complainant’s mother gave this information to the detective that this is what she was told by the complainant. Witnesses have been known to exaggerate, particularly if they are emotionally involved and otherwise under stress, which was something Detective Jelsma commented on in relation to the complainant’s mother.

7. [7]

   When these matters were put to the complainant in cross-examination she explicitly denied them, i.e. she denied telling her mother that she knew she was pregnant, that she had been pregnant at the same time as her mother, that the appellant had deliberately aborted the foetus and that the appellant did anything to terminate a pregnancy (T.129.22 – T.130.15). The complainant’s protest during the course of this cross-examination that “I’m sorry I don’t know where you’re getting this from, but that’s not accurate” carries with it the ring of truth.

8. [8]

   Accordingly, while the evidence of Detective Jelsma was capable of impugning the complainant’s credit, as a practical matter I doubt very much whether it did.

9. [9]

   The resolution of this appeal really depends upon a proper understanding of what was the complainant’s evidence on the issue of a possible pregnancy. At no point in MFI 9 did the complainant say that in 2011 she thought that she was pregnant or that she had a miscarriage. She did not at any time refer to an abortion. The highest the interview went was the observation that in October 2012 she “realised it could have been something”. Her evidence as to what she thought in 2011 was:

10. [10]

    The fact in issue in the proceedings was whether the appellant had sexual intercourse with the complainant as she alleged. Because the case depended almost entirely upon an acceptance of the complainant’s evidence, her credit was a fact in issue for the purpose of the determination of any question of the possible relevance of Dr Lyneham’s opinion. The only question for the trial judge was whether Dr Lyneham’s opinion could rationally affect the jury’s assessment of the complainant’s credit. I have concluded that his opinion was incapable of rationally affecting the jury’s assessment of the complainant’s credit where the only evidence from her on this issue was that in 2012 she wondered whether she might have been pregnant and miscarried in 2011.

11. [11]

    Dr Lyneham’s opinion was qualified. He could not rule out the possibility that the complainant had been pregnant in late 2011. All he could say was that in his opinion this was unlikely. The importance of the complainant’s evidence on this issue from the point of view of the Crown was not whether as a fact she had been pregnant or had had a miscarriage, but whether the jury would accept that in October 2012 when MFI 9 came into existence, she held a genuine belief that she may have been pregnant in late 2011. Such a belief, if genuine, was consistent with and supported her allegations that sexual intercourse with the appellant had occurred. Whether or not she had in fact been pregnant, or had in fact had a miscarriage, was irrelevant to the issue of whether she genuinely held such a belief.

12. [12]

    Put at its highest, the effect of Dr Lyneham’s opinion was that the complainant’s belief, as set out in MFI 9, was unfounded or had no basis in fact. It said nothing, nor could it say anything, about whether that belief was genuinely held by the complainant at the time she expressed it. Dr Lyneham’s evidence could play no part in assisting the jury in determining whether they should accept the complainant’s evidence in relation to the charged act.

13. [13]

    Even if one moves away from the actual detail of the complainant’s evidence on this issue, and takes into account whether the opinion of Dr Lyneham might have a potential adverse effect on the complainant’s credit, it remains irrelevant. An attack on the complainant’s credit could only rationally involve attacking her retrospective suspicion that her bleeding may have been as a result of a miscarriage. Expert opinion evidence that her suspicion was probably unfounded was irrelevant to that issue.

14. [14]

    It is for the above reasons that I am unable to agree with the conclusion of Adams J. The order which I propose is that the appeal should be dismissed.

15. [15]

    ADAMS J:

Introduction

1. [16]

   The appellant was convicted in the District Court of 17 counts of sexual offences of various kinds on an indictment containing 20 counts. The appellant was acquitted on count 20 and the jury was unable to reach a verdict on counts 14 and 15 but he was otherwise convicted. An aggregate sentence of 12 years imprisonment with a non-parole period of 9 years commencing 17 April 2014 was imposed. The offences were allegedly committed against the appellant’s step-daughter between October 2008 and May 2012 when she was between 12 and 15 years of age. A number of the counts alleged acts of unprotected sexual intercourse. The prosecution case was entirely dependent on the evidence of the complainant (Ms X) with the exception of count 2, which was witnessed by Ms X’s mother (Mrs D).

2. [17]

   The appellant ran a positive case at trial including calling evidence as to opportunity in respect of certain counts and evidence of good character. He gave evidence denying the allegations made by Ms X but accepted that Ms X had caught him masturbating on occasions, explaining that he did not continue to masturbate after he noticed her presence.

3. [18]

   The appellant appeals from his conviction on the sole ground that the trial judge erred in ruling that evidence he sought to lead in his case of a gynaecologist, Dr Lyneham, was irrelevant and therefore inadmissible. This concerned the significance of an episode of heavy menstrual bleeding to which Ms X had referred to in her evidence. Since it is submitted for the appellant that the evidence of Dr Lyneham as to this matter had the capacity to undermine Ms X’s credibility as to other counts, it is necessary, albeit briefly, to outline the evidence in the trial.

4. [19]

   There is no appeal in respect of the sentences.

Ms X’s evidence

1. [20]

   The first suggestion of the appellant’s allegedly inappropriate behaviour occurred between 21 October 2008 and 15 March 2009 when Ms X was aged 12 years (count 1). The appellant and Ms X were watching television together in the lounge room. Whilst hugging her, his hand moved to her right breast under her nightgown. On an evening some days later, the appellant and Ms X were watching television on the bed in the main bedroom and the appellant again put his hand on her breast (count 2). Mrs D entered the room and saw the appellant remove his hand “like he was touching a hotplate” when he noticed her. There was a brief confrontation in which he denied any inappropriate touching. She told him to get his belongings and leave the house. He did so. At Mrs D’s request the appellant then underwent a lie detector test (the result of which was not tendered in evidence) and, a week later, the appellant was allowed to return to the house. Unbeknown to Mrs D, further alleged sexual misconduct ensued on many occasions, as charged in the indictment, the details of which are not presently relevant, except to note that these came to light on 6 May 2012 following Ms X telling her mother that the appellant was “doing it again” after the appellant had masturbated in her presence (count 20, of which the appellant was acquitted). Mrs D confronted the appellant about what happened. He denied any wrongdoing. The next day Ms X disclosed a number of incidents to her mother and, when the appellant arrived home from work, he was told to leave. He did so and never returned.

2. [21]

   Ms X participated in five recorded interviews with police between 14 May and 7 October 2012, each giving further details in various ways of the appellant’s alleged misconduct. Edited copies of the recordings were played to the Court and she was cross-examined. In Ms X’s first interview on 14 May 2012 the allegations were limited to Ms X having seen the appellant masturbate and placing his hand on her breast (counts 1, 2, 3, 4, 5 and 20). In her second interview on 9 July 2012, Ms X alleged that the appellant had also engaged in acts of sexual intercourse (counts 10, 12 and 19), had indecently assaulted her (count 9) and had physically assaulted her on two occasions when they were walking the dogs (counts 14 and 15). On 16 August 2012 Ms X was interviewed for a third time and asked to clarify some matters. During that interview she alleged that the appellant had shown her a butterfly knife and it had made her feel uneasy. In Ms X’s fourth interview on 31 August 2012, she alleged that the appellant inserted his finger into her vagina and placed her hand on his penis while driving home after a school awards’ ceremony (counts 6 and 7), he made her sit on his lap and she could feel his erection pushing into her back (count 11), he ripped off her dressing gown one night and had sexual intercourse with her twice (counts 16 and 17) and he had sexual intercourse with her after he returned from the cricket grand-final one night (count 18). Ms X’s fifth and final interview on 17 October 2012 contained allegations that the appellant took her measurements whilst she was naked (count 8). In this interview she also described a very heavy period that she had after her 15th birthday (19 October 2011) but before she started taking birth control pills. (A prescription for the pill dated 19 January 2012 was tendered). It is submitted by Mr Boulten SC that this interview clearly implied that she had, or claimed to believe she might have, been pregnant and had a miscarriage. The evidence about this matter is dealt with in some detail below but it should be observed at the outset that Ms X’s credibility about thinking she might have been or become pregnant is of crucial importance since, obviously enough, such a concern could only have arisen if sexual intercourse was taking place

3. [22]

   In her second interview Ms X said there were things that she had not disclosed in her first interview, explaining that she did not raise them because she felt embarrassed and was worried she would be judged. Whether this explanation was credible in light of the significant development of the allegations as the interviews progressed was, of course, an issue that the jury needed to consider. The verdicts show that the jury accepted Ms X’s evidence as truthful and reliable on all important points.

Allegations of sexual intercourse and concerns about pregnancy

1. [23]

   The first reference by Ms X to pregnancy was contained in her interview of 9 July 2012 (the second) in which the officer asked (following some introductory matters) –

2. [24]

   During later questioning Ms X disclosed that the first time the appellant had rubbed his penis against her whilst she was in bed at night was in January 2012 (Q175). This was repeated and he “would just go further” (Q182). She said, “It happened, it just happened frequently … and it just got further and further and then when I came back from Japan nothing happened because I was having nightmares and … I told mum and then she kicked him out …” (Q222-3). However, during cross-examination she gave the following evidence –

3. [25]

   (As can be seen, Mr Boulten’s questions were quite simple and direct and the suggestion that he had attempted to confuse the witness was unwarranted. This is not to deny that for some reason, which she attributed to the questions, Ms X was in fact confused).

4. [26]

   During the rest of this extensive interview Ms X related various particular occasions upon which intercourse occurred and also alleged physical assaults when she threatened to tell her mother what he had been doing.

5. [27]

   The question of pregnancy gained particular poignancy because of the evidence of Senior Constable Jelsma, one of the officers investigating Ms X’s allegations, concerning an extraordinary conversation she had with Mrs D on 19 September 2012. Her note of this conversation was embodied in an email that she shortly after sent to the officer in charge, Detective Senior Constable Beecroft. She told Officer Beecroft –

6. [28]

   On 17 October 2012, about a month after Mrs D’s conversation with Officer Jelsma, the fifth interview between police and Ms X took place. This also happened to be a few weeks after Mrs D noticed a blood stain which she assumed to be her daughter’s on the bed. Following introductory matters the interview continued –

7. [29]

   Ms X was cross-examined about this bleeding incident –

8. [30]

   It is important to note that the account of the bleeding incident contained two elements: the first was the description of the incident itself, including its somewhat unique character in her experience; and the second was Ms X’s concern, later raised, that she might have become pregnant and might have miscarried. In my respectful view, therefore, the conclusion of Hoeben CJ at CL, with which Fullerton J agrees, that the episode reflected nothing more than the second element is mistaken. It also overlooks the possibility that the jury may have an opinion about the import of Ms X’s description of, as distinct from her concern about, what happened. Ms X’s account in her fifth interview implied or, at least, the jury might have thought it did, the possibility of an actual pregnancy as well as a concern that she might have been pregnant. It is not to the point that the timetable of events as given by Ms X is inconsistent with such an implication although, as Fullerton J persuasively demonstrates (if I may respectfully say so), accepting that account effectively excluded the likelihood of pregnancy. The jury, however, was not bound to reason in this way, either as to the extent upon which they accepted Ms X’s chronology or what that chronology proved. Nor was the defence obliged to act on the basis that the jury must reason as Fullerton J has done. Nor is it significant that the possibility of pregnancy was only briefly and tentatively entertained, if this were the fact. The simple point is that the interview raised the issue of pregnancy and thus evidence that tended to disprove the possibility was relevant and the defence was, in my view, entitled to adduce it.

9. [31]

   Not surprisingly, Mrs D was cross-examined on the matter –

Dr Lyneham’s report

1. [32]

   After the Court adjourned on 4 April 2014 (day 10 of the hearing) the appellant’s solicitor served a copy of a report of Dr Robert Lyneham, gynaecologist and obstetrician, dated 17 March 2014. This was the first time the report had been provided to the prosecution. On 8 April 2014 (on the afternoon of the day on which Officer Jelsma had given her evidence and shortly after the defence had gone into evidence) Mr Boulten for the appellant indicated that he wished to call Dr Lyneham next. The Crown prosecutor indicated that he objected to the evidence proposed to be led from Dr Lyneham both on the ground of relevance and because the report was served too late for the Crown to obtain its own expert response. The report was tendered on the voir dire. Dr Lyneham had been asked by the appellant’s solicitor a number of questions of which the following was referred to by Mr Boulten, who said that he wished to elicit in evidence the answer that the doctor had given to it. The question was –

2. [33]

   The Crown prosecutor said that it would not be suggested to the jury by the Crown that there was any evidence to establish that Ms X was pregnant but, at the highest, she was worried or concerned about the possibility. He submitted that the doctor’s opinion was completely irrelevant. Mr Boulten replied –

3. [34]

   The Crown prosecutor agreed with the learned trial judge that he would not say that the evidence or any concern about pregnancy established that there was sexual intercourse by the accused or that the evidence of the heavy bleeding supported her account in any way and repeated that he would not suggest that the jury could use the evidence to make a finding that she was pregnant. He submitted that, to enable the evidence to be adduced would be to distract the jury from its task because it might suggest that may be there was some real issue as to her falling her pregnant. The Crown put at its highest her concern about pregnancy as consistent with her complaints that the appellant had intercourse with her.

4. [35]

   The trial judge gave the following judgment –

5. [36]

   I should mention the addresses to the jury on this question although, of course, they were made in the light of the trial judge’s ruling. In his address the Crown prosecutor referred to what he described as “the situation in September 2012 where the mother has discovered some blood stain on her bed” and referred to what he described as “conversations between the mother and the daughter … consistent with some person very traumatised after the event looking back in September, which is some time afterwards and wondering whether it was possible and being concerned about the fact of whether or not she might have got pregnant at some point”. He pointed out that Ms X’s evidence was that she went on the pill because she was worried about getting pregnant with the accused and became worried about the particular period which he mentioned in her last interview. The Crown prosecutor said that she was “looking back and being concerned about certain possibilities” pointing out that she wasn’t sure when it was and she became very concerned well after the event about the possibility that she may have been pregnant because of the nature of that period. The Crown prosecutor then moved on to other matters. He did not say in terms that it was not the Crown case that she had been pregnant or that it was the Crown case that she was not pregnant in fact. He dealt with it entirely on the basis on what Ms X had said about the matter, in other words, the expression of a concern, perhaps in retrospect, emphasised by her worries about pregnancy which, upon reflection, she thought may have led to the incident of heavy bleeding. In dealing with the issue, Mr Boulten quoted Ms X’s answers in the fifth interview and said –

6. [37]

   Hoeben CJ at CL and Fullerton J consider that it was significant that neither the Crown nor Mr Boulten submitted to the jury that Ms X’s belief that she might have been pregnant and might have miscarried led to a “real chance” that she was in fact pregnant. However, with respect, the defence case was, as I have pointed out, that she was never pregnant. In light of the trial judge’s ruling, Mr Boulten’s submission was forced on him; nor does the Crown’s approach illuminate the controversy.

7. [38]

   In the trial judge’s summing up her Honour mentioned the bleeding incident for the first time in the following terms –

8. [39]

   At the luncheon adjournment which occurred some little time after this passage counsel were asked by her Honour whether they had any applications. Mr Boulten said –

The submissions

1. [40]

   The submissions made for the appellant commenced with the uncontroversial contention that whether evidence satisfies the test for relevance contained in s 55 of the Evidence Act 1995 (NSW) can only be determined by analysing the facts in issue, the circumstances which bear upon the question of probability and a consideration of the process of reasoning by which the information could rationally affect the probability of the existence of a fact in issue, citing Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5] per Gleeson CJ, Heydon and Crennan JJ, which was a case under the common law but specifying the same test for relevance as contained in s 55. It is submitted that the question for the trial judge was, if the jury accepted the evidence of Dr Lyneham, whether it could rationally affect, either directly or indirectly, the evidence of the probability of the existence of a fact in issue in the proceedings. It is submitted, in effect, that the evidence of Dr Lyneham was relevant to a fact in issue in the proceedings in two significant ways: firstly, to rebut the implication (however oblique) in Ms X’s account in her fifth interview that she might have been pregnant and refute the honesty of the statement, to the effect that she had been pregnant and the pregnancy was terminated by the accused, made to her mother and reported to Officer Jelsma. It is submitted, so far as the first basis is concerned, it could directly affect the assessment of the probability of the existence of a fact in issue, namely whether the appellant had sexual intercourse with Ms X. As I understand this argument, it points to the simple line of reasoning that, as the appellant had sexual intercourse with Ms X on many occasions, there was a reasonable likelihood that she would have become pregnant and the fact that she did not suggest that intercourse had not either taken place or not taken place as frequently as she asserted, in the latter case going directly to her credit. Its significance, from the Crown’s point of view, is that it was consistent with a fear of pregnancy which would not have arisen if the allegations against the accused were false. Although it is true that the fact that Ms X did not become pregnant could not establish that sexual intercourse had not taken place, for obvious reasons, nevertheless it was logically relevant.

2. [41]

   It was further submitted, in developing the argument, that the case against the appellant wholly depended on the credibility of Ms X and the veracity of her evidence, so that any evidence which impugned that credibility was directly relevant to the facts in issue: R v V (1998) 100 A Crim R 488 per Smart J at 495, citing Palmer v The Queen [1998] HCA 2; 193 CLR 1, per McHugh J at [51]. It was submitted that, if the jury accepted the evidence of Dr Lyneham to the effect that the incident described by her was unlikely (perhaps extremely so) to have been a miscarriage, the jury could infer that she was not pregnant at any time leading up to or at the time of this incident. This would also cast doubt on the inference, left open on the evidence as I have pointed out, that she was in fact pregnant at that time. In turn, the jury could not use the fact that she was (or may have been) pregnant to support a conclusion that they were satisfied beyond reasonable doubt that the appellant had sexual intercourse with her. It was submitted that the mere fact that it was not the Crown case that she was in fact pregnant and her description of the bleeding event went only to her later belief or concern that she had miscarried did not determine the relevance of the evidence about a possible pregnancy. As Mr Game SC pointed out, the only way the “belief” evidence could be used at the trial was to show consistency with her account that the appellant had sexual intercourse with her (which might have led to pregnancy). The proposed evidence of Dr Lyneham, though not conclusive, went some way to showing that what was said by Ms X as having given rise to a concern that she may have miscarried was not, in all likelihood, a miscarriage at all, even though it could not suggest that the event of heavy bleeding as Ms X described had not occurred. Counsel pointed to the fact that the issue remained alive because the Crown took the approach on the voir dire that, although it would be suggested to the jury that Ms X was pregnant, there was no concession that in fact she was not pregnant. Counsel further argued that it did not matter whether it was the Crown case that Ms X had not been pregnant. That was not a precondition of the relevance of the evidence of Dr Lyneham. The issues are those presented by the evidence, not by the Crown case theory. Once the possibility of pregnancy was raised by the implication in the account of Ms X in her fifth interview (and, as it happened, by the allegations of intercourse), the evidence of Dr Lyneham became relevant, although it only related to the account. Despite the likelihood that the jury would have rejected the startling allegation made by Ms X’s mother to the police officer that Ms X had told her that the applicant had made her pregnant and aborted the foetus, it was, in point of principle, open to them to think that Ms X had in fact said that to her mother and, given that the only possible candidate for at least part of the account was her fifth interview account, the evidence of Dr Lyneham that it was extremely unlikely that she had been pregnant at the time, was relevant to considering whether the statement to her mother was a fabrication. The mere fact, as set out in the above-quoted evidence of Ms X and pointed to by Fullerton J, that she denied ever having told her mother she had been pregnant or that the appellant had performed an abortion, does not make the evidence of Dr Lyneham irrelevant since what her mother had told Officer Jelsma was evidence of what Ms X had said to her and questions of relevance cannot depend upon assumptions about what parts of the evidence the jury might accept.

3. [42]

   In oral submissions at the appeal Mr Game commenced with the (perhaps deceptively) simple submission that the bleeding incident supported Ms X’s belief that she was or might be pregnant and therefore that she was telling the truth about having been subjected to sexual intercourse by the appellant or at least it being relied on as a, more or less, consistent objective fact, then the defence was entitled to deal with it and show that pregnancy either had not occurred or was most unlikely. On this analysis, Ms X’s belief that she was or might be pregnant was a fact in issue because that would inform the question whether or not sexual intercourse had occurred so that, if the bleeding could be, as it were, taken out by the doctor’s evidence that it very likely was not a miscarriage, that would leave the Crown to rely only on the expression of a belief or concern about pregnancy on the part of Ms X without any incident that might be consistent with such a belief or concern or possibly be regarded by the jury as supporting the existence of such a belief or concern. This needs to be considered, Mr Game argued, in the context of (what the jury might conclude was or might have been) the positive assertion by Ms X to her mother that she had been pregnant and that the pregnancy had been aborted by the appellant. Accordingly, as Mr Game put it, from the defence perspective it was not enough for the issue to be left in the air whether or not Ms X suffered a miscarriage but it was desired, so much as it was possible to do so, to take the question of pregnancy out of the case as an issue that might be regarded as supporting Ms X’s evidence. And this was so whatever argument the Crown might put as to its case.

4. [43]

   The Crown submitted that Ms X’s evidence did not suggest that she was pregnant but merely supported the inference that she later thought that she might have been pregnant. It was not the Crown case that she was pregnant nor was such an inference properly available on her evidence. That there was evidence that Ms X thought she might have been pregnant did not raise the issue whether she had, in fact, been pregnant. In its very terms, Dr Lyneham’s opinion could not rebut the evidence about what Ms X believed about being pregnant since her state of mind did not depend upon the likelihood that she was in fact pregnant. Accordingly, Dr Lyneham’s evidence was irrelevant. So far as Ms X’s credit was concerned, the only way in which it could be rationally attacked was to demonstrate that her retrospective suspicion that she may have had a spontaneous miscarriage was in fact unfounded. This would not, however, show that no such suspicion was held. It is also submitted that, although Dr Lyneham’s report dealt with the situation revealed by Ms X’s mother to the police officer that evidence was second hand hearsay admitted only for credit purposes. Counsel for the Crown pointed out (as was the case) that the evidence of the episode of heavy bleeding was led in the Crown’s case at the request of the defence and amounted to a straw man which the defence sought to use Dr Lyneham to demolish.

5. [44]

   Putting the Crown argument somewhat more simply, the sole issue in the trial (as to this matter) was whether Ms X believed that she might have been pregnant and suffered a miscarriage. Accordingly, the evidence as to whether in fact the bleeding incident occurred would of course have been relevant but whether it was due to a miscarriage or not was not relevant because it could not inform the question whether Ms X thought she might have been pregnant.

Consideration

1. [45]

   In the course of the above discussion, I have already indicated my view about the relevance of the rejected evidence. The question whether Ms X had been made pregnant by the appellant was relevant to the question whether he had, as was alleged by Ms X, frequent sexual intercourse with her, even if for a relatively short period. This would scarcely be arguable if it had been proved that she became pregnant during this time. His case necessarily implied that it would not have been possible that she had conceived by him and that the lack of any pregnancy was consistent with his denials of having sexual intercourse with her although, of course, it could not prove he had not done so. (The defence also necessarily implied that she could have had no genuine concern that she might have been pregnant, but that is a different question). To test the proposition, a question asked in cross-examination of Ms X as to whether she had ever been pregnant (at the relevant time) could not have been rejected as irrelevant. Or, assume that at some time after the sexual assaults had ended Ms X had undergone a medical procedure or examination which demonstrated that she had never been pregnant (accepting that it may be that no medical examination could ascertain whether a miscarriage had occurred). It could not be argued that evidence of that fact could not be adduced. The fact – if it were the fact – that she did not become pregnant could not of course prove that intercourse did not occur, though its significance increased in cogency with the number of occasions when a pregnancy might have occurred. I am unable to accept that it was a fact which was not capable of being significant in the sense meant by s 55. It was a fact to which the appellant was entitled to point as consistent with his denials that intercourse ever took place and, to some degree, inconsistent with the allegation that he frequently had intercourse with Ms X, hence at least that she was exaggerating and thus should not be accepted beyond reasonable doubt as truthful in respect of the allegations upon which the counts in the indictment were based. (It is also perhaps worth mentioning the rather obvious point that the more often sexual intercourse occurred, the greater the risk of pregnancy, hence of discovery, and this would be relevant in considering the weight to be given to the competing cases). It is true that Mr Boulten did not, in cross-examination, put to Ms X that she had not been pregnant or that she had not had any concerns that she might have been but, since he put to her directly that sexual intercourse had not occurred, it followed as a necessary corollary that she could not have been pregnant or had genuine concerns about the possibility and was inevitably implied in his question. It follows that I respectfully disagree with Fullerton J’s view that the failure to directly challenge Ms X on these consequential matters is significant. Moreover, the clear import of the evidence of Ms X as a whole was that she had not become pregnant and it was not necessary for Mr Boulten to ask her about it, since no question of contradiction arose. This did not mean, however, that the defence was not entitled to prove, if it could, that she had not been pregnant, in particular, that the symptoms she described in her fifth interview were not those of a miscarriage. It was to this issue that the evidence of Dr Lyneham was directed.

2. [46]

   It is unnecessary to draw a conclusion about the evidence given by Mrs D and Ms X about the matter stated in Officer Jelsma’s note but, given that it was contemporaneous, it is difficult to see any available conclusion except that it indeed recorded what Mrs D had said. At all events, the jury would have been entitled to reject the notion that a mother in Mrs D’s position would not recall 18 months later (Mrs D gave evidence in April 2014) that she had said what was recorded by Officer Jelsma and conclude that Mrs D had indeed told Officer Jelmsa what had been recorded. In light of her assertion that everything she had told the police was the truth, it follows that, despite her asserted inability to recall the conversation about her daughter’s complaints, acceptance by the jury that she had made the statement has the consequence that they were entitled to conclude that indeed Ms X had made the complaints. It was accepted that this conclusion was open to the jury. No objection based on hearsay could succeed in light of Mrs D’s evidence that everything she said to the police was the truth. That Ms X actually had missed four periods, had been pregnant, the appellant had aborted the pregnancy and the foetus was disposed of was hearsay, of course, and Mrs X having told her mother (if that were the fact) about these events did not prove them. But the fact that Ms X had told these things to her mother was not hearsay. That left outstanding the substantive question whether the jury would accept that the complaints were made as the mother claimed but there was ample evidence available for such a conclusion. As I have set out above, Ms X was questioned about elements of her mother’s account. It would have been well open to the jury to have concluded that she was far less categorical about a matter which would, the jury could have thought, been most unlikely to have been forgotten or the subject of confusion. They were, in my view, entitled to disbelieve Ms X’s denials.

3. [47]

   It matters not that the Crown had not made this part of its case. The defence was certainly entitled to adduce evidence of the Jelsma conversation and the fact that the Crown did so at the request of the defence is neither here nor there: the plain purpose of introducing the evidence was to attempt to discredit Ms X and her mother and not to prove that any pregnancy had or might have occurred and was therefore unquestionably admissible. It was the point of introducing the evidence that, since no pregnancy and no abortion had actually occurred, what the complainant said to her mother (as the jury could well accept was said) was false. It was thus relevant for the defence to prove, if it could, that this was so. The only material capable of giving rise to the possibility that Ms X may have been pregnant was the heavy bleeding incident disclosed in her fifth interview and thus capable of being linked to the Jelsma conversation). Proving an account of a witness (whose evidence is otherwise in dispute) to be a fabrication or a significant exaggeration is to prove a relevant fact. The defence was entitled to do this whether or not Ms X had disclosed the heavy bleed which caused her, at a later point, to think that possibly she may have been pregnant. The essential element in proof of the contention that Ms X had fabricated or exaggerated her complaint to her mother was, of course, that the facts were otherwise than she stated them. This inconsistency could occur at two levels: first, she was not pregnant and knowing this was so, asserted she was; or, secondly, she believed merely she might have been pregnant but asserted it as a fact. However, taking the complaint at face value (as the jury was entitled to), it amounts to a positive assertion that she was pregnant, especially given the additional features she gave that she had missed three to four periods, the accused had aborted “the foetus”, and she had wrapped “the foetus” in paper towels and placed it in the bin. Even if the fact were that Ms X was worried or speculated that she might be or have been pregnant (as distinct from knowing that she was not pregnant), her statement to her mother, if made, was nevertheless, in substance, a fabrication. On either account, the defence was entitled to adduce evidence that supported the contention that Ms X was not pregnant.

4. [48]

   That the Crown accepted there was no evidence that entitled the jury to conclude that Ms X had been pregnant could not preclude the defence from proving that she had not been pregnant or calling evidence to the effect that it was unlikely that she had been pregnant. It is not correct to say that there was no issue about the question between the Crown and the defence. That may have been true if the prosecutor had agreed that Ms X had not been pregnant, but he was not prepared to go so far. (Even if the concession had been made, that would not in my opinion make the evidence irrelevant, since the defence was entitled to prove the fact by evidence: the jury could not be bound by any concession made by the Crown. However, in light of the limited concession foreshadowed by the prosecutor, this question does not need to be determined).

Conclusion

1. [49]

   Accordingly, it seems to me that the evidence proposed to be led by the defence from Dr Lyneham was relevant and should have been admitted. It is not possible to conclude that the admission of this evidence would not have affected the verdict, in short, that the appellant has not been denied the possibility of acquittal. The Crown prosecutor did not submit that, if error were shown, the conviction should not be quashed. At all events, this not a case in which the proviso should be applied. In my opinion the appeal should be allowed, and a new trial ordered.

2. [50]

   FULLERTON J: I have read the judgments of Adams J and Hoeben CJ at CL.

3. [51]

   I agree with the order proposed by Hoeben CJ at CL that the appeal be dismissed. I also agree with his Honour’s reasons for concluding that error has not been demonstrated in the trial judge’s refusal to permit the accused to lead evidence from Dr Lyneham concerning the likely explanation for the episode of heavy nocturnal bleeding the complainant recounted in an interview with police in October 2012. I would, however, prefer to express my own reasons for concluding that the evidence was properly excluded as irrelevant or at least not relevant in the way the argument was advanced by defence counsel at trial.

4. [52]

   Although it will not be necessary to refer to the evidence at trial in detail (Adams J’s summary of the evidence providing the context in which the appellant sought to have Dr Lyneham called in his case), there are features of the complainant’s evidence that do need to be emphasised including, in particular, the circumstances in which she came to recount to police the episode of heavy bleeding; her account of when the bleeding episode occurred; and her answers to questions asked in cross-examination about it. It is only by a consideration of that evidence that defence counsel’s arguments contending for the relevance of Dr Lyneham’s evidence under s 55 of the Evidence Act can be assessed.

5. [53]

   The effect of the complainant’s evidence was that the appellant’s sexual abuse of her changed character on the evening of 7 December 2011. On that night, as he was driving her home after an awards ceremony at her high school, he digitally penetrated her vagina. That allegation was the subject of one of six counts of aggravated sexual intercourse laid contrary to s 66C(4) of the Crimes Act, and the first in time of those six counts. The complainant’s evidence was that prior to that date, and over a period of years from 2008, the appellant’s sexual mistreatment of her was limited to repeated assaults of her with acts of indecency. That conduct was the subject of counts 1 to 8 on the indictment.

6. [54]

   The first complaint of penile-vaginal intercourse was made in the complainant’s second interview with police on 9 July 2012. In that interview the complainant nominated two particular occasions between 31 December 2011 and 1 March 2012 when the appellant entered her bedroom after she had gone to bed and had sexual intercourse with her. These were the subject of counts 10 and 12 on the indictment. She also nominated another occasion in the week before she went to Japan on 7 April 2012 when the appellant entered her bedroom and had sexual intercourse with her. This was the subject of count 19 on the indictment. It was her evidence that this was the last occasion sexual intercourse occurred.

7. [55]

   In the Crown’s Summary of Trial, the evidence in respect of those three counts is summarised as follows:

8. [56]

   The acts of sexual intercourse the subject of count 13 and counts 16, 17, and 18 were detailed by the complainant in her fourth record of interview on 31 August 2012. Save for the conduct the subject of count 13, which the complainant said occurred in the study on a day between 31 December 2011 and 1 April 2012 when she was not at school, the sexual intercourse alleged in counts 16-18 occurred in the complainant’s bedroom, on each occasion after she had retired for the night. The conduct comprehended by counts 16 and 17 was alleged to have occurred between 29 February 2012 and 1 May 2012 and the conduct the subject of count 18 between 23 and 26 March 2012.

9. [57]

   In the Crown’s Summary of Trial, the evidence in respect of those counts is as follows:

10. [58]

    The complainant told police in both the second and fourth records of interview that the appellant had sexual intercourse with her on other occasions between late December 2011 (the earliest date of the first act of penile intercourse, the subject of count 10) and 7 April 2012 (being the last act of penile intercourse, the subject of count 19). The complainant also told police that “after the school holidays [in January 2012] it got worse … most of it was in March”.

11. [59]

    Consistent with what the complainant told police when she was interviewed, her evidence in the trial was that during the 2011/2012 school holidays she persuaded her father to allow her to obtain a prescription for the contraceptive pill on the pretence of it assisting in the regulation of her menses. She said the real reason was she feared she could become pregnant. The prescription was issued on 19 January 2012. It was tendered by the Crown without objection. The appellant’s written submissions at [34] accept that the complainant commenced taking the contraceptive pill on or about that date. According to the complainant’s evidence, the first occasion of penile intercourse occurred no earlier than 31 December 2011. It follows that she was exposed to the risk of pregnancy for a period of weeks before 19 January 2012. To the extent that the analysis undertaken by Adams J proceeds on the assumption that the possibility of pregnancy was raised in the complainant’s evidence because of the alleged frequency of intercourse before she took her own contraceptive measures, I respectfully disagree.

12. [60]

    The complainant told the police in the fifth interview, on 17 October 2012, that it was after her 15th birthday in October 2011 but before 19 January 2012 (when she started taking the pill) that she experienced the heavy episode of nocturnal bleeding which, months later, she considered an unusual menstrual bleed because it was dark and heavy and accompanied by a discharge of “lumpy, like, black stuff” which she scooped into a tissue and disposed of in the bathroom (the relevant parts of that interview are extracted in the judgment of Adams J at [28]). It is also clear from the complainant’s answer to questions 28 and 74 in that interview, and her evidence in cross-examination (extracted in the judgment of Adams J at [29]), that she attended that interview because her mother had encouraged her to tell police about the handwritten note of her body measurements that her mother had found and about the episode of heavy bleeding, the complainant having apparently told her mother about it (although, according to the complainant, not her specific concerns about it possibly being a miscarriage) when that topic was the subject of discussion in a personal development class at school.

13. [61]

    I agree with Adams J that it is not to the point that the fifth interview was played to the jury at the request of the accused. Neither is it to the point that defence counsel asked for it to be tendered, it would appear, in some way as laying a foundation, or providing the context, within which to mount a challenge to the complainant’s credit by inviting her to confirm that she had told her mother what her mother reported to Senior Constable Jelsma. (Constable Jelsma’s evidence is extracted in the judgment of Adams J at [27].)

14. [62]

    There is, of course, no necessary connection between the complainant’s concerns that the unusual episode of heavy bleeding and discharge “may have been something” and what Constable Jelsma recorded of the conversation she had with the complainant‘s mother. The note makes no reference to the complainant possibly suffering a miscarriage or the episode of heavy bleeding at all. What the note records is that the complainant’s mother was told by her daughter that she had in fact been pregnant to the appellant at a time when the complainant’s mother was pregnant with her son (between October 2011 and the Japan trip in April 2012); and that the appellant had performed an abortion and disposed of the aborted foetus.

15. [63]

    In cross-examination the complainant’s denials that she had told her mother that she was pregnant during her mother’s pregnancy were categorical. The complainant was also categorical that she had not told her mother the appellant performed an abortion, or that he had performed an abortion knowing that she was pregnant to him. While it might not have been defence counsel’s intention to elide the complainant having told her mother she had disposed of the “lumpy black stuff” she scooped from the sheets in the episode of nocturnal bleeding by wrapping it in tissue (something which counsel appeared to accept occurred) with the proposition, he put to her, that she told her mother that she disposed of an aborted foetus by this means, on any fair reading of the cross-examination extracted below, that is what occurred.

16. [64]

    The question for this Court is not what the jury might have made of Constable Jelsma’s evidence in their assessment of the credit of the complainant and her mother (the only basis upon which the police officer’s evidence was admitted and the basis on which questioning of the complainant and her mother concerning it proceeded), nor whether Dr Lyneham’s served report, which canvassed the likelihood of an abortion being performed, was relevant to that question. Neither is it the occasion to consider whether Constable Jelsma’s evidence may have been admitted as first hand hearsay. At trial, defence counsel accepted that the question whether the complainant told her mother that the appellant performed an abortion knowing that she was pregnant to him (a proposition she explicitly denied), and/or whether she told her mother that she disposed of an aborted foetus in the toilet (a proposition with which she did not in fact agree or should not be taken to have agreed since, in my assessment, the cross-examiner and the witness were clearly at cross purposes) were relevant only to the complainant’s credibility (and that of her mother), counsel having expressly disavowed any reliance on what was attributed to the complainant by her mother in what Constable Jelsma recorded the mother reported to the officer for a hearsay purpose. Despite a preliminary submission by defence counsel that the jury could reason to the conclusion that the complainant had in fact told her mother that she disposed an aborted foetus (that is, that she told her mother she had been pregnant), and that he was entitled, in those circumstances, to call evidence form Dr Lyneham as to the implausibility, from a clinician’s perspective, of an abortion being performed in the circumstances detailed in Constable Jelsma’s note, counsel did not ultimately seek to elicit that part of Dr Lyneham’s report. His application was expressly limited to adducing that part of Dr Lyneham’s report concerning the episode of nocturnal bleeding the complainant described in her fifth interview, and the improbability of that being the product of a spontaneous miscarriage. It is not for this Court to revisit the possible relevance of evidence that trial counsel did not seek to elicit, or to reconfigure the basis upon which other parts of Dr Lyneham’s evidence might have been admitted were they pressed.

17. [65]

    Unlike the broader approach to the question raised by the sole ground of appeal taken by Adams J in response to the wide ranging submissions advanced by the appellant’s senior counsel on the appeal, in my view whether the trial judge was in error in rejecting Dr Lyneham’s evidence concerning the issue of a miscarriage needs to be considered independently of the hearsay report in the evidence of Constable Jelsma that the complainant had been pregnant and had an abortion, and independently of whether the evidence might have been left to the jury as first hand hearsay, that is, that despite the complainant’s denials, the complainant actually said what was attributed to her.

18. [66]

    The question for this Court is what the jury were entitled to infer, or might have inferred, from the complainant’s account to police about the bleeding episode and her evidence about that episode under cross-examination. Despite the confluence of the “miscarriage scenario” and the “abortion scenario” in the way the cross-examiner posed his questions in cross-examination of the complainant, on the voir dire into the admissibility of Dr Lyneham’s evidence at the end of the Crown case, it was only Dr Lyneham’s opinion as to the likely provenance of the bleeding episode that counsel sought to adduce. It is the discrete question whether the trial judge was in error in rejecting that evidence as being irrelevant to any fact in issue in the proceedings that is raised on the appeal. The focus on that question will inform whether Dr Lyneham’s evidence as to the likely provenance of the uterine bleed as an episode of menstrual bleeding could rationally effect, either directly or indirectly, the probability of the existence of a fact in issue in the proceedings.

19. [67]

    I agree with Hoeben CJ at CL that the complainant’s evidence concerning the bleeding episode, taken at its highest, reflected nothing more than a concern that before she started taking the contraceptive pill she might have become pregnant to the appellant and might have miscarried. The appellant’s submission on the appeal that the complainant’s belief that she might have been pregnant at that time led to a “real chance” that she was in fact pregnant, or that the jury might have reasoned to that conclusion, and, that being the case, that Dr Lyneham’s evidence rebutting a miscarriage as a likely explanation for the heavy bleeding was properly admissible was not open. Neither was it the way either the Crown or the accused addressed that aspect of the complainant’s evidence in final addresses. More significantly, the submission that the bleeding led to a “real chance” of pregnancy ignored the complainant’s evidence that the first occasion when she was exposed to the theoretical risk of conception was in the two or three weeks before she commenced to use contraception. On a proper analysis of all the evidence at trial, the complainant’s evidence concerning the episode of heavy bleeding and her retrospective concern about it did not, either directly or by inference, raise in any rational sense the issue as to whether she was in fact pregnant at that time. Neither did the evidence provide any support for an inference that she was or might have been or that there was “a real chance” that she was pregnant.

20. [68]

    On the appeal, the appellant further submitted that if it were open to the jury to reason to the conclusion that the bleeding incident supported the complainant’s concern that she might have been pregnant (as I understand the submission, so as to support her credit, her credibility being a fact in issue in the trial, since the Crown case was dependent on the jury accepting her evidence beyond reasonable doubt) then Dr Lyneham’s evidence should have been admitted on that basis alone. In my view, Dr Lyneham’s opinion that it was “unlikely and substantially so” that the complainant had spontaneously miscarried was incapable of rebutting the complainant’s concern that she might have been pregnant (and miscarried) since her concern about a possible pregnancy did not depend upon the likelihood that she was in fact pregnant but upon the fact that the appellant had intercourse with her.

21. [69]

    That being so, the remaining question is the capacity of Dr Lyneham’s evidence to rationally affect, either directly or indirectly, the complainant’s credit in some other way. In order to address that question, consideration needs to be given to the way in which the complainant was cross-examined.

22. [70]

    Save for one question directed to whether the complainant had told her mother that she thought she had miscarried (which she said she had not), defence counsel limited his questions concerning the issue of miscarriage (cf abortion) to having the complainant confirm that her retrospective concern about the bleeding episode was triggered by the birth of her infant brother and a personal development class at school. Counsel did not challenge the genuineness of her account to police that she believed she might have been (or was concerned she might have been) pregnant at the time of the episode of heaving bleeding. Neither did he put to her, as he might have, that, given her evidence as to when the heavy bleeding occurred (that is, after sexual intercourse started in late December 2011 and before she took the contraceptive pill in January 2012), it was not even remotely possible that she might have been pregnant and shed foetal tissue. Save for putting to the complainant that the appellant had never had sexual intercourse with her, counsel did not directly challenge the genuineness of her belief about the possibility of being pregnant, or the genuineness of her worry or concern when she reflected back on the bleeding episode many months later. Neither did counsel suggest to her that she had utilised the fact of a heavy nocturnal bleed to falsely implicate the appellant in order to add gravitas to her false complaint. Were the cross-examination to have extended that distance, the admission of Dr Lyneham’s evidence under s 108C of the Evidence Act as relevant to her credibility might have succeeded subject to leave under s 108C(1)(c). However, that was not the approach taken by cross-examining counsel at trial.

23. [71]

    On the approach taken by defence counsel at trial (as to which there is no complaint) the appellant has failed to demonstrate error in the trial judge’s ruling that Dr Lyneham’s evidence was irrelevant and inadmissible.