R v RLP; RLP v R

GROVE J : This is an appeal against conviction following verdicts after a trial which took place between 21 February and 2 March 2007 before Nield DCJ and a jury at Orange District Court. Before the Court is also a Crown appeal asserting that the sentences imposed were manifestly inadequate.

The indictment contained eight counts. The jury found the appellant not guilty on count 1 but guilty on the alternative in count 2 of attempted sexual intercourse with a child aged between ten and fourteen years. On counts 3 and 4 he was found guilty of aggravated indecent assault and on counts 5 and 6 to aggravated sexual intercourse with a child aged between ten and fourteen years. On count 7 he was found guilty of sexual intercourse with a child aged between ten and fourteen years. On count 8 he was found not guilty of using a child for pornographic purposes.

On all charges, the complainant was the same child and she was the appellant’s stepdaughter. At the time of the offences she was aged between eleven and thirteen years. For a number of years she had ordinarily resided with her maternal grandparents but from time to time she visited her mother, who had married the appellant. On occasions the appellant used take her out to go bowling.

The complainant’s evidence in chief was put before the jury in the form of two taped interviews with police, which had taken place on 30 March 2005 and 24 October 2005. She said that the first time the appellant had done anything to her was in 2003 when she was nearly at the end of Year 6 at school. She described staying at the house of the appellant and her mother because her grandmother was, at the time, in hospital. The grandmother’s evidence located this time as between February and March 2003. The complainant said she awakened from sleep to find that the appellant had come into her bed where he attempted, unsuccessfully, to have intercourse with her (count 2).

She described other offences which it is not presently necessary to detail which occurred in the appellant’s vehicle after he had taken her bowling and, on one occasion, at her grandparents’ home. The final offence (count 7) also occurred in her grandparents’ house while they were away visiting Lithgow. The complainant said she had stayed at home in order to study for exams. Unaware that the appellant was in the house, she went to have a shower and the appellant entered the room. She wrapped herself in a towel and went to the bedroom to get some clothes but he followed her, took his clothes off and made her lay face down on the bed, after which he performed penile/anal penetration upon her.

The evidence was that this offence was committed some time between 1 November and 7 December 2004, the latter being accepted as the latest date upon which it could possibly have occurred.

The first complaint about the conduct of the appellant was made to the complainant’s grandmother on 15 March 2005, that is a little over three months after the latest date upon which the last offence could have occurred.

At the commencement of the trial his Honour conducted a voir dire hearing in order to rule upon admissibility of evidence of complaint and other intended evidence which had been the subject of objection notified by counsel for the appellant.

In the event, his Honour admitted the evidence of the grandmother which was that on 15 March 2005 she was with the complainant at the surgery of a Dr Lee for the purpose of some blood testing. She engaged in conversation with the complainant and remonstrated with her about rudeness which she had been exhibiting towards the appellant, and the grandmother remarked that she was tired of what she described as “moods” and she told her granddaughter that it would not hurt her to assist the appellant in conducting a food outlet which he operated on Sundays. The complainant responded to the effect that any good opinion about the appellant was misplaced and she later confided in her grandmother that the appellant had been “touching” her. Thereafter she gave some detail of what she said the appellant had done to her. The grandmother described the complainant as upset and crying and arrangements were made for a further appointment to see Dr Lee on the following day, 16 March.

Dr Lee gave evidence that the complainant described to him incidents of sexual misconduct by the appellant towards her which had been happening over “a couple of years”. Dr Lee informed the Department of Community Services about what he had been told. He had told the grandmother that he intended to make that report.

The first ground of appeal contended that “the trial judge erred by admitting the complaint evidence pursuant to s 66 (2) of the Evidence Act 1995”.

His Honour’s ruling in favour of admitting the evidence of complaint as sought by the Crown was expressed in brief terms at the conclusion of the voir dire in these words: “I think Mr Walsh (counsel who appeared for the appellant at trial, but who did not appear in the appeal) that a complaint of something in March of something in December in the life of a girl of about fourteen years is sufficiently recent to admit the evidence of complaint and I propose to do so”.

The effect of the statutory provision referred to in the ground of appeal is to require that the occurrence about which a complaint is made be “fresh in the memory” of the complainant in order to permit the evidence to be admitted.

The critical phrase has been the subject of authoritative judicial attention. In Graham v The Queen (1998) 195 CLR 606 (in which case the gap between occurrence and complaint was about six years) the meaning of the word “fresh” was construed in the joint judgment (Gaudron, Gummow and Hayne JJ) at 608: “The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’ (Oxford English Dictionary, 2nd ed (1989)) but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.”

Also in Graham , Callinan J (with whose judgment Gleeson CJ agreed) said, at 614: “Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the ‘quality’ of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature.”

Given the primacy of attention to lapse of time discernible in those constructions, it might be noted that, in response to this decision, amendments were made to the provision to include s 66 (2A) in these terms: “(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation.”

That amendment came into effect on 1 January 2009 and his Honour’s ruling was made nearly two years before then, but its terms would need to be considered in the event that the evidence of complaint was again sought to be tendered at a new trial.

Although the brevity of his Honour’s expression in ruling the evidence admissible may mask the underlying reasoning, on its face he simply concluded that, notwithstanding a gap of over three months, the memory “in the life of a fourteen year old girl” was relevantly fresh within the meaning of s 66 (2).

In R v Le [2000] NSWCCA 49 it was observed by Hidden J that s 66 does not sit easily with evidence of complaint in sexual cases and he observed, in effect, that where a pattern of behaviour has continued up to, or near to, the time of complaint, the requirement of freshness would not prevent admissibility. In conformity with that rationale what has been examined in the submissions in this case by both parties has been the delay of about three months between the last occurrence (no later than 7 December 2004) and the conversation with the complainant’s grandmother on 15 March 2005.

It is accepted that a finding of freshness is a matter of fact and there would be no wrong decision on the question of law unless it was not open to make the particular finding: R v Adam (1999) 47 NSWLR 267 at 282. In Adam the trial judge had expressed a view that a statement made seven weeks after an event would not be outside the period of fresh memory where what was concerned were assaults including a fatality at a hotel. However, in this Court it was said to be unnecessary to express a final opinion because it was not clear that the trial judge had in fact made a finding on freshness (at 282). The observation made in this Court was not referred to in a further appeal to the High Court which was based upon other grounds: (2001) 207 CLR 96.

The appellant placed principal reliance upon the judgment of McClellan CJ at CL (Hall and Price JJ in agreement) in Langbien v The Queen (2008) 181 A Crim R 378 at 391 where his Honour said: “In the present case evidence was given of two occasions when complaint was made. One was to the school teacher. This was a somewhat general complaint to the effect that the complainant had been sexually abused by the appellant at a place other than where she was then living. Evidence was also given by BS who said that the complainant complained to her on 1 September 2004 and referred to a number of incidents the last of which took place in May of that year. In these circumstances, in my judgment, the evidence of complaint should not have been admitted pursuant to s 66. It is difficult to identify the reasons for the trial judge’s decision to admit the evidence. Notwithstanding the High Court’s concern that the temporal relationship between the alleged event and the complaint would likely be measured in hours or days his Honour concluded that the gap ‘was not great and there is every reason why the memory of events was sufficiently fresh to make the evidence admissible.’ This conclusion is not explained and in my view cannot be reconciled with Callinan J’s expectation that before it will be admissible the complaint must be contemporaneous or nearly so with the alleged event. Section 66 provides an exception to the hearsay rule in the circumstance where the alleged event provokes a contemporaneous complaint. Because of the proximity in time the account of the event given by the complainant to the person receiving the account given is accepted as likely to be accurate. Where days or months pass since the events, the account given by the complainant will most likely suffer from the frailties of human recollection. In my judgment the lapse of time, in fact 85 days, in the present case was so significant that the asserted facts could not have been fresh in the memory of the complainant. Although I accept that the trial judge had the advantage of the testimony on the voir dire in relation to the issue, which is a question of fact, in my judgment his conclusion was not open. There were no extraordinary circumstances permitting departure from ‘contemporaneity or near contemporaneity’ as the test by which to assess whether the relevant occurrence was fresh in the complainant’s memory.”

The Crown referred to Skipworth v R [2006] NSWCCA 37 where a representation made sixty six days after the event was held to be sufficiently fresh to comply with the proviso in s 66. Further reference was made to Gordon-King v R [2008] NSWCCA 335 where McClellan CJ at CL, having noted Langbien and Skipworth , reiterated that the answer to the question will depend upon the facts of a particular case. In Gordon-King what was involved was a single incident when the offender, in a role akin to being a chaperone, assaulted the victim in a motel room to which he had taken her after she had become intoxicated at a party. It was held that, even if the challenged evidence of complaint should not have been admitted, there was in that case no miscarriage.

It is true that in this case the particular sexual misconduct alleged to have occurred last was different in form from alleged previous sexual abuse, but all of the complaints were of that character and the difference did not constitute a special circumstance or feature such as contemplated by Callinan J in Graham to constitute a rare case. In the present case the gap of time is measured in months as distinct from hours or days as mentioned in the joint judgment in Graham and, although I would not interpret later commentaries on the judgments in that case as drawing a bright line between periods which qualify as fresh and not fresh, I consider that the appellant has made good the ground that it was not open to his Honour to find that the period of three months made the occurrence sufficiently “fresh in the memory” for the sole stated reason that the complainant was a fourteen year old girl.

In the event that the evidence of complaint was found not to be admissible pursuant to s 66 (2) the Crown sought alternatively to rely upon s 108 (3) of the Evidence Act . This provision is the statutory version of the common law admission of evidence of a prior consistent statement to rebut an allegation that a witness had engaged in “recent invention”.

The provision is in these terms: “108(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.”

It may be accepted that the appellant’s case was put to the complainant in terms that the sexual assaults did not in fact occur. It is not necessary that fabrication be explicitly raised: Pavitt v R [2007] 169 A Crim R 52.

Nevertheless the requirement for the grant of leave engages other provisions within the evidence legislation. Section 192 deals generally with the grant of leave and pertinent observations about the possible alternative path for admission pursuant to s 108 were made in the joint judgment in Graham at 609: “Because the evidence of complaint was not admissible under s 66, it was admissible only if s 108 applied: in this case if ‘it [was] …suggested (either expressly or by implication) that evidence given by the witness ha[d] been fabricated or re-constructed (whether deliberately or otherwise) or [was] the result of a suggestion’ (s 108 (3) (b)) and if the court gave leave to adduce it. The appellant’s denial of the charges and the course of cross-examination of the complainant may well have amounted to a suggestion that the evidence of the complainant had been ‘fabricated’. (It was not suggested in this case that the complainant had reconstructed her evidence or had been affected by suggestion.) But it was by no means inevitable that leave should have been given to adduce evidence of the prior consistent statement of the complainant. In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the ‘credibility rule’ – the rule that evidence that is relevant only to a witness’s credibility is not admissible (s 102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’s credibility: here, the suggestion of fabrication.”

As was made clear by the High Court in Papakosmas v The Queen (1999) 196 CLR 297, the effect of the Evidence Act is to make evidence of complaint admissible as proof of the truth of its content and, as a general rule, there is no warrant for constraining the evidence in accordance with what had been the common law.

It is therefore important to observe the distinction between whether evidence is admitted pursuant to s 66 (2) or s 108 (3) even though the content of the evidence may be the same.

The distinction was addressed by Howie J in DBG v R [2002] 133 A Crim R 227 at 241: “There are a number of differences between evidence of complaint admitted under s 66 (2) and evidence of a prior consistent statement admitted with leave under s 108 (3). The main distinction is, of course, that evidence admitted under the former section is principally evidence going to the truth of what is asserted in the complaint. But unless limited under s 136, evidence admitted under the latter section can also be used for this purpose by reason of the operation of s 60. The fact that the statement is made close to the conduct to which it relates is not a crucial requirement for admissibility under s 108 (3) as it is when complaint evidence is being tendered under s 66 (2). Further, the evidence is not being admitted in order to show consistent conduct on the part of the complainant following the incident alleged in the complaint but rather to restore the complainant’s credit that has been impugned either by proof that the witness has made a statement inconsistent with the evidence now being given or an allegation that the evidence that is being given is a fabrication, reconstruction or the result of suggestion. In this regard evidence admitted under s 108 (3) is relevant to the complainant’s credibility, either generally or in a particular respect, whereas evidence admitted under s 66 (2) is relevant to the complainant’s credibility in respect of the particular allegation or allegations raised in the complaint. ……. In order to avoid the error that is manifest in the summing-up in the present case, it is important that a trial judge clearly appreciates the different purpose for which evidence is admitted under s 66 (2), on the one hand, and under s 108 (3), on the other. It is necessary to consider this distinction both at the time that leave is sought under s 108 (3) and when formulating directions in respect of the evidence if it is admitted. It seems to me that it would be advisable for the parties and the trial judge to avoid referring to evidence admitted under s 108 (3) as evidence of complaint in order to minimise the risk of any confusion arising as to the basis upon which evidence is admitted under that section with the purpose for the admission of evidence under s 66 (2).”

In the present case attention was not paid to the prerequisites for the grant of leave appurtenant to s 108 (3) nor to any collateral considerations, nor were any jury directions given although these omissions obviously followed his Honour’s ruling in favour of admission pursuant to s 66 (2).

The possibility that the evidence may have been argued to be admissible pursuant to s 108 (3) does not lead to the appellant’s ground of appeal not being sustained because there were neither necessary determinations by his Honour nor consequential warnings to the jury. These were essential if it was erroneous to admit the evidence pursuant to s 66 (2).

Ground 1 is made out.

The second ground of appeal asserted that his Honour erred by admitting evidence of the alleged admission to Dr Mackey.

Dr Mackey gave evidence that the appellant had been a patient of his for many years and he attended a consultation, accompanied by his wife, on 22 March 2005. The critical inculpatory evidence given by Dr Mackey was: “Q. Just tell us what happened that day? A. Alright. And his, he sat down and he I asked what was wrong and he was very sort of withdrawn and like in shock almost really, and then, it took quite a while to get out of him what actually brought him that day. And eventually he did say that he’d you know come in because he’d done something terribly wrong and he’d gone over and he sort of was lamenting type thing, and then he eventually said that he’d touched his step-daughter. ………….. Q. And did he say how old she was? A. Well she was between, he said the ages of 12 and 13 for period of about 15 months this took quite a while to.”

The intention to adduce this evidence and the objection by the defence had been canvassed as part of the voir dire hearing. Dr Mackey had given evidence about his conversation with the appellant at the committal hearing although it did not emerge how it first came to the attention of investigators that he had had this conversation with the appellant. It appears that he was provided with a pro forma of what was described as an “expert certificate” and in the allocated space for opinion he referred to an accompanying statement which referred to the visit of the appellant and his wife on 22 March 2005 and continued: “They told me that (the appellant) had sexually touched his step-daughter, (the complainant) between the ages of twelve and thirteen over a fifteen month period. (The appellant’s wife) had just found out prior to them consulting me. They told me that this had been reported and the step-daughter had been seeing a paediatrician. I told them that this was not my area of expertise and referred them to have some counselling at People’s Skills and gave them the subsequent information.”

This statement was dated 5 August 2005.

The objection taken before the learned trial judge was primarily based upon a contention that the conversation between the appellant and the doctor was a “protected confidence” within the meaning of s 126A of the Evidence Act and, in any event it should have been excluded as being unfairly prejudicial to the appellant. His Honour overruled the objection and his reasons are set out in an undated transcript which is with the court papers.

The argument presented to this Court by the appellant was detailed. His Honour had held that the conversation was not a protected confidence within the ambit of the definition in s 126A because it could not be said that Dr Mackey was under an express or implied obligation not to disclose the contents of the communication, the reason being that, pursuant to s 27 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act ) he had, on being seized of reasonable grounds for suspicion that the complainant was at risk of harm, a duty to report the matter to the Director General of the Department of Community Services.

The appellant argued, and the evidence showed, that Dr Mackey did not report to the Director General because he understood that it had already been done by other medical practitioners. When asked why he responded to the police request for a statement, he explained during the committal hearing that he understood that if he received a subpoena he had to give evidence. He was not asked to elaborate.

The appellant’s written submissions have set out the provisions of the Care and Protection Act at some length including s 29 thereof which is headed “Protection of persons who make reports or provide certain information”. Section 29 (1) (d) declares that evidence of the contents of a report are inadmissible except in care proceedings. It was argued that what Dr Mackey reported was inadmissible by reason of the provisions in that Act. As I have observed, Dr Mackey’s statement was not a report to the Director General, nor was it made in accordance with the Care and Protection Act . If it needs to be categorized, it was a witness statement to police investigators. It was not a report within the meaning of the legislation.

An issue which might come into focus is whether a direction should have been given pursuant to s 126B of the Evidence Act that the evidence not be adduced. In determining that issue his Honour correctly took into account the matters scheduled in s 126B (4) which I will not pause to recite.

I am unpersuaded that his Honour, in ruling in favour of the admission of the evidence, has been demonstrated to be wrong. In expressing that conclusion I do not overlook the Medical Board Code of Conduct concerning patient confidentiality and, whilst that may be germane to assessing the status of the conversation as a protected confidence, an issue surrounding that should not be merged with requirements imposed by the Care and Protection legislation.

It is plain that the evidence of what the appellant told Dr Mackey had a potentially high probative value and it was not argued that the offences were other than serious. In my view the circumstances favoured admission of the evidence insofar as any discretion needed to be applied.

The appellant pointed to s 132 of the Evidence Act which requires a court to satisfy itself, applying to this case, that Dr Mackey was a confidant and aware that he may have grounds for objection pursuant to s 126B (2) (b). Although it did not emanate from Dr Mackey, there was, in any event an objection to the evidence. Making Dr Mackey aware that he could instigate an objection would have added nothing to what needed to be and was determined by his Honour. A failure to give a direction pursuant to s 132 does not constitute an error or law nor necessarily give rise to miscarriage: R v Ahmed [2001] NSWCCA 450.

Finally it was contended that the evidence of the conversation was improperly obtained within the meaning of s 138 of the Evidence Act . Reference was again made to the published Code of Conduct for medical practitioners and, in addition, it was claimed that the disclosure was improper because it was in contravention of the right of privacy proclaimed in Article 17 of the International Covenant of Civil and Political Rights. The latter is clearly not an Australian law and the appellant relies upon it as a marker against which impropriety can be gauged.

As the Crown observed in its written submissions, the Code of Professional Conduct for medical practitioners itself recognizes that there may be occasions upon which the public interest requires that confidentiality be breached. The due administration of the criminal law is such an occasion: cf A v Hayden (1984) 156 CLR 532.

His Honour had a discretion to exercise vested by s 138 and there are scheduled matters in s 138 (3) to be taken into account. Having regard to the circumstances I am unpersuaded that his Honour’s discretion miscarried. I would reject ground 2.

The third ground of appeal complained that the trial judge erred in the application of the rule in Brown v Dunne . That authority (1892 6R 67) famously dealt with a concept of fairness in giving a witness the opportunity to respond to facts which it was intended to contradict and the possible consequences of failing to give that opportunity.

The grandmother gave evidence that the appellant had made admissions concerning his misconduct towards the complainant when she spoke to him on 16 March 2005 (the day after she had been the recipient of complaint whilst visiting Dr Lee’s surgery). This conversation took place at the appellant’s house. The grandmother testified that the appellant’s wife (her daughter) was in the room when the relevant admissions were made.

When the grandmother was being cross examined it was not put to her by counsel that the appellant’s wife was not in the room at that time, but later the appellant gave evidence positively asserting that his wife was not in the room at the time he had a conversation with the grandmother. In any event, he denied making any admission which she claimed she had heard him make.

In reference to this situation his Honour gave the jury the following direction: “It was not suggested to the complainant’s grandmother when she was cross examined that that conversation which she had with the accused was not in the presence of the accused’s wife. You can accept therefore that it was in the presence of the accused’s wife.”

No objection was raised at trial in respect of this direction and the Crown has submitted that leave to pursue this ground should be refused pursuant to Rule 4 of the Criminal Appeal Rules .

A critical issue, and it may fairly be said, the critical issue, for determination by the jury was whether they found that any credibility attached to the appellant’s sworn denials of the facts which were alleged to constitute the offences. In short, the issue was whether he was possibly being truthful when they heard what he said in the witness box.

The effect of his Honour’s direction above quoted was to inform the jury, authoritatively, that they could accept that the appellant was being untruthful when he testified that his wife was not present when he had conversation with the grandmother.

It is true that his Honour gave impeccable directions upon the onus of proof but the general terms in which they were given, were in marked contrast with the specificity with which the jury were invited to reject the appellant’s sworn testimony about whether his wife was present when he conversed with the grandmother. The potential for such a specific untruth about the disputed circumstance to undermine the overall credibility of the appellant would be estimated as being of a very high order.

I am unable to accept the Crown submission that it was not of such a nature to amount to miscarriage and accordingly Rule 4 should not be implemented.

I would uphold ground 3.

Ground 4 stated that “in view of (the appellant’s wife) not having given evidence, the trial judge should have directed the jury that a Jones v Dunkel inference should not be drawn against the appellant in relation to the failure to give evidence”.

Senior Constable Dixon, the officer in charge of police investigation gave evidence that she had made several attempts by telephone and by visit to see if the appellant’s wife would supply a statement. She said that initially the appellant’s wife would not say whether she would give a statement or not, but in the week prior to the trial Senior Constable Dixon had been given to understand that she had again been spoken to but declined to give a statement.

This evidence was obviously designed to explain to the jury why the Crown had not called her as a witness. As senior counsel put to this Court, it was not unreasonable for the Crown to call evidence about this failure to obtain a statement in order to deflect the Jones v Dunkel argument against the Crown. I agree. It is conceivable that the precaution of calling this evidence was in response to the observations of Heydon JA (as he then was) in R v Riscuta & Niga [2003] NSWCCA 6 at [103] but what was said there must be read in the light of the joint judgment (Gleeson CJ, Gummow, Kirby & Kiefel JJ) in Mahmood v Western Australia (2008) 232 CLR 397 at 406 viz: “It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant’s trouser pocket had not been the subject of evidence by the prosecution’s witnesses. In the joint reasons in RPS v The Queen (2000) 199 CLR 620 at 632-633 it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen (2002) 210 CLR 285 at 293.” What was said in Riscuta & Niga may no longer be the law in this State: Louizos v R [2009] NSWCCA 71 at [56].

The present appeal must be determined upon what occurred in this instance. A substantial discussion concerning directions to a jury when a person who, the evidence suggests, might be capable of giving relevant testimony is not called as a witness appears in the judgments in Dyers. That case directly dealt with a direction concerning the expectation that the person might be called as a witness by the accused. Such a direction was not given in this case. The situation was, however, that the Crown had called evidence of which the only relevance was to explain why the Crown had not called the appellant’s wife. The jury may well have observed the absence of reciprocal evidence, as it were, explaining why she was not called by the appellant. General directions on the onus of proof would not expressly divert the jury from impermissible reasoning along those lines.

In Dyers a passage in the joint judgment (Gaudron and Hayne JJ) at 290 expressed this summary: “The principal issue in the appeal is this. Did the trial judge misdirect the jury by telling them that, if they concluded: first, that any of these persons was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then ‘you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness’? Yet immediately before giving this direction, evidently modelled on what was said in Jones v Dunkel (1959) 101 CLR 298, the trial judge had told the jury that where it appeared that there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, ‘you are not entitled to speculate upon what that witness might have said if the witness had been called’. The respondent submitted that, following this Court’s decisions in RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen (2001) 205 CLR 50 (both of which were delivered after the appellant’s trial), the former of these directions (the Jones v Dunkel direction) should not have been given, but the latter direction (not to speculate about what evidence might have been given by those who were not called) should have been given. That submission should be accepted.”

It is the appellant’s contention under this ground that the jury should have been directed in accordance with the second proposition, namely that they should not speculate about what evidence might be given if the witnesses were called, further, that they should not speculate about the reasons why the appellant’s wife was not called to give evidence.

There is support for the appellant’s argument in the joint judgment in Dyers where their Honours said at 294: “….where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led. A direction of that kind, about how the jury should not reason, is a proper form of judicial instruction to the jury.”

The Crown sought to rely upon statements by Callinan J in that case at 328: “In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare.”

Although there was no comment by the Crown Prosecutor about the “non attendance of witness (ES) for the defence” there was specific evidence called by the Crown which invited consideration of why there was no evidence about the matter in emanating from the defence. No warning was given to inhibit impermissible reasoning or speculation.

The omission was capable of weighing significantly against the appellant in the jury’s deliberations and I would not invoke Rule 4 to refuse leave to argue this ground which I regard as made out.

It follows that in my view the appeal against conviction should be upheld. It was not suggested that, in the event of that conclusion, there should be an order other than a direction for a new trial. Such an order should follow.

In that circumstance it has become unnecessary to deal hypothetically with the Crown appeal asserting inadequacy of sentence. That that appeal has not been determined on the merits should be made plain, and, in the event that conviction follows a new trial, it should be borne in mind that this Court has expressly refrained from expressing an opinion about the adequacy of the sentences which are the subject of challenge by the Crown.

The Crown appeal should be dismissed, not as a result of a determination on the merits, but as a consequence of the quashing of conviction and sentences in order to facilitate a new trial.

I propose the following orders: (1) Appeal against conviction allowed. (2) Convictions and sentences imposed in the District Court quashed. (3) New trial ordered. (4) Crown appeal against sentence dismissed.

BLANCH J : I agree with Grove J.

PRICE J : I agree with Grove J.