ALS v R

1. [1]

   MACFARLAN JA: In August 2013 the appellant was convicted after a jury trial of an offence under the then s 67 of the Crimes Act 1900 (NSW) that between 22 April 1974 and 21 April 1975 he carnally knew the complainant who was a person then under the age of 10 years. He was charged with the offence by an indictment dated 25 July 2013. The appellant had previously been convicted of the same offence by a judge sitting without a jury but the conviction was quashed and a new trial ordered ([2013] NSWCCA 63). The basis of those orders was that further evidence, arguably supporting the appellant’s case, had become available since the trial. This evidence comprised a letter written by the complainant and a video recording to which I refer below.

2. [2]

   The offence the subject of the charge was alleged to have occurred whilst the complainant was nine years old and to have involved penile vaginal intercourse. Evidence of other alleged sexual conduct of the appellant directed to the complainant was given as contextual evidence.

3. [3]

   The appellant’s first ground of appeal is that the verdict of guilty is “unreasonable, or cannot be supported, having regard to the evidence”. This ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW) and requires the Court to undertake its own independent assessment of the evidence, both as to its sufficiency and its quality (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14]). Having done this, the Court must determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence with which he was charged (ibid, [21]).

4. [4]

   The appellant has two other grounds of appeal but as I am of the view that he succeeds on his first ground, with the consequence that his conviction should be quashed and a verdict of acquittal entered, it is unnecessary to deal with those grounds.

THE EVIDENCE AT THE TRIAL

1. [5]

   The complainant was born in April 1965. She has a sister about 18 months older than her and a younger sister, all with the same father (not the appellant). When the complainant was about three years old her mother entered into a relationship with the appellant with whom she had another daughter.

2. [6]

   The complainant gave evidence that when she was about four years old, the appellant had the complainant and her older sister lie naked on a double bed in their home where he made them touch each other’s genitals and kiss each other whilst he masturbated. The complainant said that she was very scared about what had happened and that the appellant told her not to tell anyone. She obeyed that instruction because she was frightened of the appellant as he had previously hit her.

3. [7]

   The complainant also gave evidence that when she was about six years old, before the family moved house, the appellant would come into her room about two or three times per week, wake her up, put his hands underneath the bed covers and touch her on the genitals, with the appellant sometimes putting his finger inside her. This occurred in the complainant’s bedroom which she shared with her older sister.

4. [8]

   The complainant gave evidence that there were occasions when the appellant hit her and, after the family moved house, when the appellant acting violently towards the complainant’s mother.

5. [9]

   The complainant said that at this house also the appellant used to come into her room at night and touch her genitals. This occurred in a room that she shared with her two sisters and in a bed that she shared with her older sister.

6. [10]

   The complainant gave evidence of an occasion when she was nine years old (being that the subject of the charge against the appellant) when the appellant asked the complainant’s mother if the complainant could stay home and help him in the garden whilst the rest of the family went on a shopping trip. She said that the appellant took her into a bedroom, removed her shorts and underwear, but left her top on, and removed his own shorts and underwear. She said that he started to touch her, that his penis was erect and that he said “when I put this in you, I’m going to split you in half”. At the time, the appellant’s father was watching television in an adjacent room with the volume turned up because he was very hard of hearing. There was no door separating the two rooms. The complainant sought to deter the appellant by saying that she thought she heard his father but he proceeded to have penile vaginal intercourse with her.

7. [11]

   The complainant said that she told her mother what had happened when her mother returned home, with the result that her mother confronted the appellant. An argument ensued during which the appellant said that the complainant had made up the allegation. The complainant’s sisters were present at the time. The appellant then took the complainant into another room and flogged her severely. The following day, the complainant found out that her mother had asked the appellant to leave the home. He returned after about two weeks but did not touch her in a sexual way again.

8. [12]

   The complainant gave evidence that when she was about 14 years old she told her school counsellor what had happened to her. She said that the counsellor left the room for about 15 minutes and when she came back she told the complainant that she had contacted the complainant’s parents and told them what the complainant had said. The counsellor told her that her parents had said she was going to be in trouble when she got home because she had made it up. When she returned home, the complainant received a “belting” from the appellant.

9. [13]

   When she was 17 years old, the complainant moved out of home. Prior to moving out she had a “big” argument with the appellant because he would not let her go out on the weekend. She told him she was leaving and he slapped her across the face.

10. [14]

    The complainant had limited contact with her mother in the following two years and only on occasions when she was sure that the appellant would not be present. After an argument with her mother when she was 19 years old, the complainant decided not to have any further contact with her.

11. [15]

    In 2008, the complainant commenced making notes about what had happened to her and in September 2008 she made a statement to the police. In June 2010, at the instigation of the police, she had a lawfully recorded telephone conversation with the appellant in which she told him that she was seeing a counsellor and that what he had done had a big impact on her life. The appellant denied that he had ever sexually assaulted or molested the complainant.

12. [16]

    A photograph taken at the wedding in 1995 of one of the complainant’s sisters was tendered at trial. It showed the complainant in a family group, posing for the photograph with her hand placed upon the appellant’s chest in an apparently friendly fashion. The complainant gave evidence that the photographer told her to place her hand in that position.

13. [17]

    Also tendered were a number of postcards and a letter written by the complainant to her mother and the appellant whilst she was in Queensland when aged about 20 or 21 years. The postcards were affectionate in tone, were addressed to “Dear Mum and Dad” and signed with “love” or “all my love”, and one said “PS please write”. A three-page letter written by the complainant referred to the appellant as “Dad” and said “I wish I could come down to say hello at Christmas” and “I miss you all very much now, and am always thinking of you”. In another letter addressed to “Dear Dad” and signed “all my love”, the complainant wrote “Dad could you please write a letter to me and tell me what’s happening down there” and suggested that the appellant “should come up here and fish the marlin”.

14. [18]

    In video recordings of her sister’s 1995 wedding, the complainant appears spontaneously to rub or touch the appellant’s back in an affectionate manner and to squeeze his chin and pinch his chest.

15. [19]

    A Statement of Agreed Facts in evidence recorded that in 1962, the complainant’s mother had transferred to her mother an entitlement that she would otherwise have had in respect of the estate of her late father. Her mother died in 1995 leaving her estate to be divided equally between her grandchildren, subject to a life tenancy in favour of her de facto partner, thus excluding the complainant’s mother.

16. [20]

    After her mother’s partner died in June 2009, the complainant’s mother commenced proceedings in the Supreme Court claiming that she had not been properly provided for by her mother. In 2011 a Deed of Family Arrangement brought the court proceedings to an end. Under the Deed, the complainant and her three sisters received about $29,000 each and their mother received $75,000.

17. [21]

    The complainant’s older sister and the sister next after the complainant in age gave evidence about what occurred at the wedding in 1995. The complainant’s older sister said that the relationship between the appellant and the complainant was “very strained” at the wedding (Transcript p 73). Neither sister gave evidence of sexual misconduct on the part of the appellant and the complainant’s older sister said that she had “no recollection” of the incident referred to at [6] above.

18. [22]

    The complainant’s mother gave evidence that she never left the appellant alone with her daughters or with the complainant and that the complainant never spoke to her about sexual misconduct on the part of the appellant. She said that the appellant could not have gotten up during the night and gone into the complainant’s room without her knowing. In addition, she denied that she had ever received a call from a school counsellor concerning any complaints made by the complainant, and said that on no occasion did she ask the appellant to leave the home.

19. [23]

    A police officer gave evidence that the complainant’s school no longer had any records of the complainant’s dealings with the school counsellor as student records had been destroyed after eight years. He also gave evidence of a letter from the manager of student counselling employed by the Department of Education and Training which stated that inquiries had been made with the counsellor who was employed at the school at the relevant time and she had no recollection of a student by the name of the complainant.

20. [24]

    The appellant gave evidence and denied that he had engaged in any sexual misconduct in relation to the complainant. He had made a similar denial in his earlier interview with the police, which was in evidence at the trial. In that interview, the appellant said that the complainant was motivated to make false complaints by the dispute concerning her grandmother’s will and the prospect of losing her share in her grandmother’s estate (see [19]-[20] above).

RESOLUTION OF THE APPEAL

1. [25]

   Having conducted an independent assessment of the evidence at the trial, I have a reasonable doubt as to the appellant’s guilt of the offence of which he was convicted. I consider that it is a doubt that the jury ought also to have experienced and do not consider that the fact that the jury did not have it is explicable by the jury’s advantage in seeing and hearing the witnesses at trial (SKA v The Queen at [13] citing M v The Queen [1994] HCA 63; 181 CLR 487 at 494).

2. [26]

   I emphasise that none of the factors to which I will now refer is alone decisive. Rather, my conclusion was arrived at on the basis of the combined effect of the following matters.

3. [27]

   First, the complainant’s evidence was not corroborated in any material respect.

4. [28]

   The complainant’s older sister, whom the complainant said was involved in the incident referred to at [6] above, was called to give evidence but did not depose to any recollection supportive of the complainant’s evidence in that regard, despite the incident having been likely, on the complainant’s description, to have been traumatic and therefore not easily forgotten. The fact that she is 18 months older than the complainant could be expected to have increased the likelihood of her remembering such an incident.

5. [29]

   Furthermore, that sister gave no evidence supportive of the complainant’s account of the repeated sexual misconduct of the appellant in a bedroom that the complainant shared with that sister and, as to part of it, in the bed that she shared with her.

6. [30]

   Likewise, the younger sister of the complainant who gave evidence did not give any evidence in support of the complainant’s account of the appellant’s sexual misconduct, despite the fact that, on the complainant’s evidence, this occurred repeatedly over a substantial period in a room that that sister (who was two years younger than the complainant) also shared with the complainant.

7. [31]

   The complainant’s mother did not corroborate the complainant’s evidence in any way. Indeed, she denied knowledge of any complaints made by the complainant concerning sexual abuse by the appellant, including that which the complainant said she made to the school counsellor and which she said was passed on to her mother and the appellant. Her evidence remains significant in this context notwithstanding that there were other aspects of her evidence that should reasonably have caused the jury to entertain doubts about her evidence generally. I refer in particular to her adamant evidence, first, that despite the appellant living with her and her daughters for many years, there were no occasions at all when the appellant was left with the care of the four daughters or with the complainant alone and, secondly, that it was not possible for the appellant ever to have gotten out of bed during the night and gone into the complainant’s room without her knowing (Transcript p 91).

8. [32]

   Nor was the complainant’s evidence concerning what must have been, on her evidence, a particularly noteworthy occasion even for the school counsellor, corroborated by that counsellor.

9. [33]

   Secondly, the postcards, letter and video evidence referred to in [17] and [18] above appear to contradict the complainant’s evidence of deep-seated ill-will on her part towards the appellant. The complainant gave evidence that she hated the appellant, that she has trouble being in the same room with him and that she would not willingly have physical contact with him (Transcript p 40). Her explanation for the postcards and letter to the effect that her mother told her to write them is difficult to reconcile with the number of communications and the warmth of their tone. So too is her evidence that she wrote to her mother and the appellant in order to “keep the peace”, in the hope that they would accept her and her partner, and the family could reconcile (Transcript pp 55 (first trial), 27 (second trial)).

10. [34]

    Likewise, the video recording referred to in [18] above appears to demonstrate the existence of affection on the part of the complainant towards the appellant which is inconsistent with her evidence. Her explanations of that conduct in cross-examination were varied and unconvincing. For instance, she stated that she was in fact “strangling” the appellant and that she did not want to ruin her sister’s wedding by causing any trouble (Transcript pp 51, 54). That evidence did not correspond with the seemingly comfortable interactions between the complainant and appellant depicted by the video recording, and the spontaneous physical contact which she appeared to initiate with him.

11. [35]

    I add that I have not attached any significance to the family photograph in which the complainant has her hand on the appellant’s chest (see [16] above). The complainant’s explanation that the photographer told her to put her hand there seemed credible and derived support from the testimony of both sisters who were called to give evidence (Transcript pp 71, 77).

12. [36]

    Thirdly, there are at least two aspects of the complainant’s description of the incident that was the subject of the charge against the appellant (see [10] above) that raise questions about its veracity. In particular, the description of it occurring within a few metres of the appellant’s father, who was watching television in the adjacent room where no door intervened between him and his son who was having sexual intercourse with a semi-naked nine year old girl, is not easy to accept. Although the appellant’s father was hard of hearing, there was no suggestion that he had any difficulties with his sight or that he was too old to appreciate what was going on if he observed it. The absence in the complainant’s account of any reference to the pain which one would have expected a nine year old girl to experience as a result of sexual intercourse with an adult male, is also significant.

13. [37]

    Fourthly, the appellant gave evidence and denied the charge in a way that did not appear, on reading the transcript, to have any obvious lack of credibility about it. His evidence accorded with the answers he had given to the police in his recorded interview with them and with the vociferous denials he made when the complainant telephoned him at the instigation of the police, the appellant being unaware that the call was being recorded.

14. [38]

    Before finalising this judgment, I had the advantage of reading the judgment of Fullerton J in draft form. I have considered the matters to which her Honour refers but nevertheless remain of the opinion that the appeal should be allowed. Her Honour gives reasons why the passage of almost 40 years between the dates of the alleged offences and the trial rendered it difficult for the Crown to prove its case beyond reasonable doubt. That is undoubtedly so but the fact remains that no evidence corroborative of the complainant’s evidence was able to be called. The existence of reasons for the absence of such evidence does not fill that lacuna. Furthermore, even if the jury considered the matters to which her Honour refers in relation to the complainant’s mother’s evidence to be well-founded, the mother’s evidence, negative as it was to the Crown case, does not become evidence that provides positive support for it.

15. [39]

    Moreover, I do not consider that the complainant adequately explained her correspondence with the appellant and the wedding video. On my assessment, that evidence stands in conflict with her evidence of her relationship with the appellant. Certainly, when considered in conjunction with the other matters to which I have referred, I consider that it raises a reasonable doubt as to the appellant’s guilt. This is not a doubt that is in my opinion capable of being dispelled by recognition of the jury’s advantage in observing the manner in which the witnesses gave their evidence (M v The Queen at 494-5; Lachlan Wilson v R [2014] NSWCCA 266 at [161]). As required by M v The Queen at 493 (approved in SKA at [11]), I have formed my view upon the whole of the evidence. I am left with the conclusion that “there is a significant possibility that an innocent person has been convicted” (M v The Queen at 494; MFA v The Queen [2002] HCA 53; 213 CLR 606 at [95]-[96]; SKA at [14]).

ORDERS

1. [40]

   For the reasons I have given, I consider that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. It is not necessary to grant the appellant leave to appeal as he was entitled to appeal as of right on the two other grounds (which I have found it unnecessary to deal with) which he advanced. I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Quash the appellant’s conviction on the charge contained in the indictment against him dated 25 July 2013.

   3. (3)

      Enter a verdict of acquittal on that charge.

2. [41]

   FULLERTON J: I have had the advantage of reading in draft the judgment of Macfarlan JA and his Honour’s reasons for concluding that, upon the whole of the evidence at the appellant’s trial, it was not open to the jury to convict him of the carnal knowledge of the complainant and that the conviction on that count should be quashed and a verdict of acquittal entered.

3. [42]

   I have also read the draft judgment of Bellew J in which he expresses his agreement with Macfarlan JA’s reasons for concluding that the jury’s verdict could not be supported having regard to the evidence, and his agreement with the orders his Honour proposes.

4. [43]

   In compliance with the principled approach to an appeal under s 6(1) of the Criminal Appeal Act, I have undertaken my own assessment of the evidence led at the appellant’s retrial, both as to its sufficiency and quality. I have also taken into account what I consider to be the inferences available to be drawn from the facts established by that evidence that both support the Crown case and those that undermine it. In the result, I have come to the conclusion that, despite all matters properly put in issue in the trial, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt and that the first ground of appeal should be dismissed.

5. [44]

   For that reason, it will be necessary for me to consider the second and third grounds of appeal, filed as supplementary grounds after the Crown’s submissions in answer to the first ground of appeal were filed. The Crown filed supplementary submissions to address the supplementary grounds.

6. [45]

   Both the second and third grounds of appeal relate to what is said to be the Crown’s breach of the rule in Browne v Dunn (1893) 6 R 67 when, in closing submissions, the trial advocate urged the jury to accept that the complainant made an immediate complaint to her mother after she was sexually assaulted by the appellant, in support of his further submission that the jury would find the complainant an honest and reliable witness, but had failed to challenge the evidence of the complainant's mother as untrue when she denied that her daughter had complained to her.

The first ground of appeal: The verdict of guilty was unreasonable, or cannot be supported, having regard to the evidence.

1. [46]

   The obligation of the Court in considering whether a verdict of a jury is unreasonable is the subject of settled principle. The question the Court must ask itself was restated in SKA v The Queen [2011] HCA 13; 243 CLR 400. The majority (French CJ, Gummow and Kiefel JJ) held at [11] that, in conformity with the approach by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, the question is:

2. [47]

   In Sami Kurdi v R [2011] NSWCCA 179, Bathurst CJ said at [8] that in order to comply with M v The Queen:

3. [48]

   The primacy of the jury is of particular importance in a case where, as here, without corroboration of the complainant’s evidence, the jury’s assessment of her reliability and credibility as a witness depended upon the opportunity they had (which this Court does not enjoy) of viewing her give her evidence, including, importantly, her demeanour under cross-examination (see GL v R [2014] NSWCCA 68 at [129]).

4. [49]

   The primacy of the jury’s position as fact finders is of additional importance in this case given the opportunity they had to see and hear the complainant’s mother give evidence denying that her daughter reported being sexually assaulted by the appellant; denying that her daughter informed a school counsellor in 1984 that she had been sexually abused by him; denying that they attended at the school in response to that allegation; and denying that the appellant physically assaulted the complainant in retribution for making the complaint. The jury also had the opportunity of considering the demeanour of the complainant’s mother when she denied that the appellant was ever left at home alone with the complainant (or any of her daughters) and denied that he physically disciplined the complainant in the ways she described in her evidence. The jury also had the opportunity of making their assessment of her evidence in circumstances where she admitted she was the victim of repeated domestic violence at the hand of the appellant but that she had never complained to police about his mistreatment of her.

5. [50]

   In undertaking my own evaluative review of the evidence, I have also taken into account that the Crown case suffered from the deficiencies of proof frequently encountered in a case where an adult alleges s/he was sexually abused as a child. In this case, almost 40 years had elapsed from the date of the offence, particularised in the indictment as between dates in 1974 and 1975 when the complainant was aged nine, and the sexual and other abuse she claimed to have suffered as a child before that assault, and the appellant’s first trial in 2013, five years after the complainant first reported the matter to police in September 2008 at a time when she was aged 33.

6. [51]

   In this case, the passage of years not only attracted a Longman direction (Longman v The Queen [1989] HCA 60; 168 CLR 79) but also had the potential to deprive the Crown case of evidence corroborative of the complainant’s evidence - a deficiency in the Crown case to which both Macfarlan JA referred at [27] and Bellew J referred at [123] in reasoning to the conclusion that the jury’s verdict was unreasonable.

7. [52]

   The high school the complainant attended in 1979 when, at age 14, she said she told a school counsellor that she had been sexually abused by the appellant, was unable to produce any record of the complaint (assuming one were made) or the attendance of the appellant and her mother at the counsellor’s invitation (assuming that invitation was extended and they attended), since the school routinely destroyed its student records after eight years. In addition, after this Court overturned the appellant’s conviction on fresh evidence grounds in 2013 following a judge alone trial in 2012 (ALS v R [2013] NSWCCA 63), and after additional enquiries by the police identified the counsellor who was apparently associated with the school, she told police she had no recollection of the complainant by her name. A police officer gave evidence to that effect at the appellant’s trial.

8. [53]

   The complainant’s grandmother died in 1995. The complainant gave evidence that she sought and gained solace and protection from her grandmother. Although the complainant did not give evidence that she told her grandmother that the appellant had ever sexually abused her, on the day of the sexual assault charged on the indictment, and after she said she was beaten by the appellant for complaining to her mother that he had sexually assaulted her whilst her mother and her sisters were away from the house, her grandmother removed her from her parents’ house.

9. [54]

   These observations are, of course, collateral to the enquiry whether I consider that upon the whole of the evidence that was led at trial it was open to the jury to be satisfied beyond reasonable doubt that the Crown proved the appellant’s guilt. That said, the fact that the complainant’s grandmother was not available to be called as a witness is not unimportant given that the complainant’s evidence that she was routinely physically disciplined by the appellant, sometimes by thrashing her with his belt, was also denied by him and by the complainant’s mother.

10. [55]

    The complainant’s older sister by eighteen months (referred to in the evidence as “K”), gave evidence in the Crown case. She was not asked whether she witnessed the complainant being physically assaulted by the appellant with a belt or in the other ways the complainant deposed to in her evidence. Neither was it put to her in cross-examination that this did not happen. She did give evidence, however, that she had no recollection of being the victim of the indecent assault involving herself and K as detailed by the complainant in her evidence and relied upon by the Crown as relationship evidence.

11. [56]

    Despite the fact that the complainant’s evidence (both of the act of sexual intercourse charged as a breach of the then s 67 of the Crimes Act and the evidence she gave of other indecent assaults led as context evidence) was uncorroborated, I remain of the opinion that it was open to the jury to be left in no doubt as to the appellant’s guilt. I have come to that conclusion despite the attack upon the complainant’s credibility and, in particular, despite the cross-examination which focused on the letters and cards she sent to the appellant and her mother many years after the sexual assault the subject of the charge on the indictment, and what is said to be her display of spontaneous and genuine affection for him at her sister’s wedding in 1995. The three excerpts of video footage of the wedding, and one letter additional to the letters and cards tendered at the appellant’s first trial, comprised the fresh evidence that resulted in a retrial being ordered by this Court in 2013.

12. [57]

    I have reviewed the transcript of evidence led at the appellant’s retrial for its sufficiency and quality, inclusive of the fresh evidence upon which the complainant was cross-examined at length, and the evidence of the complainant’s mother and the appellant, neither of whom gave evidence at the earlier trial. What follows is a summary of that evidence.

The complainant’s evidence

1. [58]

   I gratefully adopt the comprehensive summary of the complainant’s evidence summarised by Beech-Jones J at [11]-[42] in ALS v R [2013] NSWCCA 63, apparently extracted from the Crown Part A Summary prepared for the earlier appeal. The same summary was prepared by the Crown for this appeal. The complainant’s evidence in chief, cross-examination and re-examination at the first trial was before the jury at the appellant’s retrial pursuant to orders made under s 306B(1) of the Criminal Procedure Act.

Mr Rosser QC’s cross-examination of the complainant at the retrial

1. [59]

   The complainant confirmed that on 4 February 2013 she attended at the Bega Police Station, where she was invited by police to view three brief segments of a video taken at her sister A’s wedding in 1995. The video, which extended over some hours, was located by A after her father was convicted in the judge alone trial.

2. [60]

   The complainant also confirmed she was invited by police to read a letter she sent from Cairns, Queensland to the appellant addressed, “Dear Dad” and signed, “All my love”. That letter was sent in the same timeframe as letters and cards tendered in the defence case at the earlier trial and summarised by Beech-Jones J at [38]-[40].

3. [61]

   The three segments from the wedding video and the “Dear Dad” letter was the focus of Mr Rosser’s cross-examination. It was also central to the evidence relied upon by the appellant on the appeal as evidence so seriously undermining the complainant’s credibility that the jury ought to have had a reasonable doubt as to the appellant’s guilt. The additional feature of the evidence relied upon by the appellant’s counsel on the appeal as compounding the doubt the jury should have had was the evidence of the complainant’s mother contradicting the complainant’s evidence that she complained to her about the appellant’s sexual assault when she was aged nine (the charge on the indictment) and contradicting the complainant’s evidence that when the appellant was confronted with that allegation an argument ensued and her mother excluded him from the family home.

The “Dear Dad” letter

1. [62]

   In essence, the complainant gave evidence that she wrote the “Dear Dad” letter because her mother asked her to. She said that her mother made that request of her by telephone in one of the calls she made each fortnight from Queensland at her mother’s insistence so that her mother would know she was “still alive”. While she agreed that her mother did not suggest how she might express herself in the “Dear Dad” letter, or ask her to sign it “All my love”, she said that she did what her mother asked of her in the hope that it would help to reconcile what had, by that time, become a family rift because of her fractured relationship with the appellant, and that she did what her mother asked of her principally in her mother’s interests.

2. [63]

   It was not put to the complainant in cross-examination that the appellant responded favourably to the letter by acknowledging its receipt, or that her overtures smoothed the way for her inclusion as a family member before her sister K’s wedding. To the contrary. She gave evidence, as did her sister K, that the complainant was ostracised at her wedding in 1986.

3. [64]

   It was put to the complainant in cross-examination that her evidence that her mother asked her to write the letter was a lie and that the truth was that the letter was a genuine expression of her loving regard for the appellant. It was also put to her that she falsely attributed to her mother a request that she write to the appellant to cover up the fact that she had been “caught out” after the first trial. She rejected both propositions. When she was cross-examined as to why she included in the letter an express request that the appellant write to her, she explained that the tone and content of the entire letter was because her mother had asked her to “write him a nice letter” so that the appellant may allow her entry back into the family. She said that she also included in that letter a desire to “come down to say hello at Christmas” because she wanted to see her family and she knew that she would not be allowed contact with them until the appellant gave his permission.

Impact of the “Dear Dad” letter on the complainant’s credibility

1. [65]

   I regard the complainant’s explanations for the “Dear Dad” letter as open to the jury to be accepted as consistent with the explanations she gave under cross-examination at the earlier trial for the cards and letters she had addressed to both her mother and the appellant from Queensland, all of which was before the jury for their consideration, as was the complainant’s explanation for sending them. I respectfully disagree with Macfarlan JA at [33] and Bellew J at [125], that the complainant’s explanation for sending the postcards and letters cannot be reconciled with the warmth of her tone and the number of communications, or that it is necessarily inconsistent with her deep, but by that time unexpressed, hatred of the appellant for his abuse of her as a child. I consider that her explanation for the “Dear Dad” letter (as with her explanations for the course of correspondence of which the “Dear Dad” letter was a further example) was credible and the attack upon her credibility by reference to that material was a matter properly within the province of the jury when considering whether they were sufficiently confident of her honesty and reliability to return a guilty verdict.

The wedding video

1. [66]

   The most controversial of the three video segments of A’s wedding was a group portrait of the complainant’s family. The appellant and his wife were seated with the bride standing immediately behind the appellant. The complainant was standing to the bride’s right and her two other sisters (J and K) to the far left of the bride, standing behind the complainant’s mother. A still photograph of the same arrangement, either lifted from the video or taken by a photographer at the same time as the video was being shot, was tendered at the first trial. That photograph, as with the corresponding video segment, shows the complainant with her right hand extended over the appellant’s shoulder and placed on the centre of his chest. The complainant gave evidence at the first trial, which she confirmed in the retrial, that she was included in the photograph as a family member at the insistence of the photographer and directed by that person to place her hand on the appellant. She agreed that both the photograph and the video segment showed an apparently happy family, but said the reality was that she was nervous and uneasy in the appellant’s presence. She said she obliged her sister, it being her sister’s wedding day, by not resisting what the photographer asked of her.

2. [67]

   As the third segment of the video comprises a sequence of moving images (albeit over a period of a minute or thereabouts), it reveals more than the still photograph. The video segment shows the complainant touching the appellant, which has the appearance of being a spontaneous action as she placed her hand on the appellant’s chest. It then reveals that she moved her hand (again, seemingly spontaneously) and touched or tickled his dewlap. It was suggested to her in cross-examination that she was “playing with his chins” as a display of affection. She disagreed. She said that, in the moment, she “tried to be as nice as she could to everybody, including the appellant”. She accepted that the video gave the appearance of her touching the appellant in an affectionate and natural way, and that others viewing it may perceive it that way, but it was not a reflection of her real feelings. She also gave evidence that she had already had an argument with the appellant at her sister K’s wedding a couple of years earlier and that she “didn’t want to ruin [her] little sister’s wedding”. She said on the day of A’s wedding she was told not to cause any trouble.

3. [68]

   Her sister K gave evidence consistent with the complainant’s evidence in this respect. She also confirmed the complainant’s evidence that at neither her wedding nor A’s wedding was the complainant permitted to sit with the wedding party, being seated, at the appellant’s and their mother’s direction, “down the back” with people she did not know. K also confirmed that in the family photograph (and video) taken at A’s wedding, the complainant was positioned behind the appellant at the direction of the photographer, despite the complainant’s efforts to distance herself from the appellant and that it was the photographer who directed that she put her hand on the appellant’s shoulder. K gave evidence in chief as follows:

4. [69]

   In his cross-examination of K, Mr Rosser did not suggest that the arrangement of the family members in the wedding photograph (as revealed in the moving images on the video) was other than to “balance the photograph”. He did suggest to her, however, that the complainant had quite spontaneously, voluntarily and happily displayed affection toward the appellant, by the touching of his chest and the “tickling of his chins”. K said, “I don’t see it as that, no”. Mr Rosser did not challenge K’s evidence in any other respect including, in particular, her evidence (extracted above) which is supportive of the complainant’s evidence, or her evidence that the complainant expressed nervousness in advance of attending A’s wedding given what had occurred at her own wedding some years earlier.

The impact of the “wedding video” on the complainant’s credibility

1. [70]

   Having given close consideration to the third segment of the wedding video and the complainant’s evidence, and her sister K’s evidence about the circumstances in which the sequence was filmed, I am not persuaded that this evidence renders the complainant’s evidence concerning the sexual assault she sustained as a child inherently incredible. I respectfully disagree with Macfarlan JA’s assessment of the complainant’s explanations for what is shown in the third segment as “varied and unconvincing”. To the contrary. I consider her explanations for her apparent but disingenuous demonstrations of affection for the appellant as open and available and, viewed in that way, not inconsistent with her evidence that she had a deep and lasting enmity for him for his sexual mistreatment of her as a child, but which she concealed for understandable reasons.

2. [71]

   In so far as concerns the remaining two segments of the wedding video, I do not regard them as undermining the complainant’s credibility in the way contended for by the appellant’s counsel at trial and by his counsel on the appeal. Whilst it is true that under cross-examination she initially resisted any suggestion that in the second video segment she moved toward the appellant and rubbed his back in an apparent gesture of affection and warmth, she ultimately accepted that the video showed that gesture. She explained this conduct consistently with her evidence generally, in that she was endeavouring to give the appearance of being a member of a close and integrated family to guests at the wedding for her sister’s sake, when in truth, at least from her perspective, the appellant’s mistreatment of her as a child had made her fearful of him and his determination to exclude her from the family made her wary of him.

3. [72]

   There was also evidence before the jury that months prior to the complainant making a formal police statement in September 2008, she had commenced a written statement detailing the past abuse and had also been undertaking counselling for some time. This was evidence the jury were entitled to take into account not only as part of the complainant’s evidence bearing upon the question whether she had been sexually assaulted as a child, but evidence they were entitled to take into account in considering whether the jury found her to be a truthful witness, upon whose evidence they could confidently rely as distinct from a witness who would or might be motivated to make false accusations for financial reasons.

The complainant’s motive to lie

1. [73]

   It was put to the complainant by cross-examining counsel at the earlier trial (doubtless as a result of what the appellant told police in his ERISP) that the reason she falsely accused the appellant of sexual and physical abuse was to ensure that she was not deprived of her quarter share of her grandmother's estate. It was suggested to her that it was after being advised that her mother was going to pursue her entitlement to challenge the grandmother's will that the complainant decided to “cause trouble”. One obvious difficulty with the attribution to the complainant of that as a motive for the making of false allegations against the appellant (the only motive ever suggested to her) is that the person who was seeking a share of her grandmother's estate was not the appellant but her mother. Furthermore, as the evidence before the jury made clear, it was the complainant’s mother who was the only party to the proceedings in the Supreme Court. Further, by the time the complainant first came to give evidence under oath, the dispute in relation to the grandmother's estate had been resolved by the complainant and each of her sisters entering into a deed of arrangement with their mother.

The complainant’s mother’s evidence

1. [74]

   As noted by Beech-Jones J at [48] in ALS v R [2013] NSWCCA 63, the Crown, by agreement with the defence, did not call the appellant’s wife at the earlier trial after adverse credit findings were made by the trial judge in the judge alone trial which preceded the appellant’s earlier trial at which he was charged, but acquitted, of sexually assaulting the complainant’s sisters K and J.

2. [75]

   She was called as a Crown witness at the appellant’s retrial before the jury, no doubt at the request of the defence and in discharge of the Crown’s obligation to call her as a Crown witness. However, given that when first spoken to by police in 2010 she gave an account contradicting the complainant’s evidence and supporting the appellant’s account that he had never sexually or physically assaulted the complainant, the defence could have been under no illusion that her evidence would not be embraced by the Crown.

The complainant’s mother’s evidence in chief

1. [76]

   The trial advocate led evidence confirming that when she commenced her relationship with the appellant, she had three young daughters and that when the appellant moved in with her he assumed the role of a step-parent. When describing the degree of discipline he exercised over the complainant in that role, she said that he would sometimes smack her and once used a belt to discipline her. The complainant’s mother volunteered that she told him that was not to happen and he did not do use a belt again.

2. [77]

   She also gave evidence that on Friday nights the appellant would go to the hotel and, after returning home, would behave aggressively toward her. She said:

3. [78]

   When pressed by the trial advocate as to what the arguments were about, she said that it would have been about the appellant’s drinking, despite suggesting in the evidence extracted above that he “didn’t drink a lot”. She said the domestic violence associated with his drinking extended over seven years and in a succession of houses they lived in during that time. Given the modest size of the houses, she agreed that the complainant would have seen the appellant assaulting her. When asked whether she was injured as a result of the assaults, she said:

4. [79]

   When the trial advocate asked whether there were occasions when, after coming home drunk, the appellant had occasion to get out of bed and use the toilet during the night, she said that once the appellant went to bed he usually stayed in bed and even were he to have need to use the toilet, she would know about it because she was a light sleeper. She went on to deny any possibility that the appellant could have got out of bed at any time and gone into the complainant’s room without her knowing. In essence, she said that had never happened. She said the only time he may have gone into the room was to kiss the complainant goodnight or to tell her to come out for dinner.

5. [80]

   Leave was applied for under s 38 of the Evidence Act (and not opposed) to cross-examine the complainant’s mother as to this aspect of her evidence in light of answers she had given to police in an interview in June 2010:

6. [81]

   In my view, from that line of questioning the jury would be entitled to draw an inference adverse to the credibility of the complainant’s mother as an impartial and unbiased witness given her implicit admission that she framed her answers to police because her husband was being accused of sexual interference with her daughters and then changed her account in evidence before the jury to be coincident with her husband’s evidence.

7. [82]

   The witness also denied any occasion when her daughters were left unsupervised by her in the appellant’s care, as exemplified in the following questions:

8. [83]

   The trial advocate followed that answer with this question, “Is that something you’ve just thought of just now?”, to which she answered, “No”.

9. [84]

   After denying that there was ever an occasion when the complainant might have been left at home with the appellant, the complainant’s mother gave the following evidence on the issue of complaint (it is this aspect of the trial advocate’s examination of the witness that is the subject of the second and third grounds of appeal):

10. [85]

    The complainant’s mother agreed that the complainant ran away from home when she was age 17. However, the explanation she gave for her daughter’s departure was because “she lost an apprenticeship” the appellant had secured for her. She agreed that the complainant never lived with the family again, and although she maintained contact with her daughter, there was no communication between her daughter and the appellant for many years. She attributed that to embarrassment on the complainant’s part because she had lost the apprenticeship. She also confirmed that the appellant had made it clear he “didn’t want [the complainant] near the house or in the house”, despite being aware that this was during a time when she was sending cards and letters to her mother. She denied ever asking the complainant to write to the appellant to try to mend the relationship with him, which she persistently attributed to embarrassment on the complainant’s part for having lost the apprenticeship. I note (as will be obvious when I come to summarise the appellant’s evidence) the appellant gives the same explanation for the complainant leaving home and his insistence that all contact with her be severed. In my view, the jury would be entitled to find their evidence a contrivance and their joint explanation for the complainant leaving the family home and being thereafter unwelcome in it as utterly implausible.

11. [86]

    The complainant’s mother also denied that there was any trouble at A’s wedding between the appellant and the complainant as to which she said, “No, why would there be?”. This evidence was not only in conflict with the complainant, but also her daughter K.

Cross-examination of the complainant’s mother

1. [87]

   Mr Rosser’s cross-examination was brief but on the issue of complaint it was direct and focused. I extract it in full not only for its significance as part of the evidence available to be considered by the jury but for the bearing it has to Grounds 2 and 3 on the appeal.

2. [88]

   The trial advocate did not re-examine.

The impact of the evidence of the complainant’s mother

1. [89]

   On my analysis of the evidence of the complainant’s mother, the jury could have been in no doubt that the trial advocate’s questioning of her as to whether the appellant was ever alone with the children and whether he ever went into their rooms (drunk or sober), and what was led as prior inconsistent statements in her interview with police concerning the latter, was to challenge her credibility. Since much of the questioning was in the form of leading questions put as if in cross-examination (as to which no objection was taken), the jury could have been in no doubt that the trial advocate sought to discredit the complainant’s mother’s assertion that there was no occasion when the appellant was alone with the complainant (or any of her daughters), or that he ever went into their bedrooms such as might have afforded him the opportunity to commit the offence with which he was charged or perpetrate the abuse led by the Crown as relationship evidence, inclusive of her denials that her daughter made a complaint of sexual abuse.

2. [90]

   The jury also heard evidence that the complainant's mother had suffered years of domestic violence at the hands of the appellant without taking any steps to protect herself or prevent her young daughters from being exposed to violence. It would also have been open to the jury to consider that the complainant’s mother only revealed the fact that she was a victim of domestic violence because the appellant had revealed in his ERISP that he had beaten his wife and that their evidence on this issue deliberately understated the extent of the violence as exemplified by the evidence under questioning as to whether police attended (see the appellant’s evidence on this question at [95] below).

3. [91]

   That being so, in my view it also follows that it was also open to the jury to find that, on the whole of her evidence, the complainant’s mother was not a reliable witness on matters of substance, including whether the complainant had complained to her in the terms and in the circumstances the complainant deposed to in her evidence and the way the appellant treated the complainant, thereafter culminating in her being progressively ostracised from the family.

4. [92]

   The appellant’s evidence

5. [93]

   The appellant’s evidence in chief was limited to confirming the accuracy and truthfulness of his denials to police when interviewed in June 2010. The ERISP and a transcript edited to remove questions directed to the complaints of abuse by K and J was tendered in the Crown case. It was also summarised by Beech-Jones J in ALS v R [2013] NSWCCA 63, and which I gratefully adopt:

6. [94]

   Specifically, as concerns the allegation of sexual intercourse the subject of the indictment, the appellant said in his evidence, “It didn’t happen, it just didn’t happen”. He also denied the allegations of sexual misconduct led by the Crown as relationship evidence.

The cross-examination of the appellant

1. [95]

   Under cross-examination, the appellant confirmed that he was aged 18 when he first met the complainant’s mother at a club. She was aged 27 and not working at that time. He confirmed that he was working (in some unstated capacity) at BHP on a seven-day roster, including weekends. He said that for that reason, he did not go to the hotel very much during the week to drink with “the boys”, but did drink with them after football. He agreed that when he arrived home drunk, there were often arguments. After some pressing by the trial advocate, he agreed that the arguments were about his drinking and that those arguments erupted into violence, however he denied that he ever punched his wife with a fist. He said he only ever hit her with an open hand. This was available to be considered by the jury as either an honest account of the domestic violence inflicted by the appellant and suffered by the complainant’s mother in the family home at the time when the complainant says she was assaulted both physically and sexually, or a contrived account in an attempt to minimise the extent of his assaultive behaviour generally and his sexual assault of the complainant in particular.

2. [96]

   When asked whether, after hitting his wife with an open hand, the appellant hit her more than once, he said:

3. [97]

   The appellant agreed in cross-examination that he was physically stronger than both his wife and his children, and that his physical presence was such that he was able to intimidate his wife. In answer to a question asked by the trial judge, the appellant gave the following evidence which, in my view, the jury would be entitled to take into account adverse to him when assessing his credibility:

4. [98]

   He also gave evidence, consistently with his wife’s evidence, that there was no occasion, even after he had assaulted her on arriving home from the hotel, when he did not sleep in the marital bed. Although he agreed that the arguments consisted of loud yelling, he denied that there was ever an occasion when the complainant came out of her room to protect her mother.

5. [99]

   He claimed no recollection (as did his wife) of the argument detailed by the complainant in her evidence which resulted in the attendance of police, as to which he gave the following evidence:

6. [100]

   Again, on this evidence it would have been open to the jury to reject the appellant’s claim to having no memory of police attending in response to a complaint of domestic violence as untrue, and to treat the evidence of his wife to similar effect as adverse to her credibility on the question whether the complainant told her of the sexual assault.

7. [101]

   The appellant was also asked whether there were occasions when he came home from the pub when he had to discipline the children. He said he never went near the children, having had no need to discipline them, but he may have gone into their rooms to say “goodnight”.

8. [102]

   Again consistently with the complainant’s mother’s evidence, he said that there were no occasions when he was left alone with the children and that his wife “used to take the children everywhere with her”.

9. [103]

   The appellant also gave evidence, consistently with the evidence of his wife, that his relationship with the complainant was a good relationship until she discontinued her apprenticeship and left home at age 17. He said, “I never had that much contact after that”. The trial advocate suggested to him that the relationship with the complainant changed many years before that in the context of his drinking and the violence he inflicted on her mother, as to which he gave the following evidence:

10. [104]

    In my view, the jury would be entitled to see the last answer, in the almost identical terms with which the complainant’s mother dealt with the question of the appellant disciplining the children, as another deliberate contrivance on their part to give false evidence and, viewed in that way, as the appellant deliberately underplaying his violent disposition generally and the opportunity he had to assault the complainant in the ways she detailed in her evidence, including the sexual assault charged on the indictment.

11. [105]

    The trial advocate put a detailed series of propositions to the appellant consistently with his obligations under the rule in Browne v Dunn, directing the appellant to each of the allegations detailed by the complainant in her evidence. To each of those propositions the appellant denied in increasingly emphatic terms that he had at any time mistreated any of his daughters and, in particular, the complainant.

12. [106]

    The appellant’s denials under oath, as with his denials when first confronted by the complainant in the recorded conversation under warrant and his denials to police when interviewed, were all equally emphatic. After giving consideration to that fact in the context of his evidence generally, I do not regard his denials to be of such overwhelming weight that I am left with a reasonable doubt as to his guilt. As I have also sought to emphasise in the context of my review of the complainant’s evidence, it is essential when exercising the jurisdiction under s 6(1) of the Criminal Appeal Act to give full regard to the primacy of the jury as the fact-finding tribunal and the opportunity they had to consider the way in which a witness gives their evidence.

13. [107]

    By their verdict in this case, the jury must have rejected the appellant’s denials under oath as unconvincing, as do I.

GROUND 3: The trial miscarried in that his Honour failed to direct the jury that, because the Crown Prosecutor failed to challenge the complainant's mother's evidence that the complainant did not make an immediate complaint to her about the alleged offence, the jury should take that failure into account in assessing the complainant's evidence.

1. [108]

   The appellant’s senior counsel accepted that leave was required under Rule 4 of the Criminal Appeal Rules (NSW) to argue both grounds of appeal. He submitted that leave should be granted as the decision by trial counsel not to complain about the trial advocate’s closing address (in the very limited respect complained of) and to seek directions from the trial judge to address the unfairness to which that submission was said to give rise, could not reasonably be said to have been the result of any forensic decision by trial counsel. It was further submitted that leave should be granted as the rule of unfairness which underpins the principal in Browne and Dunn has been so egregiously breached in this trial that the trial has miscarried.

2. [109]

   I would refuse leave under Rule 4 and dismiss both grounds of appeal.

3. [110]

   The appellant submitted that in his closing address to the jury the trial advocate breached the rule in Browne v Dunn by submitting that there was evidence of immediate complaint when the complainant’s mother had not given that evidence and where he had made no application under s 38 of the Evidence Act to cross-examine her on the issue so as to afford her the opportunity of answering the suggestion in his closing address that she should not be believed.

4. [111]

   The passage in the closing address to which exception was taken on the appeal arose in the way following context: After reminding the jury of the complainant’s evidence, including what the trial advocate submitted was her courage in standing up to the appellant when he was drunk and abusive, and her fears when she watched her mother and sisters walk away from the home leaving her alone with him on the day he had sexual intercourse with her, and after he summarised her evidence of the assault and how she felt, the trial advocate said:

5. [112]

   The appellant submitted that what his counsel characterised as the breach of the rule in Browne v Dunn by the trial advocate’s assertion that “she made immediate complaint” was productive of two consequences. First, he ought not to have addressed the jury that an “immediate complaint” was made. This was said to be the substance of Ground 2 of the amended grounds of appeal. R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 at [35]-[37] was cited as authority for that proposition.

6. [113]

   As Latham J observed in Soames v R [2012] NSWCCA 188 at [104]-[106], the authorities (of which Kennedy is one) which deal with the conduct of a prosecutor where an attack is made on the credibility of a witness called in the Crown case in breach of the rule in Browne v Dunn, emphasise that the unfairness which is said to result from that conduct is because the witness has not had the opportunity to answer an allegation of bias or dishonesty.

7. [114]

   In this case, after some trenchant questioning of the complainant’s mother about the extent of violence in the household, the trial advocate raised the issue of complaint with the complainant’s mother in a non-leading way. At [84] I set out the questions the trial advocate asked the complainant’s mother as to whether the complainant ever complained to her about the appellant’s sexual mistreatment of her, as to which (after interrupting the trial advocate as he framed the question) she gave an emphatic denial. This was consistent with her evidence that the appellant had never inflicted physical violence of any kind on her children and only minor injuries, if any, on her; a position from which she did not resile. The submission advanced on the appeal seems to be that the trial advocate was obliged at that time, in order to comply with the rule in Browne v Dunn, to make an application under s 38 of the Evidence Act in order to cross-examine the witness by a series of leading questions (I assume in the form of positive propositions to the effect that her daughter did complain), and that when he was met again with her anticipated denial, to then accuse her of lying to support her husband in order to make clear that the Crown was challenging her credibility and to permit her to defend herself against that accusation.

8. [115]

   In the circumstances of this case I do not regard adherence to the principle of unfairness that underpins the rule of the rule in Browne v Dunn to have required the trial advocate to have made that application. As I have already observed in my assessment of the evidence in considering Ground 1 of the appeal, the jury would have been in no doubt that the trial advocate did not regard the complainant’s mother as a witness of truth given his questioning of her generally. Although the Court was not referred to it, in his closing address the trial advocate did not go the distance of accusing the complainant’s mother of lying. His treatment of her evidence and her lack of credibility was more subtle. When dealing further with the complainant’s credibility later in his address (the mainstay of his submission that the jury would be left in no doubt as to the appellant’s guilt), he said:

9. [116]

   In leaving the issue of complaint as he did in evidence in chief, the trial advocate afforded Mr Rosser the forensic opportunity to cross-examine the complainant’s mother which he did, potentially, to very considerable effect. This in turn laid the ground work for a submission he advanced, also with considerable force, in his closing address on the appellant’s behalf, as the following extract makes clear:

10. [117]

    It was also submitted in support of Ground 3 that the trial judge should have directed the jury in such a way as to redress what was said to be the unfairness to the appellant by the trial advocate’s failure to comply with Browne v Dunn by giving the jury the following directions:

11. [118]

    The Crown submitted, and I accept, that there was no unfairness to the appellant in the approach adopted by the trial advocate in the evidence led from the complainant’s mother or the way in which he dealt with her evidence on the question of complaint in his closing address and, accordingly, no warrant for the directions appellate counsel submitted should have been given. In particular, the Crown submitted there was a challenge to her evidence by the questions asked in chief, as is aptly demonstrated both by the questions the trial advocate did ask, and, given the way in which Mr Rosser cross-examined the complainant’s mother and then dealt with her evidence in his closing address, there was no unfairness of the kind complained of. The Crown submitted that, in this case, the jury had every opportunity to assess the credibility of the complainant’s mother by the way in which she was both examined and cross-examined. I accept that submission.

12. [119]

    In respect of all witnesses (including the complainant's mother), the jury were directed in conventional terms that it was for them to assess the evidence and to determine whether it was both truthful and reliable, by considering not only what the witness has had to say, but the manner in which the witness gave their evidence and the general impression which the witness made when giving their evidence. The jury could have been left in no doubt that the evidence of the complainant, on the one hand, and her mother, on the other, on the issue of complaint was diametrically opposed. The jury could also have been in no doubt, given the tenor and the style of the trial advocate’s questioning of the complainant’s mother, that he was inviting the jury to treat her evidence, at the very least, as unreliable and not to reject the complainant’s evidence as untruthful because of it.

13. [120]

    The order I would propose is that the appeal against conviction should be dismissed.

14. [121]

    BELLEW J: I have had the advantage of reading, in draft, the judgments of Macfarlan JA and Fullerton J.

15. [122]

    I agree, for the reasons that his Honour has expressed, with the orders that Macfarlan JA proposes. I wish only to add the following brief observations.

16. [123]

    In reaching the view that the appeal should be allowed, I agree with Macfarlan JA that no single factor is determinative. However, in the circumstances of the present case, particular significance attaches to three aspects of the evidence.

17. [124]

    Firstly, the complainant’s evidence was entirely uncorroborated. In matters of this nature that might not be regarded as unusual in one sense. What is significant in the present case is that, accepting the complainant’s account of the offending, her two sisters were in a position to corroborate at least some aspects of her evidence. No such corroboration was forthcoming from either of them. As Macfarlan JA has pointed out, the fact that there may be reasons which explain that circumstance does not operate to fill what is an evidentiary void.

18. [125]

    Secondly, the multiplicity of communications, in one of which extended the complainant invited the appellant to join her on a holiday, are fundamentally at odds with the complainant’s asserted feelings of animosity towards the appellant.

19. [126]

    Thirdly, what is depicted in the film taken at the wedding reception of the complainant’s sister is inconsistent with the complainant’s evidence. I accept that the wedding reception obviously extended over some hours and that the film tendered in evidence was a short “snapshot” of the entire event. The essence of the Crown’s submission was that what can be seen in such a snapshot should not be regarded as being generally representative of the complainant’s attitude towards the appellant at that time.

20. [127]

    In other circumstances, the Crown’s submission may have been deserving of greater weight. However, the film demonstrated clear and unequivocal expressions of affection on the part of the complainant towards the appellant. Even when full weight is given to the short duration of the film, what was depicted is fundamentally inconsistent with the complainant’s evidence.

21. [128]

    Having regard to the combination of matters to which Macfarlan JA has referred, I am driven to the conclusion that the appeal should be allowed.