WS v R

1. [1]

   MACFARLAN JA: In December 2020 the applicant stood trial in the District Court before a judge and jury on an indictment alleging three offences of sexual intercourse without consent, contrary to s 61D(1) of the Crimes Act 1900 (NSW) (Counts 1, 3 and 4). As an alternative to Count 1 the applicant was charged under Count 2 with indecent assault, contrary to s 61E(1) of the Crimes Act. The offences were alleged to have occurred on a single occasion between 1 September 1990 and 10 November 1990 when the applicant, who is an older brother of the complainant, is alleged to have grabbed the complainant, dragged her into his bedroom and sexually assaulted her whilst they were alone together in the family home. The applicant was then 18 years old and the complainant was then 15 or 16 years old.

2. [2]

   On 16 December 2020 the jury returned verdicts of guilty on Counts 2 and 4 and not guilty on Counts 1 and 3.

3. [3]

   On 1 April 2021 the applicant was sentenced to an aggregate term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 6 months, commencing on that date and expiring on 30 September 2023. The aggregate head sentence expires on 30 June 2025.

4. [4]

   The applicant seeks leave to appeal against his convictions and relies on three grounds of appeal as follows:

5. [5]

   The applicant does not allege that the verdicts of guilty on Counts 2 and 4 were unreasonable by reason of inconsistency of them with his acquittals on Counts 1 and 3. Rather, his contention is that they were unreasonable when considered in light of the evidence as a whole.

6. [6]

   For the reasons that appear below, I considered that grounds 1 and 2 should be upheld, the verdicts on those counts quashed and verdicts of acquittal entered.

PRE-TRIAL APPLICATION IN THE DISTRICT COURT

1. [7]

   Prior to the empanelment of a jury, the applicant made an application to the trial judge for a ruling in relation to s 293(6) of the Criminal Procedure Act 1986 (NSW). Section 293 is in the following terms:

2. [8]

   The s 293(6) application concerned evidence led in the Crown case that, after the applicant sexually assaulted the complainant, she complained to her family doctor and later underwent a pregnancy test. Records produced by Medicare show that the complainant had a pregnancy test on 16 November 1990. In light of that evidence, the applicant sought to cross-examine the complainant in relation to a suggestion that she had been sexually assaulted by a man named “Ian”, with whom she had been in a short relationship. One issue that arose on the application was when that relationship and the alleged sexual assault by Ian occurred.

3. [9]

   The cross-examination was proposed to be founded upon the following parts of statements in the Crown bundle of documents tendered on the s 293 application. First, a statement of the complainant’s sister P included the following:

4. [10]

   Secondly, a statement of the complainant included the following:

5. [11]

   In the course of argument in the District Court, counsel for the applicant conceded that his application could not succeed in light of the decision of this Court in Taleb v R (2015) NSWCCA 105 at [120]–[125]. Relevantly, that decision confirms what is apparent from the terms of s 293(6), namely that the subsection’s operation is conditioned on a disclosure or implication in the Crown case of the type described in section 293(6)(a). No such disclosure or implication by the Crown was foreshadowed, as a result of which the subsection was inapplicable.

6. [12]

   The applicant’s counsel did not then make any application under s 293(4)(c). The absence of such further application is the subject of the applicant’s second ground of appeal. Counsel did however argue before the Trial Judge that evidence of the pregnancy test ought to be excluded under s 137 of the Evidence Act 1995 (NSW) which is in the following terms:

THE EVIDENCE AT THE TRIAL

1. [13]

   By an ex tempore judgment of 2 December 2020, the Trial Judge rejected the application and admitted the evidence of the pregnancy test, stating:

2. [14]

   A trial commenced on 2 December 2020 but, for reasons that are not presently relevant, the jury was discharged after the conclusion of the complainant’s evidence-in-chief. The trial to which the present application in this Court relates began on 8 December 2020. The rulings that the Trial Judge earlier made were treated as binding (see s 130A(1) of the Criminal Procedure Act) and the complainant’s evidence commenced with the playing of the recording of her evidence-in-chief at the first trial (see s 289F(1) of the Criminal Procedure Act).

The complainant’s evidence

1. [15]

   The complainant was one of six siblings but one brother passed away. Her eldest siblings (John and another brother SS) are about 13 years older than her. The applicant is three years older than her, and her sister P is a year younger than her.

2. [16]

   The complainant said that living with her family as she grew up was “a nightmare”. She said that the applicant “was sexually assaulting me constantly. And my parents were alcoholics and there was no food in the house. My brothers and sisters were constantly fighting, as in punching on”.

3. [17]

   She said that when she was in Year 10 she came home early one day after doing an exam to find the applicant apparently “high” on drugs and alcohol. He dragged her into his bedroom and sexually assaulted her. She said that the applicant removed her clothes and made her suck his penis (Count 1). She initially said that she was sitting on the bed at the time but later corrected herself and said, at this point, she was standing next to it. It was put to the complainant in cross-examination that, in her police statement, she had described licking the applicant’s penis rather than sucking it. The complainant said that she regarded them as being the same thing, adding “it does state that in that statement about that”. The jury subsequently acquitted the applicant on this count, but found him guilty on the alternative count of indecent assault (Count 2).

4. [18]

   The complainant said that the applicant then put his erect penis into her vagina and ejaculated. This conduct was the subject of Count 4, on which the jury found the applicant guilty. The complainant said that, seemingly after this act occurred, the applicant “pulled a knife to my throat”. (The complainant’s daughter C said in her evidence that the complainant reported to her that after threatening her with the knife the applicant “told her that if she… told anyone that he would kill her”.)

5. [19]

   The complainant gave evidence on the second day of her evidence-in-chief that whilst the applicant was on top of her on the bed, he licked her vagina (Count 3). She had not mentioned that in the course of her evidence on the previous day. During cross-examination, the applicant’s counsel put it to her that she had not mentioned this incident in her evidence-in-chief “because it just didn’t happen”, to which she responded, “I’ve got no comment for you”. The jury acquitted the applicant on that count.

6. [20]

   The complainant said that after these acts occurred she dressed and ran down to a local hotel where her parents were drinking. She complained to them that she had been sexually assaulted but they told her to go home and that they would “sort it out” later.

7. [21]

   The complainant said that she then went to see the family doctor, Dr Bright, and complained to him. In response to a question from Dr Bright, the complainant told him that the applicant had not worn a condom. Dr Bright said that she would have to have sexual diseases tests and a pregnancy test. Dr Bright then asked if she felt anything hot and sticky inside her, to which she replied “yes”. She said that the sexual diseases tests were done while she was there and the pregnancy test was done “a couple of weeks later”, adding in relation to the latter, “I’m not exactly sure how long [after] it was”.

8. [22]

   The complainant said that she then returned to school but was too upset to sit her remaining exams. She said that whilst there she spoke to a teacher, Mr Brett Foster, about what the applicant had done and later said, in cross-examination, that she had been taken to the principal’s office. She was not asked what, if anything, she told the principal. The police were not called, and she was not taken to a hospital.

9. [23]

   She said that some time later she visited a doctor and had a pregnancy test and that she did so because she was scared and because her period was late. The test was negative.

10. [24]

    The complainant also gave context evidence that the applicant had (sexually) assaulted her since she was 12 years old. She said that when she and the applicant would go under the house to get parts for lawnmowers that their father repaired as a hobby, the applicant would put his hands into her blouse and undo the buttons. He also had a habit of putting a blanket over the complainant’s legs as they sat on the lounge in the loungeroom and he would put his finger inside her vagina. She said that those assaults would happen “nearly every day”. As to whether anyone was present in the loungeroom when the incidents occurred, the complainant said that her father was there once and told the applicant to stop it but he did nothing more. Elsewhere in her evidence she said that “all of them” (referring to her parents, older brother SS and younger sister P) were present. She said also that the applicant harassed her for years until she “met up with” Mr Honey who “threatened to bash [the applicant]”.

11. [25]

    The complainant also gave evidence that her brothers John and SS knew “something was going on” between the applicant and herself, that is, that he was sexually assaulting her, but did not do anything to help. She said that she told P about the applicant touching her and when it was suggested to her that she did not say anything to SS, she said “I told the lot of them what happened”.

12. [26]

    The complainant moved out of home before she left school which occurred part way through Year 11 when she was 15 and a half years old (in 1991). It was agreed at the trial that the complainant had lived in the family home from 21 July 1975 until sometime after 10 November 1990.

13. [27]

    The complainant then commenced living with Mr Michael Honey who she was with for 19 and a half years. They have six children together, including their daughter C who gave evidence at the trial. The complainant said that she told C “a long time ago” that the applicant had sexually assaulted her from a young age.

14. [28]

    The complainant reported the alleged assaults to the police in August 2016. When asked why she had not reported them earlier, she said “I was sick of having it bottled up inside of me and I wanted to get some sort of justice from it”. She said that at that time she felt emotionally stronger and better able to cope with the court process than before. She said that she had previously suffered a mental breakdown and been in a “mental institution” for three months.

15. [29]

    As to the suggestion that she never said anything to her sister P or her brother SS about the applicant touching her, the complainant said, “I told the lot of them what had happened”. She was taken to a portion of her statement that read, “About two weeks after I was sexually assaulted by [the applicant] there was talk on different occasions with various members of my family including my parents, my sister P and my brother SS and [the applicant]”. The complainant maintained in cross-examination that there were such discussions. She was taken back to that portion of her statement in re-examination and agreed that it continued: “The talk was that it was going to cause too many problems, and what was going to [happen to] [the applicant] if anyone found out and getting the police involved. I felt dirty, scared and betrayed by my whole family. The whole incident was covered up by my family, and was never spoken about again. The whole incident was wiped under the carpet”.

16. [30]

    The complainant did not recall whether she told her former partner Mr Honey that the applicant had sexually assaulted her and later noted that Mr Honey used to be friends with the applicant. She said that after she moved out of the family home, the applicant “would come over” at times to her and Mr Honey’s home and that Mr Honey was “around” most of the time.

17. [31]

    When asked whether the family would at times gather in the lounge room of the family home to watch TV, the complainant said that they sometimes did but that it was mainly the applicant, their father and herself. She maintained that the applicant would place a blanket over the top of her and force her legs open and said that her father had pulled the applicant up a couple of times about doing it. In response to the proposition that “all your brothers and sisters must’ve seen this at some stage, wouldn’t they?”, the complainant replied, “You’d think so”.

18. [32]

    In relation to [her brother] SS specifically, the complainant said she did not know whether he had seen it or not. She acknowledged that it had happened when her mother was present in the lounge room but said she did not do or say anything, observing that “[The applicant] was probably the favourite”. As to the suggestion that her sister P would have been present in the lounge room at times watching TV, the complainant said that sometimes all of them were in the lounge room but that she did not recall how many nights they were in the lounge room or for how long.

The complainant’s daughter C’s evidence

1. [33]

   The complainant’s daughter C gave evidence that in 2013 her mother told her that the applicant had raped her around the time of her Year 10 exams and had acted inappropriately towards her on other occasions. She said that the complainant told her that on one particular occasion, the applicant raped her when she came home for lunch, told her not to tell anyone and held a knife to her throat. The applicant said that she later reported the assault to a doctor and to her parents. Although C expressed some equivocation about it she appeared to recall the complainant’s description of the incident as something that took place under the house. As to the nature of the intercourse, C agreed that she said in her police statement that the applicant forced her to perform oral sex on him before performing “penile-anal (and possibly penile-vaginal intercourse as well, but I cannot exactly remember this part) intercourse on her from behind (sic)”.

The complainant’s brother SS’ evidence

1. [34]

   SS said that he moved out of home in about 1989 and, in an unresponsive answer, said that he subsequently spent time in jail. He could not recall when that occurred (although he spoke of the early 1990s) but accepted a suggestion made to him that the sentence was imposed on 22 September 1992.

2. [35]

   SS described himself as an alcoholic “most of the time”. He described the relationship between the applicant and the complainant as “just normal brother and sister” and said that he was not aware of any issues between them. When asked about whether there had been any discussions about inappropriate touching, SS replied, “there was never any inappropriate touching to have any discussions” (sic). SS gave evidence that he never saw any blanket being used in the loungeroom and never saw the applicant and complainant sitting on a lounge together in the loungeroom.

The complainant’s sister P’s evidence

1. [36]

   P gave evidence that she did not see the applicant touch the complainant inappropriately either under the house or in the loungeroom. She agreed that there were blankets in the loungeroom but she said that she never saw either the applicant or the complainant under a blanket either separately or together.

2. [37]

   She said that the applicant and the complainant were close and that the three of them (that is, the applicant, complainant and herself) were close. She said however that the complainant had never said anything to her about the applicant touching her or doing anything inappropriate.

The complainant’s former partner Mr Honey’s evidence

1. [38]

   Mr Honey gave evidence that he and the complainant had been separated for about 8 or 9 years and that he no longer spoke to the complainant and her family. He said that the complainant had not told him that she had been touched indecently or sexually assaulted by the applicant. He said that the applicant would come around to their house “quite often” and there had been a few occasions, when he was working night shift, when the complainant called him and ask if the applicant could come over to their home because she felt safer. He could not recall when those occasions were.

2. [39]

   Mr Honey didn’t give any evidence of the applicant harassing the complainant or of Mr Honey bringing any such harassment to an end by threatening to “bash” the applicant.

The police officer in charge’s evidence

1. [40]

   Sergeant Simon Turner gave evidence of the police investigation, of which he was in charge. He identified records of the complainant’s Medicare claims history showing that Dr Bright had standard consultations with the complainant on 6, 7 and 10 September 1990 and that Dr S R Rastogi had some 13 consultations with her in the period 14 September 1990 to 15 November 1990. Dr Rastogi ordered the pregnancy test and three other tests, and had a consultation with the complainant, on 16 November 1990.

2. [41]

   Sergeant Turner gave evidence that police took a statement dated 31 August 2016 from Dr Bright but that the police have been unable to locate him in the lead up to the trial. In the statement, which was admitted into evidence, Dr Bright said that he was not able to recall a conversation in which the complainant told him that she had been sexually assaulted by the applicant or any conversation in which she told him that she was sexually assaulted. He noted, “around this particular time there was no mandatory reporting of serious matters to the Police if they were reported to me by my patient. It was not something that was done at the time”. Dr Bright said that he was the doctor for the family at the time and “would normally see them if there were any problems with their health”. He said that he remembered seeing the parents and three of the siblings.

3. [42]

   Sergeant Turner said that he attempted to locate Mr Foster, the teacher to whom the complainant said she spoke about the offences, but was unable to locate him.

4. [43]

   The record of an interview in which the applicant agreed to participate was tendered through Sergeant Turner. In it, the applicant denied the sexual assault allegations and said that he did not recall ever having a blanket with him when he watched television in the loungeroom.

Counsels’ addresses to the jury

1. [44]

   In its closing address the Crown placed considerable emphasis as follows on the Medicare records:

2. [45]

   Early in his closing address, the applicant’s counsel referred as follows to the Medicare records:

3. [46]

   Later, he said the following:

The Trial Judge’s summing up

1. [47]

   The Trial Judge addressed the lapse of time between the alleged offences and the making of the complaint as follows:

2. [48]

   The Trial Judge said the following as to the Medicare records:

Relevant legal principles

1. [49]

   In RD (a pseudonym) v R [2021] NSWCCA 94 at [7] and [8], with the concurrence of Walton and Hamill JJ, I summarised as follows the basic principles referable to an unreasonable verdict ground of appeal.

2. [50]

   The unreasonable verdict ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (see also [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

3. [51]

   In addressing an unreasonable verdict ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) although, as stated in M v The Queen (at 494):

Application of the principles

1. [52]

   The offences for which the applicant stood trial were alleged to have been committed on a single occasion 26 years prior to the complainant (or, it appears, anyone else) reporting the allegations to the police. The applicant’s trial took place some 30 years after the alleged offences. The lapse of those periods prior to report and trial was not an answer to the charges but, as indicated below, was relevant to consideration of whether at the trial the Crown established its case beyond reasonable doubt. Likewise, it would not have been an automatic answer to the charges if (as the applicant asserted it to be) the Crown’s case was virtually wholly dependent on the uncorroborated evidence of the complainant. As the High Court said in Pell at [53], “[t]here is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it”. The presence or absence of corroboration was nevertheless a relevant matter for the jury to take into account.

2. [53]

   Ultimately, the question for this Court in relation to this ground of appeal is whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt or, to express substantially the same question differently, whether “the jury must, as distinct from might, have entertained a doubt about the [applicant’s] guilt” (see [50] above). To put it in yet another way, whether there is a “significant possibility… that an innocent person has been convicted” (at [119]).

3. [54]

   By reason of the cumulative effect of the matters referred to below, I have concluded that there is such a significant possibility. As with the “compounding improbabilities” that led the High Court to find likewise in Pell (at [119]) the combined force of these matters requires this conclusion even though none of them on its own would have that effect.

4. [55]

   The complainant gave evidence that she told her sister P and brother SS, apparently contemporaneously with the applicant’s sexual abuse of her (see [29] above). In evidence given in the Crown case P and SS however denied that she had done that and the Crown did not make any application for leave under ss 38(1)(a) and 192 of the Evidence Act 1995 (NSW) to cross-examine them.

5. [56]

   In its submissions on appeal, the Crown asserted that, properly understood, the evidence of P and SS was not in fact inconsistent with that of the complainant, in relation to whether they had seen the applicant molesting the complainant under a blanket in the loungeroom in front of the TV. Quite apart from the evidence on this topic, the complainant’s evidence however contained clear assertions, contrary to P and SS’s evidence of having told P and SS of the abuse.

6. [57]

   First, the complainant said she complained to her mother and father immediately after the applicant committed the offences but by the time of trial they had passed away and were therefore unavailable to confirm or deny this.

7. [58]

   Secondly, there was no evidence that they drew the complaint to the attention of the police or anyone else and in the absence of such evidence in the Crown case, it should be assumed that they did not. In response, the Crown identified reasons why the parents might not have wanted to report the abuse to the police, in effect, because the evidence suggested that they were alcoholics and neglected their children, and that a report to the police would have invited “attention to the adequacy of their parenting”. The fact remains however that no evidence was available from the parents to confirm the complainant’s allegation of a complaint to them and the applicant had no means of testing whether that complaint was made.

8. [59]

   Thirdly, Dr Bright could not be found prior to the trial and accordingly did not give evidence to support the complainant’s evidence of complaint to him. On the contrary, his 2016 statement to the police asserted he had no recollection of the complaint. As he was the complainant’s family’s doctor, it would be surprising if he did not recall an allegation by a teenage member of the family of a sexual assault by her brother involving threatened violence.

9. [60]

   Fourthly, because he could not be found, the school teacher to whom the complainant said she complained on the day of the assaults did not give evidence to support what she said. Nor did the school principal to whose office the complainant said she was taken. It would be surprising if complaints were made to these teachers but no report was made to the police, there being no suggestion in the evidence of any report to the police prior to 2016.

10. [61]

    Fifthly, the Medicare records in evidence showed that the pregnancy and other tests were ordered by Dr S R Rastogi on 16 November 1990. The records referred to regular consultations by the complainant with him in the months prior to that date. Dr Rastogi was not called to give evidence of what led him to order those tests and no explanation was offered for his absence.

11. [62]

    Sixthly, the apparent absence of any report to the police by any of the various persons in authority to whom the complainant said she made immediate complaint (her parents, her family doctor, a teacher, her school principal and the doctor who ordered the pregnancy test) raises a question as to whether she did in fact complain as she described and therefore also as to her evidence that she was assaulted in the manner and on the occasion she alleged.

12. [63]

    The Crown’s reliance on the medical records to support its case was the defining feature of its closing address to the jury (see [45] above). The records were referred to on some six occasions, the Crown describing them as independent evidence that corroborated the complainant’s evidence of the sexual assaults. The records do not however do that. At best, they tend to confirm that the complainant experienced penile-vaginal sexual intercourse in the period leading up to the date of 16 November 1990 on which she had a pregnancy test. Contrary to what the Crown put to the jury in closing address, the records did not corroborate the complainant’s evidence that sexual intercourse was with the applicant. Likewise in Pell, whilst the complainant’s knowledge of the interior layout of the priests’ sacristy provided some support for his evidence that he had been inside the sacristy, where the abuse was alleged to have taken place, it “did not afford any independent basis for finding that, on such an occasion, he had been sexually assaulted by the applicant” (at [50]).

13. [64]

    Moreover, there are aspects of the Medicare records that do not sit well with the complainant’s evidence. First, the gap of more than nine weeks between the date on which the complainant last saw Dr Bright (10 September 1990) and that of the pregnancy test (16 November 1990) is not easy to reconcile with the complainant’s evidence that she saw Dr Bright on the day of the sexual assaults and about “a couple of weeks later” went for a pregnancy test because the applicant “ejaculated inside me and I was scared that I was pregnant and because my period was late”.

14. [65]

    Secondly, the evidence that the Crown led from the complainant was of a single consultation with Dr Bright at which she complained of the assault and was told that she would have to have a pregnancy test and sexual disease tests. The records however reveal consecutive appointments with Dr Bright on 6, 7 and 10 September 1990 which are not explained in the complainant’s evidence.

15. [66]

    Thirdly, the Medicare records show that when the pregnancy test was conducted on 16 November 1990, a number of other tests were conducted at the same time. In its final address to the jury the Crown suggested that these included sexual disease tests but the complainant’s evidence was that these were done by Dr Bright (when the later tests were in fact done by Dr Rastogi) on the day of her first complaint to Dr Bright (see [22] above).

16. [67]

    Fourthly, as noted in [40] above, the records show that the complainant had some 13 consultations with Dr Rastogi in the two months prior to the pregnancy test of 16 November 1990. Whether these had any relevance to the alleged assaults or to whether the complainant feared pregnancy or disease was left unexplained by the evidence.

17. [68]

    Mr Honey gave evidence that the applicant came to the home of Mr Honey and the complainant “quite often”. Of itself this is not of particular significance. As McCallum JA pointed out in SM v R [2022] NSWCCA 13 at [52] (with the concurrence of Rothman and Wright JJ), the conduct of a victim and a perpetrator of sexual abuse does not necessarily follow any “particular pattern or script” and may indeed be marked by some amicable interactions. Nevertheless, it is noteworthy that, on Mr Honey’s evidence, the complainant on occasions asked Mr Honey if the applicant could come over to their home whilst Mr Honey was working night shifts “because she felt safer” with the applicant there (see [38] above). Moreover, this evidence is difficult to reconcile with the complainant’s evidence that the applicant harassed her for a long period until Mr Honey “threatened to bash” the applicant, of which threat Mr Honey gave no evidence. The evidence he did give, of amicable relations with the applicant, is difficult to reconcile with the complainant’s evidence that he threatened to bash the applicant.

18. [69]

    I put to one side the question of whether the complainant’s delay in reporting her allegations to the police cast doubt on her credibility as for two reasons I consider that it was well open to the jury, acting reasonably, to conclude that it did not. First, the complainant, on her evidence, did complain immediately to a number of adult persons of authority. Secondly, she gave an explanation for not reporting the alleged assaults to the police until 2016 (see [29] above) which it was open to the jury to accept. Note in this context that in earlier times the common law assumed that late complaining cast doubt on the credibility of a complainant but that this assumption no longer has validity, particularly in light of s 294 of the Criminal Procedure Act 1986 (NSW) (see Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [33]-[43]).

19. [70]

    On the other hand, it is important that in the present case the applicant suffered a significant forensic disadvantage as a consequence of the delay (in the sense of lapse of time) in the reporting of the complainant’s allegations to the police and then again in the bringing of them to trial. The trial judge recognised the existence of this disadvantage and included in his summing up directions consistent with s 165B of the Evidence Act 1995 (NSW), which is concerned with delay in prosecution. The judge referred by way of example to the death of the complainant’s parents in the intervening period and to the Crown’s inability to locate Dr Bright.

20. [71]

    The existence of an accused’s significant forensic disadvantage in meeting a prosecution is relevant not only to a jury’s consideration of whether there is a reasonable doubt as to the accused’s guilt but to an appellate court’s consideration of an unreasonable verdict ground of appeal against a conviction and therefore of whether there is a reasonable doubt which the jury ought to have had (see by way of analogy BD v R [2018] NSWCCA 18 at [55]-[60] concerning the impact of delay on the complainant’s reliability).

21. [72]

    In the present case, the applicant was substantially disadvantaged by the unavailability, or at least assumed unavailability because of its non-production by the Crown, of evidence that could reasonably have been expected to be available if the report to police and the trial had occurred decades earlier than they did. I refer in particular to evidence from the complainant’s parents and Dr Bright’s and Dr Rastogi’s’ consultation notes, and evidence from the complainant’s school teacher and principal.

22. [73]

    As I indicated in [54] above, the combined force of these various matters leads me to the conclusion that the jury, acting reasonably, ought to have had a reasonable doubt about the applicant’s guilt. I have reached this conclusion notwithstanding that the complainant’s evidence derived some limited support from her daughter’s evidence of a complaint made to her in 2013 and some limited, albeit heavily qualified for the reasons I have given at [63] above, support from the Medicare records.

23. [74]

    In these circumstances, Ground 1 should be upheld, the applicant’s convictions quashed and verdicts of acquittal entered.

GROUND 2 – WHETHER A MISCARRIAGE OF JUSTICE RESULTED FROM THE FAILURE OF TRIAL COUNSEL FOR THE APPLICANT TO SEEK TO HAVE ADMITTED PURSUANT TO S 293(4)(C) CRIMINAL PROCEDURE ACT 1986 (NSW) EVIDENCE THAT THE COMPLAINANT HAD SEXUAL EXPERIENCE OR HAD TAKEN PART IN SEXUAL ACTIVITY

1. [75]

   As noted in [7] and [11] above, trial counsel for the applicant made an application for a ruling in relation to s 293(6) of the Criminal Procedure Act which he withdrew when he became aware of authority that precluded the application succeeding. On appeal, the applicant submits that his trial counsel should instead have relied on s 293(4)(c) and that the failure of his counsel to do this was “incapable of rational explanation on forensic grounds” (Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [16]; Hanna v The Queen [2017] NSWCCA 168 at [17]; Xie v The Queen [2021] NSWCCA 1; (2021) 386 ALR 371 at [415]). The applicant submitted that in those circumstances he was not bound by the conduct of his trial counsel and that a miscarriage of justice occurred with the consequence that his convictions should be quashed (Restricted Judgment [2021] NSWCCA 113 at [74], [75]).

2. [76]

   The applicant argued on appeal that he ought to have been allowed to utilise in cross-examination of the complainant (and presumably of the complainant’s sister P) material contained in their police statements (see [8]-[10] above). The material is to the effect that the complainant was raped by a man named “Ian” who ejaculated inside her. The applicant contended that this may have occurred at a time that rendered it a reasonably possible explanation for the presence in the complainant of the semen that led to her being tested for pregnancy.

3. [77]

   On appeal the applicant explained as follows how he was entitled to do this notwithstanding the general prohibition in s 293(3) of evidence that discloses or implies other sexual activity or experience of a complainant (see [7] above). That prohibition applied because the offences of which the applicant was charged were “prescribed sexual offences” within the meaning of s 293(1).

4. [78]

   The first condition for the application of the exception provided by s 293(4)(c) to the general rule in s 293(3) is that there has been an allegation of sexual intercourse of the accused with the complainant and that the accused person does not concede that that intercourse occurred (s 293(4)(c)(i)). This condition was plainly satisfied.

5. [79]

   The second condition (so far as material to this case) is that the evidence is relevant to whether “the presence of semen… is attributable to the sexual intercourse alleged to have been had by the accused person” (s 293(4)(c)(ii)).

6. [80]

   In oral argument on appeal the applicant submitted that there were two ways in which the evidence indicated “the presence of semen”. First, the complainant gave evidence of a conversation with Dr Bright in which she made it clear that the applicant had ejaculated inside her (see [21] above). Secondly, the applicant submitted that, in indicating that a pregnancy test was conducted on 16 November 1990, the Medicare records implied the “presence of semen” because, as a matter of acceptable inference, a pregnancy test would not be conducted in the absence of a belief by the patient and/or doctor ordering the test that semen had or may have been inside the patient. I accept that this inference should be drawn, with the result that the next question becomes whether the material available to the applicant and intended to be the basis of cross-examination of the complainant and sister P was “relevant” in the sense to which s 55 of the Evidence Act refers. That is, if it were accepted, could it have “rationally affect[ed] (directly or indirectly) the assessment of the probability” of the pregnancy test having been undertaken because of the alleged sexual assaults by the applicant. If the rape by Ian arguably occurred at a relevant time, it was capable of doing this.

7. [81]

   In her statement, the complainant temporally placed her rape by Ian as about six months after she was raped by the applicant (see [10] above). In her statement, the complainant’s sister P however said that the complainant told their mother (who then told sister P) about her rape by Ian and that the rape had occurred about three or four months before the complainant started dating Mr Honey (see [9] above). The evidence did not establish any clear date for this. The complainant said that she went to live with Mr Honey when she was in Year 11 (that is, in 1991) before she finished school, which the documentary evidence established occurred on 31 May 1991. How long before was not stated, although she did refer to it being at the “beginning of the year”. Moreover, the evidence was silent as to when exactly the complainant started “dating” Mr Honey (as distinct from living with him) and, based on the sister P’s statement that the rape occurred 3 or 4 months before they started dating, the date from which one should therefore count back “three or four months”. If the dating or the living together commenced, say, in January or February 1991, it is a reasonable possibility that the rape by Ian occurred in the weeks or months prior to 16 November 1990 which was the date of the pregnancy test. Importantly, the existence of a 30-year period between the applicant’s alleged offence and the trial makes the estimates of timing given at the trial, or in the lead up to the trial, of limited value, particularly when the estimates are concerned with periods of months or weeks rather than years. An example is in the evidence of the complainant that she had the pregnancy test “a couple of weeks” after she saw Dr Bright (in early September 1990) when the period was objectively established as in fact just over nine weeks.

8. [82]

   In these circumstances it would, in my view, have been relevant and permissible for the applicant’s counsel to explore in the cross-examination of the complainant and her sister P when the rape by Ian (which the complainant accepted had happened) occurred in relation to the complainant’s consultations with Dr Bright and Dr Rastogi. Evidence from the sister P on this topic would not have been inadmissible as hearsay because, as the rape by Ian was admitted by the complainant in her statement, the evidence of the sister would not have been adduced in order to prove that rape but to prove the time at which the complainant told the sister of it. This was something of which the sister had personal knowledge.

9. [83]

   For the exception under s 293(4)(c) to be applicable, the applicant would also have had to satisfy the Court that “the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission” (see the closing words of s 293(4)).

10. [84]

    It should be accepted that adducing evidence of the rape by Ian would have caused the complainant stress, humiliation and embarrassment, notwithstanding that she admitted the rape and gave detailed evidence of sexual assaults of her by the applicant. However the probative value of the evidence that the applicant says that he should have been allowed to elicit by way of cross-examination was in my view significant and sufficient to outweigh that distress, humiliation and embarrassment. The evidence was of significant probative value because, as I said in [63] above, reliance on the Medicare records was the defining feature of the Crown’s closing address to the jury. Moreover, the aspect of the records particularly relied upon by the Crown was the order of the pregnancy test which the Crown asserted corroborated the complainant’s evidence that she had been sexually assaulted by the applicant. Evidence concerning the complainant’s rape by Ian, depending on when it occurred, provided a realistic alternative explanation for that pregnancy test.

11. [85]

    In his Closing Address to the jury, the applicant’s counsel said that the complainant left home “sometime around April or so in 1990… to go into a de facto relationship with a young man”. He then said “Who knows why she went to the doctor, and who knows why it was so often”. The reference to “a young man” was to Mr Honey but counsel must have misunderstood the evidence as to when the complainant went to live with Mr Honey. That occurred in 1991 and not in 1990, and it could not therefore have been that relationship which gave rise to the need for the pregnancy test in 1990. Nevertheless, by these statements counsel did implicitly indicate to the jury that it should consider whether sexual intercourse with some person other than the applicant may have given rise to the pregnancy test. A more veiled suggestion to the same effect was made by the trial judge when referring in his Summing Up to the Medicare records (see [48] above).

12. [86]

    Although the jury had these less than explicit suggestions made to it, and its common sense should have indicated the possibility that the need for the pregnancy test arose out of sexual intercourse with someone other than the applicant, the evidence that the applicant submits on appeal that he should have been allowed to elicit concerning the rape by Ian would have brought home the point to the jury in a much more forceful and, to the accused, beneficial fashion.

13. [87]

    In light of the central role that the pregnancy test played in the Crown’s case, I consider that the applicant has lost a significant opportunity to be acquitted and that a miscarriage of justice has therefore occurred by reason of the applicant’s trial counsel not seeking to rely at the trial on s 293(4)(c) and the material concerning the complainant’s rape by Ian. Accordingly, Ground 2 should be upheld and on this basis, as well as on the basis of Ground 1, the applicant’s convictions should be quashed. As I have said above, the upholding of Ground 1 also warrants a verdict of acquittal being entered.

GROUND 3: WHETHER THE TRIAL JUDGE ERRED IN DECLINING TO EXCLUDE EVIDENCE OF THE PREGNANCY TEST

1. [88]

   When defence counsel concluded that his application in relation to s 293(6) could not succeed, he sought that the trial judge refuse under s 137 of the Evidence Act to admit evidence of the pregnancy test. Section 137 is in the following terms:

2. [89]

   The trial judge rejected the application in an ex tempore judgment of 2 December 2020. His Honour encapsulated the applicant’s submissions as follows:

3. [90]

   His Honour’s reasons for rejecting the application were as follows:

4. [91]

   On appeal, the parties accepted that, in light of the decision of this Court in Rogerson v R; McNamara v R [2021] NSWCCA 160; 290 A Crim R 239 at [542]-[548], the “correctness standard” of appellate review is applicable, as distinct from that stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. Thus the task for this Court in addressing issues arising out of a s 137 decision is, after giving respect and weight to the trial judge’s views, to determine the issues itself, not simply to determine whether the trial judge’s conclusions were open.

5. [92]

   It follows from my conclusion on Ground 2 that the trial judge did not err in admitting the evidence of the pregnancy test because, on my view, the applicant should have been permitted to explore in cross-examination the possibility that the complainant had the pregnancy test because of her rape by Ian and there would not therefore have been any unfair prejudice to the applicant. That would still have been the correct result if (contrary to my view) s 293 operated to preclude the cross-examination for the reason, as the trial judge concluded in his s 137 judgment, that the complainant’s evidence that the rape by Ian occurred six months after the alleged sexual assault by the applicant (and therefore after the pregnancy test) was to be treated as conclusive.

6. [93]

   I have concluded in my reasons for upholding Ground 2 that there was in fact a reasonable possibility, which the applicant’s counsel was entitled to explore in cross-examination, that the rape by Ian occurred at an earlier time and was the cause of the pregnancy test. On that basis, there was considerable unfairness to the applicant in admitting the evidence of the pregnancy test but not allowing the cross-examination his counsel sought to undertake. Assuming that there was such a reasonable possibility but (contrary to my view) s 293 operated to preclude the cross-examination, the pregnancy test’s probative value would, in the words of s 137, have been “outweighed by the danger of unfair prejudice to the defendant” and evidence of the test should have been excluded.

7. [94]

   If, as I consider should have occurred, the cross-examination had been allowed, there would have been no unfair prejudice to the applicant and therefore no basis to reject the evidence of the pregnancy test.

ORDERS

1. [95]

   For the reasons I have given, Grounds 1 and 2 should be upheld and Ground 3 rejected. In these circumstances, the applicant’s convictions should be quashed and, by reason of the upholding of Ground 1, verdicts of acquittal should be entered. I propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal against his convictions.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the applicant’s convictions.

   4. (4)

      Enter verdicts of acquittal on the charges upon which the applicant was convicted.

2. [96]

   WALTON J: I have had the advantage of reading the draft judgments of Macfarlan JA and Rothman J. I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour.

3. [97]

   ROTHMAN J: I have had the advantage of reading, in draft, the carefully crafted reasons of Macfarlan JA. I agree with the orders he proposes and, except as set out in the following paragraphs, with his Honour’s reasons. I am able to be brief and I adopt the terminology of Macfarlan JA.

4. [98]

   It is unnecessary to analyse the evidence and the facts. I generally adopt the analysis of evidence of Macfarlan JA. It is necessary to deal with two issues: first, the construction of s 293 of the Criminal Procedure Act 1986 (NSW), recited in the reasons of Macfarlan JA; secondly, the analysis of the complainant’s evidence and the conclusions reached as a consequence.

5. [99]

   The provisions of s 293 of the Criminal Procedure Act significantly altered the availability of cross-examination on the subject of the complainant’s sexual experience. It was introduced at a time when cross-examination would be conducted about such matters, often in circumstances where its probative value was slight, but the evidence was deemed relevant. Such questions often sought to sully the reputation of the complainant so that a jury might consider that consent was a reasonable possibility.

6. [100]

   As a consequence of the promulgation of s 293 of the Criminal Procedure Act, this type of questioning was prohibited. The terms of s 293 also prohibit questions that may be deemed to have significant probative value.

7. [101]

   The legislature has preferred to allow a potential unfairness to an accused rather than permit the gross unfairness that was previously occasioned to complainants. Thus, the circumstance that the operation of s 293 of the Criminal Procedure Act operates to deny a relevant line of questions or relevant evidence cannot inform the interpretation of the provision.

8. [102]

   In order for evidence of the allegation that the complainant was raped by “Ian” to be admitted into evidence, it must be capable of rationally affecting the assessment of the probability of a fact in issue in the proceedings. [1] This can be a direct or indirect effect.

9. [103]

   The issue of fact, in these proceedings, is whether the pregnancy test was occasioned by the alleged rape or other sexual activity. This, in turn, affects whether there is a reasonable hypothesis inconsistent with the guilt of the applicant. It does so by denying efficaciousness to the evidence of the pregnancy test being corroborative of the complainant’s allegations.

10. [104]

    If the complainant had told others that she had been raped by Ian, then evidence of that conversation to prove the truth of its content would be hearsay. It may be an admission because it is a statement against interest, but the complainant is not a party to the criminal proceedings. [2] Of course, Ian may have been called to give evidence that he had penile/vaginal intercourse with the complainant.

11. [105]

    The circumstance that the complainant was raped by another, if that were so, adds nothing to the sexual activity. In other words, if the sexual intercourse with Ian occurred consensually, it would have the same probative value as would a rape.

12. [106]

    The applicant relies on the admissibility of that evidence by operation of s 293(4)(c) of the Criminal Procedure Act. As is obvious, the paragraph requires two conditions: first, an allegation of sexual intercourse that is denied; and, secondly, the sexual experience being utilised to assess the probability that the presence of semen, a pregnancy, disease or injury is attributable to the alleged, and denied, sexual intercourse.

13. [107]

    The first condition is plainly satisfied. As to the second, the complainant undertook a pregnancy test. It is not suggested that she was pregnant. Nor is it suggested that the complainant suffered from a relevant disease or injury.

14. [108]

    The applicant relies on the sexual experience being relevant to the presence of semen. Plainly, leaving aside a medically implanted foetus, all pregnancies require the presence of semen in a woman, even artificial insemination.

15. [109]

    However, the requirement for the “presence of… pregnancy, disease or injury” does not include a fear of pregnancy, disease or injury. Nor does it include a determination of whether the pregnancy, disease or injury exists.

16. [110]

    It is no different with semen. While ejaculation of a healthy male will ordinarily involve the emission of semen, not every ejaculation involves the discharge of semen. A pregnancy test is taken because, in this circumstance, there is a fear or perception that semen was discharged, which might cause pregnancy. A negative pregnancy test does not prove, or disprove, the presence of semen. It cannot therefore prove or affect the probability of whether semen, which is not proved to be present, was that of the accused person.

17. [111]

    The construction urged by the applicant ought not to be adopted. Where, in s 293(4)(c), the term “presence of semen” is used, it does not include the fear or perception of the presence of semen. It refers to circumstances where semen is located in, relevantly, the complainant and there remains a possibility that the semen may not be that of the accused.

18. [112]

    The other aspect upon which I seek to comment relates to the evidence of the complainant. I agree with Macfarlan JA that there is a reasonable hypothesis inconsistent with the guilt of the applicant; that an analysis of the evidence discloses that the jury must have had a reasonable doubt; and, that the conviction should be quashed. I do so on the basis of conclusions slightly different from Macfarlan JA.

19. [113]

    The evidence that I accept is that the complainant lived in a significantly dysfunctional family. Both parents abused substances and, it seems, were alcoholics. If I were able to determine guilt on the balance of probabilities, I would accept the allegations of the complainant. I think this assault occurred.

20. [114]

    The inability, if it be true, of the complainant’s siblings to observe the conduct in the loungeroom is explicable on the basis that there was a blanket being used to avoid detection. No other given purpose exists for the blanket’s use. Unless the complainant described the conduct at the time as sexual assault, it could appear to any onlooker as niggling or irritating behaviour by one sibling to another.

21. [115]

    I also accept that, when informed of the assault, the parents considered that it would not be in the interests of the family to pursue the allegations with Police. This was 1990. The level of understanding in the community was significantly different.

22. [116]

    Further, it was at a time prior to the promulgation of the Evidence Act and 15 years prior to the enactment of s 293 of the Criminal Procedure Act. The prosecution, if there were one, would have been an ordeal for the complainant. One then must add to those factors the family dynamic.

23. [117]

    Nevertheless, the assault was more than 30 years ago. There are some anomalies in the oral evidence compared with the independent records. I do not include in those anomalies the time between the visit to Dr Bright and the pregnancy test.

24. [118]

    A pregnancy test, at least in those days, would not have been undertaken before the next menstruation was due and, to my knowledge, usually six weeks thereafter. Such timing would easily account for the nine-week hiatus.

25. [119]

    Notwithstanding the above, there are details in the recollection of the complainant that are inconsistent with the records. Further, there is no evidence, except from the complainant, of contemporaneous complaint. Nor is there any independent evidence that overcomes the doubt created by the inconsistencies and the understandably poor recollection by the complainant of the details outlined by Macfarlan JA.

26. [120]

    It is for those reasons I have a reasonable doubt. It is for those reasons that, even though I believe the complainant, I consider there is a reasonable possibility that the applicant is not guilty, and I consider that the jury should have had the same doubt, even allowing for the benefit it had in observing the evidence. Consequently, I agree with the orders of Macfarlan JA as proposed.