Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: ROSS, James John v R [2012] NSWCCA 207
• Hearing dates: 29 May 2012
• Decision date: 26 September 2012
• Before: Allsop P at [1]; Hidden J at [69]; Davies J at [70]

Decision

1.Extend time for the filing of a notice of appeal to the date of the filing of the notice of appeal herein.

2.Appeal against conviction dismissed.

• Catchwords: CRIMINAL LAW - appeal against conviction - appellant convicted on 24 counts of sexual offences - appellant charged jointly or severally with complainant's mother - appellant and complainant's mother tried together - clear directions given by trial judge about use of evidence - no miscarriage of justice in joint trial; CRIMINAL LAW - appeal against conviction - evidence - admission of record of interview - trial judge declined to exclude parts of interview to which appellant answered "no comment" - trial judge declined to exclude evidence of medical examination - evidence not prejudicial or irrelevant - clear directions given by trial judge - no miscarriage of justice; CRIMINAL LAW - appeal against conviction - inconsistent verdicts - appellant acquitted on two counts at trial - evidence on all counts primarily that of complainant - acquittal on two counts not necessarily indicative of doubts about complainant's overall veracity - jury properly instructed - sound possible evidential bases for acquittal on two counts and conviction on 24 other counts - verdicts not inconsistent
• Legislation Cited: Crimes Act 1900 (NSW); Criminal Appeal Act 1912 (NSW); Evidence Act 1995 (NSW)
• Cases Cited: DD v R [2010] NSWCCA 237; Demirok v R [1977] HCA 21; 137 CLR 20; Dungay v R [2010] NSWCCA 82; Gilbert v R [2000] HCA 15; 201 CLR 414; Jones v R [1997] HCA 56; 191 CLR 439; MFA v R [2002] HCA 53; 213 CLR 606; R v Baartman (NSW Court of Criminal Appeal, 6 October 1994, unreported); R v Dellapatrona (1993) 31 NSWLR 123; R v Demirok [1976] VR 244; R v Fernando [1999] NSWCCA 66; R v Harbach (1973) 6 SASR 427; R v Middis (Supreme Court of NSW, 27 March 1991, unreported); R v Murray (1987) 11 NSWLR 12; R v Plevac (1995) 84 A Crim R 570; R v Reeves (1992) 29 NSWLR 109; R v Skaf [2004] NSWCCA 74; TK v R [2009] NSWCCA 151; 74 NSWLR 299; Webb and Hay v R [1994] HCA 30; 181 CLR 41
• Category: Principal judgment
• Parties: James John Ross (Appellant); Regina (Respondent)
• Representation: G Corr (Appellant); J Girdham (Respondent); O'Briens Solicitors (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2008/5243

Decision under appeal

• Date of Decision: 2010-06-11 00:00:00
• Before: Woods DCJ
• File Number(s): 2008/11/1024

Judgment

1 ALLSOP P: This is an appeal by Mr Ross under the Criminal Appeal Act 1912 (NSW), s 5(1), against convictions on 24 counts of sexual offences after a jury trial concluding on 9 November 2009.

2 Sentence was passed on 11 June 2010. The notice of appeal was filed in August 2011.

3 At the time of the offences the appellant was in his mid-twenties, a truck driver and a casual friend of the mother of the complainant. Their relationship was a sexual one.

4 The appellant and the mother faced trial together upon an indictment containing 34 charges of sexual offences relating to the daughter, who was at the time 13 years of age. The offences were said to have taken place in three episodes and at three locations.

5 Counts 1 to 10 related to offences with which the appellant and the mother were jointly charged and which occurred at Tilbuster near Armidale between 1 January and 1 February 2004.

6 Counts 11 to 17 also related to offences with which the appellant and the mother were jointly charged. These occurred at Yamba between 26 April and 16 July 2004. The appellant was charged alone in count 18 with an offence also said to have occurred at Yamba between those dates.

7 Counts 19 to 34 related to offences with which the appellant and the mother were severally charged and which occurred at Beresfield on or about 5 September 2004. In relation to these offences the appellant was charged as a principal (counts 19, 21, 23, 25, 27, 29, 31 and 33) and the mother as an accessory before the fact (counts 20, 22, 24, 26, 28, 30, 32 and 34).

8 There was a joint trial in September 2008 before a judge of the District Court (Black DCJ) and jury at Lismore. Black DCJ refused an application for a separate trial. The complainant's evidence was given by video and a record was kept of it. Both the appellant and the mother gave evidence at that trial. The jury was discharged following alleged impropriety during deliberations.

9 On the re-trial before Woods DCJ, the ruling as to a joint trial was not canvassed. The complainant's evidence at the first hearing and the record of two interviews that she gave to the police (24 October and 8 November 2005) were read to the jury. The appellant's and the mother's evidence from the earlier trial was tendered by the Crown. Neither the appellant nor the mother gave or called any evidence in their cases at the re-trial.

10 It is important to note at this point that while the evidence of the appellant and the mother was admissible against each other at the first joint trial, the evidence of each at the retrial was only evidence against them individually. This was potentially productive of difficulty since there were important inconsistencies in their evidence. Most importantly, in relation to the second episode at Yamba, the mother said that, after having taken some time to have a shower and taking some drugs, she re-entered the living room to find the appellant and the complainant naked on the sofa bed with the complainant having a vibrator inside her vagina. The mother said that she protested and began to dance flirtatiously to distract attention from the daughter. The appellant denied that these events took place, denied any sexual contact with the complainant and denied being naked. I will return to the evidence shortly. It should be noted that there was no objection to the reading of the accuseds' evidence to the jury on the retrial. Clear directions were given about its use. There was no revival of any application for a separate trial.

11 The appellant and the mother were both found not guilty of the joint charge in count 15, which was a charge of sexual assault (fellatio) aggravated by threats of actual bodily harm by means of an offensive weapon (a knife). The appellant was found not guilty of count 18, a charge he faced alone, being an allegation of penile vaginal intercourse. On all other counts, the appellant and the mother were found guilty.

12 The appellant was sentenced to imprisonment with a non-parole period of eight years commencing on 16 October 2009 with a balance of term of four years. There is no application in relation to the sentence.

13 The following recounting of the facts is taken from the Crown's submissions and Summary of Trial drawn in large part from the complainant's evidence prepared by the Crown, to which no objection was taken by the appellant.

Background

14 The appellant was a long distance truck driver. He struck up a sexual relationship with the complainant's mother. He visited her from time to time and they shared interests in sex and drugs. At the relevant time, 2004, she was a heavy abuser of the drug known as "ice" (methamphetamine) and marijuana. His indulgence in drugs appears to have been limited to using methamphetamine and the like to keep him awake when driving, and he was able to supply her with certain drugs from time to time. The mother was divorced. Torn between her parents who had broken up, in part a result of the mother's heavy drug abuse, the complainant, around the summer holidays of early 2004, was eager to leave Sydney and live with her mother, at least for a while. It was during this period, a time of heavy drug use by her mother, that the complainant came in contact with the appellant and these offences occurred.

The Tilbuster episode

15 Count 1 alleged an act of indecency at Tilbuster; there the appellant was said to be naked on a lounge playing with his penis in her presence. Count 2 involved the mother dancing about using a vibrator upon herself in the presence of the complainant, again an act of indecency charge. Counts 3, 4 and 5 involved the appellant inserting vibrator into the vagina of the complainant, contravening s 61J of the Crimes Act 1900 (NSW) (sexual intercourse without consent of the girl aged thirteen). Count 6 was a charge of indecent assault, of the appellant sucking the child's breasts; count 7, penetration of the vagina with his fingers; count 8, licking her vagina; count 9 was like conduct involving the mother as well. Count 10 was the culmination of these events in the house at Tilbuster when the child came back into the bedroom where the appellant and the mother were, and the appellant ejaculated over both of them. That was an indecent assault.

The Yamba episode

16 The offences at Yamba included count 11, being another episode of sex between the two where the child became involved. The act of indecency consisted of the mother using a vibrator on herself in the presence of the complainant and the appellant, the latter of whom had tied the mother to a bed in some sexual byplay at a time when the mother was severely affected by drugs. The appellant licked the child's vagina (count 12) and penetrated her with his fingers (count 13), this amounting in law to sexual intercourse. The appellant made the child masturbate his penis, constituting the indecent assault in count 14. Count 16 was an act of indecency with the mother again using vibrators on herself in the presence of the child. Count 17 was another act of indecency involving the mother's vagina in the presence of the child.

17 Count 15 (of which both the appellant and the mother were acquitted) was said to have involved the appellant threatening the complainant with a knife in order to coerce her to perform fellatio upon him.

18 Count 18 concerned a charge only against the appellant. It was alleged to have occurred on the Sunday morning following the events of the previous evening. The mother was at church. The appellant was alleged to have forcibly had sex with the complainant.

The Beresfield episode

19 Later in 2004, at a point in time when the relationship between the appellant and the mother had altered and the latter had made some efforts to minimise the quantity of drugs she was abusing, an event occurred when the mother took the complainant to Sydney to see her father, from whom the mother was estranged. The arrangement was that the mother would go off with her new partner on some social activity, which apparently she did. Beforehand she had arranged to meet up with the appellant (who was still driving trucks) at a point near the Wahroonga turn-off to the north of Sydney on the freeway to Newcastle. There, it was alleged by arrangement with the appellant, the mother put the young girl into the cabin of the truck with the appellant, who went off on a road trip. During the course of that trip he put his hands onto her vaginal area and the offences in counts 19 and 20 were committed. He put her hand on his penis and the offences in counts 21 and 22 were committed. In the course of the trip he arrived at the BP service station at Beresfield and parked. It was there that he touched the complainant on the vagina and counts 23 and 24 were committed. There was further sexual contact between him and her, touching on her breast and placing her hand on her own vagina; counts 25, 26, 27 and 28 were thereby committed. Further on in the course of this enterprise, he digitally penetrated her vagina (counts 29 and 30) and her anus (counts 31 and 32). Then there was fellatio and counts 33 and 34 were committed.

20 The appellant then drove back to Sydney where they met up with the mother late at night. The mother asked the child what had happened, to which the girl replied "Everything, thanks to you". The complainant's evidence was that her mother replied "Let's not talk about it ever again, and if you do you're not my daughter. Don't tell anyone".

Complaint

21 The complainant in 2005 told her mother's former employer, a Ms Rosita Churchill, and her father that she had been sexually assaulted by a truck driver who worked for Lindsay Bros. She also said that her mother was not involved. She said that she said this because she loved her mother and did not want to get her into trouble. The complainant's father informed the police. When she found out that he had done this, the complainant became angry, telling him that she loved her mother. The complainant then went to the police and said that everything that she had said was a lie. She said this because she feared she would not be allowed to live with her mother, which she still wanted to do. Later, the mother became hysterical and threatened violence against Ms Churchill when the complainant said that she wanted to stay with Ms Churchill. At this point the complainant, with Ms Churchill, approached the police for an apprehended violence order. It was also at about this point that the complainant told the police of what had happened and of her mother's involvement, although she said that she did not want police involvement but counselling.

22 The complainant had been a regular user of marijuana during 2003 and 2004. She said that while it made her paranoid and fearful, she did not have hallucinations or believe that bad things had happened to her which had not happened. She was still smoking marijuana when she made the complaint to Ms Churchill and her father, but had stopped by the time she spoke with police.

23 The complainant admitted that she had been violent towards other students at her school. While she considered herself independent and did what she wanted to do, she was scared of not having a mother and scared of her mother not loving her.

Ground 1 - Separate trials

24 The appellant and the mother were jointly charged with a number of the offences. In the ordinary course one would not expect them to be tried separately: R v Demirok [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]-[212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and careful directions as to the use of evidence: R v Harbach (1973) 6 SASR 427 at 433. There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused: Demirok; Webb and Hay v R [1994] HCA 30; 181 CLR 41 at 89.

25 In R v Baartman (NSW Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported), the Chief Justice accepted as stating the relevant principles what Hunt J had said in R v Middis (Supreme Court of NSW, 27 March 1991, unreported):

"1.Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

2.where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3.where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

26 There is a balance to be struck between the public interest and any prejudice to the accused, relevant to which assessment is whether there is positive injustice to the accused: R v Dellapatrona (1993) 31 NSWLR 123 at 133.

27 The application made before Black DCJ prior to the commencement of the trial before him was that there should be separate trials because of prejudicial evidence that was admissible against the mother but not against the appellant. That evidence was in the form of telephone intercepts and listening device records made in 2007.

28 Some time had been taken in investigating the allegations and finding the appellant. The complainant had not lived with her mother for over a year when she spoke to the complainant in telephone calls and a meeting that were (obviously without the knowledge of the mother) recorded.

29 At the appeal, counsel for the appellant relied specifically upon parts of the transcript. I will go beyond what counsel relied on in these reasons.

30 Exhibit S was a transcript of a telephone intercept on 5 April 2007. It contained the following:

"MOTHER:(Telephone ringing) Hello.

COMPLAINANT:Hello, mum.

MOTHER:Is that you [complainant's name]?

COMPLAINANT:Yeah.

MOTHER:[Complainant's name], are you all right?

COMPLAINANT:Yeah.

MOTHER:What's wrong.

COMPLAINANT:I love you.

MOTHER:I love you just so much. Where are you?

COMPLAINANT:At home.

MOTHER:What's up?

COMPLAINANT:I just wanted to call you.

MOTHER:Do you smoke?

COMPLAINANT:No.

MOTHER:Nothin'?

COMPLAINANT:No, no cigarettes, no pot, no way.

MOTHER:Are you sure?

COMPLAINANT:Yeah. Do you?

MOTHER:Yeah.

COMPLAINANT:Yeah.

MOTHER:That's all.

COMPLAINANT:No, no speed?

MOTHER:No.

COMPLAINANT:How long's it been?

MOTHER:Oh, I don't know. Since before you went.

COMPLAINANT:Since before I went?

MOTHER:Yeah.

COMPLAINANT:Mum?

MOTHER:What?

COMPLAINANT:What about Jamie?

MOTHER:Jamie, oh ---

COMPLAINANT:Yeah.

MOTHER:Oh, I don't, I haven't, no one.

COMPLAINANT:'Cause I, I get nightmares from him.

MOTHER:Well, you couldn't tell me about it.

COMPLAINANT:No, I, I, I don't ---

MOTHER:Not on the phone.

COMPLAINANT:OK. Sorry.

MOTHER:.... So, do you want to tell me on the phone?

COMPLAINANT:Yeah.

MOTHER:Go on then.

COMPLAINANT:I just don't ---

MOTHER:Are we alone?

COMPLAINANT:Yeah.

MOTHER:Are you sure?

COMPLAINANT:Yeah, mum, of course.

MOTHER:Well, we weren't last time when all hell broke loose.

COMPLAINANT:Mum, I wouldn't do it to you again, I love you.

MOTHER:OK. Talk then.

COMPLAINANT:I don't know, it's just making me feel sick sometimes and I get really sick from it. I don't like it.

MOTHER:Well, we have to talk about it when you're ready.

COMPLAINANT:Armidale really gets me.

MOTHER:What happened then?

COMPLAINANT:And the truck, when Jamie ---

MOTHER:What happened?

COMPLAINANT:When he tied you to the bed, and did whatever he wanted to me. Remember? In Armidale? I don't know. I don't know, it just made me feel like it was a threesome.

MOTHER:Well, it wasn't.

COMPLAINANT:It wasn't? I love you, mum.

MOTHER:I love you too, [complainant's name]."

31 Exhibit T was a transcript of a telephone intercept on 8 April 2007. It included the following:

"MOTHER:How you goin'?

COMPLAINANT:Good, how are you?

MOTHER:Good.

COMPLAINANT:What you doin'?

MOTHER:Playing scrabble.

COMPLAINANT:Cool, do you want to talk to me?

MOTHER:Yeah, I'm right to stop.

COMPLAINANT:Yeah?

MOTHER:Yep.

COMPLAINANT:Happy Easter.

MOTHER:You too.

MOTHER:I, I, I was thinking you and me should go to some sessions together and see what issue's there.

COMPLAINANT:Yeah.

MOTHER:Do you want to?

COMPLAINANT:Yeah, 'cause you know, every time I see a Lindsay Brothers truck I just, I just loose it, I freak, I shake.

MOTHER:Like can we talk about it in person first?

COMPLAINANT:Yep, yep.

MOTHER:All right.

COMPLAINANT:I love you mum.

MOTHER:I love you."

32 Exhibit W is a transcript of a telephone intercept on 18 April 2007. It included the following:

"COMPLAINANT:Mum, I've been trying to call you for ages.

MOTHER:I know. What's goin' on? What's happened to my phone?

COMPLAINANT:Your phone's been off for like all last night, all today.

MOTHER:No, you must've rang when someone was on it.

MOTHER:All right, listen, um, I've been to my psychiatrist today and I got um, phone numbers and that for counsellors down there that do it with mother and daughter things, it's for victims of crime.

COMPLAINANT:Victims of crime, what do you mean?

MOTHER:Um, victims um, it's a psychiatrist ---

COMPLAINANT:Am I a victim of crime?

MOTHER:No, well I am, and, and you are, have been around me when I was doing crimes and that, you know what I mean?

COMPLAINANT:What kind of crimes, mum?

MOTHER:You know crimes, [complainant's name], you know what I mean, like I was just ---

COMPLAINANT:Naughty.

MOTHER:--- taking drugs.

COMPLAINANT:Yeah.

MOTHER:Yeah, naughty and all that, wasn't I?

COMPLAINANT:Yep.

MOTHER:And it involved my whole family, didn't it?

COMPLAINANT:Yep.

MOTHER:And now you're ---

COMPLAINANT:I need counselling, mum.

MOTHER:I was just going to say, and now you need counselling, so ---

COMPLAINANT:I need it heaps bad.

MOTHER:Are you listening?

COMPLAINANT:Yeah.

MOTHER:So this lady, her name's Cheryl McCombie in Coffs Harbour, she specialises in ---

COMPLAINANT:Cheryl McCombie?

MOTHER:Yeah, she specialises in what we both need to do together for counselling.

COMPLAINANT:Oh ...

MOTHER:Anyway ---

COMPLAINANT:And um, I need counselling about Jamie.

MOTHER:Yeah, but she does that as well.

COMPLAINANT:Because I was only 13 and it's really screwing with my head.

MOTHER:Yep. OK. I'd rather talk to you in person about it.

COMPLAINANT:Yep. I will."

33 Exhibit U was a transcript of a meeting at McDonald's on 23 April 2007. It included the following:

"COMPLAINANT:Mum, I think I/we need counselling.

MOTHER:I know.

COMPLAINANT:Yeah ...

MOTHER:We've got to talk. I don't want to do it today 'cause I want to have a good day.

COMPLAINANT:Yeah, but ...

MOTHER:All I want to say is, right I don't remember very much right, and what I do remember is patchy and we need to talk about it, about your participation in it all as well, so we can get it all out ... for you a little bit. But when you said Armidale, I was ... Yamba, not Armidale. I don't know what the fuck happened in Armidale. I have no recollection and I reckon he drugged me.

COMPLAINANT:Well, he drugged me (emphasis) Mum, as well.

MOTHER:He drugged me because I don't have any recollection of Armidale whatsoever.

COMPLAINANT:I dunno, I just, I dunno. I really don't like it.

MOTHER:Well, we'll fix that. We're booked in -

COMPLAINANT:Do you reckon if I went to the police about it, you'd help me, or not?

MOTHER:I think we should get counselling first before you do that, do you?

COMPLAINANT:Yeah.

MOTHER:And I need to know what happened, everything before we go to counselling.

COMPLAINANT:But would you help me with it?

MOTHER:Yeah. I'll help you. All right.

COMPLAINANT:And with the police (pause) 'cause it makes me so sick.

MOTHER:... I will ... talk about it, cry about it, everything. All right?

COMPLAINANT:Yeah.

MOTHER:I can't go to counselling or I can't go to the police until I know what I've done.

...

MOTHER:I don't want to, I haven't been able to even looked at a little kid in the face without thinking their mother is gonna be thinking ... paedophile and no one knows what happened or ... AVO shit, no one knows about that, but I can't even look at a kid ... think that everyone thinks I'm some paedophile. I don't want to cry. We'll get over this, all right. We'll get over this.

COMPLAINANT:Yeah.

MOTHER:We'll get over it. I'm really, really, really sorry for any ...

COMPLAINANT:It's all right, it's all right. We'll get through it, we always do.

MOTHER:You think we've got problems ...

COMPLAINANT:We do have problems.

MOTHER:Not like that.

COMPLAINANT:Mum, you have to remember everything ... Can you try?

MOTHER:I have for 12 months.

COMPLAINANT:What about the truck? Remember that, from Sydney to Newcastle, back to Sydney.

MOTHER:With Scott?

COMPLAINANT:No with Jamie. That was so bad.

MOTHER:What happened?

COMPLAINANT:For 4 hours.

MOTHER:Hey?

COMPLAINANT:For 4 hours I was in that truck.

MOTHER:By yourself?

COMPLAINANT: Yeah, that's ... that's when we were with Scott.

...

MOTHER:Yeah, that's what I said. Well, you got in the truck.

COMPLAINANT:I didn't want to.

MOTHER:But you begged me.

COMPLAINANT:I did not Mum.

MOTHER:You did. I didn't want you to go.

COMPLAINANT:...

MOTHER:Scott was saying 'no' to me ...

COMPLAINANT:And he's going ...

MOTHER:I am sick too Jamie. Yeah but like I was saying no and so was Scott. Scott abused the fuck out of me.

COMPLAINANT:I didn't want to go Mum . (pause) What about in Yamba, when he came over to our house and then the next morning you went to church ... (whispering) ... sex with me ...

MOTHER:While I was gone?

COMPLAINANT:Yeah.

MOTHER:Why did you do that?

COMPLAINANT:I didn't Mum. I was saying no.

MOTHER:....

COMPLAINANT:I didn't. He raped me. I didn't want that.

MOTHER:I asked you -

COMPLAINANT:I know.

MOTHER:I couldn't do anything when you tell me lies..."

34 Exhibit V was a transcript of a telephone intercept also on 23 April 2007. It included the following:

"COMPLAINANT:Hi. It was good to see you today, but I don't know, I just, you know how you kept saying you didn't remember?

MOTHER:Said what

COMPLAINANT:How you didn't remember?

MOTHER:Yeah.

COMPLAINANT:Mum, you have to remember, come seriously I remember and it's really eating me up. I just, I don't know, I'm cranky about it, it's just annoying me.

MOTHER:There are things I remember.

COMPLAINANT:Like what, what do you remember?

MOTHER:(No audible reply)

COMPLAINANT:Do you remember when he tied you down to the bed and then he blinded folded ya and he was like licking you out and then he licked me out?

MOTHER:No.

...

MOTHER:No, [complainant's name], I have nightmares every day, every day, every night, and I imagine all these things that may have been going on then. You know what I mean? Awful things and then I don't know what's reality and I don't know what's fucking not reality. I see monsters in my dreams and you and me in my dreams. I don't know what's real and what's not. I'm, you know that I'm not well that way. You know, like, I've been through too much like you [complainant's name], more 'cause I'm an adult, so I've fuckin' seen more, I need the counselling ...

COMPLAINANT:What about the vibrators mum, do you remember that?

MOTHER:Do you remember me saying, no?

COMPLAINANT:No, mum, I don't.

MOTHER:You don't remember me saying no, no, no, it isn't right, you don't remember me saying that?

COMPLAINANT:No.

MOTHER:So you've blanked things out too?

COMPLAINANT:Mum, I haven't blanked anything out. I have nightmares all the time.

MOTHER:I know you have nightmares, [complainant's name], I have nightmares too. Is this a lead up to you going to the police, is that what it's all about?

COMPLAINANT:No, I'm not going to the police, I just want to know how you feel about it, because I don't feel right about it.

Mum, I'm so confused and cranky, I just, I don't know, I just want to know, mum, you make me get in that truck.

MOTHER:I did not.

COMPLAINANT:You did, mum.

MOTHER:I did not [complainant's name]. This is where you're getting things wrong.

COMPLAINANT:I'm not wrong, mum.

MOTHER:I don't know what you want me to say to you, [complainant's name].

COMPLAINANT:Are you sorry?

MOTHER:Fucking sorry, I'm sorry I even left fucking home, I'm sorry I fucked up your head, I'm sorry I fucked up Hugh's head, I've got to live with it all my life. Don't you think I'm a nice enough person to be crucifying myself mentally over everything that's happened, eh, [complainant's name]?

COMPLAINANT:I know you are mum, but like ---

...

COMPLAINANT:Mum, all I remember it was like they were threesomes.

MOTHER:Well, I don't see it like that. I told you today, like, I find it hard to even go near any children, because of that fucking AVO shit. Can't you know, I work, I've been working as a cleaner or in a kitchen, where I don't have to see people."

35 There is no clear admission by the mother in the above evidence; what it lacks, however, is a clear denial of the events taking place, other than making the complainant go in the truck with the appellant.

36 The reasons given by Black DCJ for not separating the trial were as follows:

"The overall background is that both accused face allegations of sexual impropriety, to put it as neutrally as I can, made by the complainant. There is some medical evidence, not, of course, implicating either of the accused but consistent with something having happened to the private parts of the complainant at the relevant time. There is general surrounding evidence indicating a relationship, I am told, I have not gone into the strength of it, between the two accused. What is said by Mr O'Connor [counsel for Mr Ross] is that, in particular, there are apparent concessions by the accused [mother] that she needs counselling treatment as a result of sexual activities including her daughter, the complainant. There is, further, an assertion in the listening device transcript by [the mother] that drugs had been administered to her by the accused James John Ross. That is the height of it. Mr O'Connor says that there is going to be an inference drawn that the complainant's account of sexual impropriety involving at least her mother and, of course, on the complainant's account, the accused James John Ross, is therefore going to be supported improperly against James John Ross, is therefore going to be supported improperly against James John Ross by these remarks by the mother in the listening device transcript. He further went on to say, although not expressly this afternoon, that it may be that there is a cut throat defence here and that is capable of giving rise to injustice between the two accused.

I fail to see anything particularly unusual about the matters that I have had drawn to my attention. I do not see that ordinary directions would be incapable of dealing with the admissibility of evidence as far as each of the accused is concerned. I have had sufficient time to form a view about the calibre of juries in this area and, in my view, they are conscientious and very careful to listen to legal directions and, in my experience, to act in accordance with them so far as I can tell. This is not as a result of any private questioning of jurors, it is my observance of the cases conducted in this court and the way the juries appear to approach them and their general manner and the questions they asked. I see no problem at all in juries understanding the relevance of evidence in relation to each separate accused and I see no reason to think that the particular matters complained of here would make it in any way impossible or improbable for them to carry out observance of directions to treat each accused separately and the admissibility of evidence separately. Accordingly I am, to put it either way, in my view, I am satisfied that a joint trial would not cause positive injustice to Mr Ross with great respect to the matters argued by Mr O'Connor and, therefore, the application is refused."

37 As I have indicated above at [9], the question of a separate trial for the appellant was not canvassed before Woods DCJ at the second trial of this matter, which is the relevant trial for this appeal. I do not think that Black DCJ's discretion miscarried. He took into account all relevant considerations. At the second trial, Woods DCJ gave clear directions as to the use of the material: that it could not be employed against the appellant. No complaint was made about those directions.

38 Nevertheless, the matter before this Court was argued on the basis of the entitlement of this Court to interfere if persuaded that the conduct of the trial constituted a miscarriage of justice: R v Demirok [1976] VR 244 at 251.

39 The mother was examined in chief and cross-examined at some length about all these conversations. She had some explanation for all potentially damaging aspects of the conversations. That said, her explanations were, on their face, less than compelling. It can be inferred that the jury thought this by its findings of guilt.

40 As I have already said, the whole of the mother's evidence, and not merely the records of these conversations, was not admitted against the appellant. No complaint was made about the joint trial, however, other than by reference to the evidence of the taped conversations.

41 The case against both the mother and the appellant was fundamentally the recorded testimony of the complainant. An examination of the evidence of the appellant given at the first trial and tendered against him at the second trial reveals a body of evidence that is far from impressive. One example will suffice. He admitted dropping in at the house at Tilbuster, but only to deliver basic supplies of cigarettes, milk, biscuits, etc. He said he stayed 20 minutes. Though in a sexual relationship with the mother at this time, he said he did not stay and have sex with her, because 20-30 minutes was not long enough even to have a "quickie". A perusal of his answers in cross-examination reveals a less than impressive transcript. This evidence conflicted with the mother's, but her evidence was not admissible against him at the second trial. It conflicted profoundly with the complainant's, which was the basis of the conviction.

42 The trial judge and the jury were faced with a difficult task, given how the trial had come about. The starting point is to recognise that the trial judge gave the clearest possible directions, both in writing and orally, about the necessity to decide the appellant's case without the evidence of the mother and exhibits S, T, U, V and W (being the records of conversations). No complaint was made about those directions. The operation of the criminal law requires the assumption that, as a general rule, juries follow directions: Gilbert v R [2000] HCA 15; 201 CLR 414.

43 When one considers the whole of the evidence, in particular the detailed evidence of the complainant and of each of the appellant and the mother, including the cross-examination of each, there is the basis for a more than comfortable conclusion that it was plainly open to convict both, restricting oneself to the evidence against each in conformity with the trial judge's direction. There were significant parts of the evidence of both the mother and the appellant that are unimpressive. I have already mentioned the evidence about not staying at Tilbuster for longer than 20 minutes. The evidence the appellant gave about the four hour ride with the complainant was less than persuasive - that she was asleep for long periods and that he had a shower to remove heavy grease from his arm. Though not logically flawed, the answers in their context inspire no confidence in veracity.

44 The appellant argued that there was irretrievable and unavoidable prejudice. I do not agree. A misuse of the evidence against the mother was possible. It should not be assumed that it occurred. It has not been demonstrated to have occurred.

45 I am not persuaded of any miscarriage of justice on this ground.

Ground 2: The admission of the record of interview

46 The Evidence Act 1995 (NSW), s 89, is in the following terms:

"(1)In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a)to answer one or more questions, or

(b)to respond to a representation,

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2)Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3)Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4)In this section:

inference includes:

(a)an inference of consciousness of guilt, or

(b)an inference relevant to a party's credibility."

47 An electronically recorded interview of the appellant was played in evidence. There were a large number of questions to which the answer "no comment" was given by the appellant.

48 Black DCJ had declined to exclude this evidence of "no comment". He did so in a short ex tempore judgment of 2 September 2008.

49 It was put on the appeal that in some fashion the parties had agreed to be bound by this ruling. However, an examination of the transcript before Woods DCJ indicates that there was no objection to the tender of the record of interview. It was admitted without objection. The matter should, however, be approached on the basis of both the admissibility of the totality of the record and any prejudice to the appellant.

50 The matter is to be approached first by the recognition that the trial judge gave clear directions to the jury that the appellant was entitled to say nothing to the police and that nothing could be inferred from any refusal to comment.

51 Much of the debate that took place before this Court was as to the legitimacy of the proposition that the whole of the record of interview was admissible in order to show the fairness of the police procedure. This approach has its genesis in decisions such as R v Reeves (1992) 29 NSWLR 109 and R v Plevac (1995) 84 A Crim R 570. It should be noted that in this case the last few questions and answers reveal that the appellant did not unequivocally accept that the questioning had been fair. It could be accepted that whilst there had been no allegation in the first trial of unfairness in treatment by the appellant that matter could not necessarily be excluded.

52 It should be noted that in fact counsel for the appellant at the trial sought to obtain advantage from the conduct of the record of interview. In addressing the defence case it was said that the appellant attended the police station not appreciating what the allegations were, in that they involved the complainant and not her mother. Counsel then addressed on the basis that once the interview got to a certain point and the allegations became "gross and disgusting" he broke down and this plainly indicated his innocence.

53 Now is not the occasion to review comprehensively the relationship between pre-Evidence Act authorities such as Reeves and Plevac and the operation of s 89. Given the lack of unequivocal acceptance in the record of interview of the fairness of the questions, the lack of objection to the evidence and, more importantly, the actual utility sought to be obtained by defence counsel from the content of the record of interview, I do not think there is any ground to complain about the admission of the totality of the record.

54 In all the circumstances, I do not think, in the light of the clearest of directions by the trial judge, that there was any miscarriage. Further, on the authority of Reeves and Plevac this is a basis to conclude that there was a purpose in the evidence other than an impermissible purpose of inference from silence.

55 The above said, the provisions of s 89 are a statutory recognition of a fundamental right. It should not be relegated to irrelevance by tenders to avoid a challenge to fairness of procedures which are not real. Here, there were matters within the record which were facts in issue, such as where he had worked and that he had known the mother and the like. Editing of the transcript would have been straightforward. I do not, however, think there has either been error demonstrated or any likely injustice in the light of the clearest of directions to the jury.

Accumulation of grounds 1 and 2

56 During argument there arose the question as to whether the appellant faced a particular difficulty by reason of the accumulative effects of the record of interview being admitted and also the records of the conversations between the complainant and the mother.

57 When one considers the totality of the evidence, including in particular the evidence of the complainant, the appellant and the mother, and the cross-examination of all three, and when one considers the clarity of the trial judge's directions, I do not think that there was any risk of additional prejudice by any form of accumulation.

Ground 3 - medical examination

58 The evidence of a Dr Guard was admitted. That evidence was directed to the condition of the complainant's hymen upon examination in November 2005. Two deficiencies were found, indicating that at some point in the past there had been a laceration that split the hymen leaving a scar or gap. Dr Guard could not say when it happened, only that something had penetrated to the edge of the hymen to cause it. She could not say what force or use occasioned it. She said that one penetration could have caused the injury. The injury was consistent with the allegation that the complainant's vagina was penetrated by fingers, the vibrator or a penis.

59 The complaint was made that the evidence was prejudicial and irrelevant. The decision of R v Skaf [2004] NSWCCA 74 at [297]-[298] was called in aid.

60 First of all, there was no objection at the trial to the evidence. Leave is required to raise the point. In my view leave should not be granted and if leave were granted this ground of appeal should be dismissed. The trial judge directed the jury in this respect in a way that demonstrates why those two results should flow in relation to this ground. The trial judge said the following:

"You will recall that Dr Guard gave evidence that there was some tearing of the hymen at two points and she indicated that this was consistent with at least one exercise of something having been inserted into the vagina. But her evidence is a year after the event and it is a matter for you to determine what you make of that. That evidence is put forward not as direct evidence linking Mr Ross with the tearing of the hymen, it is merely put forward to indicate that it is at least consistent.

On this point of consistency I should say this to you. The mere fact that something is consistent with something else does not mean it was true. If there is a murder investigation and the police find some blood on the ground, blood group B. It may turn out that you have blood group B, but that does not mean you are guilty of murder. Consistent is a term which simply means that the evidence does not exclude the person and is not to be taken any higher than that. One then looks to other evidence.

...

So, in this case, the Crown asserts it is consistent with the evidence of Dr Guard that what the accused Ross is said to have done could have occurred. Now, that is logically correct, but it could physically be done by anybody at all, that it is to say, there is nothing in the injury itself which pointed to this particular accused as distinct from me or anybody at the bar table or any of you. Consistency means that a certain conclusion is logically possible, but not necessary."

61 The evidence was not irrelevant. If no evidence were led about the matter it may have been a matter to which the jury would turn its mind. Without any evidence the jury may be led to speculate about the physical condition of the complainant. There is no basis to think that with the direction given by the trial judge there could be any prejudice. In the light of these matters, and in the light of the fact that no objection was taken, this ground fails.

Ground 4 - inconsistent verdicts

62 The appellant submitted that the fact that he was found not guilty on two charges indicates that there were inconsistent verdicts and for that reason the verdicts were unsafe and unsatisfactory. The submission was that it was difficult to see how it was open to the jury to be convinced beyond reasonable doubt in respect of all the other matters when the appellant was acquitted of counts 15 and 18: cf Jones v R [1997] HCA 56; 191 CLR 439.

63 The appellant also pointed out that count 18 was the only count that did not in some fashion involve the mother. This, it was said, placed heightened focus upon the evidence against the mother (otherwise inadmissible against him). The answer to both aspects of this complaint is to be found in an understanding of the evidence by reference to well known authority.

64 There is no general rule that where several charges all depend upon the evidence of one complainant, acquittal on one demands acquittal on all. The assessment of the evidence of a witness is more sophisticated than that: see DD v R [2010] NSWCCA 237 at [26]; Dungay v R [2010] NSWCCA 82; MFA v R [2002] HCA 53; 213 CLR 606.

65 The acquittals on counts 15 and 18 do not necessarily signify any doubt about the fundamental veracity and acceptability of the evidence of the complainant. The jury, properly instructed, was to exercise caution in assessing all the evidence of the complainant. Although there was no corroboration of the complainant's account of the conduct alleged in each count, she had not initially spoken of the whole of the conduct that was reflected in count 15 and had not mentioned count 18 at all during her first interview. A direction in accordance with R v Murray (1987) 11 NSWLR 12 was given to the jury to scrutinise the complainant's evidence with care. As the Chief Judge at Common Law observed in TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [7], "[i]t may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant's account."

66 The reference to the knife was less than compelling in the interview. It appears that the only reference to it was made concerning the alleged events amounting to count 15. Yet at the trial, when asked by the Crown Prosecutor if the appellant used the knife on her at any time, she replied "[h]e always had the knife; he just didn't use it". When cross-examined by counsel for the appellant about references to the knife, there were answers of an indefinite character about what she had said about the knife to others. There was also difficulty in description of the knife. Both counsel for the accused addressed the jury strongly in relation to the answers about the knife. A doubt about the presence of the knife had the potential to affect the jury's assessment of count 15 and also about count 18 which occurred the following morning. If there was a doubt about threats with a dangerous weapon the evening before, there may have been a doubt about the events of the following morning. Further, the complainant had not spoken of the events the subject of count 18 at all in her initial interview with police on 24 October 2005.

67 Thus, there are sound possible reasons for the explanation of the jury's approach to counts 15 and 18 that reflect the cautious approach by a jury carefully and precisely instructed by the trial judge.

Result of the appeal

68 For the above reasons none of the grounds are made out. Leave is required because an extension of time was required for the filing of the notice of appeal. No objection was made to that beyond the substance of the opposition to the appeal. In my view the orders of the Court ought to be:

1.Time be extended for the filing of a notice of appeal to the date of the filing of the notice of appeal herein.

2.Appeal against conviction dismissed.

69 HIDDEN J: I agree with the orders proposed by the President and with his Honour's reasons. As to ground 2, it may well be that the Reeves line of authority will need to be reconsidered in an appropriate case, but I agree with the President that this is not that case.

70 DAVIES J: I agree with Allsop P.

Decision last updated: 26 September 2012