Re K v R [1992] FCA 48; (1992) 34 FCR 227 (1992) 59 A Crim R 113 (18 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: K
And: THE QUEEN
No. ACT G58 of 1990
FED No. 74
Criminal Law
[1992] FCA 48; (1992) 34 FCR 227
(1992) 59 A Crim R 113

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Spender(1) and Miles JJ.(1)

CATCHWORDS

Criminal Law - particular offences - incest and indecent dealing - corroboration - directions to jury - whether jury to be warned on uncorroborated evidence of child - whether warning required by rule of practice or law - what may constitute corroboration - corroboration in a material particular - what constitutes a material particular - accused's own evidence of prior acts of indecency - evidence common to prosecution and defence case - adequacy of guidance to jury on nature and sufficiency of corroboration.

Evidence Ordinance 1971 (ACT), s.76F

Criminal Justice Act 1988 (UK), s.34

Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534

Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13

Paine v. The Queen (1974) Tas SR 117

Director of Public Prosecutions v. Hester (1973) AC 296

Severo Dossi (1918) 13 Cr App R 158

Kate Warner, Child Witnesses in Sexual Assault Cases (1988) Crim LJ 286

J. Spencer, Child Witnesses, Corroboration and Expert Evidence (1987) Crim LR 239

R v. Morgan (1978) 1 WLR 735

The King v. Baskerville (1916) 2 KB 658

Director of Public Prosecutions v. Kilbourne (1973) AC 729

Patrick William McKeon (1987) 31 A Crim R 357

The King v. Ball (1911) AC 47

The King v. Shellaker (1914) 1 KB 14

Marsh (1949) Cr App R 185

Regina v. Witham (1962) Qd R 49

Director of Public Prosecutions v. Boardman (1975) AC 421

The Queen v. Lindsay (1977) 18 SASR 103

The Queen v. Stephenson (1978) 18 SASR 381

HEARING

CANBERRA
18:2:1992

Counsel for the appellant: Mr G. Stretton

Solicitors for the appellant: Porter Pilkington

Counsel for the respondent: Mr Webster

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeal be dismissed.

The convictions and sentences be confirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The appellant appeals against his conviction in the Supreme Court of the Australian Capital Territory on 11October 1990 on each of three counts on an indictment. They were as follows:

"1. THAT between the 1st day of December 1985 and
the 31st day of December 1986 at Canberra in
the Australian Capital Territory he committed
an act of indecency upon the named
complainant who was then a person above the
age of 10 years but under the age of 16 years.
2. THAT between the 1st day of January 1987 and
the 31st day of December 1987 at Canberra in
the said Territory he engaged in sexual
intercourse with the complainant who was then
a person above the age of 10 years but under
the age of 16 years and who was to his
knowledge his lineal descendant namely his
daughter.
3. THAT between the 1st day of January 1987 and
2nd day of December 1988 at Canberra in the
said Territory he committed an act of
indecency upon the complainant who was then a
person above the age of 10 years but under
the age of 16 years."

2. The appeal raises two questions relating to corroboration. The first is whether there was evidence capable of corroborating the evidence of the complainant. The other is whether the learned trial judge's summing-up made it sufficiently clear that it was for the jury to decide whether such evidence did or did not constitute corroboration of the complainant's evidence.

3. At the trial it was not disputed that the complainant was the daughter of the appellant and that she was born on 29 April 1974. She gave evidence of three series of events. First, she alleged that on an occasion in December 1985, when she was 11 years old, the appellant removed her clothing, indecently handled her body, and forced her to put on some of her mother's underclothing. She further alleged that in 1987 when she was 13 the appellant pulled down her underpants and placed his fingers inside her vagina. She gave evidence of a further occasion in 1987 or 1988 when she was about 13 or 14, on which the appellant removed her clothing and his own clothing, cut some of her pubic hair with scissors, cut some of his own pubic hair and placed the material in an envelope saying, "Now we will always be together". Each of these series of events corresponds with the respective counts in the indictment. All these events occurred in the family home in a Canberra suburb.

4. At the end of her evidence-in-chief the following exchange took place between the complainant and counsel for the prosecution:

".... from the period, 1 December 1985, that is the
first occasion that we have given evidence of here
today, and the last time that it happened, are they
the only occasions that your father has touched
you?---No.
And on how many occasions approximately, once,
twice or many, has he touched you?---Well, within a
week, every time mum went out.
And over what period of time?---What period of time?
Yes, over one week, or over a number of years or
how long did this behaviour - - -?---Over years.
Over years?---Over a whole year.
And did you ever tell your mother?---I tried to,
but she did not want to hear all this."

5. The appellant's case was that the events in question had never occurred and that the complainant's story was a fabrication, motivated by her resentment of his attempts to subject her to an ordinary measure of parental discipline. He sought to show that as part of her resistance to parental discipline, she exploited a vulnerability on his part brought about by his having pleaded guilty in December 1984 to charges of sexual misconduct with her in that year, for which he had been placed on a recognizance. The circumstances leading to the previous court proceedings were put to her at the commencement of cross-examination and she agreed with them. Later in cross-examination, the complainant agreed that she had made no mention to anybody of the events occurring in 1985 and thereafter until she spoke to a school counsellor some time shortly before 2 December 1988, although subsequently in cross-examination she said that she told a pastor at a church camp in 1987. At any rate, on 2December 1988 she was interviewed by police. In that interview she made no mention of the accused inserting his finger into her vagina. She explained that she did not inform the police on that occasion of that event because she was "too scared and embarrassed" and "I just did not want to admit it". She did not tell the police about the insertion of the finger into her vagina until 2 March 1989. She agreed when it was put to her in cross-examination that "a couple of times" during domestic arguments she threatened to "get the police involved". She agreed that when interviewed by the police on 2December 1988 she had said:

"I used to threaten dad, and that because of the
past I used to kind of bring that up and say, 'Dad
if you do this I will do this again. I will
complain and cops will get involved and you will go
away again', and so he used to get angry and that
and then had fights and that."

7. She added that on these occasions when her father would get angry, her mother also would get angry and violent and she "got belted". Otherwise the complainant in cross-examination maintained her account of what had happened in relation to the offences in question and denied that she had threatened to call the police if she did not get her way in the home. In particular she denied that she had said to the appellant, "It took a phone call to bring you home, it will only take a phone call to get you away again".

7. The only evidence in the prosecution case besides that of the complainant was that of Senior ConstableChristopher Peattie of the Australian Federal Police, who gave evidence of a conversation with the accused on 19 January 1989. In that conversation the accused denied the allegations of the complainant that were put to him by the constable and in the following terms offered an explanation of the complainant's allegations:

"She hinted at similar type allegations ever since
I have been back, she normally makes them as a
parting shot after a dispute".

8. The only evidence in the defence case was given by the appellant himself. He stated that in December 1984 he pleaded guilty to charges alleging acts of indecency by him upon her, including the touching of her body in the area of the breasts and other areas and the insertion of his finger into her vagina. He stated that he was placed upon a recognizance to be of good behaviour for a period of three years upon certain conditions, including a condition to accept counselling from a psychiatrist. He said that he complied with those conditions. He explained that having left the family home at the time he was charged, he had returned shortly before the day of sentencing as a result of a telephone request from the complainant. It appears that the terms of the recognizance permitted him to continue to live in the family home. He gave evidence of what he described as the complainant's abusiveness and aggressiveness over the next few years. He denied the particular allegations relating to the offences charged. He explained them by saying that they were "just the result of a very angry, frustrated young girl". He said that he first heard of the allegations from a pastor after the complainant had been to a church camp in August 1988.

9. During the cross-examination of the appellant by counsel for the prosecution, part of the contents of a record of interview with police on 23 July 1984 was put to the appellant. He agreed that on that occasion he had told the police that he had inserted his little finger into the complainant's vagina on about twelve occasions when she was about 8 years old. A number of other questions and answers were put to him which it is not necessary to set out in detail, but sufficient to say that they disclosed a course of indecent dealings with the child over a period of eighteen months or so prior to 23 July 1984. During cross-examination the appellant maintained that the complainant had threatened him over the period since late 1986, such threats usually taking place during a family argument in the presence of both the accused and the complainant's mother when the complainant would say, "Oh, he's still doing it" or words to that effect. He said in cross-examination that there was one occasion on which she stated, "It needed a phone call to bring you home and it may take a phone call to take you away again".

10. It will be apparent from the above outline of the evidence and the nature of the case presented for the prosecution and defence respectively that the decision of the jury on the guilt or otherwise of the accused depended heavily on what view they took of the evidence given by the complainant on the one hand and by the accused on the other. The evidence of Constable Peattie added nothing to the prosecution case.

11. The addresses of counsel were not recorded, but it appears that something was said about corroboration in the course of addresses by counsel. In his summing-up to the jury his Honour gave a lengthy direction on corroboration. That direction followed an explanation of the functions of the judge and jury in a criminal trial and an explanation of the elements of law making up each of the offences charged in the indictment. His Honour gave an explanation of how the prosecution case related to the elements of the charges. His Honour then proceeded to give the direction on corroboration, which it is appropriate to set out in full.

"Now, a lot has been said to you about the need for
corroboration. Now, I have to give you a direction
of law about corroboration in this case, which is a
sexual case involving a child. I am required to
warn you that it is unsafe to convict a person
charged with a sexual offence on the uncorroborated
sworn evidence of a child. What you have to
determine is whether - first of all - whether there
is any corroboration of the sworn evidence of
Kerri. If there is, then you could ignore that
warning because you would be entitled to convict on
the sworn evidence of Kerri supported by the
corroborative evidence.
I cannot see any reason why you would not accept
the corroborative evidence, but if you did not, for
some reason accept the evidence of corroboration,
which I am going to tell you about, then you would
have to have regard to the warning that it is
unsafe to convict on the uncorroborated sworn
evidence of a child. First of all, I tell you what
corroboration is, and it is what you would expect
it to be. It is some independent testimony, that
is, independent of the child which affects the
accused by connecting him, or tending to connect
him with the crime and which confirms in some
material particular not only the evidence that the
crime has been committed but also that the accused
committed it, and it varies.
The best evidence these days of corroboration of a
sexual connection would be an identification of the
accused's semen taken in a swab from the victim's
vagina. I mean, if it can be identified as his
semen, and there are ways of doing this, that would
be absolutely fatal sort of corroboration if it was
a case of that nature. We are not concerned with
that sort of thing but that is the sort of thing
amounts to corroboration or blood or hair or human
sample of some sort.
Well, I tell you as a matter of law that there is -
that you may find this is very strong corroboration
in this case. It is a matter for you, but the
evidence of corroboration, which you may regard as
corroboration, is the accused's own evidence of his
having committed acts of indecency of the very type
alleged against him now and of his having done that
prior to July 1984 when he was charged and pleaded
guilty in the Magistrate's Court. The acts which
he admitted were those of touching Kerri's breasts
and putting his finger in her vagina in the period
between 18 April and 21 July 1984.
You may think it is difficult to conceive of
stronger corroboration of an allegation of a sexual
offence than the admission of the accused that he
had previously committed indecent acts of the very
nature of which he is now charged upon the same
person; it seems to be very strong corroboration
indeed. Incidentally, it appears from his
cross-examination, that he also admitted to police
having her touch his penis and masturbate him,and
he has told you that those answers to police were
true.
You may think it helpful if I endeavour to identify
the rationale of the rule of practice which
requires the jury to be warned of the danger of
convicting on the uncorroborated testimony of the
victim of a sexual offence. That rationale is
that, as a matter of common experience, people do
sometimes tell an entirely false story, a story
which is very easy to fabricate and extremely
difficult to refute. Therefore, the traditional
wisdom is: it is wise for juries to be warned that
they should look for independent evidence.
But independent evidence coming from the accused
himself, which tends to show sexual desire for the
victim, and some measure of gratification of that
desire, supports the case for the prosecution
because it is consistent with the allegations that
the accused now faces and makes unlawful and
unnatural behaviour credible; it explains the whole
thing. And it may serve to allay any concern that
the jury - you - may be having that Kerri's
allegation is a fabrication. How much weight you
attach to it is for you. But what I tell you is,
that is very strong corroboration if you accept it
and there is no reason why you should not accept
it, coming from his own lips.
The plain evidence from the accused himself of the
prior sexual conduct of which he pleaded guilty is
very potent corroboration and very incriminating so
far as these present allegations are concerned,
which Kerri now makes. Nevertheless, I say again
you should scrutinise her evidence with special
care, and if after giving her evidence that special
scrutiny you are satisfied that she is thoroughly
reliable, you can act upon her evidence without any
corroboration, but as I have already told you,
there is very substantial corroboration of her
story from his own admitted guilty conduct towards
her in the few years earlier."

12. A threshold question is whether the trial judge was bound to give any direction about corroboration at all. The rule of practice that once required a jury to be warned against convicting on the uncorroborated evidence of a complainant on a charge of rape or other offence of a sexual nature has been abolished. Section76F of the Evidence Ordinance 1971 (ACT) provides as follows:

"Abolition of rules of law or practice
requiring corroboration
76F.(1) Any rule of law or practice
requiring the corroboration of evidence or
requiring the judge to give a warning to the
jury in criminal proceedings to the effect
that it is unsafe to convict a person on
uncorroborated evidence is abolished in so far
as the rule applies to or in relation to
evidence given by the complainant in the trial
of a person for a prescribed sexual offence.
(2) Nothing in this section shall
affect the right of the judge in prescribed
sexual offence proceedings to comment on any
evidence that may be unreliable but the judge
shall not, in such proceedings, give a warning
to the jury to the effect that it is unsafe to
convict the accused person on the
uncorroborated evidence of the complainant.
(3) Nothing in this section affects
the operation of any rule of law or practice
which requires -
(a) a judge, on the trial of a person
for a sexual offence alleged to
have been committed before the
commencement of this section, to
give the jury a warning as
referred to in sub-section (1); or
(b) a judge, on the trial of any
person, to give the jury a warning
to the effect that it is unsafe to
convict a person on the
uncorroborated sworn evidence of a
child."

13. The effect of the section is to impose a general embargo on a judge giving the conventional warning, but the embargo is lifted to preserve any rule of law or practice which requires a judge to warn the jury of the danger of convicting on the uncorroborated sworn evidence of a child. That there is such a rule is undoubted. Whether in Australia it is strictly a rule of practice or a rule of law is still unclear: see Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534 at 553 per Gibbs J., who referred to such rules of practice in terms used in Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13 at 24, that is, as having "almost the reverence of a rule of law".

14. If the warning is required by a rule of practice and not by a rule of law, the trial judge is not bound, strictly speaking, to put the warning to the jury. The rule of practice itself recognizes that the warning need not be put in all cases: Paine v. The Queen (1974) Tas SR 117. If the trial judge is bold enough to decide that in the circumstances the warning will not be put then there is no misdirection of law. But unless there is evidence which is indisputably corroboration the verdict of guilty may well be set aside on the ground that the verdict is unsafe and unsatisfactory by virtue of the absence of the warning, or because the prosecution has not shown to the satisfaction of the appellate court that there has been no miscarriage of justice: Kelleher at 561 per Mason J.

15. The common law, at least in this century, has regarded children as belonging to one of the categories of suspect witnesses, like accomplices, and, formerly, all complainants in cases of sexual offences: see Director of Public Prosecutions v. Hester (1973) AC 296 at 324 per LordDiplock. Prison informers may now, possibly, be added to the list. The attitude which developed in the English Court of Criminal Appeal soon after it was established in 1908 was that in sexual matters children are given to flights of fancy and are easily influenced by the suggestions of others. By the time of the Court's decision in Severo Dossi (1918) 13 Cr App R 158 that attitude extended to child witnesses in all criminal cases. The attitude has been maintained in the law ever since. It does not sit easily with developing concern about the vulnerability of children as witnesses rather than about their unreliability. Developmental psychology is said to challenge the assumptions on which the law is based: see Kate Warner, Child Witnesses in Sexual Assault Cases (1988) Crim LJ 286, J. Spencer, Child Witnesses, Corroboration and Expert Evidence (1987) Crim LR 239. The Criminal Justice Act 1988 (U.K.), s.34 removed the need for corroboration of child witnesses. The need (such as it is) remains in the Australian Capital Territory.

16. Unless the child is of sufficiently tender years the conventional warning may intrude into the jury's function of assessing the witness for itself and arriving at sensible decisions of fact. In England it has been said that the question whether the witness is of years sufficiently tender to warrant the warning is a matter for the good sense of the trial judge, although the judge may expressly leave the matter to the jury: R v. Morgan (1978) 1 WLR 735. For the purposes of the rule there is no particular age at which the warning becomes unnecessary. The Children's Services Act 1989 (ACT) does not provide a test. The complainant in the present case was not yet 17 years of age when she gave her evidence. The trial judge saw her and considered the warning appropriate. He was entitled to follow the rule of practice and draw the jury's attention to the danger of convicting on the uncorroborated evidence of the complainant, having regard to her age.

17. There is no complaint about his Honour's explanation of what is meant by corroboration, nor could there be. The explanation given was in the classic terms laid down in: The King v. Baskerville (1916) 2 KB 658 at 667 by Lord Reading C.J., that is,

".... independent testimony which affects the
accused by connecting or tending to connect him
with the crime. In other words, it must be
evidence which implicates him, that is, which
confirms in some material particular not only the
evidence that the crime has been committed, but
also that the prisoner committed it."

18. What is complained of is the very material which his Honour left to the jury as corroborative evidence. It was submitted that although his Honour correctly recognized and explained the nature of corroboration, he failed to apply that test to the material before him and incorrectly attributed to the accused's own evidence of his prior acts of indecency with the complainant the capacity to "confirm in some material particular" the evidence of the complainant that the accused had committed the three offences charged on the indictment. In general terms it was submitted that the evidence that the accused had committed acts of indecency (including an act of digital penetration) in 1984 could not make more credible the girl's story that he committed similar acts upon her in 1987 and 1988.

19. The evidence of prior acts was elicited by defence counsel during the cross-examination of Senior ConstablePeattie and was expanded upon by the accused himself in his own evidence. It was not tendered in the prosecution case; whether it was admissible and whether it would have been admitted in the prosecution case does not need to be decided. The test for admissibility is wider than the test for deciding whether evidence once admitted is capable of constituting corroboration: Director of Public Prosecutions v. Kilbourne (1973) AC 729.

20. Nevertheless, in certain situations the rationale for regarding evidence as admissible (from whatever source) and the rationale for regarding evidence (other than that of the suspect witness) as capable of constituting corroboration may be indistinguishable. In the present case his Honour was surely correct in drawing the jury's attention to the evidence of the accused himself "which tends to show sexual desire for the victim and some measure of gratification of that desire" and its consistency with the "unlawful and unnatural behaviour" alleged against him by the young victim, his daughter. These words reflect a passage in the judgment of Connolly J. in Patrick William McKeon (1987) 31 A Crim R 357 at 359, which provides one example of many attempts made by judges over the years to encapsulate the factual and evidentiary circumstances in particular cases occurring in the context of an almost infinite variety of similar cases. Whilst no formula can be laid down for what may be capable of constituting corroboration in one case and not in another, it is clear that ever since The King v. Ball (1911) AC 47 evidence of "guilty passion" for the victim has been treated as part of a chain of relevant circumstances without which the other evidence would be inherently incredible or improbable. Evidence in the nature of "guilty passion" has been regarded repeatedly not only as admissible but as corroborative of the complainant's testimony: see The King v. Shellaker (1914) 1 KB 414, Marsh (1949) Cr App R 185, Regina v. Witham (1962) QdR 49, Director of Public Prosecutions v. Boardman (1975) AC 421 and McKeon.

21. A further submission was made that the evidence of the accused's conduct in 1984 could not be corroborative because it was common to both the case of the Crown and the accused and was not in issue. It has been said that, because corroboration must relate to "a material particular", evidence about something not in issue is incapable of constituting corroboration. See for example the judgment of Bray C.J. in The Queen v. Lindsay (1977) 18 SASR 103 at 108 and The Queen v. Stephenson (1978) 18 SASR 381 (the other members of the Supreme Court of South Australia in Banco not appearing to share the same view in either case).

22. This view was rejected by the Queensland Court of Criminal Appeal in McKeon in which Thomas J. (with whom Connolly J. agreed) said, at p 361, in dealing with the contention that evidence that was common ground in the prosecution and defence cases could not amount to corroboration:

"I am unable to see why a party should be permitted
to render evidence inadmissible or unusable by
admitting it or part of it to be true. Such
evidence may be consistent with both cases, but it
is for the jury to say whether it regards the
evidence as corroborating the complainant's
evidence or not. If the submission were correct,
such evidence would be admissible against an
accused who stood mute and inadmissible against one
astute enough to admit all the allegations save the
final admission of penetration. What is required
is corroboration of the complainant's story in a
material particular. 'The requirement is not that
it prove - but that it tend to prove .....
implicate does not necessarily mean inculpate, it
means identify as connected with an offence'.
(Berrill (1982) Qd R 508 at 509; 5 A Crim R 431
at 432-433, per Andrews S.P.J.)."

23. In a central passage in the judgment of Bray C.J. in The Queen v. Lindsay at p 108, relied upon by counsel for the appellant, his Honour referred to the purpose of corroboration and said:

"There is a contest between the story of the
witness to be corroborated and the story of the
accused. The jury must choose between them with
due regard to the onus of proof and the presumption
of innocence. If they are to choose in favour of
the witness because of the alleged corroborative
evidence, that evidence must relate to something
asserted by him and denied by the accused. If it
only relates to something which is common to both
stories it cannot provide any touchstone of the
credibility of the witness in the disputed area."

24. But, even if one adopts that approach in this case, the question is whether the evidence of prior acts of indecency, put forward as corroborative, did really only relate to something that was common to both stories. The answer, in our view, is that it did not; it did not merely relate to the prior acts of indecency. The evidence was put forward by the accused as relating to the primary factual issue of whether the acts constituting the offences with which he was charged took place at all. It was relied upon by the Crown as having a quite different complexion and as tending to confirm that those acts did take place. The circumstance that the evidence of the prior acts, introduced by the accused, was common ground in that it was not challenged and indeed was relied upon the Crown cannot, it seems to us, deprive the evidence of the capacity it would have had, if it had not been common ground, of giving support to the complainant's evidence on the central issue. In either event the evidence was capable of relating to the central issue and of relating to something asserted by the complainant and denied by the accused. So regarded, it was capable, to use the language of Bray C.J., of providing a touchstone of the credibility of the complainant in the disputed area; it could do so because of its very nature in the context of the particular case. It nature and its attendant capacity to provide corroboration did not alter because it was introduced by the accused nor did it alter when, in the course of the trial, it became common ground.

25. Beyond this we do not think it necessary to embark upon a discussion of the two schools of thought. On the particular facts of this case the circumstances that the evidence relied upon by the Crown as corroboration came from the accused and became common ground did not deprive the evidence of its capacity to be corroborative in relation to the central issue in the trial.

26. It was of course for the jury to decide what to make of the evidence relied upon as corroboration and whether to the extent that the jury considered it supported the impugned evidence it did so "in a material particular". It is clear that not every detail of the evidence of the suspect witness needs corroboration. For example, in relation to accomplices, Lord Reading said in Baskerville at 664:

"Indeed, if it were required that the accomplice
should be confirmed in every detail of the crime,
his evidence would not be essential to the case, it
would be merely confirmatory of other and
independent testimony."

27. Finally, it was submitted on behalf of the appellant that his Honour was in error in his summing-up in directing the jury that evidence of the prior acts of indecency and intercourse amounted to corroboration, amounted indeed to very strong corroboration, rather than directing the jury that they might find such evidence was corroboration if they were so minded. There is some force in this submission. The passages relied upon as constituting error proceed from the premise put to the jury by his Honour that there was no reason why they should reject the accused's evidence. They go on to state in very clear terms, in the first instance "that is very strong corroboration", in the second instance "the plain evidence from the accused .... is very potent corroboration and very incriminating", and in the third instance, "that is very substantial corroboration of her story". These directions on their face would appear to direct the jury that the accused's own evidence goes beyond providing material for the jury to evaluate and assess as to its weight and corroborative effect and to give clear instruction that that evidence constitutes (not may constitute) corroboration of the complainant's evidence.

28. Such passages must be read in the light of the whole of the summing-up. It is true, as Gibbs J. said in Kelleher at 555, that "for a judge to decide that the evidence capable of corroborating the complainant does amount to corroboration and that therefore the jury need no guidance as to the manner in which uncorroborated testimony should be approached, would be to usurp the jury's function". Nevertheless, there was ample guidance to the jury in this case. The trial judge gave the jury adequate directions about their exclusive role as finders of fact, he explained to them the difference between questions of law and questions of fact and emphasised on several occasions not only that the weight of evidence was a matter for the jury but that the evidence of the complainant had to be scrutinized with special care. He also gave adequate direction about the standard and onus of proof and of what was meant by corroboration. Taking the summing-up as a whole including the passage quoted earlier in this judgment in which, amongst other things, his Honour instructed the jury on the footing that it was a matter for the jury to determine whether the accused's evidence amounted to corroboration, the jury could not have been left in any confusion about their role or how they should go about deciding whether they accepted the evidence of the complainant to the extent necessary to found a conviction.

29. Indeed it could be said that his Honour went beyond what was necessary in his warning against convicting on the uncorroborated evidence of the complainant, because he also told the jury of how "the traditional wisdom" perceived danger in convicting on the uncorroborated testimony of the victim of a sexual offence. Such a warning was not necessary in the light of s.76F of the Evidence Act. The accused had in effect the advantage of a double warning to the jury on the suspect nature of the complainant as a witness: they were told that she was not only a child but a child who made allegations of sexual offences. In our view, the summing-up up taken as a whole did not misdirect the jury on the law and was not unfair to the accused. We are not convinced that the verdicts of guilty were unsafe or unsatisfactory or that there was any miscarriage of justice. The appeal will be dismissed, the convictions and sentences confirmed.