FEDERAL COURT OF AUSTRALIA JST v Queen [2001] FCA 1673 CRIMINAL LAW – practice and procedure – trial – sexual offences - multiple counts – directions to jury – direction deficient as to separate consideration of counts – miscarriage of justice – appeal upheld. Sutton v The Queen (1983-84) 152 CLR 528, applied De Jesus v The Queen (1986) 61 ALJR 1, applied R v Markuleski [2001] NSWCCA 290, considered R v Tran [2000] FCA 1888, cited M v The Queen (1994) 181 CLR 487, cited Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, applied JST v THE QUEEN A 37 OF 2001 WILCOX, HIGGINS & DOWSETT JJ 6 DECEMBER 2001 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 37 OF 2001 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JST APPELLANT AND: THE QUEEN RESPONDENT JUDGES: WILCOX, HIGGINS & DOWSETT JJ DATE OF ORDER: 6 DECEMBER 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The conviction and sentence in respect of count 1 of the indictment be quashed and, in lieu thereof, a verdict of not guilty be entered in respect of the said count. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 37 OF 2001 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: JST APPELLANT AND: THE QUEEN RESPONDENT JUDGES: WILCOX, HIGGINS & DOWSETT JJ DATE: 6 DECEMBER 2001 PLACE: CANBERRA REASONS FOR JUDGMENT 1 The appellant was arraigned upon, and pleaded not guilty to, the following counts: (1) That between 1 October 1980 and 1 August 1982 he assaulted the complainant and at the time of doing so committed an act of indecency upon her, she then being under the age of sixteen years; (2) That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years; (3) That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years; (4) That between 1 July 1985 and 26 September 1985 he attempted unlawfully and carnally to know the complainant, his daughter, who was then between the ages of ten and seventeen years; and (5) That on or about 7 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years. 2 The learned trial Judge directed a verdict of not guilty on count 3. The jury returned verdicts of not guilty on counts 2, 4 and 5 but convicted on count 1. 3 The complainant, the appellant's daughter, was born on 7 October 1971. She was about nine years old at the time the offence referred to in count 1 was alleged to have occurred. 4 The trial occurred in May 2001, by which time the complainant was twenty-nine years of age. The complainant's mother (Ms D) was a Crown witness at the trial. She and the appellant had been married but separated in October 1985. This appears to have been shortly after, and perhaps as a result of, the alleged incident which was the subject of count 4. Ms D was the only Crown witness as to counts 1 and 4. The complainant was the only Crown witness as to counts 2, 3 and 5 which she first reported to the police in June 1998. Ms D presumably spoke to the police at about the same time. 5 Concerning count 1, Ms D said in evidence: "I recall an incident, it would have been around October/November 1980, very shortly after (the complainant's) birthday, when I was in the kitchen doing something one evening and I noticed my husband … at the time come out with (the complainant) from the hallway and she was naked, having just had a shower … and I wondered why he had her out in the – it was in the family room sort of, adjoining the kitchen. And (the complainant) was very uncomfortable … . (The complainant) was making sounds indicating that she was distressed, and he was – particularly as he was instructing her to lay on the kitchen table … he was just saying to lie on to the table, and he asked her to lie on her back on the kitchen table. And I went to see what was happening. And he sort of said he was checking to see if she was clean after she had her shower, and I said, "Well, she's old enough to know how to clean herself." … Well he said it was only his responsibility to check that she was clean, and he pushed me away and got very abusive, and spoke abusively to me, and said that it was none of my business, that it was his responsibility to do this. … And he then proceeded to check (the complainant). … Well, she was laying naked on her back, and he started checking with her ears and her face and all down her body, and as he got to her genital area, around the legs he was making her spread her legs so that he could have a look at the genital area, … He put – he placed his hands like both hands one either side of the genital area and actually spread the area apart, and said to me that he was checking, and she wasn't clean, and trying to make me have a look to see that she wasn't clean. … Well, I didn't – I didn't look very closely, … I didn't - wasn't comfortable with looking at her … . I did look, I did look, and I didn't notice anything in particular … He – immediately after that he insisted that she was dirty and made her go and have another shower." 6 As to count 4, Ms D recalled waking up in the middle of the night and hearing thudding or banging noises. She went into the complainant's bedroom and saw the appellant on the bed, naked on top of the complainant. She screamed. Ms D said in evidence: "He got off the bed really fast, coming at me in a rage, and pushed – and saying things like, "This isn't what you think it is," and he pushed me out into the hallway, and just thumped and kicked and punched and pushed me all the way down the hallway until I was stuck into a corner, and I can – and I remember laying very, very still in the corner of this hallway hoping that he would stop kicking and thumping and … ." Shortly after this incident the appellant and Ms D separated. 7 The appellant denied both these incidents. He said he had never examined the complainant's genital area in the way described by Ms D. He was asked: "Was there any occasion that you are able to tell the jury about where you did in fact check to see if she was clean after a shower?" 8 The appellant replied: "I can only recall one occasion when she first started showering. She had come out after her shower with her pyjamas on and in her playing around I happened to notice that around her ankles it was quite dirty … . I said, "Looks like you're not washing properly around the parts that are hard to get to. Go back and clean that up and try to remember in the future to do it properly."" 9 In cross-examination he was asked about the incident alleged in count 1. The following is a summary of the cross-examination: "You, so I understand, you denied point blank ever doing the type of examination your wife gave evidence about? - I do. And you'd agree that such an examination would be an improper thing for a father to do to his daughter? - No. You wouldn't agree with that? - No. I'm talking particularly about the examination of the genitals. You wouldn't think that that's an improper thing for a father to do? - It would depend on the circumstances. What about if the mother was present? Would you think its more appropriate for the mother to do an examination of the daughter? - I would think it would be more appropriate, yes. Do you think the kitchen table would be an appropriate place to do it? - I don't know. Okay, so far as you're concerned that didn't happen? - That's right. But you yourself wouldn't necessarily characterize it as was described by your wife as something necessarily indecent?" 10 There was an objection to the question and the evidence continued: "What I'm asking you is, would you consider what (Ms D) described as an improper and decent thing for a father to do? - Yes, in the circumstances she described. Okay, but not necessarily in all circumstances? - That's right." 11 The grounds of appeal are as follows: · That the trial Judge erred in failing to direct the jury that it must be unanimous as to the basis upon which it found the appellant guilty of count 1. · That the trial Judge erred in failing to direct the jury that since the only evidence supporting the prosecution case in respect of count 1 came from Ms D, it should carefully scrutinize her evidence. · That the trial Judge erred in failing properly to direct the jury regarding the delay in making a complaint. · That the trial Judge erred in failing to direct the jury that it should consider each count separately and that the evidence of the complainant regarding sexual offences allegedly committed against her by the appellant was not admissible in relation to count 1. · That the trial Judge erred in failing to direct the jury that, in considering count 1, it should take into account, when determining the credibility of Ms D, any reasonable doubt it might have in respect of her evidence concerning count 4. · That the verdict in respect of count 1 was unreasonable. 12 On numerous occasions during the course of the learned trial Judge's charge to the jury, he enquired of counsel whether they required any redirections. Counsel for the appellant requested redirections on at least two occasions, and they were given. None of the matters complained of in the grounds of appeal was raised. As we have reached the conclusion that the appeal must succeed on the fourth ground, we will deal with it before considering the other grounds. Failure to direct the jury to consider each count separately and that the evidence of the complainant regarding sexual offences allegedly committed against her by the appellant was not admissible in relation to count 1 13 The jury should have been directed to consider each count separately. To assist the jury in performing this function, the learned trial Judge ought then to have identified the evidence admissible on each count. He ought also to have explained why other evidence was not so admissible. This would inevitably have raised the question of the admissibility on count 1 of Ms D's evidence as to count 4 and the complainant's evidence as to counts 2, 3 and 5. The complainant's evidence included assertions of other acts of intercourse not the subject of specific counts in the indictment. It was common ground before us that neither the evidence relating to counts 2 to 5 nor that of uncharged acts was admissible on count 1. The trial judge did not direct the jury to deal with each count separately, but he did seek to identify the evidence relating to each count. He dealt with the evidence of uncharged sexual acts in this way: "There is evidence of other sexual acts which have not been charged. It is important to bear in mind the limited purpose to which those may be taken into account. They may be taken into account as providing a context within which it is alleged that the particular offences charged, occurred. So that, for example, it is relevant to the evidence, as to what the complainant says happened on the afternoon that the medical book was produced, that you know evidence of what she says happened on other Saturday afternoons. But only to provide, firstly to provide context, secondly it may be evidence, which if you accept it, is sufficient to establish that the accused had an inappropriate sexual desire for his daughter. What the older cases refer to as a guilty passion. It may not be used as a substitute for evidence about the particular acts in question. In other words, it would be quite wrong to say, well lets look at the second count on the indictment, we're not really sure whether that happened or not. We are certainly not satisfied about it beyond reasonable doubt, but hey, he did it on other occasions and so we'll convict him of that. That would be quite wrong in the law and quite contrary to the oath or affirmation you have taken to fairly try in accordance with the law. It may also not be used to reason that he must have committed the offence as charged because he is the kind of person that would do that. It may be difficult for you to separate those concepts, but keep in mind when considering that evidence, if indeed you are satisfied that it occurred at all, but they are distinctions which the law draws or which must be observed." 14 At that stage the luncheon adjournment was taken. After that adjournment, his Honour continued: "Ladies and gentlemen, before the break I was talking about the uncharged sexual acts and the way in which they could be taken into account as evidence setting the context in which the allegations of the offences charged occurred and as evidence of – if you accepted it – the sexual attraction by the accused for his daughter. You'll appreciate that that evidence has very little relevance, or you may think it has very little relevance to the first count because it all occurred some years after that incident and so I'd ask you to take into account the fact that that evidence really is evidence that is led towards the later offences rather than the first offence mentioned on the indictment." 15 It will be noted that these directions related to uncharged criminal misconduct of which there was evidence. They did not deal with the use which might be made in respect of each count of the evidence concerning other counts (i.e. other charged misconduct). It seems to us that, in both respects, the directions were deficient, especially in relation to count 1. Count 1 was based on an allegation of a different nature to the allegations underlying the other counts. Moreover the count 1 conduct was alleged to have occurred several years before any of the other alleged sexual incidents; importantly pre-puberty rather than post-puberty. As the Crown conceded during the hearing of the appeal, evidence of the later sexual incidents would not have been admissible against the appellant if he had been tried on count 1 alone. That being so, it was necessary for the trial judge to instruct the jury that it was not entitled to use the evidence of the later conduct (charged and uncharged) in any way in considering count 1. It was not, with respect, sufficient for the judge to observe to the members of the jury that they "may think it has very little relevance to the first count". It had no relevance. The jury should have been told this in plain terms. 16 Although the point was not argued, it seems that, once it is accepted that this evidence was not admissible on count 1, it follows that count 1 was not, in the usual course of things, properly joined on the same indictment with the other counts. See Sutton v The Queen (1983-1984) 152 CLR 528 per Gibbs CJ at 531, and Brennan J (as his Honour then was) at 541-542. See also De Jesus v The Queen (1986) 61 ALJR 1 per Gibbs CJ, Brennan and Dawson JJ. In other words, the appellant was entitled to a trial on count 1 without the risk that the evidence relevant to the other counts might be misused by the jury. As Brennan J pointed out in Sutton at 542, there may be cases in which an adequate direction will be sufficient to negative the risk of such contamination, in which case joinder may not be fatal to any conviction. As we have demonstrated, no such direction was given in this case. 17 As far as we know, defence counsel did not seek a separate trial, although the Director of Public Prosecutions indicated in the course of argument that there had been some early application of an unidentified kind. He appeared not to be aware of the details. Even if there had been an unsuccessful application for separate trials, there was no appeal. Further, there was no request at the trial for appropriate directions. Nonetheless, as Gibbs CJ said in De Jesus at 3: "It has been settled, at least since Stirland v Director of Public Prosecutions (1944) AC 315 at 327-328, that it is not necessarily fatal to an appeal that counsel for the accused at the trial failed to raise the necessary objection. Of course, if it were thought that counsel had deliberately refrained at the trial from submitting that the joinder was impermissible, in order to gain some tactical advantage, the case would be different, but it is apparent that in the present case counsel for the applicant simply proceeded on a misunderstanding, shared by counsel for the Crown, as to the correct principle to be applied." 18 We see nothing in the material before us to indicate any deliberate decision by counsel to abstain from seeking a separate trial. As to whether he deliberately abstained from seeking further directions, it is possible that he made a tactical decision to do so, but we think it unlikely. It is more probable that the interruption by the luncheon adjournment of his Honour's discussion of this most important issue distracted attention from the inadequacy of what was said. It is otherwise difficult to explain the surprising absence of any direction as to separate consideration of the counts, a direction which is made as of course in all multiple-count trials. 19 We consider that this deficiency in the charge was capable of leading to a miscarriage of justice, and we cannot be confident that there was no such miscarriage. It would be very difficult to conclude that a jury, faced with evidence of Ms D in connection with this incident that was unsupported by the complainant and taking into account the very lengthy delay, would certainly have convicted. The appeal must be upheld. Direction as to unanimity 20 The appellant submitted that the jury may have concluded that the element of indecency was established in either of two ways, namely: · that the appellant, in performing the examination, was not "acting in the best interests of his daughter" but for prurient reasons; or · that his conduct was indecent, regardless of any such motivation. Counsel asserted that the Crown had advanced the above propositions as alternative routes to the necessary conclusion and that the jury would have to be in unanimous agreement as to the basis upon which it convicted. 21 The issue for the jury was whether the conduct was indecent, having regard to community standards. A factor to be considered in that was the explanation attributed by Ms D to the appellant, namely that he was acting to ensure the complainant's personal hygiene. This is the basis upon which the case was explained to the jury by the learned trial Judge. Individual jurors may well have given different weight to the alleged explanation in assessing the question of indecency. Each juror's approach to that question would reflect his or her values, background and attitudes. That is by no means uncommon and reflects the strength of the jury system. It was only necessary that they agree that the conduct was indecent according to community standards. 22 This ground of appeal fails. Failure to direct the jury to scrutinize closely the evidence of Ms D 23 As we have observed, Ms D was the only witness on count 1. The learned trial Judge told the jury that this was the case and gave extensive directions as to the dangers inherent in a prosecution so long after the events in question particularly when such evidence is not supported by the alleged victim of the offence. He also drew attention to the fact that Ms D and the appellant were divorced, implying the possibility of hostility. We are inclined to think that any further direction as to scrutiny of her evidence would have been superfluous. Again, we note that no request for such a direction was made at the trial. The appellant submitted that on the current state of the authorities, where there is only one witness to an alleged offence, there must be a direction that the jury should not only closely scrutinize his or her evidence, but also give a warning as to the dangers of convicting on such evidence. This is not an appropriate case for examining that proposition. 24 It is unnecessary to decide upon this ground of appeal. Failure to direct the jury regarding delay in complaining 25 The appellant submitted that the learned trial Judge ought to have directed the jury that it was necessary to scrutinize carefully the evidence of both the complainant and Ms D in view of the lapse of time and that it would be dangerous to convict on their evidence alone unless satisfied of its truth and accuracy. We have previously pointed out that Ms D was the only witness as to count 1 and that his Honour referred to this and gave lengthy directions as to the dangers and difficulties arising in a trial conducted so many years after the events in question. Again, no request for further directions was made at the trial. 26 We doubt there is any substance in this ground of appeal but it is unnecessary to reach a conclusion about it. Failure to direct that in considering count 1 the jury should take into account, in determining the credibility of Ms D, any reasonable doubt they might have in respect of count 4 27 This ground of appeal reflected the decision of the Court of Criminal Appeal in New South Wales in R v Markuleski [2001] NSWCCA 290. The matter is addressed in the judgment of Spigleman CJ at pars 178 – 194. His Honour considered that the experience of criminal appellate courts in dealing with inconsistent verdicts suggests that juries may not understand that if they disbelieve a witness's evidence on one count, that may be relevant to the assessment of his or her credibility on other counts. His Honour appreciated that any direction designed to remedy such misunderstanding might undermine the direction that the jury should consider each count separately. Spigleman CJ also said that he was not seeking to prescribe another mandatory direction but was rather formulating a direction, the appropriateness of which would depend upon the facts of the particular case and the way in which it had been conducted. It is not necessary that we consider the matter further in this case save to say that we find it difficult to imagine what else could have been said in order to focus the attention of the jury on the issue of credit. Unreasonable verdict 28 We were told that to assert that a verdict is "unreasonable" is to raise the same issue as has traditionally been raised by the assertion that a verdict is "unsafe" or "unsatisfactory" in the administration of justice. It seems that some doubt has been expressed concerning the appropriateness of the traditional formula. However it was held in R v Tran [2000] FCA 1888 at par 84 that it is still appropriate for use in appeals to this Court. In M v The Queen (1994) 181 CLR 487, the majority of the Court held, at 493 and 494-495: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations … . In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be 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." 29 A number of factors were identified as suggesting that the verdict on count 1 was unsafe. They included: · The jury's apparent acceptance of Ms D's evidence on count 1 in light of its possible rejection of her evidence on count 4; · The great delay in making the complaint and therefore in the conduct of the trial; · Ms D's conduct following the allegations relevant to count 1 and those relevant to count 4; · The possibility of hostility on the part of Ms D towards the appellant; · The inadequate direction to which we have referred; and · The absence of any apparent basis for preferring the evidence of Ms D to that of the appellant where that preference was the only basis for the verdict. 30 It is not necessary to consider this ground of appeal. New trial 31 In Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 it was said at 630 that: "… the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused." 32 Any new trial would presumably be limited to evidence from Ms D and the appellant. It would be very short but subject to the difficulties caused by the passage of time. In the absence of the probable prejudice flowing from the other evidence led at the trial, it seems unlikely that a jury would convict, having regard to the fact that Ms D took no step concerning this matter between 1980 and 1998. We cannot see that the complainant will derive any legitimate benefit from another trial. Her own allegations will not be re-ventilated. She apparently does not recall the incident in question. Following the trial, a two year suspended sentence was imposed, conditional upon the appellant's being of good behaviour for three years. It is unlikely that a more stringent sentence would be imposed following a second conviction. Count 1 was the least serious of the charges. It is difficult to believe that it would have been preferred had the other allegations not been made. In the peculiar circumstances of this case, the processes of investigation and trial which have already occurred are sufficient to satisfy all reasonable community expectations. Accordingly, we decline to order a new trial. Disposition 33 We order as follows: (i) That the appeal be allowed; (ii) That the conviction and sentence be quashed; and (iii) That a verdict of not guilty be entered. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court. Associate: Dated: 6 December 2001 Counsel for the Appellant: S Odgers SC and R O'Connell Solicitor for the Appellant: Elrington Boardman & Allport Counsel for the Respondent: R Refshauge SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 5 November 2001 Date of Reasons for Judgement: 6 December 2001