R v Barnett [2000] NSWCCA 283

New South Wales Court of Criminal Appeal

CITATION : R v Barnett [2000] NSWCCA 283 FILE NUMBER(S) : CCA 60270/99 HEARING DATE(S) : 1 August 2000 JUDGMENT DATE : 1 August 2000

PARTIES : Arthur James Barnett (Appellant) Crown (Respondent) JUDGMENT OF : Foster AJA at 37 & 39; Dunford J at 1; Smart AJ at 38

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1224 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : PJD Hamill (Appellant) WG Dawe QC (Crown) SOLICITORS : TA Murphy (Appellant) SE O'Connor (Crown) CATCHWORDS : Appeal against conviction - carnal knowledge of a minor - inconsistent verdicts - verdicts unreasonable and not supportable by the evidence LEGISLATION CITED : Crimes Act 1900, s 71 R v RAT [2000] NSWCCA 77 CASES CITED: Jones v The Queen (1997) 191 CLR 439 McKenzie v The Queen (1996) 190 CLR 348 DECISION : Appeal allowed, conviction and sentences quashed; verdicts of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL

60270/99

FOSTER AJA DUNFORD J SMART AJ Tuesday, 1 AUGUST 2000 R v Arthur James BARNETT JUDGMENT 1 DUNFORD J: This is an appeal by the appellant against his conviction following trial in the District Court at Penrith before his Honour, Judge Coleman and a jury on two counts of carnal knowledge, for which he was sentenced to effective terms totalling a minimum term of four years with an additional term of two years. 2 The appellant in fact stood trial in relation to six counts which may be summarised as follows: 1. Carnal knowledge of the complainant between May 1961 and 31 July 1961 at Queanbeyan contrary to s 71 of the Crimes Act 1900 , as it then stood, 2. Indecent assault of the complainant, she then being under 16 years, at Queanbeyan between May 1961 and 31 July 1961 contrary to s 76, 3. Carnal knowledge of the complainant between January and December 1962 at Bookham, contrary to s 71, 4. Carnal knowledge of the complainant between January and December 1962 at Bowna, contrary to s 71, 5. Indecent assault of the complainant, she then being under 16 years, at Homebush between January and December 1963 contrary to s 76, 6. Rape of the complainant at Heckenberg between 21 and 23 August 1966, contrary to s 63. 3 The case against the appellant consisted of the evidence of the complainant and a statement from the complainant's mother, since deceased, which was read to the jury, along with the evidence of the police officer in charge of the case. 4 The appellant's case consisted of his evidence and that of his ex-wife, who was also the sister of the complainant. 5 The complainant alleged a history of sexual interference by the appellant at various locations over a number of years from about 1957 to 1964. She said that the first of these incidents occurred in the Victorian town of Bethanga when the appellant, who was then in a relationship with the woman who subsequently became his wife, now his ex-wife, visited the complainant's family. 6 Evidence of these events was led to place the events in context and specific directions were given both in the course of the evidence and in the summing-up. The complainant at the time was about 7 years old and she said that what occurred was full penile vaginal intercourse which was painful. When the appellant had finished he pulled her pants back up and told her, "Don't tell anyone as it will cause a lot of trouble". She said he was in the Army at the time and was trained to kill people. 7 She said that some time later when the possibility of going on an outing with the complainant arose she had refused to go and when alone with her mother told the mother that the appellant had touched her "fanny". Her mother picked her up by the hair, threw her across the room and said "Don't be so stupid". 8 The complainant gave evidence that she was not game to tell anyone else. She also gave evidence that the appellant would often fondle her vagina when she stayed at his house in Bethanga. 9 The events giving rise to the first two counts in the indictment allegedly took place in Queanbeyan during a visit by the complainant's family to the appellant's home in 1961. The complainant asserted that the appellant had sexual intercourse with her on the cushion of some outdoor furniture (count 1) and, whilst the two were in bed sleeping "head to toe", with some other children he touched her on the vagina (count 2). 10 The events giving rise to the third and fourth counts were alleged to have occurred on occasions whilst the appellant was an inter-State truck driver and the complainant travelled with him in his truck. She said that on two occasions, once at Bookham (count 3) and once at Bowna (count 4) the appellant stopped the truck, said there was something wrong with it, got out to fix the problem and asked the complainant if she would get out and help him, the truck then being parked off the side of the road. She said that on each of these two occasions she lay on the ground and that sexual intercourse occurred, and on one of the occasions he told her that only he was allowed to do that to her. 11 The fifth count related to an incident which allegedly occurred in 1963 when the complainant was visiting the appellant's home at Homebush. She said that she was alone with the appellant one Saturday morning and was sitting on the lounge watching television. The appellant came in and sat down on her right, put his left arm over her shoulder and pulled her shoulder down towards his lap. He had undone his zipper, pulled out his erect penis and he told the complainant to put it in her mouth. The complainant refused but the appellant pressed her for some time but then did his zipper up shortly before the appellant's then wife walked into the room. The latter walked up to him, slapped his face, called him a bastard and then went to the bedroom crying. 12 The sixth count is an allegation that around the time of the birth of a son of the appellant and his then wife the appellant raped the complainant when she was staying at his home in Heckenberg. However at the trial her clear evidence was that sexual intercourse did not occur on this occasion and at the invitation of the Crown Prosecutor his Honour directed a verdict of not guilty on this count at the close of the Crown case. 13 The complainant said that one of the reasons she had not told anyone about the assault was hearing of the Graham Thorne kidnapping in 1956 or 1957. She first spoke to the Victorian police in 1993 and to the New South Wales police in 1995 and she said that the reason she had not reported the assaults earlier was because she thought it was too late to do anything. 14 Apart from formal evidence from the policeman the only other evidence in the Crown case was the statement of the complainant's deceased mother which was read to the jury, in which she referred to the family staying during school holidays at a farm on which the appellant was working with his then wife near Queanbeyan. She also said: "In about 1964 Arthur was driving trucks inter-State. He would quite often call in and see us because we live on the way. I remember that he took (the complainant) on trips to Sydney a couple of times in the truck. I remember he would ask me if he could take her." 15 The appellant gave sworn evidence and denied having sexual intercourse or indecently assaulting the complainant. He said that the only time the complainant ever travelled with him in the truck was when she was with her mother. 16 He said he first heard of the allegations made by the complainant against him in about 1984 or 1985 when he was told about them by his then wife shortly before they separated. 17 His ex-wife also gave evidence. She could not recall an incident when she struck her husband across the face in the presence of the complainant (fifth count). She said that she heard of the allegations through one of the complainant's other sisters in about 1985, but when she spoke to the complainant about it the latter told her there was no truth in it. She denied that she ever conveyed to the appellant the substance of the allegations. She said she did not know any of the details of what anyone claimed had happened to them. She said that these allegations added to the problems that she was having with her husband at about the time they separated. 18 Two grounds of appeal are relied on. They are as follows: 1. The verdicts of guilty in relation to counts 3 and 4 on the indictment are inconsistent with the verdicts of not guilty in relation to counts 1, 2 and 5. 2. The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence. 19 In R v RAT [2000] NSWCCA 77 I drew a distinction between inconsistent verdicts and cases where, as a result of the principles laid down by the High Court in Jones v The Queen (1997) 191 CLR 439, verdicts of guilty on some but not all counts in an indictment for sexual assault cases will be regarded as unreasonable where the only evidence of the commission of the offences is that of the complainant and there is no reason for supposing that her (or his) evidence on the count(s) on which the jury convicted is any more credible than on the count(s) on which the jury acquitted. 20 In the present case the only direct evidence of the commission of any of the offences was that of the complainant. In respect of the third and fourth counts there was some support for her evidence in that the statement of her deceased mother provided some evidence of opportunity for the commission of the offences. 21 It may be significant that the jury wished to have the reading of that statement replayed to them very early in his Honour's summing-up, although I observe that the statement concerning the complainant travelling to Sydney in the truck with the appellant is rather vague and ambiguous as to whether she travelled alone with him in the truck; but this evidence, if accepted and if construed as meaning that she travelled alone in the truck with him, was some independent evidence of opportunity in the sense of occasions when the appellant and the respondent were alone together. 22 On the other hand, there was nothing by way of support for the complainant's evidence in respect of the three counts on which the jury acquitted the appellant, the evidence in relation to counts 1 and 2 being to the effect that there were other members of the family nearby or in the vicinity at the relevant times, and in relation to count 5, whereas the complainant claimed that the ex-wife came in and slapped the appellant across the face and called him a bastard, the ex-wife could not recall such an incident. 23 This point of distinction, namely, the evidence based on the mother's statement of the opportunity for the commission of the offences the subject of the third and fourth counts, in my view provides a possible reasonable explanation for the different verdicts, so that such different verdicts do not impress me as an affront to logic and commonsense, nor do they suggest compromise, confusion or misunderstanding on the part of the jury within the principles laid down in McKenzie v The Queen (1996) 190 CLR 348. I would therefore reject the first ground of appeal. 24 However, in Jones v The Queen (1997) 191 CLR 439 at 453 the majority, Gaudron, McHugh and Gummow JJ said: "Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of events which was said to give rise to that count ... (their Honours discussed possible reasons for the acquittal on count 2 and continued) ... Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count ... There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." 25 This case has been followed in a number of subsequent decisions of this Court including R v Wells (CCA - 17 June 1998), R v James [1999] NSWCCA 191, R v Meola [1999] NSWCCA 388 and R v RAT [2000] NSWCCA 77. 26 In respect of all counts the only evidence of the commission of the offence was that of the complainant. On three of the five counts which were left to the jury the jury apparently were not satisfied beyond reasonable doubt of the truth of her evidence, otherwise they would have convicted the appellant. 27 I can find nothing in her evidence which made her evidence more credible in relation to counts 3 and 4 than it was in relation to the other counts. 28 The independent evidence of opportunity of them being alone may, as I believe it did, explain the different verdicts on counts 3 and 4 so as to avoid them being regarded as inconsistent, but that did not render her evidence more credible on those counts than on the others. 29 It would seem that the jury may have had doubts in relation to the first and second counts because of the likely presence of other persons nearby and in relation to the fifth count the failure of the ex-wife to confirm her entry and slapping the face of the appellant may have been regarded as significant. 30 In relation to the sixth count her denial that sexual intercourse took place was inconsistent with a statement she had made to police in 1995 to the effect that such sexual intercourse had occurred. 31 The Crown relied on the evidence from the mother's statement as evidence of opportunity in relation to the third and fourth counts, but evidence of opportunity equally arose from the mother's statement in relation to the first and second counts because she said they went to the house at Queanbeyan for school holidays. 32 On all counts the jury needed to be satisfied beyond reasonable doubt that the complainant's evidence of the commission of the offences was true. Mere opportunity to commit the offences did not establish that the relevant offences had been committed. Moreover, in respect of the one incident where the complainant's evidence could, if true, have been supported by another witness, namely, the slap across the face and the name calling by the ex-wife in relation to count 5, such support was not forthcoming. 33 There were some problems about the ex-wife's evidence, and if there had been convictions on all five counts I would not have regarded her evidence that she could not remember such an incident as creating any problems for the Crown. Such problems as arose from her denial of receiving any details of the allegations from the complainant in 1985, contrasted with the appellant's evidence that he became aware of the details of the complaints from the ex-wife at that time, and the fact that they separated shortly after and this was given as part of the reasons for the separation; but the fact remains that the complainant's evidence was wholly unsupported in its essential ingredients, and as the jury had a doubt in relation to that evidence on counts 1, 2 and 5 they should also have had such doubt on counts 3 and 4. 34 Reference should also be made to the lengthy delay between the commission of the offences and of the making of the complaints to the police. The offences were alleged to have occurred between 1961 and 1966. No complaint to police was made until 1993 and by the time the trial took place in 1999 the witnesses were giving evidence on events which had allegedly occurred up to 37 years earlier. 35 Accordingly, although the jury had the advantage of seeing the complainant and the accused give evidence which this Court does not have, and although in the written word the complainant's evidence reads as convincing, I consider that in accordance with the principles laid down in Jones the verdicts of guilty on counts 3 and 4 are unreasonable and cannot be supported. 36 I therefore propose that the appeal be allowed, the conviction and sentences quashed and verdicts of acquittal entered. 37 FOSTER AJA: I agree. 38 SMART AJ: I also agree. 39 FOSTER AJ: The order of the Court will therefore be as proposed by Dunford J. --------------