New South Wales Court of Criminal Appeal CITATION : Regina v Vito MEOLA [1999] NSWCCA 388 revised - 06/12/99 FILE NUMBER(S) : CCA 60149/99 HEARING DATE(S) : 23/11/99 JUDGMENT DATE : 23 November 1999 PARTIES : Regina Vito Meola JUDGMENT OF : Sully J at 1; Hulme J at 22; Sperling J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0711 LOWER COURT JUDICIAL OFFICER : Luland DCJ COUNSEL : T.L. Buddin SC - Crown L.M. McSpedden/T. Hudson - Applicant SOLICITORS : S.E. O'Connor - Crown Christopher Lee & Associates CATCHWORDS : R v CRH, unreported, CCA, 18/12/96 CASES CITED: R v M (1994) 181 CLR 487 R v Jones (1997) 191 CLR 439 DECISION : Appeal against conviction allowed; conviction and sentence consequent upon it quashed; and judgment of acquittal on count 1 of indictment IN THE COURT OF CRIMINAL APPEAL 60149/99 SULLY J HULME J SPERLING J 23 November 1999 REGINA v Vito MEOLA JUDGMENT 1 SULLY J: On 18 January of this year the appellant, Mr Vito Meola, was presented for trial in the District Court at Sydney and before his Honour Luland DCJ of Queens Counsel. 2 He was so presented upon an indictment containing three counts. Each count charged against the appellant an act of sexual impropriety of one kind or another with a common complainant who was a relative of the appellant. 3 The dating of the charges was in some respects changed as the trial progressed, and with a consequence of which it will be necessary to say presently something more. 4 The jury acquitted the appellant on counts 2 and 3 but convicted him on count 1. 5 Consequent upon that conviction sentence was not passed upon him, but was deferred upon terms of which it is not necessary to say anything detailed for present purposes. 6 The learned sentencing Judge was obviously concerned by the outcome. His Honour described as follows that concern: "My reaction to the verdicts was that they are inconsistent in that I could see no explicable reason for the difference. I felt that what happened may have been a compromise by the jury. In light of my concern about the verdict of guilty I believe it to be a fit case for appeal and have granted a certificate accordingly." 7 Such an expression of opinion is, of course, not determinative of the present appeal. 8 It is the case, however, that the learned trial Judge is an experienced Judge of trial in criminal cases; and it is a matter of some concern, to put the point no higher, that his Honour, acquainted as he was in a way which this Court cannot replicate with the atmosphere and conduct of the trial, felt such discomfort about the outcome as to express himself as his Honour did; and as to give, on his Honour's own motion, a certificate that the matter was one fit for appeal. 9 The Crown case on each count depended upon the evidence of the complainant. She gave evidence on oath, as did the appellant. There was some brief additional evidence given by other witnesses, but it seems to me that it did not alter the essential cast of the trial, which was that the trial was a classic example of the word against word kind of trial of this particular type. 10 There was, so far as I can see, no evidence supportive of the complainant's version, at least not in any real and substantial sense; and such complaint as she made of the allegations which she proffered against the appellant was made very late. 11 The first point that is now taken for the appellant is that his conviction on count 1 is unsafe and unsatisfactory. The relevant principles of law in that regard have been clearly and recently established, and reaffirmed, by decisions of the High Court of Australia. It is not, I think, necessary to repeat them in their fine detail. 12 I myself have come without hesitation to the view that the conviction upon count 1 is, in the requisite legal sense, unsafe and unsatisfactory. It seems to me that it is inescapable that the acquittal of the appellant on counts 2 and 3 necessarily reflected a view of the jury that the jury was not prepared to accept the complainant's evidence as establishing beyond reasonable doubt either of those charges. 13 I do not see any process of reasoning which, given that premise, would support the conviction on count 1. If the complainant's evidence was unacceptable in the requisite legal sense, and to the requisite legal standard, in respect of counts 2 and 3, I myself can not see how it could have been thought to have been any stronger in respect of count 1. 14 A second submission is put for the appellant. It involves the application to count 1 of the legal doctrine caught up in the expression doli incapax. 15 The dating of the offence which was the foundation of count 1 in the indictment changed, as I have earlier remarked, during the course of the trial. That dating, as finely settled, did not allege a precise date, but alleged an offence committed within a stated range of dates. The dating was such that the age of the complainant within this nominated time span was seven or eight years, depending upon where it might have been thought that the date in question actually fell; while the corresponding age of the appellant might have been eleven, twelve, thirteen or fourteen. 16 Once again, it is not, I think, necessary in the circumstances of this case to descend into a lengthy excursus on the law. What needs to be said about the principle encapsulated in the expression doli incapax, and the way in which it is to be applied in a particular trial context, is said in the judgment of a differently constituted Bench of this Court in the matter of R v CRH, unreported, Court of Criminal Appeal, 18 December 1996. 17 The relevant point to note for present purposes seems to me to be that where such an issue arises, it is for the Crown to establish to the criminal standard that the alleged offender had the capacity which the law requires that he have before he is vulnerable to conviction. I do not think that the evidence in the present trial satisfied, or was capable of satisfying, that burden. 18 In such a case, and as the decision in CRH itself establishes, there is available to the accused person an acquittal point. Such a point was not taken in terms at the trial; but had it been taken, it seems to me that, while the decision in CRH is taken as correctly stating the law, the application must have succeeded. 19 I see no reason why in the circumstances of this particular case rule 4 should by some automatic and artificial application close the appellant out from the opportunity of taking that point before this Court. 20 For the whole of the forgoing reasons I have come to the conclusion that the appellant's conviction on count 1 in the indictment cannot stand; that is cannot stand for both of the reasons that I have explained; and that both of those reasons entitle the appellant to an outright acquittal rather than an order for a new trial. 21 I would accordingly allow the appeal against conviction, quash the conviction and the sentence consequent upon it, and enter upon count 1 of the indictment judgment of acquittal. 22 HULME J: I agree with the orders proposed and, subject to one matter, with his Honour's reasons. I would not have regarded the use of rule 4 as an artificial approach or use of the rule but it is one which should not in the circumstances of this case foreclose the appellant from relying on the doli incapax point. 23 SPERLING J: I agree with the orders proposed by Sully J. 24 In my view the presumption of doli incapax is sufficient to dispose of the appeal. The present case is indistinguishable from CRH, (NSW CCA, 18 December 1996, unreported). I respectfully agree with that decision. 25 It follows from that decision that the jury was bound to acquit on the first count. That is sufficient to satisfy the test of miscarriage of justice in M (1994) 181 CLR 487 and Jones (1997) 191 CLR 439 and to require that the verdict be set aside with no new trial order. 26 SULLY J: The orders of the Court will be as I have proposed them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.