New South Wales Court of Criminal Appeal CITATION : Regina v DSA [1999] NSWCCA 35 FILE NUMBER(S) : CCA 60650/97 HEARING DATE(S) : 08/03/99 JUDGMENT DATE : 8 March 1999 PARTIES : Regina v DSA JUDGMENT OF : Spigelman CJ at 44; McInerney J at 51; Abadee J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/51/0056 LOWER COURT JUDICIAL OFFICER : Judge Downs COUNSEL : R. D. Ellis - Crown S. J. Odgers - Appellant SOLICITORS : S. E. O'Connor - DPP Burridge Harris & Flynn - Appellant CATCHWORDS : ACTS CITED : ss 6 and 8 Criminal Appeal Act 1912 (NSW) M (1994) 181 CLR 487 Jones v R (1997) 72 ALJR 78 R v Johnston (CCA 31 July 1998 unreported) CASES CITED: Davies & Cody v The King (1937) 57 CLR 70 Gipp v The Queen (1988) 72 ALJR 1012 at 1016 Fleming v The Queen (1998) HCA 68 158 ALR 382 72 ALJR 1 DECISION : Conviction quashed; ; The appeal to this court should be allowed and in the exercise of the discretion the Court should not order a new trial but direct the entry of a verdict of acquittal on the first count THE COURT OF CRIMINAL APPEAL 60650/97 SPIGELMAN CJ McINERNEY J ABADEE J MONDAY 8 March 1999 REGINA v D S A JUDGMENT 1 SPIGELMAN CJ: I will invite Abadee J to give the first judgment. 2 ABADEE J: The appellant was charged with three counts of carnal knowledge with his sister between 25 January 1974 and 28 February 1975. The appellant pleaded not guilty to each count. His trial commenced on 14 October 1997. On 16 October 1997 a directed verdict in respect of the second count was entered. On 17 October 1997 the appellant was found guilty in respect of count one and not guilty in respect of count three. 3 The events the subject of the three counts were alleged to have occurred in a short time frame and, indeed, within a few days of each other. 4 The complainant, the sister of the appellant was born on 13 February 1960 and the appellant was born on 14 December 1953. Thus the alleged offences occurred when she was thirteen to fourteen and he was twenty to twenty-one years of age. 5 The Crown case may be summarised as follows. The complainant was the third youngest of eight siblings. When she was aged thirteen years of age and residing at the family home she attempted suicide by taking prescription tablets belonging to her mother and father. Her evidence was that she was having some problems which were not identified or specified in the evidence. The Crown case was that at that time the appellant was allegedly on leave from the Army, at home and that he assisted his mother in taking his sister to the hospital. 6 The Crown claimed evidence was given that a couple of months later when the appellant next visited he and the complainant became close. The complainant ran away from home for a period of some thirteen days towards the end of 1974. She rang her mother who informed the complainant that the appellant was coming to live at home and going back to school to obtain his Higher School Certificate. The complainant returned home in early 1975. 7 Evidence was given at the trial that before running away from home the complainant had slept in a bedroom at the rear of the house marked "girls' bedroom" in Ex A. The appellant slept in the bedroom marked "boys' bedroom" marked in Ex A which was tendered at the trial. Upon her return in 1975 the complainant was told to sleep in the verandah room as, apparently, two of the sisters had complained of over crowded sleeping accommodation in the girls' bedroom. 8 The complainant alleged that on the first day she was back at home the first offence, the subject of the first count, occurred. The complaint was that the appellant saw the complainant in the hallway near the girls' bedroom and told her to hurry up and get dressed for bed so they could have a chat. The complainant went to the girls' bedroom and changed. She returned to the verandah room. In that room there was a three quarter size bed and a bench bed consisting of upper and lower bunks. The appellant was in the three quarter size bed on the left hand side. He allegedly told the appellant to get into the bed. She did so and lay down beside the appellant who was positioned on his side. The complainant alleged that the appellant pinned down her right arm, moved on top of her, pushed her legs apart with his legs and penetrated her vagina with his penis. This penetration allegedly caused pain. She felt frightened and numb. The complainant was allegedly told after the sexual intercourse to wash herself and she did so. She then heard the sound of her father's metal pronged walking stick in the vicinity. She returned to the verandah bedroom and climbed into the top bunk bed. The next morning she claimed the appellant had said the words "Do you have any regrets about you and me?" 9 The second alleged offence, the subject of the second count, (and a directed verdict of not guilty) allegedly took place the following night. The complainant wore different night attire. Penile intercourse was alleged to have again taken place in the verandah room. She told the jury that she did not remember very much about this particular night. Indeed, she said that she did not remember a great deal about the particular night. The Crown Prosecutor, in the presence of the jury, conceded that in respect of the second count there was absence of proof of penile penetration, and that the complainant had no recall of actual penetration. The trial Judge directed a verdict of not guilty. 10 The third offence, the subject of the third count was alleged to have occurred one morning a few days after the incidents alleged in counts one and two. The complainant said she descended from the top bunk and as she did, the appellant who was lying on the bottom bunk with no clothes on, tried to pull her towards the bottom bunk. The complainant gave a quite detailed description of what she alleged took place. It does not appear to be of a vague nature. 11 She described the appellant as grabbing her by the waist of her nightie and placed her on her back in the bunk. It is alleged that acts of cunnilingus and fellatio took place. She also alleged that the appellant had penile intercourse with her and that he was on top of her at the time of such intercourse facing downwards. The complainant said she was told to wash herself and get ready for school. Subsequently, the complainant said she tried to avoid the appellant. 12 The mother allegedly arranged for an extra bed to be put in the "girls' bedroom". There were two other occasions in the weeks after these occasions when penile intercourse allegedly occurred. Such alleged penile intercourse took place on the bottom bunk. 13 When the complainant turned fifteen, her mother arranged for her to be put on a contraceptive pill and she saw a doctor. After she had seen the doctor, and the appellant became aware of it, he allegedly warned her not to say anything and allegedly threatened her. 14 It is appropriate for me to observe, and this also has some relevance to the last ground of appeal, that no medical evidence was available and there is no evidence one way or another from the mother as to whether, at that medical appointment when the girl was fifteen, was gynaecologically examined. I leave that matter and turn to some further factual material. 15 The complainant left high school aged fifteen. She continued to reside at home until she married in 1978. Her first complaint of anything happening at the hands of her brother appears to have been something that the complainant said to her husband in 1983. She apparently also spoke to either a psychotherapist or a hypnotherapist being the uncle of the husband at some time in 1984. This man assisted the complainant with a relaxation programme. However, it is quite clear that there was no complaint about the matter to the police until some time after the alleged events. 16 In 1994 the complainant, prompted by Operation Paradox, first spoke to police about the offences and signed a statement as late as October 1995. The appellant was spoken to by the police on 22 November 1995 and an ERISP was conducted. He denied the offences alleged but gave an account of an act of attempted sexual intercourse involving him and the complainant which he described as being passive rape on the part of the complainant by her coming down upon him. He claimed such conduct was initiated by the complainant whilst he was asleep. 17 The complainant's mother gave some evidence about the conduct of the child in relation to running away and the problem with the attempted suicide at the age of thirteen. The appellant's case was to the effect that he was absent from the family home in 1974. He gave some evidence in relation to that absence being in part due to the fact that he was absent without leave from the Army in 1974 in Queensland, and also that he was living with another woman in Queensland during a substantial part of 1974. It is appropriate just to observe that this other lady with whom he was allegedly living in Queensland was asked to give evidence and, in fact, did give evidence supportive of the appellant. The appellant claimed that he returned to the family home in or about the first or second week of 1975. 18 The appellant gave evidence that the complainant had never shared a bedroom with the appellant, that she had slept in the girls' bedroom with her sisters and that he slept alone on the front enclosed verandah. It might also be observed in passing and again this is relevant to the last ground of appeal, that the complainant's mother gave no evidence as to sleeping arrangements. The appellant gave evidence that he returned a few days after the school holidays from Queensland. The appellant further gave evidence that in late February 1975 he was in his three quarter bed when his sister attempted to initiate sexual intercourse by straddling him. He claimed that he sought to stop this sexual intercourse. He said that when he awakened from his sleep and realised what was happening he pushed her off. He also denied that any of the events, the subject of the three counts, occurred. His only description of sexual intercourse was the one that I have described in which he said the sister attempted to play an active role in having sexual intercourse with him. 19 In his record of interview, the appellant, in a somewhat vague way, described in answer to some leading questions that had been put to him, that the incident which he described in February 1975 as involving a straddling by the complainant on him was something that might be described as being that alleged in the first count. However, how such could have been described it as being similar to the event the subject of what was the first count in the indictment is not known or revealed. As I have observed what he said in his record of interview, in my view, seems to be somewhat vague in response to leading questions that ought not to have been asked. I would find it difficult in light of the evidence, to see how it could be suggested that the event that he described as occurring in February 1975 could be regarded as being the event that was the subject of either the first count or indeed the third count. 20 The grounds of appeal that have been argued and remain are three in number. Ground six relates to a claim that the trial Judge misdirected the jury in respect of the question of corroboration. There can be absolutely no doubt that during the course of the Crown's address the matter of corroboration was mentioned on a number of occasions. There can be absolutely no doubt that during the course of his Honour's summing-up the matter of corroboration was mentioned on a number of occasions. There can be no doubt that the matter of corroboration was the subject of some discussion between counsel for the appellant and his Honour at the close of the summing-up to the jury. 21 The trial Judge directed the jury in respect of the matter of corroboration: (SU 13) "If … however you decide there is no evidence of corroboration then you should exercise considerable caution before you convict the accused." 22 His Honour had earlier directed the jury that the Crown had submitted that there is "corroboration here because the accused himself admitted to the police that he had intercourse with his sister and he had ejaculated". He also appears to have left the jury with the further impression that counsel for the accused claimed there was not corroboration because there was no penetration of the vagina. 23 The appellant submits that great care was needed in respect of the directions to be given in respect of the admissions made by the appellant in his record of interview as to the complainant straddling him while he was asleep and her allegedly initiating penile intercourse. The record of interview did not clearly indicate when the particular incident occurred. Indeed, there was no reason for relating that particular incident, in terms of corroboration or otherwise, as being one related to the first count on which the jury found the appellant guilty rather than the third count in respect of which the jury found the appellant not guilty. 24 In my view, his Honour was in error in directing the jury that they could use the incident as described by the appellant in the record of interview as being some form of corroboration of the complainant's allegation that the offence, particularly the offence the subject of count one, had been committed. 25 As I have already said, how it could be treated as being corroboration of count one rather than count three is something that I do not fully understand. The account of the appellant was entirely inconsistent with the allegations of the complainant. Those allegations involved him, in terms of form and substance, as taking the lead and engaging in a number of deliberate acts of penile intercourse. The account of the appellant, in my view, did not tend to confirm the complainant's account. It did not disclose sexual passion for the complainant. More significantly, in my view, it could not be treated as being capable of being regarded as corroborating the complainant's account either in respect of count one or, alternatively, count three in respect of which there was a finding of not guilty. 26 Further, in my view, there was no basis for relating the admission to count one as opposed to count three, although the Crown submitted that it could be relied upon as being some form of admission in respect of count one. More significantly, in the context of speaking about the matter in terms of corroboration, the directions given by his Honour were in fact capable of being, perhaps, somewhat potentially dangerous. I believe there is substance in the claim of the appellant that his Honour in effect had told the jury that they need not exercise considerable caution before they convicted the accused if they decided there was evidence of corroboration, having already invited them to consider the appellant's account as corroboration. 27 In my view, the directions in relation to corroboration were erroneous. The alleged incident described by the appellant could not be corroborative of the plaintiff's account on counts one or three. Next, the directions potentially had the effect of neutralising his Honour's direction to scrutinise carefully the evidence of the complainant. In my view, the argument that the incident described by the appellant was not capable of being regarded as corroborative of counts one or three has been made good. Such a view, however, would not entitle the appellant to an outright acquittal but would only entitle him to a new trial. 28 That brings me to, perhaps significantly, the final ground of appeal which, in perhaps more conventional language of the past, asserts that the conviction was unsafe and unsatisfactory. However, in coming to that ground I do not ignore ground seven which has been argued with ground six and in respect of ground seven the leave of this Court would be required under rule 4. Were it necessary to determine ground seven, it would be appropriate for me to consider the matter in greater detail. Having regard to my conclusion in respect of ground six and what I believe to be the proper conclusion in the unsafe and unsatisfactory ground, as it has been called, I do not consider it necessary to spend any more time dealing with ground seven. 29 Ground ten in conventional terms has been described as being a ground that the conviction was unsafe and unsatisfactory. However, as the authorities show, and more particularly the recent decision of Fleming v The Queen (1998) 158 ALR 379, the situation that is sought to be addressed by ground number ten really involves the Court considering the inter-relationship between s 6 of the Criminal Appeal Act and also s 8 of the same Act. That said, when the Court considers the provisions of s 6, the Court does embark upon a substantial analysis of the matter essentially in terms of the approach of the High Court in the decisions of M (1994) 181 CLR 487, and at the later decision of the High Court in Jones v R (1997) 72 ALJR 78. That said, as the authorities show, the proper approach is to really look at the matter in terms of the inter-connection between s 6 and s 8 of the Criminal Appeal Act 1912 (NSW). See also the recent decision of this Court in R v Johnston (31 July 1998, unreported) per Spigelman CJ at 35). 30 Looking at ground ten, it seems to me that the major thrust of the appellant in respect of ground ten is that the inconsistency between the findings of the jury in respect of count one and count three cannot really be explained on any rational basis. In other words, there is such an inconsistency that it would be improper once the jury, having found the appellant not guilty on count three, to have then proceeded to find the appellant guilty of ground one. I am satisfied that the inconsistency in the verdicts on counts one and three should result in a directed acquittal on count number one. Indeed, this is the case where the events the subject of counts one and three were very close in terms of the time when each were alleged to have been committed. 31 Next, in my view, it cannot be said that in the circumstances of this case the jury's verdict in respect of count three can be explained upon the basis that, perhaps, there was a sibling relationship or, alternatively, that there may have been a sympathy component, as urged upon the Court. Indeed, it seems to me, in the circumstances of this case, if one were to accept those arguments then one would find it difficult to explain the basis on which the jury arrived at a guilty verdict on count number one. Nor can the jury's verdict be explained on the basis that, perhaps, there was a degree of vagueness in relation to the events that subject of the third count. The description given by the appellant in respect of those events seems to be quite explicit and detailed. 32 In my view, this is a case where I consider the adverse impact of acquittal on the third count is significant when determining whether the conviction on the first count is unsafe and unsatisfactory: see Jones (supra). 33 In the instant case, the evidence on the first count, at least in substantial terms, was that given by the complainant and, as I have said, there was no corroboration for it. As in Jones, in my view, in this case there was nothing about the complainant's evidence which justifies regarding its quality in respect of the third count as being different from that in relation to the first count. 34 As I have already said, this is not a case where one can relate the alleged admissions of the appellant in the record of interview to count number one as opposed to count number three. In my view, the jury's verdict in relation to the third count, necessarily meant that in the circumstances they were not satisfied beyond reasonable doubt as to the correctness of the complainant's version. 35 In those circumstances, it is difficult to find a rational basis on which the first count can be supported. In my opinion the appellant has made good his ground in respect of ground number ten. In my view, there is a significant possibility that an innocent person has been convicted in respect of the first count. It seems to me, therefore, that the appropriate course to be adopted in this case, where it can be properly said that the jury ought to have entertained a reasonable doubt, is to quash the conviction on the first count and allow the appeal in respect of that count. 36 The next question is: what is the appropriate course of action that should be adopted by this Court and whether, in fact, the Court should order a new trial in respect of the first count in the exercise of its discretion. I have given some considerable thought to what should be the appropriate course. There are a number of considerations militating against a new trial in respect of the first count. 37 The appellant was sentenced by the trial Judge in November 1997 to penal servitude for a period of eighteen months to be served by way of periodic detention. It would seem, therefore, that as of this date the periodic detention situation, presumably, has been substantially complied with. That is one factor relevant to the exercise of the discretion. I think there are a number of other factors suggesting that there should not be a new trial. First of all, there is the nature and quality of the evidence in respect of the first count. Secondly, relevant to the question of whether there should be a new trial on the first count is the strength of the Crown case in respect of it. 38 I do not believe that the Crown case is of such strength that points in the direction of a new trial being ordered. Indeed, I do not consider that the evidence at the trial in respect of the first count is sufficiently cogent to warrant a new trial on that count. Next, I consider that there is the potential element of unfairness arising because there was a directed verdict on the second count and the third count was the subject of a not guilty finding. To detach the first count in terms of time, place and circumstances from the other two counts, bearing in mind that what occurred at the first trial could I believe, raise in this particular case, some degree of potential unfairness resulting in, perhaps, a pre-occupation with one particular matter isolated from the rest of the events. 39 Finally, I would conclude that in the light of the whole of the evidence, bearing in mind the issue of the credibility of the complainant and bearing in mind the not guilty finding on the third count, and having regard to the whole of the evidence it would be, perhaps, unreasonable to submit the appellant to a new trial on one single count. 40 The question as to whether or not there should be a new trial in circumstances such as the present have been considered by this Court in Johnston's case. I draw attention to what the Chief Justice had to say (at 35) on the question of whether there should be a new trial in circumstances such as the present, where ground 10 has been established. 41 I have said enough to indicate that, in my view, there ought not, in the exercise of the discretion of this Court, be a new trial. I would propose the following orders: 42 1. The conviction be quashed. 43 2. That the appeal to this court should be allowed and in the exercise of the discretion the Court should not order a new trial but direct the entry of a verdict of acquittal on the first count. 44 SPIGELMAN CJ: I agree but wish to add a few comments on the discrepancy in the findings by the jury with an acquittal on what was count three at the trial and a conviction on count one. Abadee J has referred to the lack of "rationality" in the respective findings of the jury. In Jones v The Queen (1998) 72 ALJR 78 at 86 in the joint judgment of Gaudron, McHugh and Gummow JJ their Honours said: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count." 45 In the present case, counsel for the Crown submitted that there was a relevant distinction in this case because of the evidence given by the appellant of sexual contact on one occasion. The difference between Jones and the present case is that in Jones there were three separate counts, each of which covered different time periods. In the present case there were three separate charges, however, each of them referred to exactly the same time period - that the alleged act of carnal knowledge occurred between 25 January 1974 and 28 February 1975. In the present case, it appears that the jury may have used the evidence of some evidence of sexual contact, in the evidence of the appellant, to confirm its acceptance of the evidence of the complainant, in circumstances where it had otherwise rejected the evidence of the complainant with respect to the third of the alleged acts. 46 This is a case which falls within the formulation of circumstances in which a conviction would be set aside as unjust or unsafe which was propounded in the joint judgment of the High Court in Davies and Cody v The King (1937) 57 CLR 170: "... some feature of the case raising a substantial possibility that either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled." 47 That was the passage quoted with approval by Gaudron J in Gipp v The Queen (1988) 72 ALJR 1012 at 1016 and also by the High Court in Fleming v The Queen (1998) HCA 68; 158 ALR 382; 72 ALJR 1; par 11. 48 The formulation: "A substantial possibility that ….. the jury may have been mistaken or misled". 49 is applicable in the present case by reason of the proposition, which was accepted by the Crown, that that version of events propounded by the appellant could not have constituted the offence of carnal knowledge. In my view, there is a substantial possibility of a relevant mistake in the jury accepting that the mere fact of sexual contact justified a conclusion that, with respect to one subject matter, they accepted the complainant's version to the reasonable doubt standard, in circumstances where they did not otherwise do so. 50 For those reasons which are somewhat different to those expressed by Abadee J, I would agree that a material error has been caused in this case and for that and for all of the other reasons his Honour gave, I agree that the orders should be as his Honour proposed. 51 McINERNEY J: I also agree with Abadee J and I agree with the remarks of Spigelman CJ. 52 SPIGELMAN CJ: The orders of the court are those as proposed by Abadee J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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