New South Wales Court of Criminal Appeal CITATION : Regina v G W B [2000] NSWCCA 410 FILE NUMBER(S) : CCA 60643/99 HEARING DATE(S) : 13 June 2000 JUDGMENT DATE : 13 October 2000 PARTIES : The Crown G W B (Appl) JUDGMENT OF : Spigelman CJ at 1; Newman J at 2; Adams J at 48 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/41/0321 LOWER COURT JUDICIAL J B Phelan DCJ OFFICER : COUNSEL : C K Maxwell QC (Crown) J I Doris (Appl) SOLICITORS : S E O'Connor (Crown) Hansons (Appl) CATCHWORDS : CRIMINAL LAW - appeal - verdict - whether unsafe or unsatisfactory - Criminal Appeal Act s 61 - burden of proof - guilt beyond reasonable doubt - undesirability of departing from or explaining conventional formula Jones v R (1997) 191 CLR 439 M v R (1994) 181 CLR 487 CASES CITED: Green v R [1971] 126 CLR 28 Dawson v The Queen (1961) 106 CLR 1 Thomas v The Queen (1960) 102 CLR 584 Brown v The King (1913) 17 CLR 570 DECISION : 1. Appeal upheld; 2.Conviction quashed; 3. A verdict of acquittal entered IN THE COURT OF CRIMINAL APPEAL 60643/99 SPIGELMAN CJ NEWMAN J ADAMS J FRIDAY, 13 OCTOBER 2000 REGINA v G W B JUDGMENT 1 SPIGELMAN CJ: I agree with Newman J. 2 NEWMAN J: This is an appeal against a conviction of carnal knowledge of a girl under the age of ten years. 3 The appellant had been indicted before the District Court at Wollongong on four counts of carnal knowledge of a girl under ten years and one count of carnal knowledge of a girl over ten years. 4 The jury found the appellant not guilty in relation to counts one, two, three and five but found him guilty on count four. The appellant had pleaded not guilty to each count. The five offences were said to have taken place between 1 January 1977 and 31 December 1983. The evidence for the prosecution 5 The complainant was born on 28 March 1972. When she was about three and a half years old she lived at suburb I. The complainant lived with her stepfather, the appellant, her mother and her sister AP, who was two years younger than the complainant. Her brother W was born in 1976. 6 The complainant gave evidence that when she was about three and a half years old the appellant told her that it was bath time. She said that it was raining at the time as there were buckets and things around the living area to catch the leaking water from the roof. The complainant thought that there was a baby's bath in the lounge room. The appellant put her in the bath and started washing her. The complainant gave evidence that he washed her for few moments and then began fondling her genitals. She said that he tried to insert his finger into her vagina. The complainant gave evidence that it hurt a lot but that he did this for a few moments. The complainant said that something similar to this incident happened quite a few times. 7 The complainant also gave evidence that she recalled living in a flat in suburb I. She remembered an incident at bath time when her mother was in hospital having given birth to the complainant's brother. She said it would have been January 1976, as it was just before she turned four years of age. The appellant after a few minutes of washing her began tickling her around the genital area. The complainant said that he continued this for a few moments and then tried to put his finger insider her vagina. She said that she believed he inserted his finger as she experienced pain. The complainant gave evidence that after he had finished he put her to bed in the bedroom she shared with her sister, shut the door or turned out the light. She said that her parents never usually did that and so she thought she had been naughty. The complainant said that there were several other instances involving the appellant fondling her genitals while the family lived at that address. 8 In November 1976 the family moved to an address in suburb II. It was at this address that the offences the subject of the indictment, were alleged to have taken place. 9 Count 1: The complainant gave evidence that on the day after her brother's first birthday the appellant came home drunk late at night. The complainant's mother came into her bedroom and lifted the complainant out of her bed and put her into her parents' bed. The reason for this was that the appellant snored when he was drunk. The complainant said that her mother put her on the right side of the bed. The complainant said: "… after a few minutes my dad started trying to kiss me on the mouth and over the body. He began fondling my genitals, after a few moments he removed my pyjama pants and pulled me on top of him. He was rubbing his penis against my vagina. He tried to insert his penis into my vagina but it wouldn't go in, so he spat onto his hand and lubricated his penis with the spit and then he spat onto his hand again and rubbed it against my vagina … After maybe two or three more attempts it finally went in, it hurt a lot … He was moving his body up and down, rubbing his penis against my vagina or inside my vagina. He did this for … probably only a few minutes. He made a funny noise and then he stopped sort of moving and then he sort of pushed me back onto the bed." 10 The complainant said she then put her pyjama pants on and went to the toilet. She gave evidence that when she went to the toilet there was blood everywhere, on her pyjama pants, on the toilet bowl and on the paper. The complainant thought she had been naughty and worried about getting into trouble so she scrunched her pyjamas into a ball and put them in the kitchen bin. She got another pair of pyjama pants and a blanket and slept on the lounge. She said that her vaginal area hurt and that she had a really bad stomach ache. 11 Count 2: On the day before the complainant turned five years of age the complainant's mother was in hospital. It was evening and the complainant was lying on the lounge watching a child's movie. The appellant had put her brother and sister to bed. The complainant gave evidence that the appellant came out of the kitchen and sat on the lounge next to her and started cuddling her. The complainant stated: "He fondled my genitals, he laid down on the lounge, he took his shorts off … he lifted up my nightie and put me on top of him again and inserted his penis …into my vagina. Once again he lubricated his hand with spit and then his penis and my vagina. He … continued his penis inside my vagina for a few moments. And then he stopped." 12 The complainant gave evidence that the appellant put his shorts back on and then asked her if she wanted to go to bed or if she wanted to go on watching the movie. 13 Count 3: The complainant gave evidence that another incident took place about June 1977 when her mother was still in hospital. The complainant said that she was in bed when the appellant came in, picked her up out of the bed and took her into his bed. "He started kissing me … on the body ….He, once again he fondled my genitals…. He laid down on the bed, he pulled me on top of him, once again he lubricated his hand and penis with spit, he inserted his, his penis into my vagina, again. He was holding me by the shoulders so I couldn't move. He was moving his body up and down for a few minutes and it went on for a couple of minutes … ." 14 The complainant said that when he let her go she went to the toilet. She said that there was blood again but not as much as the first time. 15 The complainant said that there were other incidents involving intercourse in 1977, but did not particularise any. She gave evidence that in that year the appellant was working at a coal mine. 16 Count 4: When the complainant was about seven or eight years of age (probably 1978) she shared a bedroom with her sister in the first bedroom at the top of the stairs. The appellant returned home from work early and told his wife that a body had been found on the railway tracks and that he thought it had been his brother-in-law. The appellant left the house to tell his sister what was happening and returned a couple of hours later. The complainant knew that he was drunk because her mother always made him sleep in the lounge when he was in this state. On this occasion she could hear the appellant making his bed in the lounge room. "About ten minutes after he got home he came into the bedroom, he picked me up out of my bed, he carried me out to the lounge room, he removed his pyjama pants, he was naked, he laid down on the mattress, he pulled me on top of him again. He inserted his penis into my vagina, he was moving up and down. I said to him, 'daddy I need to go to the toilet', he said, 'hang on a minute' or something like that. He kept going, a few minutes later I said, 'I need to go to the toilet', again. He didn't pay any attention to that. When he'd finished I said I had to go to the toilet again …." 17 The complainant also gave evidence that when the appellant allowed her to go to the toilet her mother saw her as she walked past the bedroom door. She said that her mother asked her where her pyjama pants were. The complainant said that when she went to the toilet there was a little blood. She then went and got another pair of pyjama pants and got into bed. The complainant said that there were more incidents after this particular occasion. 18 Count 5: The last occasion when an act of intercourse took place was when the complainant was in year 6 and was eleven years old. The complainant said that she used to wedge her mother's crutches under her bedroom door handle so that the appellant could not get in. On this occasion the appellant knocked at her door at about 9.30 pm and asked the complainant if she could look after her brother and sister while he went to the hotel. The complainant was not sure where her mother was at the time. The complainant gave evidence that she was sitting watching late night television in the lounge room when the appellant came home. She described the appellant as being "really drunk". She said that the appellant came over to her and started kissing and fondling her. She said by this time they were on the lounge room floor. The complainant said that the appellant removed her tracksuit pants and underwear and pinned her to the floor by the shoulders. "He pulled down his shorts, he inserted his penis into my vagina, he was really aggro, really aggressive. He, he kept - he was moving his body up and down, but he was on top of me. I asked him to stop which - and I was crying and he was just getting aggroo'er and aggroo'er and then he finished and he just got up and pulled up his shorts … walked away, just left me there." 19 The complainant gave evidence that during this incident she was on her back on the floor, a position that he had not used before. She also said that on this occasion the appellant bit her under the collarbone. 20 The complainant said that this was the last time any acts occurred. She said that she told her mother about the assaults when she was twelve. She gave evidence that her mother raised the incidents with the appellant on 14 August 1986. She said that she remembered that date because it was the day that her mother bought her a drum kit. She said the appellant replied "if she says so it must be true." 21 The complainant gave evidence that the family doctor, Dr Blaxendale, referred her for counselling to Dr Kaplan, whom she saw once. The complainant also said that she discussed the assaults with the appellant on one occasion. She said he told her that "… he had sold his soul to the devil in 1971 … when he was tripping on acid." She also said that he told her that it was because he was drunk and that it had happened to him when he was a child. He also told her that she had thought the complainant was her mother. 22 The complainant's mother, LB, gave evidence about the various places the family resided, the sleeping arrangements, the employment history of the appellant and her periods of hospitalisation. LB gave evidence of seeing the complainant without her pyjama pants on. The complainant had been sleeping on a mattress on the floor of the lounge room. When she questioned the complainant, the complainant responded that she had wet them. She also confirmed that she would put the complainant in bed with the appellant so that she did not have to sleep with the appellant when he was intoxicated. 23 LB said her daughter disclosed the assaults to her on 13 February 1984. She gave evidence of confronting the appellant and of his admissions in a sarcastic tone. LB said that some time after the disclosure she took the complainant to Dr Blaxendale and that there were several follow up visits and several conversations between her and the doctor. She also detailed a visit with the appellant to a Dr Lyons about the appellant's drinking problem. 24 Dr Blaxendale, the family's medical practitioner, gave evidence. He confirmed the visits to him by the complainant and her mother and the referrals he wrote for counselling. 25 Det Snr Const Pearson gave evidence of taking the complainant's statement and interviewing the appellant in his home. She said that the appellant told her: "It's her mother's fault, she was the one who used to put her in bed with me. I didn't know who it was, I thought it was her mother. I don't feel guilty about this, I can't believe she has gone to the police." 26 Det Snr Const Pearson conducted an ERISP with the appellant. The appellant said that he would come home sometimes completely intoxicated and his wife would get out of bed and put the complainant in the bed instead. The appellant said that he would wake up in the morning or some hour at night and knew that he had touched her. He said that he knew that he remembered waking and fondling the complainant but that he realised it was his daughter so he stopped. He also said that he probably did lay naked on top of her. The appellant however, denied having sexual intercourse with the complainant. He said that he molested the complainant when she was about eight or nine years of age. The appellant said that he could remember at least five instances when he fondled her. He remembered fondling her and having her lay face down on his stomach. He said that he would fondle her between the legs and then he would wake up and think "what the hell am I doing". He said that he could just remember doing it and then realising that it wasn't LB (his wife). When asked if he put his fingers in the complainant's vagina he replied "he hoped not." The evidence for the appellant. 27 The appellant in sworn evidence said that everything he had said in the ERISP was true. He said that what he meant by "fondling" the complainant was that he had just put his hand on her shoulder or on her. He said that he meant by the word "molest" fondling or putting a hand on the stomach or shoulder. He gave evidence that when he told the police that he fondled the complainant between the legs he was in shock and that is not what he meant by fondling. 28 WB, the appellant's son, gave evidence that he often heard the complainant and their mother talking about the allegations, the appellant and how they were going to get money from him. 29 The appellant has raised five grounds of appeal. In view of the conclusion which I have reached as to his third and fourth grounds of appeal, it is not necessary to consider the first and second grounds. The fifth ground of appeal which challenged the judge's direction on the meaning of reasonable doubt is a matter which I believe this Court should deal with and accordingly I shall. Ground 3: The verdict was inconsistent with the verdicts of acquittal on the four other counts in the indictment. Ground 4: The verdict was unsafe and unsatisfactory and there was, in all the circumstances a miscarriage of justice. 30 It may be seen from the above narration of the Crown case that in relation to the first and fourth counts the complainant stated that her mother was present in the home when the offences took place. 31 In relation to all counts on the indictment it is plain from the narrative of the evidence above that there was no corroboration of the complainant's allegations. It is true that in relation to count four, the complainant's mother gave evidence of recollecting an occasion where she saw her daughter not wearing her pyjama pants. However, the mother in evidence did not give a specific date and as counsel for the appellant rightly submitted, the sight of a seven or eight year old girl in a domestic situation moving around without her pyjama pants on is quite a mundane event. 32 The Crown submitted that in relation to this count, unlike the others, significant support exists at least as to the nature of the allegations made against the appellant. It was also put that the admissions made during the course of the video interview with police were available in relation to count 4 to allow the jury to eliminate any reasonable doubt. In my view that latter comment could apply to all counts on the indictment. As to the former, none of the material adduced constituted corroboration of the complainant's evidence relating to count four. 33 The High Court in Jones v R (1997) 191 CLR 439 reviewed the law relating to the test where a verdict is unsafe and unsatisfactory. In so doing they confirmed the test adumbrated by the majority of the High Court in M v R (1994) 181 CLR 487. 34 In M at 494 the majority said: "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 upon that evidence." 35 Again in Jones at 453: "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." 36 Later, at 453: "Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence." 37 In my view this case involves identical considerations to those dealt with by the High Court in Jones. Again the jury's finding on the first, second, third and fifth counts did not make it open to them on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant on the fourth count. 38 There is nothing in my view, in the complainant's evidence for concluding that the quality of her evidence was higher in respect of the fourth count than it was in respect of the other counts on the indictment. 39 To adopt what the High Court said in Jones - "when the credibility factor is combined with the uncorroborated nature … " the conviction on the fourth count can only be regarded as unsafe and unsatisfactory. That conclusion should result in this Court quashing the conviction and directing a verdict of acquittal. Ground 5: The learned trial judge misdirected the jury as to reasonable doubt. 40 His Honour during the course of his summing up said this: "If you have a reasonable doubt at the end of the day, then you are bound to give the benefit of that doubt to the accused. On the other hand, if you are persuaded beyond a reasonable doubt, in other words you have no doubt that is reasonable about his guilt, then you must return a verdict of guilty. That is a high standard of proof. If you have a reasonable doubt, you must acquit. If you are persuaded beyond a reasonable doubt, such that you have no doubt that is reasonable, then you must convict. And it is said that it is such a high standard of proof because of the wish of the law to ensure that the innocent are not wrongly convicted. In other words, the law would rather see ten people who are possibly guilty go free, than to have a person who is innocent who is the subject of a guilty verdict." 41 Later his Honour said: "Even if you thought that the complainant was more than likely telling the truth but the accused's denial of the specific conduct, the subject of these charges, remained a reasonable possibility, in other words whilst you were inclined to accept what the complainant was saying but a doubt existed in your mind - in other words you thought that the accused's denial represented a reasonable possibility - then you would have to give the benefit of the doubt to the accused." 42 In Green v R [1971] 126 CLR 28 the High Court dealt with the direction given in a sexual assault case on onus of proof. At 32 the court stated: "In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes': Windeyer J, Thomas v The Queen (1960) 102 CLR at p 606. A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case." 43 His Honour's direction here suffers from a similar difficulty. The High Court in Green confirmed what had fallen from the court in Dawson v The Queen (1961) 106 CLR 1 at 18; Thomas v The Queen (1960) 102 CLR 584 and Brown v The King (1913) 17 CLR 570 at 584. 44 In short in directing juries in criminal cases judges should not depart from the time honoured formula that the words "beyond reasonable doubt" are words in the ordinary English usage and mean exactly what they say. 45 If this was the only ground of appeal to succeed the correct order of the court would be to quash the conviction and order a new trial. However, this is of course not the case. 46 In the circumstances, it is not necessary for the court to deal with grounds one and two of the grounds of appeal. 47 I would propose the following orders: 1. Appeal upheld. 2. Conviction quashed. 3. A verdict of acquittal be entered. 48 ADAMS J: I agree with the judgment of Newman J and with the orders he proposes. ********** 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.