Reported Decision : 111 A Crim R 388 New South Wales Court of Criminal Appeal CITATION : R v ROBINSON [2000] NSWCCA 59 FILE NUMBER(S) : CCA 60328/98 HEARING DATE(S) : 06/03/00 JUDGMENT DATE : 31 March 2000 PARTIES : REGINA v Dennis Noel ROBINSON JUDGMENT OF : Fitzgerald JA at 1; Barr J at 12; Smart AJ at 80 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/41/0065; 98/21/2061 LOWER COURT JUDICIAL Tupman DCJ OFFICER : COUNSEL : Crown: PG Berman Appellant: JS Stratton SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy CATCHWORDS : Criminal Law - whether verdicts of guilty consistent with verdicts of acquittal on other counts - whether verdicts 'merciful' - whether verdicts compromised - whether verdicts reasonable LEGISLATION CITED : Evidence Act 1995 ss 110, 112 R v PKS, Court of Criminal Appeal, 1.10.98, unrep. R v Hamilton (1993) 68 A Crim R 298. M v The Queen (1994) 181 CLR 487. Jones v The Queen (1997) 191 CLR 439. CASES CITED: MacKenzie v The Queen (1996) 190 CLR 348. R v Hunt [1968] 2 QB 433. R v Kirkman (1987) 44 SASR 591. Black v The Queen (1993) 179 CLR 44. R v Hauke, Court of Criminal Appeal, 27.3.95, unrep. R v Crisologo (1997) 99 A Crim R 178. DECISION : See para 79 THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60328/98 DC 97/41/0065, 98/21/2061 FITZGERALD JA BARR J SMART AJ FRIDAY 31 MARCH 2000 REGINA v Dennis N ROBINSON JUDGMENT 1 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Barr J. I propose to confine my remarks to ground 4. I agree that the appeal should be allowed on that ground. 2 Although there is a tension between the appellant's conviction on counts 1, 2 and 3 and his acquittal on count 4, I agree with Barr J that the verdicts are not inconsistent in the sense in which that description is used in this context. See MacKenzie v R (1996) 190 CLR 348. 3 I also agree with Barr J that, for the reasons he has given, the verdict acquitting the appellant of count 4 cannot be explained as a "merciful" verdict. MacKenzie v R (1996) 71 ALJR 91, 101. 4 However, in my opinion there is no justification for a conclusion that the mixed verdicts were the result of a compromise by the jurors, with some jurors who otherwise would not have voted to convict the appellant on counts 1 to 3 agreeing to do so, contrary to their legal obligations and oaths, in return for those who would otherwise have voted to convict him on count 4 agreeing to an acquittal. 5 It seems to me more probable that the acquittal verdict on count 4 indicates that the jury considered that the complainant's uncorroborated testimony on that count lacked sufficient cogency for a conviction. In other words, the jury was not satisfied beyond reasonable doubt with the complainant's evidence on count 4. 6 The question whether, that being so, the appellant's convictions on counts 1 to 3 are unsafe and unsatisfactory Jones v R (1997) 191 CLR 439 depends on the circumstances. 7 According to the prosecution case, the appellant committed 4 sexual offences on the same complainant in a single period between 28 February and 1 June 1993. The only evidence against the appellant was the uncorroborated testimony of the complainant, who at the time of the alleged offences was a thirteen year old boy and who did not complain for 13 years. The appellant, who was otherwise unknown to the complainant, gave evidence that he did not commit the offences. No attempt was made to suggest that the offences did not occur; the appellant's case was that he was not the offender. The critical issue for the jury's decision was the identity of the offender. There was no possible basis for a conclusion that count 4 might have been committed by a different person from the person guilty of counts 1 to 3. 8 In his judgment, Para 60. Barr J has summarised the material directions to the jury in the following terms: "The jury were directed that they should consider each count separately. They were told that they might accept part of what the witness said and reject part. They were told that witnesses might be mistaken or might lie in some respects but not in others. They were told to scrutinise the evidence of the complainant with great care because the Crown depended on his evidence alone. They were told that when assessing the reliability of a witness they were entitled to take account of the demeanour of the witness and the impression made by that witness upon them." 9 Directions to that effect are, of course, common. However, they are not always sufficient. The circumstances might be such that the jury should also be instructed that if they hold a reasonable doubt concerning the reliability of a complainant's evidence on one or more counts, whether by reference to the complainant's demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts. This was such a case. 10 Although there was no evidence which could appropriately be described as necessarily reliable which was inconsistent with the complainant's evidence that it was the appellant who committed the offences, the jury's doubt with respect to the cogency of the complainant's evidence count 4 makes the following passage from the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v R (1997) 191 CLR 439, 455. directly apposite. Their Honours said: ".. nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first [second] and third count than it was in respect of the [fourth] count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first [to] third counts can only be regarded as unsafe and unsatisfactory." 11 The course adopted by the Court in Jones (1997) 191 CLR 439. is the course which this Court should adopt in the present matter. See also R v R.A.T. 2000 NSWCCA 77 That is to say, the appeal should be allowed and the appellant's convictions on counts 1, 2 and 3 quashed and, in lieu thereof, verdicts of acquittal entered. IN THE COURT OF CRIMINAL APPEAL 60328/98 FITZGERALD JA BARR J SMART AJ Friday, 31 March 2000 REGINA v Dennis Noel ROBINSON JUDGMENT 12 BARR J: The appellant Dennis Noel Robinson appeals against convictions and seeks leave to appeal against sentences entered in the District Court. He was charged with two counts of indecent assault and two of sexual intercourse without consent. He was convicted of both counts of indecent assault and of one of the counts of sexual intercourse without consent. He was acquitted of the other. 13 For the offence of sexual intercourse without consent the appellant was sentenced to penal servitude for six years, comprising a minimum term of four years six months and an additional term of one year six months. For each of the offences of indecent assault the appellant was sentenced to a fixed term of four years' penal servitude concurrent with the other sentences. 14 The complainant said that one day in March 1983, when he was thirteen years old, he was using a toilet in a street in Nowra. A man came up behind him, put his hands round him and dragged him into one of the cubicles. He forced the complainant to put his hand on the appellant's penis. He then inserted his finger and then his penis to the complainant's anus and his penis into the complainant's mouth. 15 The man was thirty-five to forty years old and of large build, overweight in the stomach. 16 The touching of the penis was the basis of the first count of indecent assault. The other acts formed the basis of the first count of sexual intercourse without consent. The appellant was convicted of both those charges. 17 The complainant next saw the man in the street in Nowra about two weeks later, but there was no communication between them. He had no difficulty of recognising him as his attacker. 18 About a week later he saw the same man walking towards him on his side of the street. He ran into the same toilet block and stayed inside, hoping that the man would go away. When the complainant tried to leave, the man blocked his way, forced him back into the toilet and handled him on the penis. The complainant managed to escape when a third person came into the toilet block. 19 That evidence formed the basis of the second count of indecent assault. The appellant was convicted. 20 The final count was based on events the complainant said took place about a month later. He was riding his bicycle in Nowra when he saw the same man. The complainant spat at him and otherwise registered his disgust and rode away. Some time later on the same day the complainant was in the adjoining town of Bomaderry, riding his bicycle along a walking track. He saw the man standing outside the entrance of a toilet block. The complainant ran into the fence, lost his balance and fell off his bike. Before he could remount and ride off, the man took hold of him from behind and dragged him into a toilet block some ten to fifteen metres away. He put his penis into the complainant's mouth. That evidence formed the basis of the second count of sexual intercourse without consent. The jury acquitted the appellant on that charge. 21 The complainant said that between 1983 and 1990 or 1991 he saw the same man at least eight to ten times. In 1990 or 1991 he moved to Wollongong to live. He returned to Nowra in 1993. He came to know the man who assaulted him as Dennis Robinson. He said that at the time of trial the appellant was perhaps of smaller build than during the events of 1983. 22 There was no evidence to support that of the complainant. There were no admissions. The complainant told nobody about these matters until he saw a police officer in 1996. 23 The appellant gave sworn evidence and said simply that he was not present on any of the occasions described by the complainant. His case was that the complainant had wrongly identified him as his attacker. 24 He said that in 1983 he left the Navy after twenty years' service. He then weighed thirteen to thirteen and a half stone, was five feet eight and a half inches tall and had short black hair and a black, cropped beard. By the time of the trial he weighed twenty-one stone and had lost a lot of head hair. His beard had grown longer and turned grey. 25 He said that in 1983, and for perhaps three years before leaving the Navy, he could not achieve an erection. He had suffered a fever during the last part of his service in the Navy and continued to suffer from high blood pressure. He was under medical care. He convalesced at home before going to work with the Department of Social Security in 1994. 26 Evidence was called from the appellant's wife, who said that from about 1980 onwards the appellant had never been able to get an erection. 27 Evidence was also called from Dr Dipold, who met the appellant in 1981 and became his medical adviser in November 1984. She said that he was always grossly overweight, at least twenty stone in 1981. She could not remember any time when he was less than about twenty stone. 28 Dr Dipold specialised in family planning and knew that the appellant and his wife wanted to have children but could not. The appellant never directly told her that he could not get an erection. Following an illness in 1993 Dr Dipold referred him to a psychiatrist, who reported in May 1994 that the appellant and his wife had not had any sexual relations for more than ten years because of the appellant's depression, diabetes and gross weight. 29 Dr Dipold said that a drug the appellant was taking for hypertension could decrease his ability to have an erection, though it might not always do so. She thought it probable that the appellant suffered a decrease in libido and unlikely that he could have an erection, though she thought that that was possible. 30 The appellant gave evidence of his membership at relevant times of the committee of the Shoalhaven Youth Centre, an aboriginal welfare organisation. He said that other members of the committee were opposed to him and disputed his status as an aborigine and his outspoken views on a number of topics. The complainant was not a member of the committee but the appellant saw him at the Centre a few times. The complainant spoke to the appellant on an occasion when he drove the Centre bus, having taken over for the day from the regular driver. 31 The purpose of that evidence appears to have been to show that the complainant must have become familiar with the appellant's face and name and might have been influenced by what he knew of him to identify him mistakenly as his attacker. It was not suggested to the complainant that he had deliberately identified a person whom he did not believe was his attacker. 32 It is clear from the verdicts that the jury were not impressed with the evidence about the appellant's inability to have an erection and about any change in his appearance as throwing doubt on the complainant's identification of him. 33 The first ground of appeal complains that the trial judge erred in rejecting cross-examination of the complainant about his criminal record. The ground was not formally abandoned, but nothing was said in support of it during oral submissions before this Court. It appears that defence counsel wished to put to the complainant that certain convictions had been recorded against him at a certain time, though the purpose in doing so was never entirely clear. Objection was taken by the Crown prosecutor and legal argument followed in the absence of the jury, at the conclusion of which it appeared that the Crown had withdrawn its objection to the cross-examination. Accordingly the defence counsel cross-examined the complainant in the manner desired. 34 In my opinion there is no substance in this ground of appeal. 35 The second ground of appeal complained that the trial judge erred in refusing to give a ruling about what material might be led by the Crown if the appellant raised his good character. 36 During the Crown case defence counsel let it be known that he wished to raise the appellant's good character. It is apparent that counsel was aware of material that might possibly be brought into evidence by the Crown, if permitted, if good character were raised. Defence counsel wished to know what adverse effects, if any, might flow if good character were raised. In response, the Crown prosecutor submitted that defence counsel was asking the Court to make a ruling that it had no power to make. Thereafter, defence counsel appears to have been under the impression that what the Crown prosecutor had said was correct. 37 Later on, defence counsel announced the intention not to raise good character, but it does not appear whether that decision was made after consideration of any material available to the Crown or because of counsel's misunderstanding. 38 Defence counsel had the responsibility of deciding whether to raise good character, and if so whether to do so generally or in a particular respect. If he decided to do either, he might expose the appellant to an attack by the Crown by cross-examination or other tender of evidence tending to show that he was a person of bad character generally or in the relevant particular respect. See Evidence Act ss 110, 112. R v PKS, Court of Criminal Appeal, 1 October 1998, unreported. 39 Defence counsel never made clear precisely what his intention was. 40 Counsel could have required the Crown to reveal precisely what evidence it might seek leave to adduce if good character were raised generally or particularly. R v Hamilton (1993) 68 A Crim R 298. There was no attempt to do so. 41 The Crown prosecutor was wrong to submit that the Court had no power to make an advance ruling. R v PKS. 42 If defence counsel had put forward a properly formulated proposal to raise good character in general or in the particular respect, for example that the appellant was not guilty of sexual misconduct against young children, and the Crown had been required to make available or make known what material it would wish to bring forward, the trial judge would have been obliged to indicate what evidence if any the Crown might be permitted to adduce. That stage was never reached and the trial judge was not in error. 43 It would appear from what this Court has been told that at the time of trial a number of allegations of sexual assaults upon other complainants were outstanding against the appellant. It seems highly probable, therefore, that if the appellant had put forward good character in general or in the particular sexual respect I have mentioned, the Crown would have been permitted to prove his sexual assaults on other children. To have conducted the trial otherwise would have allowed the appellant to be presented to the jury falsely as a man of unblemished character in the relevant respect. 44 Accordingly, I think that the appellant lost nothing from the lack of the ruling sought by defence counsel. I think that this ground of appeal should fail. 45 As with the first ground of appeal, the third ground of appeal, while not formally abandoned, was not pressed in oral argument. The identification of the appellant as the attacker was the single most important issue at the trial. Accordingly, the learned trial judge gave comprehensive directions about the caution with which such evidence should be approached and about the need to scrutinise it. This ground complains that her Honour did not direct the attention of the jury to specific weaknesses in the identification. It was submitted, for example, that the jury ought to have been reminded that the identification was of a person who was initially a stranger to the complainant and that a long time went by between the time of the alleged assaults and the complainant's identification of the appellant as his attacker, and that her Honour failed in not directing the jury that there have been miscarriages of justice because of mistaken identification evidence. 46 The trial judge delivered a detailed and careful directions, cautioning the jury that evidence of identification or recognition could be wrong, even though the person giving it believed it to be true. The jury were told to scrutinise the evidence closely. They were told that witnesses are capable of making mistakes in relation to recognising people, particularly where a long period of time intervenes between the event and the recognition. They were told to look very closely at the evidence of the complainant in relation to his recognition and the surrounding evidence to see whether they should rely on it before convicting the appellant. They were also told why such caution was necessary. They were told to consider the opportunity the complainant had to see his attacker, the possibility of there being a change in the appearance of the appellant from time to time and that the complainant's first opportunity for close contact or recognition was early in 1996. 47 In my opinion the directions were proper and lacked nothing that ought to have been said. The jury did not need to be told that the complainant and the appellant were strangers. The whole case was conducted on that understanding. Her Honour did refer to the passage of time. There was no need for her Honour to inform the jury that miscarriages of justice have occurred because of mistaken identification evidence. No application for further directions was made to the trial judge. I would refuse leave to appeal on this ground. 48 By the fourth ground of appeal it was asserted that the verdicts were unreasonable and could not be supported by the evidence. The first submission under the ground was that the following factors in combination led to the conclusion that the jury ought to have had a reasonable doubt about the guilt of the appellant on all counts, namely - 1. The sole evidence implicating the appellant was that of the complainant; 2. The complainant did not complain for thirteen years; 3. In view of the delay, there was a great risk of mistaken identification; 4. The delay made it difficult for the appellant properly to defend the charges; 5. There was an inherent unlikelihood in the complainant's count of the second incident in that he ran into the toilet block that was the scene of the first incident; and 6. The matters raised in the first three grounds of appeal. 49 I have read the transcript of evidence of the complainant. His evidence on the first, second and third counts was given in an apparently clear manner and was sufficient to make out the offences if believed. The reasons he gave for delaying his complaint, namely that he was ashamed of what had happened and afraid of the way his family might react if told, is understandable. 50 This was not a case of a simple thirteen year delay in identification, with nothing significant happening in the meantime. The complainant saw the man he eventually identified as his attacker in the streets of Nowra at least eight or ten times between 1983 and 1990 or 1991, when he went to live in Wollongong. He had the opportunity to become familiar with the appearance of his attacker during the sexual assaults and had the opportunity of seeing his attacker on repeated occasions over the years before he eventually complained. 51 It does not appear to me to be inherently unlikely that a person should attack a boy twice in the same place, especially when that place is a toilet block and the attack is sexual. 52 The thirteen year delay did not really make it any more difficult for the appellant to defend the charges. It is not as though if brought to trial earlier he could have obtained witnesses. His case was that he was not there. Although, according to the complainant, another person came into the toilet block on the occasion of the second attack, so enabling him to escape, there is no reason to believe that that person saw anything untoward happening between the attacker and the complainant. On that occasion the complainant's clothing was not removed. All that happened was a touching of the penis outside the clothes. 53 In my opinion it cannot be said that, because of the circumstances relied on by the appellant, the jury ought to have had a reasonable doubt about his guilt on the first three charges. 54 The second submission under this ground was that the verdicts of guilty on the first three counts could not stand together with the verdict of not guilty on the fourth count. The argument was put in two ways. It was submitted first that there was no reason for thinking that the complainant had made a mistake in his identification of the appellant as his attacker on the fourth ground though he had correctly identified him in relation to the other grounds. There was no suggestion of consent and no possibility, given the complainant's version of what happened, that the appellant could have believed that he was consenting. The only evidence capable of convicting the appellant came from the complainant and it was all susceptible to the same criticism, for example, about delay and the dangers of identification, no matter which count it referred to. Nothing in the evidence justified a different approach on the fourth count from the approaches taken on the other counts. Since the jury had a reasonable doubt about the reliability of the evidence of the complainant on the fourth count, and since there was in all the circumstances nothing to distinguish the counts from each other in any relevant way, the Court should conclude that the jury ought also to have had a reasonable doubt about his reliability on the remaining counts. M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. 55 Alternatively, it was submitted that the verdicts did not represent the unanimous opinion of the jurors but were a compromise. 56 It was submitted for the Crown that the verdicts should be regarded as the unanimous verdicts of the jury and that there might be reasons which carried weight with the jury, but which were not apparent from a reading of the transcript, why they distinguished between the fourth and the remaining counts. 57 It was submitted alternatively that even if there were no such ground for discrimination, the Court should conclude that the jury had returned a "merciful" verdict on the fourth count. 58 Although there is no legal or factual inconsistency between the verdicts on the fourth and the remaining counts, the difference between them, for the reasons put forward by the appellant, is striking. They are inconsistent in a practical sense and call for explanation. Some means of reconciling them must be found. 59 When considering verdicts attacked as inconsistent the Court ordinarily assumes that the jury performed their functions according to their oath. In MacKenzie v The Queen (1996) 190 CLR 348 Gaudron, Gummow and Kirby said at 367 - Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. 60 The two possible "proper" ways of reconciling the verdicts are those contended for by the Crown. It was conceded on behalf of the Crown that nothing that appears in the transcript explains the jury's differential verdicts, but it was submitted that it was likely that there was nevertheless some legitimate point of distinction. The jury were directed that they should consider each count separately. They were told that they might accept part of what a witness said and reject part. They were told that witnesses might be mistaken or might lie in some respects but not in others. They were told to scrutinise the evidence of the complainant with great care because the Crown depended on his evidence alone. They were told that when assessing the reliability of a witness they were entitled to take account of the demeanour of the witness and the impression made by that witness upon them. 61 It was submitted that the complainant might, by the way he gave his evidence rather than by what he said, had given the jury an impression of reliability on the counts on which they convicted but not on the fourth count. He might in part have seemed tentative to them. He might even have appeared untruthful. Proper respect must be paid to the function of the jury and the advantage they have over an appellate court in seeing and hearing the witnesses. M v The Queen. 62 It seems to me not impossible that the jury discriminated for any such reason but, for reasons that I shall shortly explain, I think it improbable because there is a much more likely explanation for the verdicts. 63 The alternative explanation contended for by the Crown is that the jury took a "merciful" view of the facts on the fourth count but not on the remaining counts. Such a function is often exercised by juries. R v Hunt [1968] 2 QB 433; MacKenzie v The Queen; R v Kirkman (1987) 44 SASR 591 at 593. 64 It seems quite unlikely that the jury made their distinction on that basis. These were very serious offences against a young boy. The fourth count concerned one of only two offences of sexual intercourse without consent, which the jury would have realised were more serious than the other two charges. The appellant adduced no evidence of good character and there is no reason to believe that the jury would have felt especially sympathetic towards him. 65 Even if the jury had wished to afford him some relief, it is much more likely that they would have done so, for example, by convicting of one only of the two counts arising from the first incident or some but not all of the counts arising from the incident in the first toilet block. 66 I think that the verdicts were compromised and that the evidence for that conclusion is overwhelming. 67 The trial began on the morning of Monday 9 February 1998. The appellant was arraigned before the jury. The trial judge made some preliminary remarks during which the jury were told that the case would take two days and might possibly run into Wednesday. The Crown prosecutor opened the case after lunch and it became necessary almost immediately for the trial judge to entertain an application, in the absence of the jury, for the exclusion of certain evidence. That took the rest of the day and the evidence did not begin before the jury until 11.10am on the Tuesday. The Crown case closed towards the end of that day. 68 The defence case took up Wednesday and Thursday and was closed early on the Friday morning. Counsel addressed and the trial judge summed up, ending just before 4pm. The trial judge said this - I am conscious that it is just before 4 o'clock on a Friday afternoon. I would like it if you could commence considering your verdict this afternoon. I do not know how you all feel. Is that what you want to do, start now and see how you go? 69 There may then have been some unspoken, or at least unrecorded, communication between the jury and the trial judge, who then said - I think we will do that and let us know how you go during the course of the afternoon. We are not going to make you stay here for ever tonight but just see how we go when you start considering your verdicts and doing all those things that we have already referred to. 70 The jury retired at 4pm. After counsel had made application, the jury were brought back into court at 4.15pm for further directions. They retired again at 4.17pm. 71 At 4.40pm the jury sent a note to the trial judge asking to be allowed to see the complainant's statement. They were brought into court to be told that the statement was not in evidence, and that precipitated a remark by the foreperson to the effect that two of the jurors would like to hear again the evidence about the times that the complainant had seen the appellant. It took some time for counsel to identify every piece of relevant evidence and it was not until 5.10pm that the jury were reminded of the evidence of each relevant occasion. The jury finally retired at 5.15pm. 72 The jury returned with their verdicts at 8.45pm. 73 The facts were simple and the issues straightforward. The evidence of the complainant was enough, if believed, to prove each charge. It was never suggested to the complainant that he had not been sexually assaulted and the practical question was whether it was the appellant who had assaulted him. The evidence about the appellant's appearance and his sexual ability was simple. So was the ultimate issue, namely whether the complainant might have been mistaken in his identification or recognition of the appellant as the man who attacked him. 74 Even assuming that the jury did not begin to deliberate until they retired at 4pm, they had almost five hours in which to consider these matters. It seems reasonable to suppose, however, that they must have begun at least to discuss them well before their retirement. 75 There was no communication from the jury after 5.15pm to show what, if any, particular difficulty they were having. It seems to me, however, in view of what they had originally been told about the likely length of the trial, the lateness of the hour, and the time that they had taken since retirement, they must have been under substantial pressure to reach their verdicts. It must have appeared to one or more of them that if they could not agree they faced the prospect of coming back to court on the following week. That was unlikely to have been a welcome prospect. 76 No occasion had arisen for them to be given a direction in accordance with Black v The Queen (1993) 179 CLR 44 which would have reminded individual jurors not to join in any verdict with which they did not agree. 77 These circumstances make it appear highly probable that, notwithstanding the oath they had taken, the individual members of the jury made a compromise in order to bring matters to an end and obviate the need to continue even later into the night or disrupt the business of the following week. 78 Since none of the verdicts represented the opinion of all the members of the jury, they should not be allowed to stand. I would quash the convictions and order a retrial of those counts. R v Hauke, Court of Criminal Appeal, 27 March 1995, unreported; R v Crisologo (1997) 99 A Crim R 178. 79 I propose the following orders - 1. Appeal allowed and convictions on the first, second and third counts quashed. 2. New trial ordered on those counts. IN THE COURT OF CRIMINAL APPEAL 60328/98 FITZGERALD JA BARR J SMART AJ Friday, 31 March 2000 REGINA v. DENNIS NOEL ROBINSON JUDGMENT 80 SMART AJ: Dennis Noel Robinson appeals against his conviction on two counts of indecent assault and one count of sexual intercourse without consent. The jury acquitted him of a further count of sexual intercourse without consent (count 4). Mr. Robinson also seeks leave to appeal against the severity of his sentences. On the count of sexual intercourse without consent, his sentence comprised a minimum term of 4½ years and an additional term of 1½ years. He received concurrent sentences of fixed terms of 4 years. 81 The principal challenge to the convictions was that, having regard to the acquittal on count 4, the verdicts of guilty on the other counts were unreasonable and not supported by the evidence. The Crown case depended on the evidence of the complainant. The other grounds of appeal related to rulings by the judge in the course of the trial and her directions as to identification. 82 Because of the principal challenge, it is necessary to refer to the evidence in some detail and particularly the cross examination of the complainant and the appellant. 83 The complainant said that shortly after he turned 13 and on a day in about March, 1983, he had just finished urinating at a trough in a public toilet block next to the School of Arts in Berry Street, Nowra. It was about 4.30 p.m. As he was about to leave a man (subsequently identified as the appellant) came up behind him, put his arms around his chest and grabbed him. The complainant struggled. The man dragged him back into one of the cubicles in the men's toilet. The complainant said that he attempted to push past the appellant but the appellant pushed him back quite firmly into the cubicle. The man shut the door. 84 The appellant dropped his pants and began to fondle himself. He told the complainant to touch the appellant's penis. The complainant did not act or say anything. The appellant forced the complaint's hand on to the appellant's penis which was erect and circumcised. The appellant was circumcised. These events were the subject of the first count of indecent assault. 85 The appellant told the complainant to bend over. The appellant forcibly turned the complainant around and pushed the upper part of his body downwards towards the toilet bowl. After touching the complainant's bottom, the appellant inserted his finger in the complainant's anus. Next the appellant forcibly pushed his penis into the complainant's anus. He complained that it was hurting and told the appellant to stop. The appellant continued for a period estimated by the complainant to be about ten minutes. Next the appellant forced the complainant to have oral sex by forcing the complainant's mouth over the appellant's penis. The appellant ejaculated in the complainant's mouth. The appellant pulled up his pants and left. These events were the subject of the second count of having sexual intercourse without consent, knowing that the complainant was not consenting, and the complainant being under the age of 16 years, namely 13 years. 86 The complainant described the appellant as "a large built man, overweight in the stomach, considerably larger than me". 87 The complainant said that roughly 2 weeks later he saw the appellant walking down the main street of Nowra on the opposite side to that of the complainant. 88 The complainant said that about a week later he saw the appellant walking along the same side of the main street towards him. He again recognised him as the man who had assaulted him. The complainant turned around and walked briskly away and then ran to the toilet block next to the School of Arts in Berry Street. The complainant said that he panicked. His parents were some distance away and he did not want to go to the police as he was ashamed and scared. He wanted to hide from the appellant. On arriving at the toilet block the complainant locked himself in one of the cubicles. A short time later he heard a person enter the toilet. That person knocked on the door but the complainant remained silent. The person knocked again and said "I know you're in there." It sounded like the man who had previously assaulted him. The complainant remained silent. He stayed in the cubicle for some minutes. He thought that the appellant had left. On leaving the cubicle the complainant encountered the appellant in the entrance way to the block. The appellant said "I've been looking for you." The complainant tried to push past. The appellant put his arms around the complainant "in a bear like sort of hold" and started to force the complainant back into the toilet block. The appellant started to fondle the complainant's penis over his shorts. Another male entered the toilet block, the appellant released the complainant, who pushed past and ran out of the toilet block and away. These events were the subject of the third count. 89 The complainant said that he saw the appellant about a month later. He was riding his pushbike along Kinghorn Street, Nowra when he saw the appellant. He rode past at a reasonable speed on the footpath and called the appellant "a fat s-" and spat at him. The complainant said that he was very angry with the appellant and "wanted to get back at him in some way." The complainant said that he rode over towards Bomaderry along the walking track. It took about 15 minutes to ride from the township of Nowra to the area where he went at Bombaderry. He sat beside Bombaderry Creek, not far from the boat ramp. He found it a peaceful and pleasurable place to go. After a period there he rode his pushbike back along the walking track. He saw the appellant standing outside the entrance of the toilet block at the nearby Artie Smith Oval. By the phrase "walking track" the complainant included the cycle way and/or footpath. The cycle way went past the oval and within 15 to 20 metres of the toilet block. As the complainant was riding by the appellant yelled something out which the complainant did not hear. He lost his balance, brushed the fence with the pushbike and fell off. The appellant came over and grabbed him from behind and proceeded to drag him away, thwarting his attempt to get back on his pushbike. The appellant dragged the complainant over to and into the toilet block. The cycle way or footpath was on the outside of the fence and the toilet block was inside the fence. There was an opening in the fence near the toilet block. 90 It was about 5 p.m. and late April, 1983. The complainant said that he was yelling and trying to break free. The appellant dragged and pushed him into one of the cubicles. The appellant shut the door, took his pants down and proceeded to pull down the complainant's pants despite his protests. Thereafter the appellant forced the complainant to receive the appellant's penis in his mouth and moved the complainant's head backwards and forwards. After a period the appellant ejaculated in the complainant's mouth. The appellant withdrew his penis, remarked that that was fun and left. 91 The complainant stated that he had seen the appellant at least 8 to 10 times between 1983 and 1990/1991 in the public areas of Nowra. He said there had been no conversation or close contact. 92 In late 1995 the complainant was employed at the Youth Centre in Nowra. He saw the appellant attend committee meetings there of an organisation called SCAIMAC. On a couple of occasions they spoke but the conversation was of no moment and short. On another occasion the complainant was on a bus driven by the appellant. 93 The appellant gave explanations for not reporting any of the 1983 incidents to the police until 1996. Basically he claimed that he was ashamed, scared and frightened that the appellant might come after him. Further he was concerned that he had not reported the earlier incidents. 94 The cross examination of the complainant elicited that he had a minor criminal record for 2 offences of dishonesty in about 1991 for which he was fined $50 and placed on a bond. It tried to establish that the complainant had blamed the wrong man but he did not agree. As to the Bombaderry incident it emerged: (a) There was traffic on the Nowra Road which passed within about 20 metres of the toilet block which was clearly visible from the road as was the area in front of it across which the complainant was allegedly dragged. He recalled one or two cars passing. No vehicle stopped and no assistance was offered. (b) When the complainant abused the appellant in Nowra, he did not tell him he was going to the Artie Smith Oval (or the area near the boat ramp_) (c) The complainant was not expecting the appellant to turn up at the oval; the complainant had not planned to go to the oval. (d) There were shops some 50 or 60 metres away; he did not know if the shops were open. (e) After he abused the appellant in Kinghorn Street, he did not look back to see if the appellant was following. (f) The incident allegedly happened in daylight. Underlying the cross examination was the theme that there were improbable features about the incident of late April, that it did not happen or, at least, that there was a reasonable doubt about this incident happening. 95 As to the incidents in the toilet block near the School of Arts, it was elicited in cross examination that it was in a busy part of Nowra and close to a grassed area which was steep and so not normally walked upon. The complainant said that there were not a lot of people around that toilet block when he entered on the first occasion. Nor did anyone other than the appellant come into that toilet block on that occasion. The complainant did not recall whether it was busy outside that toilet block on the second occasion. 96 There was virtually no cross examination of the complainant in relation to the incidents in the toilet block near the School of Arts. There was no testing of his evidence as to these. This may have been due to the appellant's assertion that he was not the man who assaulted the complainant. As to the Bombaderry incident, the appellant sought to raise a doubt out of the circumstance in which the incident allegedly occurred. 97 During the complainant's cross examination, it was suggested to him that he had been influenced to make the complaint by those who used the Shoalhaven Youth Centre, the appellant having had differences with other members of SCAIMAC. The complainant did not agree. 98 The appellant denied that he had ever assaulted Mr. Eastment. He asserted that he was not involved in any of the incidents alleged. 99 One of the issues at the trial was the appearance and weight of the appellant. His obesity was one of the factors which helped to identify him. The appellant stated that he was a heavy boned man and 5 feet 8½ inches tall. He asserted that in 1983 he was 13½ stone and that at the time of the trial he was 21 stone. In cross examination he denied that he had a bit of a stomach back in 1983. He described himself as "slightly overweight", and "probably one and a half stone overweight." In re-examination he said that he had reflected on his weight in 1983 and that on reflection his weight in 1983 was about 16½ stone. That re-examination occurred after Dr. Dipold had first attended at Court but before she gave evidence. 100 Dr. A. Dipold first met the appellant in 1981 in a social context. He became a patient in 1984. She said of the appellant: "He's been grossly overweight ever since I have known him." . She described him as "overweight everywhere". She thought he was at least 20 stone in 1981 and she could not remember any time when he was less than around 20 stone. She did not accept that he was only 16 stone in 1983. In November, 1984, the appellant was 22½ stone. The appellant's obesity made him distinctive and easily identifiable. It gave added point to the complainant's evidence of a "bear hug". The complainant was a slender 13 year old lad. 101 To assist his case on the issue of his size, the appellant tendered a family photograph of himself and his wife which he stated was taken in about 1982. While he appears overweight in that photograph, he was not grossly so. His wife thought that the photograph was taken "somewhere in the late 70's or early 80's". 102 The doctor said that the appellant suffered from obesity, high blood pressure (hypertension) and developing diabetes. He took Tenomin for the high blood pressure. She said that as the appellant's diabetes got worse, his libido and sexual ability (gaining an erection) would gradually decrease. The drugs had an adverse effect on his ability to obtain and maintain an erection. While it was possible that a person with the problems of gross overweight, diabetes and hypertension might obtain an erection, it was not her experience that this would happen. 103 A psychiatric report which she received in 1994 recorded that the appellant had had no marital relations for over 10 years. The psychiatrist had found that the appellant was depressed and that the lack of marital relations was due to depression and the appellant's physical condition. 104 The appellant stated that in 1983 he had no libido at all and could not achieve an erection. The appellant said that he started taking tablets for his diabetes in late 1983/1984. While he could not achieve an erection before this, this extra medication made his position even worse. The appellant's wife said that from the 1970's until around 1980 the appellant was able to achieve an erection. In the early 1980's she sought assistance in having a child. 105 The appellant put in issue that over the years the complainant had seen him on occasions in the streets of the Nowra business district. The appellant asserted that he was "rarely" in those streets and would not concede that it was possible that he had been seen by the complainant in those streets. The appellant lived in Nowra but in some of those years he had been away working and living in Sydney during the week (Sunday afternoon to Friday night). The appellant's evidence on this matter was strained and lacking in credibility. The evidence of his wife was that he would have gone into Nowra "possibly, only occasionally on the weekends." 106 There are indications in the transcript that the demeanour of the complainant and the appellant was of some importance. During his examination in chief, the complainant had to be asked to keep up his voice. This occurred five times in the first 4 pages of his evidence. He also needed a glass of water. He dropped his voice again subsequently. Much of the dropping of the voice happened while giving evidence of the first incident. He did not seem to experience this difficulty when describing the second and third incidents (counts 3 and 4). After being cross examined directly on each of the incidents (but not at great length) the appellant was seen by paramedics and taken to hospital during the lunch hour. The trial was adjourned until the following day. The appellant did not want to return to the witness box even for re-examination. The judge allowed him to be further cross-examined on one point. The re-examination was minimal. 107 The appellant submitted that as the jury's verdicts indicated that they had not accepted the appellant's evidence beyond reasonable doubt as to the Bombaderry incident, the jury should not have been satisfied beyond reasonable doubt of the appellant's guilt on counts 1 to 3. The appellant's credibility had been found wanting and there was no sufficient difference in the evidence to justify the different verdicts. 108 I disagree. There is a substantial difference between the first and second incidents giving rise to counts 1 to 3 and the third incident giving rise to count 4. The earlier incidents took place within the toilet block and are of a type encountered, albeit distastefully and wrongly, on occasions. Such incidents are not usually advertised and often end quite abruptly with the arrival of others in the toilet. The Bombaderry incident was extraordinary. It involved dragging the complainant 15 to 20 metres across an area to which the public had access and which was in full view of those using the sporting area and the Nowra road. I doubt if passing motorists would have seen sufficient to stop. However, people could have arrived at the area at any time. It was an odd coincidence that the appellant and the complainant arrived at the same general area, even if by different paths. 109 The complainant's evidence was substantial. The appellant's evidence was not such as to raise a reasonable doubt. I can well understand a jury having no reservations about the incidents in the toilet block near the School of Arts but not being satisfied beyond reasonable doubt as to that in the toilet at Bombaderry. Further, while the cross examination as to the Bombaderry incident constituted a real challenge to the complainant's version, that as to the other incidents, did not. 110 The judge finished her summing up about 4 p.m. on Friday, 13 February, 1999 and the jury retired to consider their verdicts. This was a trial in which quite a lot of time was lost due to various applications, the non-availability of functioning equipment and the appellant's spell in hospital. The judge said to the jury: "I would like it if you could commence considering your verdict this afternoon. I do not know how you all feel. Is that what you want to do, start now and see how you go? I think we will do that and let us know how you go during the course of the afternoon. We are not going to make you stay here for ever tonight but just see how we go when you start considering your verdicts and doing all those things that we have already referred to. If you have got any questions or those matters that I raised that need to be clarified, just get a note to one of the officers. We will re-assemble the Court and deal with it as soon as possible after getting the note." 111 At 4.15 p.m. the judge had the jury return to Court and she corrected a matter in her summing up. The jury retired to further consider their verdict at 4.17 p.m. At 4.40 p.m. the jury asked to see the complainant's statement to the police. At 4.55 p.m. the judge explained to the jury that the statement was not available as it had not been tendered in evidence. The foreman of the jury stated that a couple of the jurors would like to hear again how many times the complainant had seen the appellant over the years. The jury retired. At 5.10 p.m. the judge summarised the evidence on this point for the jury. They retired to further consider their verdict at 5.15 p.m. 112 Shortly before 8.45 p.m. the jury returned their verdicts. While the jury considered their verdicts on Friday afternoon and evening no pressure was placed on the jury. They did not ask to return on the Saturday or Monday. The judge, while expressing her own preference that they begin to consider their verdicts, left it open to them to decide what they would like to do. There were considerable advantages in deciding the matter while everything was fresh in their minds especially as there was no transcript available. I do not think that the jury were placed under pressure. The trial had lasted five days and the jurors may well have had other commitments in the following week. It was not a complex case. The jury would have been given an evening meal and could at any stage have asked to suspend their deliberations. Neither counsel made any application to the judge. Those present at the trial felt no difficulty in continuing. My own experience is that some juries find it better to continue into the evening and some juries sit to even later hours. The jury spent over four hours considering this matter. That was ample and does not suggest any rushed consideration. I think that the different verdicts were readily understandable. 113 The appellant relied upon Jones v The Queen 191 CLR 439. At 450-452 the majority re-affirmed what the majority judges said in M v The Queen 181 CLR 487. The test was whether the court thinks upon the whole of the evidence it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. At 451 the majority in Jones with reference to M said: "The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: "In answering that question the court must not disregard or discount either the consideration that the jury is the body 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." The majority judges explained the application of the test as follows: "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." 114 In Jones the majority High Court of Australia took the view that the jury's finding of not guilty on one count damaged the credibility of the complainant on the remaining counts. They thought that there was nothing in the complainant's evidence or the surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to those counts on which the accused was convicted than that count on which he was acquitted. 115 In the present case the different circumstances regarding the Berry Street toilet block incidents and the Bomaderry incident are significant. Those surrounding the latter are sufficiently unusual to require some other supporting evidence prior to conviction. 116 I agree with what Barr J has written on the other grounds of appeal. In my opinion the appeal should be dismissed. The application for leave to appeal against the severity of the sentence remains outstanding. 117 I am conscious of the contrary views of my brothers on the substantive ground argued and the different orders which they propose. To achieve a result I withdraw my reasons for judgment and concur in the orders proposed by Barr 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. 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.