New South Wales Court of Criminal Appeal CITATION : REGINA v ROBERT GEORGE FITZSIMMONS [2001] NSWCCA 59 FILE NUMBER(S) : CCA 60166/00 HEARING DATE(S) : 22 February 2001 JUDGMENT DATE : 14 March 2001 PARTIES : REGINA v ROBERT GEORGE FITZSIMMONS JUDGMENT OF : Mason P at 1; Giles JA at 27; Whealy J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2033 LOWER COURT JUDICIAL Keleman DCJ SC OFFICER : COUNSEL : Appellant: A C Haesler Crown: M C Marien SOLICITORS : Appellant: D J Humphreys Crown: S E O'Connor CATCHWORDS : Criminal appeal - unreasonable verdict - indecent assault - inconsistent verdicts - no question of principle DECISION : 1. Appeal upheld. 2. Conviction quashed. 3. Enter verdict of acquittal. IN THE COURT OF CRIMINAL APPEAL CCA 60166/2000 MASON P GILES JA WHEALY J Wednesday 14 March 2001 REGINA v Robert George FITZSIMMONS JUDGMENT 1 MASON P: The appellant was tried in the District Court on an indictment containing two counts: sexual intercourse with a person under the age of 10 years (Crimes Act 1900, s66A) and indecent assault (Crimes Act, s61L). 2 The case presented to the jury was that the two incidents occurred in that sequence and on the same occasion, involving the same complainant who was an eight year old girl at the time. 3 The appellant was found not guilty on the first count and guilty on the second. He was sentenced to perform community service for three hundred hours. 4 The Crown case depended essentially upon the testimony of the complainant. She was a couple of months short of her 16th birthday when she gave evidence at trial. The events in question had occurred in July 1992, shortly after her eighth birthday. The complainant had given her first statement to the police in September 1996 and her second in November 1996. 5 The complainant lived with her parents in Sadlier. She was friendly with another young girl, Carrie, who lived nearby. Carrie lived with her mother Barbara L and her de facto husband, the appellant. 6 The complainant said that one Friday or Saturday night in a period between June and July 1992 she spent the night at Carrie's house. They watched video movies on a video recorder machine. The following morning she and the appellant were sitting watching television in the lounge room. She thought that Carrie was still in bed and that Carrie's mother was out shopping at the time. 7 The complainant said that the appellant told her to get changed because they were going to play a game. She started to do so, but while she still had her t-shirt on, he told her to lie down. She told him that she had to finish getting changed, but he shook her and she lay down. She was asked what then happened and said: And then I lied down and he was on top of me with his pants up and then he was going up and down on me and then after that he undid his pants and …. 8 She then gave evidence of penile sexual intercourse inside her vagina. After a while, and during sexual intercourse, he said "we will keep on playing the game for a little while". She said "No I don't like this game" and he got off her. She then ran home and had a shower. 9 It was put to the complainant that she had never stayed overnight at her friend's house and that no events such as alleged ever occurred. 10 In cross examination, the complainant was challenged as to a number of details about her evidence concerning the sexual intercourse. She generally adhered to her evidence. In particular, she was confronted with the impossibility of her earlier evidence that intercourse occurred with the appellant's head adjacent to her head, having regard to the comparative sizes of the two people in 1992. She was also challenged on her evidence that sexual intercourse occurred for ten or fifteen minutes, leaving her sore for about half an hour. The acquittal of the appellant on the first count means that this challenge has continuing relevance only in so far as it reflects upon the complainant as a credible or accurate witness. I shall come back to various matters raised in this regard. 11 It is however the evidence relating to the second count that needs careful scrutiny in this appeal. The Crown case was always to the effect that the appellant zipped up his pants after the act of sexual intercourse, and then rubbed her indecently with his pants as he lay on top of her. This was the offence, and the only offence, that went to the jury on the second count of the indictment (see Summing up p14). 12 The complainant's evidence in relation to the indecent assault charge was most unsatisfactory. Whatever the reason, she evidently did not "come up to proof". In her evidence in chief she said that the appellant was on top of her with his pants up "and then he was going up and down on me and then after that he undid his pants …." (see also her evidence in cross examination at Tr p20 line 14 and in re-examination at Tr p30 line 31). To the extent that this was evidence of an indecent assault independent of the act of sexual intercourse, it was not the assault charged. 13 Later, in her evidence in chief, the complainant repeatedly said that she could not remember anything happening between the appellant finishing having sex and the complainant running home (Tr p8 line 14, p9 line 51, p10 line 25). 14 The Crown Prosecutor evidently tried to repair matters in re-examination. By that stage the complainant had been shown the two statements which she had given the police in late 1996. The following was the totality of the complainant's evidence given in re-examination (Tr p30). CROWN PROSECUTOR: Q. You have been shown various statements and asked questions? A. Yes. Q. Two statements in fact. You were asked by my learned friend that, he reminded you of the fact that you said in your earlier evidence that after the sexual intercourse had finished and that you had run off home? A. Yes. Q. In between that time nothing else had happened? A. Yes. Q. Now after my friend has referred you to your statement is that still your answer? A. Yes, I think so, I don't understand properly. Q. You said that you don't have a memory --- A. Oh yes --- Q. Of anything, or something might have happened, I think that's what you said to my friend, after he finished having sexual intercourse and before you ran off home? A. Yes I thought --- Q. Now do you --- A. Yes now I know. Q. What happened in between? A. In between after he finished and me running home, he was on top of me with his pants done up, but I thought that was before. Q. What was he doing with his pants done up on top of you? A. He was just rubbing up and down on top of me. 15 In convicting the appellant on the second count, the jury must have regarded this evidence, the last two questions in particular, as amounting to an assertion by the complainant that the indecent assault occurred after the intercourse. 16 In my view the jury ought not to have been satisfied beyond reasonable doubt that the second count was established. This conclusion is based upon the complainant's evidence as recounted above. The balance of the evidence at trial only strengthens my doubts about guilt having been established to the proper standard. There was a good deal of other evidence led at the trial, but none of it had the effect of strengthening the Crown case in relation to the second count, rather the reverse. 17 When he had been interviewed by the police the appellant denied any wrongdoing. The record of interview was put before the jury. The appellant did not give evidence at the trial. 18 The complainant's father gave evidence that in 1992 the family lived in Sadlier and that as a result he knew the appellant, the appellant's wife "Barbie" and her daughter Carrie. He said that Barbie asked him if the complainant could stay overnight. It was on a weekend. He agreed she could and he was certain that she did. He added that his other daughter, Rebecca, could well have stayed over that same evening. Rebecca was closer to Carrie's age. (However, the complainant herself stated that Rebecca had not been present on the night in question.) 19 The Crown called Carrie, who said that the complainant had never come inside her house. She agreed that she had played with the complainant and her older sister Rebecca, but never inside the house. 20 The appellant's de facto wife, Barbara, was also called as a Crown witness. Sometime in the 1980s she had suffered a cerebral haemorrhage. Her memory had been affected and it had progressively worsened. Aspects of her testimony corroborate that she was suffering difficulties of recall. Nevertheless, it was her evidence that the complainant had never stayed over at her house. She said that she was positive about this because her daughter was at a different age level and her friends were in a different category to the complainant. Mrs L also gave evidence to the effect that the family's first VCR was acquired in 1993, ie a year after the date of the offences charged. A "rent to own contract" dated 25 August 1993 was put into evidence. 21 No complaint is made about the careful summing up of Judge Keleman SC nor does the appellant contend that Jones v The Queen (1997) 191 CLR 439 applies in the sense that the two verdicts cannot stand together. It is accepted that there were specific difficulties with the complainant's evidence as regards the sexual intercourse count. 22 It is, nevertheless, submitted that the jury should have been all the readier to acquit on the second count in light of the specific problems facing the Crown case on the first count, being problems that depended essentially upon acceptance of the complainant as a credible witness. (By "credible" I am not confining myself to the complainant's honesty. The jury had to be satisfied beyond reasonable doubt that her evidence was accurate as well as honest.) 23 Among the matters relied upon as casting reasonable doubt about the acceptability of the complainant's evidence generally were: • In 1996 the complainant told the police that the appellant had an eagle tattoo on his shoulder or the top of one of his arms. The appellant has no such tattoo. • In 1996 the complainant told the police that the house where she was sexually assaulted had two bathrooms: it is accepted that this was never the case in relation to the appellant's house at Sadlier. • In 1996 the complainant told the police that the appellant took his shoes off before the alleged sexual acts took place. At trial she said she had no memory of this occurring. More significantly, there was evidence from the appellant's de facto wife that he had never been allowed to wear his shoes inside the house. • The evidence raising a doubt about whether the appellant's family had a VCR in 1992 has already been mentioned. • The absence of any medical evidence that might have lent support to the complainant's evidence about prolonged and painful sexual intercourse is also a relevant matter. 24 As indicated, the first complaint was made in the latter part of 1996, ie over four years after the matters charged. There was evidence explaining the delay in complaint and the jury were given an appropriate direction accordingly. The jury were also properly given a strong Longman warning about the dangers of convicting an accused person based upon an allegation of this nature after a considerable lapse of time. In the present case these difficulties were not just theoretical. This was a case based upon of a single set of events occurring on a weekend morning when the appellant's de facto wife was said to be out shopping and her daughter Carrie still sleeping. True, each of those witnesses denied in general terms that the complainant had been to the house. But the lapse of time may well have blotted out more specific memories of relevance to the appellant's case. Particularly is this so in relation to the appellant's de facto wife who had genuine and demonstrable memory difficulties. 25 The Crown case depended essentially upon the evidence of the complainant. Her father's evidence (general though it was) supported the complainant's evidence that she had stayed overnight, but contradicted it as to whether her older sister accompanied her. The other two major witnesses called by the Crown contradicted the complainant's evidence in several matters which, though ultimately peripheral to the specific charges, should have sowed significant seeds of doubt. 26 Viewing the evidence as a whole I am of the view that the jury ought to have had a reasonable doubt in relation to the second count. Accordingly I would uphold the appeal, quash the conviction and enter a verdict of acquittal. 27 GILES JA: I agree with Mason P. 28 WHEALY J: I agree with the reasons of Mason P and the order that 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. 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