R v MILLS [2001] NSWCCA 48

New South Wales Court of Criminal Appeal

CITATION : R v MILLS [2001] NSWCCA 48 FILE NUMBER(S) : CCA 60592/99 HEARING DATE(S) : 26/02/2001 JUDGMENT DATE : 26 February 2001

PARTIES : REGINA v Ronald Albert MILLS JUDGMENT OF : Heydon JA at 1; Barr J at 2; Smart AJ at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0114 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : Crown: GE Smith Appellant: PR Boulten SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys CATCHWORDS : Criminal Law - inconsistent verdicts. R v Crisologo (1997) 99 A Crim R 178 CASES CITED: Jones v The Queen (1997) 191 CLR 439 R v Kirkman (1987) 44 SASR 591 at 593 McKenzie v The Queen (1996) 190 CLR 348 DECISION : Appeal allowed; Convictions and sentences on the first and second counts quashed; Entry of a verdict of not guilty on each of those counts directed.

IN THE COURT OF CRIMINAL APPEAL 60592/99

HEYDON JA BARR J SMART AJ

Wednesday, 2 May 2001 REGINA v Ronald Albert MILLS JUDGMENT

1 HEYDON JA: I agree with Barr J. 2 BARR J: The appellant Ronald Albert Mills appeals against convictions and sentences entered in the District Court. He was arraigned before a jury on three charges of having had sexual intercourse with the complainant, whom I will call S, without her consent and knowing that she was not consenting, she then being under the age of sixteen years. Each offence was charged as having taken place at the same time, which was a day between 1 January and 9 October 1982. The appellant was also arraigned on a charge that at the same time and place he indecently assaulted S. He pleaded guilty to that charge. In due course the jury convicted him of two of the three charges of having sexual intercourse without consent and acquitted him of the third. 3 On the two counts of sexual intercourse without consent Freeman DCJ sentenced the appellant to concurrent terms each of three years' imprisonment, comprising a minimum term of one year nine months and an additional term of one year three months. For the offence of indecent assault his Honour sentenced the appellant to a concurrent fixed term of six months. 4 During 1982 S was living with her parents and other family in a place it is not necessary to identify. Her family attended the Church of Jesus Christ of the Latter Day Saints and she also participated in Church services and activities. She attended youth groups, working bees and the like, as did members of her family. The appellant, who was then aged about fifty-two years, attended the Church as well and occupied a position of some seniority in the congregation. 5 One day there was a working bee and S and her sister L, who was a year older than she, attended as well. There was a room called the Youth Group Room which was going to be painted, and the children were removing furniture in preparation. During the performance of this task S re-entered the room in order to take out a table. Whilst she was in the room she heard the door shut, looked up and saw the appellant. He locked the door by depressing a button on the handle. As a result, the door could be opened from the inside but not from the outside. S was in the centre of the room and the appellant approached her. He undid his trousers and belt and put down his underpants. His erect penis was exposed. He told her to touch his penis. She said that she would not and he took her hand and put it on his penis, rubbing it up and down. He told her to go over to the table. She said that she would not and he replied, "Do it". She obeyed and he told her to "wank him". She did not understand and said so, and he forced his hand on hers on his penis. As that happened he lifted her dress, pulled down her underpants and put his fingers in her vagina. It hurt. Then he told her to put her mouth on his penis and she did so. He put his hand on her head and pushed it whilst his penis was in her mouth. All the while he was touching her sexually in other ways. After that he knelt on the floor in front of her as she stood and put his tongue inside her vagina. He required her then to put her mouth on his penis and again inserted a hand into her vagina. The episode came to an end when she struck him in the groin with her knee, pulled up her pants and left the room. 6 S spoke to nobody about this until she told her mother six months later that the appellant had locked her in a room, put his fingers in her vagina and made her do things. That was S's version. Her mother told the jury that S had told her that the appellant had locked her in the room and put his hand down her pants. 7 When S's mother learned of the appellant's misconduct she reported the matter to the church authorities and a formal meeting, called an Elders' Court, was held. A record of the meeting came into evidence. It includes this passage - Bro Mills said that approx 6 months ago, during some maintenance work at …, he chastened some young children who were making quite a disturbance in one of the rooms. He said that he then felt upset at being hard on them. One of the young girls was still in the room and so he began to console her by a simple embrace. He said that this action led to his fondling her (beneath her clothing) where he ought not to (pelvic region). 8 The appellant gave evidence and denied that any of the acts described by S took place. Explaining his plea of guilty to the fourth charge, he said that he had been at the Church one day and had heard children making a lot of noise. He had gone into the room from which the noise was coming in order to ask those responsible to be quiet. He had seen S and L and in an effort to maintain such friendliness as was proper had put his arms around both of them, so that one was on either side of him. He had spoken to them for a minute or so and L had left the room. S was upset, apparently at the reproof, and kept hugging him. His evidence continued - For some unknown reason I don't know why and I've never really forgiven myself, I placed my hand under her dress and while cuddling her fondled her in the pelvic (sic) region. 9 The appellant's evidence in chief was thus consistent with what he had told the Elders' Court. 10 When cross-examined at the trial the appellant said that he had touched S on the pubic region, which he defined as the region below the navel and in front of the lower part of the abdomen and between the tops of the thighs, and above the vagina. It was on the outside of her underpants. He explained that when he told the Elders' Court that he had fondled S beneath her clothing, he had meant under her dress. 11 L gave evidence denying that the appellant had ever held her and S in the embrace he described in his evidence. 12 For the first count the Crown relied on the insertion of the appellant's penis into S's mouth, for the second on the insertion of the fingers into her vagina and for the third on his putting his tongue into her vagina. 13 The first two grounds of appeal are that the verdicts are inconsistent and that the guilty verdicts are unreasonable and cannot be supported by the evidence. A single complaint is raised, namely that the only evidence capable of convicting the appellant was that of S herself, that it was denied on oath by the appellant, that the jury had a reasonable doubt about S's evidence on the third count and that accordingly they were bound to entertain the same doubt on the other counts. Reference was made to the judgment of the majority of the Justices of the High Court of Australia in Jones v The Queen (1997) 191 CLR 439. It was submitted that there was nothing in S's evidence or the surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to the first and second counts than it was in relation to the third: Jones v The Queen per Gaudron, McHugh and Gummow JJ at 453. 14 The courts have repeatedly expressed reluctance to accept a submission that verdicts are inconsistent, such is the respect that must be accorded to the functions which the law assigns to juries and to the advantage juries have in assessing the reliability of witnesses at first hand. If there is a proper way by which an appellate court may reconcile verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. McKenzie v The Queen (1996) 190 CLR 348. If the party contending for it establishes an apparent inconsistency of verdicts, therefore, the duty of the Court is to enquire whether the verdicts may properly be reconciled. 15 Even if it is not possible to point to circumstances which justify the jury's discrimination between counts, however, it may not be necessary to set aside a verdict of guilty on one count because it may appear that the jury has returned a merciful verdict of not guilty on another, though satisfied beyond reasonable doubt of the guilt of the accused. The right of juries to return such verdicts is not doubted: McKenzie v The Queen per Gaudron, Gummow and Kirby JJ at 367, approving the judgment of King CJ in R v Kirkman (1987) 44 SASR 591 at 593. See also R v Crisologo (1997) 99 A Crim R 178 per Simpson J at 184. 16 It was submitted by the Crown that the verdicts were not inconsistent, or at least not inconsistent to the degree that made it necessary for this Court to intervene. Because S's evidence on the first two counts was far more detailed than that on the third count, it was submitted, the jury might have given the appellant the benefit of the doubt on that count. 17 The transcript shows that there was an extended description of what the appellant did before he penetrated S with his finger. Then followed a detailed description of the first and second acts of digital penetration and the first and second acts of fellatio, interspersed with descriptions of other sexual contact and statements about S's pain, disgust and desire to vomit. The circumstances of the single act of cunnilingus was related thus - 18 In chief - Q. What happened after that? A. He pulled away. Knelt down on the ground. Q. Where was he in relation to your body when he leant down? A. In front of me. Q. Did his hands make contact with your body at that stage or anything on your body? (No verbal reply) Q. What did he actually do? A. He put his tongue inside my vagina. Q. How was it that he was able to do that? A. Kneeling down. I was standing up and he was kneeling down. Q. Was any adjustment made to your clothing by either one of you? A. Well my dress was up and my pants were down. 19 In cross-examination - Q. What was the next thing that was done or said? A. He pushed me away and then he told me to kneel down. Q. He told you to kneel down? A. That's right. Q. So you knelt down is that right? A. No sorry, sorry start again? Q. Yes certainly? A. When he did that-- Q. When he did what? A. When I put - had his thing in my mouth, well he moved away and then he did that to me. Q. He did what to you? A. He put his tongue in my vagina. Q. Just going back a fraction, when you say that you had your mouth on his penis, both of you were standing and you were leaning over is that right? (No verbal reply) Q. You say that he put his mouth (sic) in your vagina is that right? A. Mm mm. Q. Did he remain standing? A. No. He kneeled. Q. He kneeled? A. Yes. Q. He was right in front of you when it was happening I take it? A. In front. Q. And then I think you said that while you were standing and he was kneeling, that he put his tongue in your vagina? A. That's right. Q. I take it you had your legs together at that time? A. At that time I was just standing. Q. But your legs weren't deliberately apart? A. No they weren't no. 20 It seems to me that whilst the evidence of S on the third count was given more economically than that on the other counts, not being accompanied by understandable statements about how she felt and the like, it was unambiguous and sufficient if believed to sustain a conviction. I do not think that such a comparison explains the differential verdicts. 21 The Crown's second submission was that the jury might be taken to have extended a degree of mercy towards the appellant. They may have considered that in view of his advanced age (sixty-nine years at the time of trial), the fact that he had already been punished by his Church, that there was only one occasion of criminal behaviour and that the events happened many years ago, it would be sufficient if he were convicted of only three of the four offences charged. 22 I do not agree with that submission. In view of the fact that the appellant did not raise his good character, that he admitted an indecent assault and in view of the gross violations of a girl of the age of twelve or thirteen years I think it unlikely that the jury would have wished to extend mercy in the manner contended for. Moreover, the act forming the basis of the third count was in every way as serious as the others. 23 There is one part of the evidence which might possibly explain why the jury returned a verdict of not guilty on the third count. During the cross-examination of S there were these questions and answers - Q. Now at the time he lifted your dress up, your underpants around your ankles is that right? A. He put my underpants, he put my underpants down and he lifted my dress up. Q. How did your dress stay up? A. It's a boob tube thing. Q. How did the bottom part of it stay up? A. Just did. Q. When you got onto the desk how did your dress stay up around your waist then. When you got onto the desk? A. I was just sitting on the desk and it was up. Q. You'd been standing hadn't you? A. Mm mm. Q. When you were standing, how was your dress up, what held it up? A. It's a terry-towelling, like a towelling dress it's a tight thing, just - I don't know I never touched it. Q. You never touched it? A. No. Q. You say that at some stage your dress had been pulled up by Mr Mills is that right? A. That's right. Q. But he didn't continue to hold it there did he? A. No. Q. And you didn't hold it? A. No. Q. So you're not sure really whether your dress was still up, are you, when you were standing near the desk? A. Yes it was up. 24 The Court has not been furnished with a transcript of counsels' closing addresses, but during his remarks on sentence his Honour said this - … perhaps they were taken by the strongly and often repeated point taken in the trial, that there was really no explanation as to how the child's dress had remained up so as to allow this positioning by the prisoner of his tongue. Although she claimed it was up, she was unable to explain how it was. It may be that the jury had some doubt about that practical matter. 25 It seems to me that the most likely reason why the jury entertained a reasonable doubt on the third count was that, having considered counsel's arguments, they doubted whether the appellant inserted his tongue into S's vagina. (Because the Crown case was that there was nothing less than penetration, nothing turns on the fact that the Crown did not need to prove penetration in order to succeed.) 26 S was a thirty year old woman giving evidence of events that had happened seventeen years earlier and the jury were entitled to make full allowance for deficiencies of memory of detail and for the fact that, given her description of the relative positions of herself and the appellant, she might not have been able to see everything that he was doing. Even so, if the appellant penetrated her she must have felt it. It is not the sort of matter about which she is likely to have made an honest mistake. 27 In the circumstances it seems to me that a doubt about S's reliability on the third count was bound to raise in the minds of the jury a doubt about her reliability on the other counts. Accordingly, I think that the appellant's challenge to the verdicts on the first and second counts has been made good. I would allow the appeal, quash the convictions and sentences on the first and second counts and direct the entry of a verdict of not guilty on each of those counts. 28 Other grounds of appeal were raised, but none if successful would have entitled the appellant to an acquittal. It is not therefore necessary to consider them. 29 SMART AJ: The background, the facts and the contentions of the parties are set out in the judgment of Barr J. The materials establish that in 1982 at the premises of the Church of Jesus Christ of the Latter Day Saints, Orange, an incident occurred in which the complainant, then a 12-13 year old girl was assaulted. It was undoubtedly an indecent assault. Was there also a sexual assault? The question is what was the extent of the assaultor assaults and the incident? 30 On becoming aware of the incident the Church took disciplinary action against the applicant, a Church Court being convened. That Court's record states, amongst other things: "Bro. Mills said that approx 6 months ago, during some maintenance work at the Orange Chapel, he chastised some young children who were making a disturbance in one of the rooms. He said that he then felt upset at being hard on them. One of the young girls was still in the room and so he began to console her by a simple embrace. He said that this action led to his fondling her (beneath her clothing) where he ought not to (pelvic region). Bro Mills said that he had felt very bad for the past 6 months but was now relieved that all was in the open".