New South Wales Court of Criminal Appeal CITATION : Regina v NEK [2001] NSWCCA 392 FILE NUMBER(S) : CCA 60771/00 HEARING DATE(S) : 22 August 2001 JUDGMENT DATE : 3 October 2001 PARTIES : Regina v NEK JUDGMENT OF : Priestley JA at 1; Sully J at 65; Smart AJ at 66 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0245 LOWER COURT JUDICIAL His Honour Judge Armitage OFFICER : COUNSEL : Appellant - S.J. Odgers SC Crown - R.A. Hulme SOLICITORS : Appellant - D.J. Humphreys Crown - S.E.O'Connor CATCHWORDS : Sexual assaults - multiple counts - inconsistent verdicts Jones v The Queen (1997) 191 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 CASES CITED: Regina v KET [1998] VSCA 73 Regina v Kirkman (1987) 44 SASR 591 Regina v Markuleski [2001] NSWCCA 290 DECISION : Appeal allowed - verdict and judgment of acquittal to be entered. IN THE COURT OF CRIMINAL APPEAL 60771/00 PRIESTLEY JA SULLY J SMART AJ Wednesday, 3 October 2001 REGINA v NEK Judgment 1 PRIESTLEY JA: The appellant was tried by jury on 12 counts of sexual offences against his daughter M and one of assault occasioning actual bodily harm to her. The trial began on 3 October 2000. In the course of the trial, the trial judge, Armitage DCJ, directed the jury to find the appellant not guilty on one of the counts, which the jury accordingly did. On 13 October 2000 the jury found the appellant guilty on one count and not guilty on eleven. On 15 December 2000 the trial judge sentenced the appellant to imprisonment for a period of four years, to commence on 13 October 2000 and to expire on 12 October 2004. The trial judge fixed a non-parole period of three years, to expire on 12 October 2003. Upon being informed of the appellant's having already filed a notice of appeal against conviction the trial judge allowed bail to the appellant. 2 M was born on 11 August 1976. 3 The alleged offences were said to have occurred between 15 September 1989 and 30 April 1999. 4 The first six (counts 1 to 6, being three charges of "sexual intercourse with child under sixteen and under authority", and three of "assault with act of indecency") were alleged to have happened between 15 September 1989 and 31 December 1989. 5 The next two (counts 7 and 8, being "assault with act of indecency" and "sexual intercourse with child under sixteen and under authority") were alleged to have happened between 10 August 1990 and 31 December 1990. 6 The offences charged in counts 9 and 10 ("sexual intercourse with child under sixteen and under authority, assault with act of indecency") were alleged to have happened between 24 May 1992 and 31 December 1992. 7 The offence charged in count 11 ("sexual intercourse without consent") was alleged to have happened between 1 February 1993 and 11 August 1993. 8 The offences charged in counts 12 and 13 ("assault occasioning actual bodily harm" and "assault with act of indecency") were alleged to have happened between 1 November 1998 and 30 April 1999. 9 M first told the police about the matters she alleged against the appellant shortly after May 1999. 10 The count on which the jury was directed to acquit was count 9. The count on which the jury found the accused guilty was count 11. 11 M gave evidence not only in support of the counts in the indictment, but also of other sexual acts initiated by her father with her which were not the subject of any charges. In his summing-up the trial judge explained the reason for the giving of this evidence as follows: "The history of a wider series of sexual events is led for a different purpose altogether and it is important for you to understand what that purpose is. It is to place the evidence of the particular acts into a true and realistic context. Otherwise a jury, such as yourselves, may wonder at the likelihood of apparently isolated acts occurring suddenly, without any apparent reason without being repeated. It is for that reason that the law permits a wider sexual history to be proved. It is to avoid artificiality or unreality in the presentation of the evidence. For one or two incidents to be artificially isolated and selected and for a witness to be confined to them could make it very difficult for her to proceed intelligently with her evidence. " The trial judge then emphasised that the jury must not substitute evidence of other acts for the specific acts charged and repeated that the jury had the wider history merely to place M's evidence into context. 12 The appellant gave evidence. He was examined and cross-examined at length. He denied any sexual offence against, or any sexual impropriety with his daughter at any time. 13 The appellant's primary ground of appeal was that the jury's acquittal of him on eleven counts meant, in the circumstances of the cases, they must have had, at the least, reservations about the credibility of M and that, in the circumstances of the whole history which had been put before them, it was unreasonable for them not to have acted upon the same reservation in regard to count 11 and acquitted the appellant of that charge also. 14 There have been many cases over a long period in which appeals have been based on such a ground. A comparatively recent decision in this category, and one which has had wide effects is Jones v The Queen (1997) 191 CLR 439. In Regina v Markuleski [2001] NSWCCA 290, decided by a five member Bench of this Court (Spigelman CJ, Wood CJ at CL, Grove J, Simpson J and Carruthers AJ) on 1 August 2001, the effect and application of Jones were considered at length. 15 The most extensive opinion in Markuleski was that of Spigelman CJ. In regard to Jones he noted that: "[s]ince the High Court decided Jones there have been numerous decisions by courts of criminal appeal where a complete acquittal has been obtained by an appellant who had been found guilty of some, but not all, sexual assault counts.' (par 27) He then listed sixteen cases in New South Wales and eleven in Victoria, Queensland, Western Australia and Northern Territory where this had happened, followed by counter lists of a number of cases in which the inconsistency ground had failed on appeal. 16 For the appellant in Markuleski it seems to have been submitted that cases in New South Wales in which the inconsistency ground had succeeded had established the proposition, thought to be required by Jones, that in a pure word against word case where there were a number of charges involving sexual offences, a mixture of acquittals and convictions by a jury could not be sustained unless the court could detect a relevant difference in the quality of the complainant's evidence supporting the charge or charges on which the jury convicted. 17 Spigelman CJ's conclusion was that the High Court had not intended in Jones to establish such a proposition. In his view: "Whether or not the failure of the jury to accept the complainant's version in one respect ought to have led the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant's evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case ..." (par 65) 18 Spigelman CJ then referred to, and said he agreed with, what had been said by Winneke P in R v KET [1998] VSCA 73: "[29] However, in my view, it would be wrong to draw from the decision of Jones' case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury's acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted." (my emphasis) 19 A little later Spigelman CJ stated the position in his own words: "73. The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant's evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case." (emphasis added) 20 The Chief Justice went on to point out the difficulty in formulating principles "as to when a jury should conclude that a reasonable doubt on one count, not withstanding the complainant's evidence on that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant" (par 74). He then considered a number of cases in which courts of criminal appeal had met with this problem. His examination of the cases showed that some factors were identifiable as frequently influencing courts in finding whether or not there was such inconsistency in verdicts as to justify setting aside what a jury had done. I will not recite the various factors; Spigelman CJ has already done the necessary work in Markuleski , which should be consulted for the detail. Spigelman CJ's analysis showed that it is not possible as the authorities stand at present to state a firm set of specific criteria governing all cases. 21 Some propositions however, useful for the present case, appear from Spigelman CJ's full examination of the subject. One comes from MacKenzie v The Queen (1996) 190 CLR 348, a High Court decision of the same level of authority as Jones. In MacKenzie, Gaudron, Gummow and Kirby JJ, in joint reasons said: "Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness." (at 366) 22 In par 78 of his reasons Spigelman CJ referred to this sentence, saying: "There are cases in which nothing at all appears to differentiate the complainant's evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of 'logic and reasonableness' is not satisfied." 23 The other point which should be mentioned here, and which also emerges from MacKenzie appears from the approval in the joint reasons of Gaudron, Gummow and Kirby JJ of what King CJ had said in R v Kirkman (1987) 44 SASR 591 at 593: "Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty." 24 Spigelman CJ's principal point in Markuleski was that Jones was not authority requiring courts of criminal appeal to regard mixed verdicts of acquittal and guilty, when all depended upon the evidence of a complainant, as necessarily showing inconsistency by the jury; Jones did not exonerate courts of criminal appeal from deciding upon claims of inconsistency in the light of a consideration of all the circumstances of the case. 25 In Markuleski itself there were six counts and the jury found the accused guilty of five and not guilty of the other. 26 Spigelman CJ's opinion, after examining all the facts, was that inconsistency had not been shown. 27 Wood CJ at CL, who in earlier cases had been of a somewhat different opinion, reconsidered his views on the topic of inconsistency and came to a conclusion which seems to me to be in substance the same as that of Spigelman CJ: "238. Ultimately, the question remains one of fact and degree as to whether the difference in verdicts is such that as a matter of logic and reasonableness , bringing to account all of the factors which I have mentioned, including the practical approach which juries are entitled to bring to their task, the conviction should be regarded as unreasonable or incapable of being supported upon the evidence." (emphasis in original) 28 Then, like Spigelman CJ, he held, on the facts of he case, that the inconsistency ground failed, saying that there was "an acceptable explanation for the differentiation between the divergent verdicts". 29 Grove J agreed with the opinions of both Spigelman CJ and Wood CJ at CL in regard to the inconsistency ground of the appeal. 30 Carruthers AJ agreed with the Chief Justice's reasons and his proposed orders. 31 Simpson J dissented. Her opinion was that the appeal should be upheld on the basis that the case could not be relevantly distinguished from Jones. 32 In light of the authorities as interpreted in Markuleski the question for a court of criminal appeal when considering an inconsistency ground of appeal is whether as a matter of logic and reasonableness the court is satisfied, after considering all the relevant circumstances of the case, that there is an acceptable explanation for the differentiation between the divergent verdicts. 33 The circumstances against the background of which that question must be considered in the present case were as follows. 34 The occasion of the first offence alleged by M against the appellant was almost immediately after the suicide of the appellant's wife and M's mother. The parents, M, and her sister G, who was seven years younger, had been living at a house in North Nowra when the mother died on 15 September 1989. The offences alleged in counts 1 to 4 (penis inside vagina, penetration by finger and tongue, penis inside vagina, rubbing penis against her) were said to have happened in the days following the mother's funeral while M, G and their father were staying with relatives. M's evidence was to the general effect that her father saw her as like her mother and said to her her mother would approve of what he was doing. M said the offences took place at night while the rest of the household was sleeping and with her sister G sleeping very close by. 35 The offences alleged in counts 5 and 6 (rubbing penis against vagina) were said to have taken place when M, her father and G returned to the house at North Nowra. G was said to have been asleep in a separate room. 36 The offence alleged in count 7 was said to have occurred on a night when a school friend stayed with M and slept in the same bed with her. M alleged that while her friend was asleep the appellant came into the bed, pulled her underpants down and rubbed his penis against her vagina from behind. 37 The offence alleged in count 8 (anal intercourse) was said to have happened at about the same time as that alleged in count 7. G was living in the house. 38 M said that during this period, apart from the sexual events, the appellant was good to her and gave her $70 a week for doing the housework. 39 Between 25 November 1991 and 24 May 1992 M lived with her maternal grandparents in another town. After 24 May 1992 the appellant and his two daughters again lived together in the house at North Nowra. 40 M's evidence about the offence alleged in count 9 was that it happened soon after 24 May 1992. She said her father called her into his room where she got into his bed and he rubbed his penis against her. She said that after that night there was a lot of sexual behaviour between them (not the subject of charges) and that then she started to refuse him. 41 M's account of the offence alleged in count 10 was that it occurred after her father had formed a relationship with Ms B and after her sixteenth birthday. One night after Ms B had brought her father home and then left, she said her father came into her bedroom and rubbed his penis against her vagina. 42 At some stage about this time the appellant moved out of the North Nowra house and went to live in a nearby town with Ms B. G went with him. M continued to live in the house at North Nowra. The appellant would sometimes come back. 43 It was during the time M was living mostly alone at the North Nowra house, with her father occasionally dropping in, that she alleged the offence the subject of count 11 happened. She had left school at the end of 1992, had got a job and had started a one day a week course at TAFE on 2 February 1993. Her memory was the offence took place after she had started at TAFE and before her seventeenth birthday and thus before 11 August 1993. She said that even when her father was not living in the house she used to ask him whether she could go out at night. On this occasion she had asked and he had said that she was not allowed to go out. She said she went out anyway and went to a party from which she was driven home, after midnight. When she went inside her father was there, accused her of "screwing around", abused her, told her to have a shower and after she had gone to bed came into her room. Her evidence continued: "... he said to me that, 'I'll show you what screwing around is about' and that's when he stuck his penis inside my vagina but he didn't go all the way up. Q. And did you say anything to him about whether you wanted that to happen? A. I can't remember. Q. Did you go along with it or did you struggle in some way? A. I can't remember. Q. And how were you feeling towards him when this was happening? A. I hated him when he used to do that to me." 44 After an adjournment, M's evidence about this alleged incident continued: "Q. ...At the time of that particular incident did you have any other feelings towards him? A. Yeah, I know that I was scared of him and that. Q. And what were you scared of, why were you scared of him? A. Because he'd hit me. Q. You said that there were occasions before this incident where you had said no to his advances. Was there any particular reason why you said nothing like that on this particular night? A. No, because previously when I'd said no to him he ... hit me " 45 M did not allege that anything further of a sexual nature happened between herself and the appellant from then until the alleged act of indecency which was the subject of count 13 which, with the assault alleged in count 12 was said to have happened between 1 November 1998 and 30 April 1999. In the meantime M had been moving about, sometimes living with her father, sometimes with boyfriends. In this period her relationship with her father had generally been good. By the time of the alleged offences the subject of counts 12 and 13 M had formed a relationship which seemed to be a steady one with Mr B. The offence charged in count 12 was that in the presence of Mr B the appellant punched M several times. The offence charged in count 13 was that immediately after the alleged punching (but not while Mr B was present), the appellant felt M in the crotch area on top of her pyjamas. There was hostility between Mr B and the appellant at and about this time. 46 In regard to counts 1 to 8 and 10, the offences all occurred, according to M, when one or more persons were nearby (although on a number of occasions this was only G, said to have been sleeping in a separate room). None of these persons gave direct evidence in any way corroborative of M's allegations. 47 Three witnesses called in the prosecution case gave evidence of statements made by the appellant which, in a general way, could be regarded as corroborative of some of M's allegations. The first of these witnesses was Ms B who said that at a time about two and a half, three months after April 1994 the appellant had said to her: "I had been drinking, I was drunk, I didn't really know what I was doing and I attempted to have intercourse with M." 48 She was cross-examined in a way which may well have undermined her credibility with the jury. Also, in the course of cross-examination she clarified what she had said in chief as follows: "I was of the opinion that it was just attempted intercourse with his daughter, which was the words that he had used to me ..." 49 The second witness gave evidence of a conversation on 9 October 1999. This witness said the appellant told her he was charged with offences of having sex with his daughter and also told her that "she was willing at the time but then she changed her mind and I don't know why". 50 The third witness, the husband of the second, said that he had a conversation with the appellant in March 2000, as follows: "He said to me, 'Do you know that I'm having, I've been in trouble with the police?' and I said, 'No", and he then said to me, 'I'm supposed to have had sex with my daughter - and he said I don't know why it's all going, it's all happening because she give her consent and then she took it back." 51 The second and third witnesses were also cross-examined in a way which may have led the jury to doubt the reliability of their evidence. 52 The appellant denied he had made any of the admissions alleged by the three witnesses. 53 It seems clear that the jury did not accept M's evidence as proving beyond reasonable doubt ten of the eleven charges of sexual offences against her which she had made against the appellant. It also seems highly probable that they similarly did not accept M's evidence of a long course of sexual offences against her by the appellant. Had the jury accepted any of these allegations as proved at the required standard it would seem almost inevitable that they would also have found the appellant guilty of at least some of the specific counts against him. It also seems clear that the jury either did not accept the admissions alleged by the three witnesses to have been made by the appellant or thought that the admissions were so vague as to be of little help. 54 It does not seem at all plausible that the jury were acting along the lines explained in Kirkman and approved in MacKenzie; that is, it is very difficult to see how the jury could have thought that justice would sufficiently be met by convicting the appellant of one only out of the eleven counts they were considering if they thought he was guilty of more. 55 Finally, it seems very difficult to me to understand how a jury which in the circumstances of this case were not prepared to accept M's evidence as proving ten out of eleven charges beyond reasonable doubt could logically or reasonably have decided to accept her evidence as proving the offence charged in count 11 beyond reasonable doubt. 56 Counsel for the Crown submitted that it was possible to see sensible reasons for the difference in the jury's verdicts. He submitted that in regard to a number of the counts on which the appellant was acquitted there were weaknesses in the prosecution case justifying the jury in giving the appellant the benefit of the doubt. It was then submitted that none of the weaknesses in the prosecution case was such as to entitle the jury to think that the complainant's credibility was diminished in regard to her evidence on all counts. It was then submitted that M's evidence supporting count 11 was more detailed than in many of the other alleged offences. Combined with this, it was submitted, the jury may have relied on admissions made to the three admission witnesses. It was said in particular that what the appellant had allegedly said to Ms B in 1994 could properly have been taken by the jury as directly relating to the alleged incident on which count 11 was based. 57 I am not persuaded by these submissions that there was any such significant difference between M's evidence concerning count 11 and the circumstances of that alleged offence as to overcome the very powerful impression, created by the eleven acquittals, that the jury were not prepared to rely on M's evidence as justifying a guilty verdict against the appellant on the counts on which he was acquitted. In regard to the possible defects in the Crown case to which counsel for the Crown pointed respecting the eleven counts on which the appellant was found not guilty, none of them seems to me to have been of such significance that, if the jury had accepted M as a believable witness, it would have prevented the jury from finding the appellant guilty. 58 As to the claimed greater detail given by M of the count 11 offence, I have set out in par 42 above the entirety of the evidence about the alleged act itself. At least as much detail as this was given by M in relation to a number of the other counts. 59 Although it was submitted for the Crown that the time that had elapsed between the event alleged in count 11 and M's first complaint about the alleged offences was less than that which had elapsed in regard to the earlier counts, nevertheless the lapse of time between the alleged offence and complaint remains considerable and the fact that when the offence the subject of count 11 was allegedly committed M was living more or less independently emphasises rather than diminishes the doubts that may arise because of delay in the complaint. 60 The submission that the admission allegedly made to Ms B could be connected to the events alleged in support of count 11 does not seem to me to have any weight; it could just as easily relate to any of the earlier allegations of sexual intercourse on which the appellant was acquitted. 61 Accepting in full the effect of the statement by Winneke P in KET, namely that the jury's acquittal on some counts does not compel this court to conclude that the jury must necessarily have regarded B generally as an untruthful witness and of the similar statement by Spigelman CJ in Markuleski, I note that those statements also recognise that in some cases at least it will be open to a court of criminal appeal to draw such conclusions and sometimes necessary for it to do so. 62 This case seems to me to fall into the category described by Spigelman CJ in par 78 of his reasons in Markuleski (quoted in par 21 above). I can see nothing of any significance in the present case to differentiate M's evidence which the jury accepted beyond reasonable doubt in regard to count 11 from the evidence which in my opinion the jury did not accept in regard to the counts on which they acquitted the appellant. Thus, in my view, in this case the MacKenzie test of logic and reasonableness was not satisfied. 63 On this ground, in my opinion, the conviction of the appellant on count 11 and the jury's guilty verdict should be set aside and a verdict and judgment of acquittal entered. 64 There were two other grounds of appeal relied on for the appellant, but in the circumstances I see no need to consider them. 65 SULLY J: I agree with Priestley JA. 66 SMART AJ: I agree with Priestley JA. ********** 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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