REGINA v WATKINS [2000] NSWCCA 76

New South Wales Court of Criminal Appeal

CITATION : REGINA v WATKINS [2000] NSWCCA 76 FILE NUMBER(S) : CCA 60429/99 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 29 March 2000

PARTIES : Kenneth William Watkins - Appellant Crown - Respondent JUDGMENT OF : Sheller JA at 1; Hulme J at 33; Dowd J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0156 LOWER COURT JUDICIAL Latham DCJ OFFICER :

W Washington - Appellant COUNSEL : M C Marien - Crown

SOLICITORS : Mark Rumore - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - Miscarriage of justice - Verdict unreasonable and unsupported by evidence - Where complainant's evidence wrong in relation to when offences committed and where significant feature of occasion in which offences committe wrong - Where trial Judge directed jury to return same verdict on every count - No direction that each count could only relate to one event - Possibility of conviction for matter not charged LEGISLATION CITED : Crimes Act 1900 CASES CITED: M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 DECISION : 1. Appeal allowed; 2. Sentences quashed; 3. Direct that a judgment and verdict of acquittal be entered in respect of each count of the indictment.

IN THE COURT OF

CRIMINAL APPEAL 60429/99

SHELLER JA HULME J DOWD J

Wednesday, 29 March 2000

REGINA v Kenneth William WATKINS REASONS FOR JUDGMENT

1 SHELLER JA: This appeal was heard on 16 March 2000. At the end of the argument, the Court made orders allowing the appeal and quashing the convictions and directed that a judgment and verdict of acquittal be entered in respect of each count in the indictment. 2 The appellant was indicted on six counts under s61D of the Crimes Act 1900 of sexual intercourse with a person under 16 years without her consent knowing she was not consenting thereto. In respect of each charge the complainant was the same person. The offences were charged in the indictment as having occurred between 1 May 1983 and 31 October 1984 when the complainant was aged between 10 and 12. The appellant was tried before Latham DCJ and a jury of twelve at Mudgee District Court. The trial began on 24 March 1999. On 25 March the jury returned verdicts of guilty on all six counts. On 23 July 1999, Judge Latham sentenced the appellant on each count to a concurrent sentence of two years penal servitude comprising a minimum term of 18 months and an additional term of six months. The minimum term began on 23 July 1999. The appellant has been in continuous custody since that date. 3 The appellant appealed against all six convictions. The ground of appeal was that the verdicts were unreasonable and could not be supported having regard to the evidence. 4 The test to be applied by this Court in determining this appeal on the ground relied on is whether the Court thinks, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty; see M v The Queen (1994) 181 CLR 487 at 492-4 and Jones v The Queen (1997) 191 CLR 439 at 450. 5 To that statement of principle the High Court has added in those cases important pre-requisites. The question posed is not to be answered "merely by examining the transcript of evidence and the exhibits" (Jones at 451). The Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and 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. In Jones at 451 reference was made to M v The Queen at 494 and the explanation given of the test: "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." 6 Not surprisingly the Crown's only witness of the commission of the offences was the complainant. She described the move her family, which consisted of her mother, a brother and a sister, made from Narrabri to Mudgee in 1983. In her evidence in chief, given nearly 16 years after the event, she said that the move took place in about May. The family went to live in a flat in Horatio Street. A few weeks after the move, the complainant was enrolled at Mudgee Public School in year 5. The Crown evidence established beyond any doubt from school records that the complainant first attended at Mudgee Public School on 15 August 1983. 7 Once at the school, the complainant made friends with Michelle Watkins, the daughter of the appellant. As well he had two sons. The appellant and his family lived in a house directly across Horatio Street from the flat in which the complainant and her family lived. According to the complainant, the friendship was formed within a few days of her starting at Mudgee Public School. About a month later, she stayed over night at the Watkins' house and came to know Michelle's parents, the appellant and his wife. Thereafter she stayed on more than six occasions. 8 When she stayed at the Watkins' house, she slept in the same bedroom as Michelle which was next to Mr and Mrs Watkins' bedroom. In Michelle's bedroom were double bunks. Michelle occupied the lower bunk, the complainant the upper bunk, which was at right angles to Michelle's. 9 The complainant gave evidence about the occasion of the first offence charged as follows: "Q. You say you stayed there for the first time about a month after you started school, is that right? A. That's right. Q. Did you stay there on another occasion after that? A. A couple of weeks later I stayed. We were going to soccer, it was a Friday night. Q. Now could you just tell the court what you remember about your visit on that second occasion? A. On the second occasion? Q. Yes? A. It was a Friday night. I remember this because we go to soccer on the Saturdays with the Watkins family. We had - we just did normal things, we had dinner, watched TV, went to Michelle's room. Mrs Watkins would come in about 8.30, 9 o'clock, we'd have to turn the light off, it was bedtime. During the middle of the night - do you want --? Q. Yes, just tell us what happened? A. During the middle of the night Mr Watkins came in. I guess it's the middle of the night because I'd been asleep. Now, the room was dimly lit, we think it was a street light because there was no light in the room so I could see the outline of his face, he's got a - he had beard which you could see the outline of, he smelled of very strong tobacco smoke. I woke up because he had - I woke up with his - had his hand down the front of my flannelette pyjama pants, he was rubbing my vagina. He then told me to be quiet or he'd hurt me which he told me over and over. He put one or two fingers in my vagina which hurt. It seemed to go on for about 20 minutes or it just seemed like a long time. He then, when he was finished would pull the blankets up around my neck and leave the room and in the mornings he would come into the kitchen and say, on every occasion, he would say 'I had to come in and pull the blankets up on you last night' and I guess he just did this."