New South Wales Court of Criminal Appeal CITATION : R v GWM [2001] NSWCCA 267 FILE NUMBER(S) : CCA 60060/01 HEARING DATE(S) : 10 July 2001 JUDGMENT DATE : 12 July 2001 PARTIES : Regina v GWM JUDGMENT OF : Hodgson JA at 1; Mathews AJA at 2; Studdert J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0085 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : M.C. Grogan (Crown) T.M. Healey/R.J. Jankowski (Appellant) SOLICITORS : S.E. O'Connor (Crown) Paton Hooke (Appellant) CATCHWORDS : Criminal law - indictment charging four sexual offences - complainant's evidence uncorroborated - jury acquitted on two of the offences charged - whether jury ought to have returned not guilty verdicts on remaining counts. LEGISLATION CITED : Crimes Act M v The Queen (1994) 181 CLR 487 CASES CITED: Jones v The Queen (1997) 191 CLR 439 R v Mills [2001] NSWCCA 48 DECISION : Appeal allowed; sentences on first and third counts quashed; judgment and verdict of acquittal entered on each of those counts. IN THE COURT OF CRIMINAL APPEAL 60060/01 HODGSON JA MATHEWS AJA STUDDERT J Thursday 12 July 2001 REGINA v GWM JUDGMENT 1 HODGSON JA: I agree with Studdert J. 2 MATHEWS AJA: I agree with Studdert J. 3 STUDDERT J: The appellant, to whom I shall refer simply as GWM, stood trial in the District Court at Taree charged with four sexual offences. Two of the counts in the indictment charged the appellant with acts of unlawful sexual intercourse in contravention of s 66A and of S 66C(2)(a) of the Crimes Act respectively, and on those two counts the jury found the appellant guilty. The remaining two counts charged the appellant with indecent assaults in contravention of s 61M(1) and of s 61L of that Act respectively, and on those two counts the appellant was acquitted. 4 The appellant was sentenced on the first count to a period of three years imprisonment with a non parole period of eighteen months. On the third count the appellant was sentenced to a fixed term of twelve months imprisonment to be served concurrently with the sentence imposed in respect of the first count. 5 The appellant appeals against the conviction and seeks leave to appeal against the sentences imposed. 6 In relation to the appeal against conviction, there are two grounds of appeal which require consideration, but before considering these grounds, it is necessary to review the evidence given at the trial. 7 The complainant was born on 24 November 1982, so that at the time of the trial of the appellant she was eighteen years of age. At the time of the alleged commission of the offence charged in the first count the complainant was nine years of age; at the time of the events to which the second count was directed the complainant was ten years of age; at the time of the events to which the third count was directed the complainant was eleven years of age; and at the time of the events to which the fourth count related, the complainant was sixteen years of age. 8 The appellant was the step-grandfather of the complainant; the complainant's mother married the complainant's stepfather, and their wedding was an event relevant to the second count in the indictment. 9 The complainant's evidence concerning each of the offences charged was uncorroborated. No complaint against the appellant was made by the complainant until December 1999. 10 The complainant's evidence in respect of the offences charged may be summarised as follows: 11 Count 1 - the earlier of the sexual intercourse counts: The complainant said that one night she was playing with a dog on the back verandah of the appellant's home dressed in her nightie and underwear. The appellant came outside and started to touch her, massaging her stomach. He moved his hand up to her chest. The complainant said that she was then touched on the outside of her clothing in the area of the vagina. The complainant said that the appellant then moved her underwear to the side and rubbed her vaginal area and he then committed an act of digital penetration. 12 Count 2 - the earlier indecent assault count: The complainant gave evidence of an incident that occurred on the date her mother married the appellant's son. The wedding took place at home and the complainant said that the appellant on that day sat inside the kitchen on a chair and called the complainant to sit on his lap. She said that the appellant asked her to give him a kiss and she did so. The appellant said that he wanted a longer kiss than that and, according to the complainant, he put his tongue in her mouth and his hand on the outside of her under-clothing. The complainant said that her uncle walked into the room and the complainant hopped off the appellant's lap and went back to the wedding party. In response to a question asked by the trial judge, the complainant further located the area where the appellant had placed his hand as being the vaginal area. In cross-examination, the complainant's evidence was that this offence occurred after her mother and her stepfather had left the premises and gone to a motel for the night. 13 Count 3 - the later sexual intercourse count: The complainant gave evidence of events that she outlined as occurring when she was staying with the appellant and his late wife. The complainant said that she was required to sleep with the appellant in a double bed and that during the night he assaulted her by digital penetration and she said that having done this he removed his finger from her vagina and played with her clitoris. 14 Count 4 - the later indecent assault count: The complainant gave evidence that when she was sixteen she went with her stepsister and two young men to the appellant's house. Her evidence was that the appellant told her she was putting on weight. The complainant said she was not. The appellant said "Show me". The complainant lifted her jumper and the appellant grabbed her on the breasts, saying "They weren't that big last time I saw them." 15 I observed earlier that the evidence of the complainant was not corroborated in relation to any one of the four offences to which her evidence was directed. 16 The appellant, who had made no admissions to the police, gave evidence denying the offences charged in each of the four counts. 17 In relation to the second count, evidence was given by some of the wedding guests. A daughter of the appellant gave evidence that she attended with her husband, and after the married couple left she saw her husband talking to the appellant, and then the appellant and her mother leaving with their two grandchildren. The husband of this witness gave consistent evidence to the effect that he had remained with the appellant after the wedding speeches until the appellant and his wife left with the two children to walk home. A third guest, the niece of the wedding couple, said that straight after the wedding couple left to go on their honeymoon, she left with "Nan and Pop" (the appellant) to walk home. 18 In relation to the fourth count, the Crown called the complainant's stepsister and one of the two young men who was with her. The stepsister's evidence was that she saw the appellant put his hands on the complainant "below the breast". At no time did the witness say the appellant placed his hands on the complainant's breasts. The male friend said he was unable to see from where he was whether the appellant touched the complainant or not but he gave evidence that the complainant was wearing at the particular time a tight white shirt that left her mid-drift exposed. That evidence was in contrast with the evidence of the complainant that she was wearing a loose fitting jumper which she lifted. 19 Other evidence placed before the jury was directed to proving the appellant's previous good character. 20 The jury was directed as to the need for it to be satisfied beyond reasonable doubt by the evidence of the complainant. The jury was also directed that it could accept part of what a witness said and reject some other things said by that witness. The jury was given directions as to the necessity to scrutinise the complainant's evidence with great care and directions about which there could be and has been no complaint concerning the significance of the lack of complaint and the delay in complaining. The jury was directed to consider each count separately and it is clear from their verdicts that they did precisely that. The jury was not told that if it held a reasonable doubt concerning the reliability of the complainant's evidence on one or more counts, whatever the reason, that doubt should be taken into account in assessing the reliability of the complainant's evidence on the remaining counts. In this case, that would have been a desirable direction, but in fairness to the learned trial judge he was not asked to give that direction. Indeed, counsel asked for no further directions at the end of the summing-up. 21 With the above features of the case in mind, I turn to consider the grounds of appeal. They were expressed as follows: Ground 1: That the verdicts of guilty in relation to counts 1 and 3 on the indictment (although they are different charges to the ones of which the appellant was acquitted) are inconsistent with the verdicts of not guilty in relation to counts 2 and 4. Ground 2: The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence. 22 At the hearing of the appeal, Mr Healey acknowledged that the principal ground of appeal was ground 2, and, indeed, the nub of the appeal is simply this: given the verdicts which were returned on the second and the fourth counts, was it open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and the third counts? 23 In essence the submission made by Mr Healey on behalf of the appellant is that the Crown case depended upon the jury being satisfied beyond reasonable doubt by the complainant's evidence on each of the four counts. Clearly the jury was not so satisfied by the evidence on either of the two counts on which the appellant was acquitted. Once the jury had a reasonable doubt about the reliability of the complainant's evidence on the second and the fourth counts, they ought to have had a reasonable doubt about her evidence on the first and the third counts: see M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. 24 In an appeal of this nature due regard must be paid to the function of juries and to the advantage they generally enjoy in assessing the reliability of witnesses. I respectfully adopt what Barr J said recently in Mills [2001] NSWCCA 48 at paras 14-15: "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." 25 The Crown submitted in relation to the indecent assault offences that the jury may have decided that there was scope for confusion or misunderstanding or misinterpretation of the appellant's conduct; and further that any element of indecency established by the evidence may not have been intentional. The jury may have given the appellant the benefit of the doubt of such charges but may, notwithstanding this, have been satisfied beyond reasonable doubt on the sexual intercourse offences where there was no room for confusion, misunderstanding or misinterpretation of the appellant's conduct and no room for the appellant's acts to have been unintended. 26 Considering the fourth count, the complainant was not supported by her stepsister's evidence. The jury might have expected her to have seen the appellant put his hands on the complainant's breasts, if this is what occurred. It does not seem to me to be a likely explanation of the verdict on the fourth count that the jury proceeded to evaluate the evidence in one of the ways the Crown suggests it may have done. However, even if it be accepted that it is reasonable to account for the verdict on the fourth count in this way, the same cannot be said, in my opinion, about the acquittal on the second count. 27 The complainant's evidence on the second count was quite specific, namely that the appellant put his tongue in her mouth in the act of kissing and his hand under her dress in the area of her vagina. Such behaviour, if the jury accepted that this is what occurred, could hardly have left the jury in any doubt that it amounted to an indecent assault or that it might have been unintentional. 28 It is important in considering the significance of the verdict on the second count to heed what occurred at the trial in relation to it. In the course of the summing-up, the trial judge gave the following directions (SU 25-27): "The second count was the evening where her stepfather married her mother, and they were in the backyard and Pop was sitting at the kitchen table, called her over, sat on her (as said) lap, asked her for the kiss, she gave the kiss. He said 'I want a better kiss than that' then he put his tongue in her mouth she said, then his hand down under her dress and started rubbing her on her underpants and over the vaginal area, and saying such things as 'You're not going anywhere till I get a proper kiss.' She said Uncle Paul came into the room and she hopped off his lap. Now that again has been denied by the accused that that happened. There was the evidence called that in fact the wedding did take place. That was what enabled the Crown to say that was the alleged date of the offence, but there was also evidence called by the accused to say 'Well immediately after the speeches and whatnot I left' and that was supported by his son-in-law and sister and in fact the defence case is 'It just could not have happened because I wasn't in the kitchen with her at the relevant time' and also it has been put to you, and properly put to you, there has been no explanation why he was not called, by the complainant says that Uncle Paul came into the room. Well we certainly haven't heard from Uncle Paul. There has been no explanation given to us as to why Uncle Paul has not been called and the law says this, that if there is evidence given that some person can throw some light upon the case, and if the party who you might expect to call that witness does not call that witness and there is no explanation as to why they did not call that witness, then you as a jury cannot speculate as to what that person might or might not have said, but you are able to properly draw this inference and that is, that that person would not have assisted the case of the person who you would have expected to call that witness. Now it seems to me that you would have expected the Crown to call Uncle Paul if Uncle Paul could say that he came into the kitchen and saw them together, because the accused's case is 'We weren't in the kitchen at the relevant time.' Well we have not heard from Paul, we do not know why we have not heard from Paul. It is proper for you to draw the inference that Paul could not assist the Crown case." 29 After it retired to consider its verdicts, the jury returned with a question, wanting to be informed as to the complainant's evidence as to the approximate time when she said the incident had occurred. In response, his Honour instructed the jury (SU 35): "I don't recall any such evidence being given do you but I'll just check my notes. I don't think there was ever any evidence from her as to precisely what time of day or at what part of the proceedings of the wedding. Her evidence was as I read before and she went on to say on that day, and then she said that Pop was sitting inside the kitchen table, called me in to sit on his lap et cetera. Is that your recollection of the evidence? COLES: I think that's so your Honour. HIS HONOUR: Mr Healey? HEALEY: Yeah that's right your Honour. HIS HONOUR: Okay well I'm sorry we can't help you any more on that. Please don't forget what I told you though that it's for the Crown to satisfy you beyond reasonable doubt. If you've got any doubt about any of the material you can't do anything adverse to the accused unless you're satisfied beyond reasonable doubt. Okay, thank you." 30 There then followed further discussion between the trial judge and counsel who were labouring under the disadvantage that there was no transcript of evidence available to them. The jury was then brought back into court and after part of the tape of the evidence in point was played back to the jury, his Honour further directed the jury (SU 37): "So the evidence from the people who came from Western Australia whatever their names was, they'd said they'd made the speeches and Nanna and Pop went immediately after that, and this is when [the complainant] is alleging that her mother had already gone. So does that answer the query?..." 31 Seemingly the jury was satisfied with this further assistance, asking no further questions before returning with its verdicts on each of the counts in the indictment. 32 In my opinion the most likely explanation of the jury's verdict on the second count is that the evidence of the wedding guests which placed the appellant elsewhere at the time the complainant said he assaulted her led the jury to conclude that the evidence of the complainant about this assault did not satisfy it beyond reasonable doubt of the guilt of the accused. This is significant because it means that when the jury was considering the second count and the complainant's evidence was set against the other evidence I have reviewed, the jury decided it ought not to convict on her evidence. 33 In Jones (supra), the jury acquitted on one of three counts charging the appellant with acts of sexual intercourse. The High Court determined that the convictions on the other two counts could not stand and in their joint judgment Gaudron, McHugh and Gummow JJ said at 455: "In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. As we have already 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 and third count than it was in respect of the second 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 and third counts can only be regarded as unsafe and unsatisfactory." 34 Similar reasoning in the present case leads me to the conclusion that the convictions on the first and third counts cannot stand with the acquittal on the second count. I see no valid reason why the jury could have regarded the complainant's evidence on the first and the third counts as being any more reliable than that on the second count in all the circumstances of this case. 35 Accordingly, I conclude that this appeal should be allowed and that the convictions and sentences on the first and third counts should be quashed. I would direct the entry of a judgment and verdict of acquittal on each of those counts. ********** 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.