New South Wales Court of Criminal Appeal CITATION : Regina v S [2001] NSWCCA 204 revised - 25/05/2001 FILE NUMBER(S) : CCA 60610/00 HEARING DATE(S) : 27/04/01 JUDGMENT DATE : 27 April 2001 Regina PARTIES : v S JUDGMENT OF : Meagher JA at 1; Sully J at 14; Dowd J at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0685 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : A: T A Game SC Crown: P G Berman SC SOLICITORS : A: David Giddy & Associates Crown: S E O'Connor CATCHWORDS : Criminal law - appeal against conviction on 3 charges of indecent assault - where charged with 6 offences of indecent assault but only convicted of first 3 - inconsistent verdicts - unsafe and unsatisfactory verdicts - appeal allowed. CASES CITED: Jones v R (1997) 191 CLR 439 R v Crisologo (1997) 99 A Crim R 178 DECISION : 1. Appeal allowed; 2. Set aside convictions and sentences on orders from charges 1, 2 and 3; 3. No new trial; 4. In all publications of this matter appellant should be referred to as Mr S. IN THE COURT OF CRIMINAL APPEAL CCA 60610/00 MEAGHER JA SULLY J DOWD J Friday, 27 April 2001 REGINA v S JUDGMENT 1 MEAGHER JA: On 28 August 2000 the appellant, Mr S, stood trial in the District Court charged with six offences of indecent assault on a male person, the complainant, Stuart Greenlees, (who was fourteen or fifteen at the time of the alleged offence). The dates of the alleged assault were, in the charges, said to have been between April and July of 1976. Counts 1 to 6 were listed in alleged chronological sequence. 2 The case was the subject of committal proceedings and also of an aborted trial before her Honour Judge Latham. It was eventually heard by his Honour Judge Howie. Mr Greenlees gave evidence on all three occasions. He also made various written statements. There was a twenty year delay between the date of the alleged incidents and the date when any complaint was made to the police. 3 The jury convicted the appellant on the first three charges and acquitted him on charges four, five and six. The Crown case really depended on the uncorroborated evidence of Mr Greenlees. 4 This appeal raises the question whether the jury's verdicts are inconsistent and represent a miscarriage of justice. 5 It is not necessary for present purposes to outline the precise facts of each charge. The following will suffice for present purposes: (a) Count 1: an act of fellation by Mr. S on Mr Greenlees. (b) Count 2: another act of fellation. (c) Count 3: Mr S was "pulling" Mr Greenlees penis. (d) Count 4: a third act of fellation. (e) Count 5: a fourth act of fellation. (f) Count 6: a fifth act of fellation. 6 The accounts of Mr Greenlees of all six incidents were substantially denied by Mr S. 7 Eventually Mr Greenlees placed all six charges as having happened in 1976, however he had originally placed them in 1975. When he changed his version from 1975 to 1976 he said, "Apart from the date, the change of date in the year, all other matters were accurate". 8 The accounts which he gave were accompanied by details whereby particular events were fixed in time. For example, Mr Greenlees placed the count four incident by virtue of the fact that he had been taken to the performance of a play by a Mr Gil Tucker at the Nimrod Theatre that evening. Subsequent evidence, including the testimony of Mr Tucker, which was not seriously in issue, demonstrated that Mr Tucker did not play at the Nimrod Theatre in either 1975 or 1976. 9 Again, Mr Greenlees gave some background evidence of his reaction to the events of the first count. He said: "Back at school two days later on the Monday, I avoided him in a big way. In class I saw that he was obviously very angry at this. He started directing underhand comments at me and started attacking my ego. I can't remember exactly what he said but I remember feeling very uncomfortable. I felt as if I owed him something. This went on for two or three weeks. My school work and attitude went down badly and I was under pressure from other teachers and my parents. I had a maths test around this time and I failed it". In fact, the evidence disclosed that Mr S did not have Mr Greenlees in his class that year, nor did he fail any maths test. His results in maths tests were uniformly high in 1975 and 1976 where he scored the result on approximately 86 percent. 10 Mr Game, in his submissions, gave many other examples where the surrounding circumstances were relied on by Mr Greenlees in respect of counts 1, 2 and 3 which were equally untruthful. Whether that was the result of mendacity or some other more charitable cause it is impossible to determine. It seems to me no sensible reliance could be placed on his evidence. In those circumstances I cannot understand how the verdicts on the first three counts are to be considered as other than unsafe and unsatisfactory and, indeed, that they are inconsistent with the jury's verdicts on counts four, five and six and constitute a miscarriage of justice. 11 The Crown has pointed out a number of matters including the following: (a) That the jury are the sole judges of the truth or otherwise of any allegations, not an appellate court; (b) the apparently curious result of guilt on the first three counts but not on the fourth, fifth and sixth counts could be attributed to the fact that the jury thought there was a change in Mr Greenlees' demeanour, the subtle influence of which made its way into the jury's conclusions; (c) the jury may return an irrational verdict if, for example, it is of the view that three verdicts of guilty constitute sufficient punishment for the accused; (d) the fact that some incidental allegations are proved to be wrong does not justify the conclusion that the central allegation is wrong; (3) in any event, the terms of certain letters written by Mr S to or about Mr Greenlees would seem to indicate that he must in some way, at some stage, have been guilty of some misconduct. 12 The points which I have recited in (a), (b), (c) and (d) of the last paragraph are supportable both in principle and by reference to respectable judicial authority. However, if they were true in any absolute sense, no court could ever set aside a jury verdict, a result which would be totally inconsistent with a multitude of High Court decisions. In my view, as I have said, the verdicts are inconsistent and represent a miscarriage of justice. 13 The orders that this court should make are: 1. Appeal allowed; 2. To set aside the convictions and sentences on orders from charges 1, 2 and 3 and I should add in my view there should be no new trial. 14 SULLY J: I agree with the orders proposed and generally with the reasons given but I wish to add some brief observations. 15 The considerations which are decisive in the view I have taken merits of this appeal, are considerations appearing in the joint judgment of Justices Gaudron, McHugh and Gummow in Jones v R (1997) 191 CLR 439. I have in mind in particular the first three paragraphs of the material under the heading "The adverse impact on the acquittal on the second count". This is neither the time nor the place to engage in any extended discussion of the inherent reasoning in those paragraphs. It is sufficient to say that whilever that reasoning remains on foot with the authority of the High Court of Australia then its application, given the facts of the present case, would seem to me to entail necessarily that the convictions on counts 1, 2 and 3 cannot stand. 16 We were referred during the course of argument to a decision of a differently constituted Bench of this Court in the matter of R v Crisologo (1997) 99 ACrimR 178. It is sufficient to say of the three relevant categories of situation there discussed, in particular in the judgment of Justice Simpson, that it would seem to me, on the material at present available, that the present case would fit within the first of those three categories. 17 For the whole of those reasons and, as I have said, I agree with the orders proposed. 18 DOWD J: I agree with the orders proposed by his Honour the presiding Judge and his reasons therefore. I also agree with the remarks of Mr Justice Sully. 19 MEAGHER JA: The order of the court, therefore, is the orders I have proposed. (Further submissions from counsel). 20 SULLY J: My position is clear, I would not grant the application. 21 MEAGHER JA: I would grant the application. 22 DOWD J: My reasons related to matters that would have pertained to the jury generally, my reasons for concurring primarily with those reasons advanced by Mr Justice Sully in relation to Jones and I would reject the application. 23 MEAGHER JA: By majority the application is rejected. (Further submissions by counsel) 24 MEAGHER JA: The order of this court is that in all publications of this matter the appellant should be referred to as Mr. S. ****** 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.