R v GDM [2002] NSWCCA 261

New South Wales Court of Criminal Appeal

CITATION : R v GDM [2002] NSWCCA 261 FILE NUMBER(S) : CCA 60891/2001 HEARING DATE(S) : 28 May 2002 JUDGMENT DATE : 31 July 2002

PARTIES : Regina GDM JUDGMENT OF : Mason P at 1; Hidden J at 11; Carruthers AJ at 47

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3104 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : WG Dawe QC - Crown RC Pontello - Appellant SOLICITORS : SE O'Connor - Crown Marsdens - Appellant CATCHWORDS : CRIMINAL LAW: charges of sexual assault - verdicts of guilty on some counts, not guilty on others - whether verdicts of guilty unreasonable. LEGISLATION CITED : Crimes Act, 1900 R v W (1999) 109 A Crim R Jones v The Queen (1997) 191 CLR 439 R v Markuleski (2001) 52 NSWLR 82 CASES CITED: Mackenize v The Queen (1996) 190 CLR 348 R v Kirkman (1987) 44 SASR 591 M v The Queen (1994) 181 CLR 487 Longman v The Queen (1989) 168 CLR 79 DECISION : Appeal dismissed (by majority).

IN THE COURT OF CRIMINAL APPEAL 60891/2001

MASON P HIDDEN J CARRUTHERS AJ Wednesday, 31 July, 2002 REGINA v GDM Judgment 1 MASON P: I have had the advantage of reading in draft form the judgments of Hidden J and Carruthers AJ. 2 I agree with Carruthers AJ, subject to the following remarks. 3 In my view it is possible, but no more than that, that the jury acquitted the appellant on counts 8 and 9 because of doubts as to whether the alleged offences occurred within the time frame covered in the indictment. The summing up in relation to these counts does not suggest that timing was at the forefront of the defence case in these matters, nor does the evidence generally. 4 There were however particular problems with the Crown case touching counts 8 and 9. The complainant did not mention this incident when she spoke to her mother in June 1997. This incident was first reported when she went to the police two years later. There were other specific matters raised by the defence, including a strong challenge to the complainant's evidence insofar as she had said that the incident occurred at a time when her mother was nearby in the back yard, hanging out the washing. 5 In finding verdicts of not guilty on these counts the jury were being true to the judicial admonition to consider each count separately. The jury were given proper directions as to the impact of an acquittal on one count upon their assessment of the complainant's credibility generally. These are set out by Carruthers AJ. 6 R v Markuleski (2001) 52 NSWLR 82 addresses the circumstances in which a jury's verdict is to be examined in cases such as the present. Key passages are set out by Hidden J. 7 The appellant submitted that the present case falls within the category, referred to by Wood CJ at CL at 131-2 ([234)] where he said: There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness. This may arise, for example, where: … (c) … the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable ( R v W (1999) 109 A Crim R provides a possible example … 8 This is not such a case, on my reading of the evidence concerning counts 8 and 9. It did not raise a "fanciful or inherently improbable" account, especially because there was ample evidence explaining the complainant's inability to confront her brother or complain to her mother at the time. 9 If I return to the broader enquiry enjoined by the Chief Judge in the passage from Markuleski at 132 ([237]-[238]) set out by Hidden J, I remain comfortably satisfied as to the verdicts of guilty, despite (or even because of) the acquittals on counts 8 and 9. As indicated, I agree generally with Carruthers AJ. 10 In my view the appeal should be dismissed. 11 HIDDEN J: The appellant was tried before Coleman DCJ and a jury on a number of charges of sexual interference with his sister between 1972 and 1975. There were nine counts in the indictment, brought under sections of the Crimes Act which have since been repealed: three counts of indecent assault (s 76) and six counts of attempted carnal knowledge (s 72). He was found guilty only of counts 2, 3 and 5. Count 2 was indecent assault, and counts 3 and 5 were attempted carnal knowledge. The trial judge directed his acquittal of count 4 (attempted carnal knowledge) and the jury found him not guilty of the remaining counts. He appeals against conviction only. 12 The offences were alleged to have occurred in the family home at Fairfield. The complainant was born on 13 October 1961, and was aged between 10 and 14 at the relevant time. The appellant, born on 25 December 1953, is about eight years older. The complainant was born profoundly deaf, and from the age of about 3 or 4 she attended a special school for blind and deaf children at North Rocks. There are four other children, two of whom are also hearing impaired. During her childhood the complainant communicated with her parents by way of mime, lip reading, facial expressions and improvised signs. It was not until she was about 17or 18 that she began to learn sign language. 13 Although the appellant was acquitted of most of the charges, to understand the argument on the appeal it is necessary to sketch the evidence relating to all of them, as well as that relating to an earlier incident which did not give rise to a count in the indictment. The appellant gave evidence denying all of the complainant's allegations.