R v Corbett [2002] NSWCCA 137

New South Wales Court of Criminal Appeal

CITATION : R v Corbett [2002] NSWCCA 137 FILE NUMBER(S) : CCA 60086/01 HEARING DATE(S) : 8 February 2002 JUDGMENT DATE : 19 April 2002

Regina PARTIES : v William George Corbett JUDGMENT OF : Handley JA at 1; Sully J at 57; Smart AJ at 60

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 00/21/0193 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Crown - P G Ingram Appellant - J S Stratton SOLICITORS : Crown - S E O'Connor Appellant - D J Humphreys CATCHWORDS : JURY - VERDICTS - WHETHER INCONSISTENT - WHETHER UNSAFE AND UNSATISFACTORY LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) R v Markuleski (2001) 52 NSWLR 82 CASES CITED: Mackenzie v The Queen (1996) 190 CLR 348 Jones v The Queen (1997) 191 CLR 439 Pearce v The Queen (1998) 194 CLR 610 DECISION : Appeal against conviction on count 1 upheld; Conviction and sentence on count 1 quashed; Verdict of acquital entered; Appeal against conviction on counts 5 and 6 dismissed. Appellant resentenced.

IN THE COURT OF CRIMINAL APPEAL 60086/01 DC 00/21/0193

HANDLEY JA SULLY J SMART AJ

19 April 2002 REGINA v WILLIAM GEORGE CORBETT Judgment 1 HANDLEY JA: The appellant stood trial before Luland DCJ and a jury on 20 November 2000 on an indictment containing seven counts of sexual misconduct with an under age female which was amended on 23 November. The first count charged the appellant with indecent assault on the complainant, a female who was then under the age of 16, at Guildford between 31 July 1969 and 1 March 1970. The second to the sixth counts charged him with having carnal knowledge of the complainant between 31 July 1971 and 31 July 1973, between 31 July 1971 and 31 July 1973, between 1 January 1972 and 31 December 1972, between 1 January 1972 and 31 December 1972, and between 31 July 1972 and 31 December 1972, and the seventh with indecent assault between 31 July 1974 and 31 July 1976. The last six counts charged the offences as having occurred at Granville. 2 The complainant's evidence was that the first offence occurred at her aunt's home at Guildford, and the others at her parents' home at Granville. 3 The jury convicted the appellant on count 1 (indecent assault) and counts 5 and 6 (carnal knowledge) and acquitted him on the rest. On 21 February 2001 the trial Judge sentenced the appellant to a fixed term of 18 months on the first count to commence that day and expire on 21 February 2002, and to concurrent terms of 4 years on counts 4 and 5 to commence on 21 February 2001 and expire on 28 February 2005 with a non parole period of 2 years. 4 The trial Judge granted a certificate under s 5(1)(b) of the Criminal Appeal Act that this was a fit case for an appeal on the ground that the verdicts appeared to be inconsistent. After this appeal was filed, the Judge admitted the appellant to bail pending the hearing of the appeal. 5 The earliest of the charges related to events alleged to have occurred over 30 years before the trial when the complainant was only 4. The last of the charges related to events alleged to have occurred more than 24 years before the trial when the complainant was 11 or younger. 6 The complainant had made no verbal complaint to anyone before October 1989. She then complained to a girlfriend about what had happened to her on the occasion that became the subject of the first count. There was no complaint to the police until 1997. 7 There was evidence of conduct by the complainant during her childhood that might have been construed as a non verbal complaint, although it was not relied on as such, and it could not be related to any particular conduct of the appellant. The complainant gave evidence that prior to the occasion which was the subject of the third count, when her mother was going out for the evening leaving her at home with the appellant as her babysitter, she screamed and begged her mother not to leave her with the appellant (T 11 21/11/00). Her mother gave evidence that on occasions when she went out leaving the complainant with the appellant, her daughter would cry and ask her not to go out but never said why (T 40/41 22/11/00). The mother never asked her daughter why she did not wish to be left alone with the appellant. 8 About 6 months after the events the subject of the seventh count, and after the complainant had been removed from the former matrimonial home at Granville, the appellant visited the complainant and her mother at their new home. He was having a beer with the complainant's mother when the complainant (according to her evidence), angry that the appellant was there, surreptitiously poured perfume into his can of beer. He became ill after drinking the contents and had to be taken away by ambulance. 9 According to the complainant, the appellant told her mother that the complainant had tried to poison him, but she told him he was being stupid. The complainant said she told her mother that the appellant was lying (T 25 21/11/00). The mother remembered the occasion and said that the complainant told her she had tried to poison the appellant, but she did not believe this (T43 22/11/00). 10 There was no corroboration of the complainant's evidence about the essential elements of the offences charged, although there was corroboration about some of the incidental details. The appellant denied the charges in his record of interview and gave evidence at the trial but made no significant admissions. In his electronically recorded record of interview, which was played to the jury, the appellant said that the complainant had made sexual advances to him as a young girl which he described, but he had rebuffed them. He said in his evidence-in-chief that in giving his answers to the police he was doing his best to be accurate and truthful. He was challenged in cross-examination about his statements in the record of interview that the complainant made sexual advances to him when she was a child. 11 The principal submission for the appellant was that the verdicts were inconsistent, and the verdicts of guilty could not be allowed to stand. The relevant principles were reviewed by this Court in its recent 5 Judge decision in R v Markuleski (2001) 52 NSWLR 82. The basic question for the appellate court is that stated in Mackenzie v The Queen (1996) 190 CLR 348. The test is one of logic and reasonableness (366), and (367): "… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted". 12 However, the joint judgment in Jones v The Queen (1997) 191 CLR 439, 453, 455 emphasised the significance of an acquittal on one count for the credibility of the complainant's evidence on other counts. The Judges said at 453: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count … It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count". 13 The question for this Court is whether there is a proper way by which the verdicts may be reconciled, having regard to the tests of logic and reasonableness, and giving proper consideration to the effect which the jury's rejection of the complainant's evidence on some counts should have had on their consideration of her evidence on other counts. 14 Counsel for the Crown undertook the task of demonstrating how the verdicts could be reconciled. He placed considerable reliance on a question which the jury asked the trial Judge on the morning of 24 November, the summing-up having been completed at 12.50 pm the previous day. The question was: "Whether we can change a charge to indecent assault?" This could only relate to the counts for carnal knowledge, counts 2 to 6, in the indictment. The Judge gave the jury the following answer: "The short answer is no you can't, the Crown has charged the charges that are on the indictment and let me just emphasise to you this that if you have a doubt about … any of the ingredients of the charge you are considering, then you're duty bound to acquit the accused. So there's no question of changing it to other charges, you're dealing with the charges before you and that's the high onus that the Crown has in respect of those particular counts". 15 The jury could only have asked this question if they accepted, or were inclined to accept, the general credibility and reliability of the complainant's evidence that there had been inappropriate sexual contact, but they were in doubt about her evidence that carnal knowledge had occurred. There was a substantial basis for that view in the complainant's evidence relevant to the second count which charged the appellant with carnal knowledge of her when she was aged 6 or 7. According to her evidence, the offence occurred while the appellant was supporting her in the water in the public swimming pool at Granville. It was daylight at the time and there were other people in the pool and on the surrounding pavement. The complainant said that she felt pain but did not bleed. She was wearing a 2-piece bathing suit and the appellant was helping her to float on her belly. The appellant said he went to the pool with the complainant once and that he was trying to teach her to swim (T 61 22/11/00). 16 The Judge said with reference to this count in his summing-up (T 23 23/11/00): "… the first one at the pool, that he had intercourse with her in those, what you might think to be, most unusual circumstances, but the complainant said that is how it did happen. The most the accused can say is well yes I did go to the pool with her. I do remember her floating on her belly but I did not have anything to do with any sexual act … I did not do such a thing, and you might have thought he was saying why on earth would you be doing such a thing in such public circumstances". 17 The jury could well have thought that the appellant had indecently assaulted the complainant, but they were certainly entitled to have a reasonable doubt, to say the least, on the issue of carnal knowledge. 18 Mr Stratton for the appellant submitted that any reliance by the Court on the jury's question involved impermissible speculation and that there was no basis in the evidence for a finding that the acquittal on this count could be reconciled with the convictions. I do not agree. In my judgment the test of logic and reasonableness is satisfied in relation to the acquittal on Count 2. 19 The evidence of the complainant on the carnal knowledge counts 3 and 4 on which the appellant was acquitted did not provide any basis for a finding that an indecent assault occurred without carnal knowledge on the occasions in question. During her evidence-in-chief relevant to count 3 the complainant first asserted that this incident occurred when the appellant told her to lie down on a couch in the lounge room (T 13 21/11/00). She then said that this incident occurred when she sat on the lap of the appellant with her back to him in a chair (T 13-14). She added in response to questions from the trial Judge that she had initially been mistaken when she said that this was the occasion when the appellant had intercourse with her on the lounge. However, in cross-examination, she was referred to a copy of her statement to the police where she said that this incident occurred on the lounge, and she said that the contents of her statement were right (T 43-46 21/11/00). 20 She said that these errors occurred through faulty recollection and confusion and that she had confused the events relevant to this count with what she referred to as "the second one" (T 46 21/11/00). In her evidence-in-chief relevant to the fourth count the complainant said that that incident occurred when the appellant sat on a chair in the lounge room while she was sitting on his lap (T 15-16 21/11/00). In cross-examination she was asked about the incident the subject of the third count, which was referred to as "the first occasion … at Waratah Street" (T 43 21/11/00). In these circumstances the complainant's reference to "the second one" shortly afterwards (T 46 21/11/00) was a reference to the incident the subject of count 4, and the jury can be expected to have understood this. 21 The complainant's evidence-in-chief in relation to the fourth count has already been referred to. Her mother had gone out but her father remained at home drinking. The incident occurred after he had passed out seated at the kitchen table. She said in chief that after sexual intercourse on the chair had finished, the appellant asked her to accompany him to the toilet where he wanted her to watch him masturbate and she did so and did not see her father again that night (T 16 21/11/00). However in cross-examination she said that after intercourse had ceased on the chair she had gone to the kitchen to check if her father was awake while the appellant went outside to the toilet and she had gone to bed without seeing the appellant again. She agreed that she had not told the police that the appellant asked her to go out to the toilet and watch him masturbate or that she had done so (T 7-10 22/11/00). When pressed about the inconsistencies in her evidence about the accused masturbating, she said she was "confusing everything" (T 10 22/11/00). 22 In his summing-up, the Judge directed the jury that they had to consider each count separately and that it did not follow that because they found one way in respect of one matter "that you must necessarily [find] the same way in respect of the others" (1-2). He also gave them the usual direction that they could accept some things a witness says and yet reject other parts (10). He told the jury that unless they accepted the complainant about the acts in question, they could not convict the accused and if they had a reasonable doubt about her evidence "in respect of the count you are considering", then that would be the end of the matter, they would be duty bound to acquit (16). 23 The Crown had led evidence of other sexual contacts between the complainant and the appellant, and the Judge gave the usual direction about the use which could properly be made of this evidence. He said (20): "It is certainly not evidence that you can use to substitute for the proof of these charges and you certainly cannot [say] that well if he did it on one occasion he must have done it on these other occasions". 24 The Judge referred at some length to the inconsistencies in the complainant's evidence, particularly with regard to the third count (24). He continued (25): "Mr Parker [counsel for the accused] says … all an accused can do, and particularly after such a length of time, is to do his best, through his counsel, to look for any inconsistencies that may appear to say well how reliable is the evidence, how can you rely upon the mere fact of the statement that it occurred, and as he pointed out to you in most, if not all, of the cases he has been able to point to some inconsistency or other to say well how reliable is the complainant … But those inconsistencies as relied upon by Mr Parker have all been pointed out to you as the facts relied upon by the Crown have been pointed out to you, and you might look very, very closely at those inconsistencies in determining whether you find that [the events] themselves [took] place, and particularly when you do have to scrutinise her evidence with such care, whether those inconsistencies reflect upon her in such a way as you are just not able to accept her to that very high standard that you have to accept her in respect of any or indeed all of these counts". 25 He gave a specific direction in relation to inconsistencies in the complainant's evidence about the third count saying (26): "She certainly in respect of Count 3 said it happened in one way in one place … she has first of all said on the lounge chair, then went on to say it was on his lap and then it was pointed out to her that she said on the lounge chair so then she said oh yes that is right I remember that it is the way it was. Mr Parker says to you how could you be satisfied beyond reasonable doubt on the quality of evidence such as that, and certainly she is not supported in any way by other people". 26 The confusion and inconsistencies in the complainant's evidence directly relevant to Counts 3 and 4 was considerable. The jury, acting reasonably and in accordance with the Judge's directions, particularly those in paragraphs 23 to 25, may well have had a reasonable doubt as to the reliability of her evidence on these counts while still accepting her as an honest and truthful witness. They could have accepted her evidence that acts of sexual misconduct occurred involving the appellant, without being satisfied beyond reasonable doubt that these particular acts of sexual misconduct occurred on these occasions as alleged. As a matter of logic and reasonableness, the verdicts of not guilty on Counts 3 and 4 can be reconciled with verdicts of guilty on other counts. 27 The seventh count, on which the appellant was acquitted, charged him with indecent assault. By the time this offence was alleged to have occurred, the complainant's parents had separated, and the complainant and her brother were living with their father in the former matrimonial home in Granville. The complainant said that her parents separated when she was 10, that is in 1975, but her mother said that the separation occurred in 1977 when the complainant was 12 (T 46 22/11/00). 28 In her evidence the complainant said that on the evening in question her father had passed out drunk on the hallway floor and her brother was elsewhere in the house, and the appellant arrived while she was preparing dinner in the kitchen. He approached and began touching her in the breast area, on her bottom, and in the vagina area (T 23, 29-30 21/11/00). Nothing else had happened between her and the appellant (T 23) when her mother arrived with two adults (T 15 22/11/00). She collected the complainant and her brother and their belongings and took them back to where she was then living. This was the last time the complainant was in the house at Granville. 29 The complainant's mother corroborated some of her daughter's evidence about this occasion, but not her evidence about the indecent assault. However, in some respects her evidence was radically inconsistent with that of her daughter. She said that when she arrived at the house "my husband was on the floor out to it drunk, [the appellant] laying on a table drunk, he was asleep and my daughter was standing there cooking meat in the frypan and my son was running around the backyard playing", the appellant "was asleep with his head on the table" (T 43 22/11/00). She confirmed this evidence in cross-examination (T 48). The Judge referred to this inconsistency between the evidence of the complainant and her mother in his summing-up (T 265-7): "Mr Parker said it goes on to other factors and other features of inconsistency that would lead you to have grave doubts about any of the matters that she spoke of and in respect of the last event where she says that the accused just touched her and her mother had broken in to take her. The mother herself says that he was flat out on the kitchen table drunk when she came in so he must have gone from touching her to blacking out on the table almost instantly you might think on the two versions you got from mother and daughter, but it is a matter for you".