New South Wales Court of Criminal Appeal CITATION : REGINA v SBD [2003] NSWCCA 235 HEARING DATE(S) : 14 August 2003 JUDGMENT DATE : 22 August 2003 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Adams J at 3 DECISION : Appeal allowed; convictions below quashed CATCHWORDS : Appeal against conviction - whether verdicts inconsistent - whether verdicts unreasonable - significant contradictions between complaint and trial evidence - verdicts of guilt not open on evidence - convictions quashed LEGISLATION CITED : s6(1) Criminal Appeal Act 1912 M v The Queen (1984) 181 CLR 487 at 494-495 CASES CITED : MFA v The Queen [2002] HCA 53, (2002) 193 ALR 184 R v Markuleski [2001] NSWCCA 290 [3] - [10], (2001) 125 A Crim R 1 R v Murray (1987) 11 NSWLR 12 Regina (Respondent) PARTIES : SBD (Appellant) FILE NUMBER(S) : CCA 60145/03 COUNSEL : W Flynn (Appellant) D M L Woodburne (Crown) SOLICITORS : M Burke (Appellant) S E O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0331 FILE NUMBER(S) : LOWER COURT Blackmore DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60145/03 WOOD CJ AT CL SIMPSON J ADAMS J FRIDAY 22 AUGUST 2003 REGINA v SBD JUDGMENT 1 WOOD CJ AT CL: I have read in draft form the judgment of Adams J. I agree with the orders proposed, and with the reasons of his Honour. 2 SIMPSON J: I agree with Adams J. 3 ADAMS J: INTRODUCTION 4 The appellant was tried on six charges of indecent or sexual assault, essentially comprising three groups of two offences. He was acquitted of the first four and convicted of the last two. The charges were as follows – (i) indecent assault at Hurstville Grove between 1 January and 31 December 1986, when the complainant was 5 or 6 years of age; (ii) indecent assault at Hurstville Grove between 1 January and 31 December 1986, when the complainant was 5 or 6 years of age; (iii) sexual intercourse without consent at Hurstville Grove between 1 October 1991 and 30 November 1991, when the complainant was 11 years of age; (iv) sexual intercourse without consent at Hurstville Grove between 1 October 1991 and 30 November 1991, when the complainant was 11 years of age; (v) sexual intercourse without consent at South Hurstville between 1 April 1995 and 29 February 1996, when the complainant was 15 years of age; and (vi) sexual intercourse without consent at La Perouse between 1 April 1995 and 29 February 1996, when the complainant was 15 years of age. 5 The sole ground of appeal is that the convictions were unreasonable or cannot be supported having regard to the evidence. In support of this ground, the appellant points to the apparent inconsistency between the verdict of guilty and the verdicts of acquittal as well as to the weaknesses in the prosecution case. THE INITIAL COMPLAINTS 6 The complainant did not complain to anyone until he was about 17, when he told D (I gather a mature person), in whose house he was then living, about being sexually assaulted. D gave evidence that she met the complainant in 1998. She described him as a person who is not open and engaging, very introverted and one who does not like people contact. D noted that he was depressed on his 18th birthday and, when she asked him if he had "been touched", he became upset and said, "Yes, by a man" but, when she asked him whether he wished to tell her anything about it, he stopped talking about it. Over the next few months, the complainant told her "bit by bit a little more about what had occurred". On one occasion, the complainant told D something to the effect that the appellant would bind his hands and legs up with rope and use a chemical called Amyl which he would put over his face and then put deoderant aerosol cans up his anus and, on another, that the appellant had videotaped him having sex and oral sex with him and had shown the tape to all the blokes from the neighbourhood. When the complainant talked about the assaults, he started off quietly and would shake and then he would get louder and louder and break down and cry and then he would get angry. She said her conversations with the complainant gave her the impression that the assaults had happened more than once, although she could not say whether the complainant had actually told her this. On a fair reading of D's evidence, it does not appear (with the possible exception of what was said to have been videotaped) that the complainant told D that the appellant had frequent or, indeed any, anal intercourse with him. D said that on one occasion, the complainant was outside her house cleaning a car, when he ran inside the house and appeared white as a ghost and he was crying and shaking. He then pointed to the front of the house and told her that he was out there. She ran out of the house and saw a red-coloured old-styled Gemini outside the house and saw an Australian-looking man with short sandy-coloured hair about twenty-eight years old in the driver's seat. She came inside and the complainant told her that it was the appellant and that he had raped him. She said that the complainant did not want her to tell anybody. However, in October 1998, sometime after the above incident, she contacted Crime Stoppers and reported to police what the complainant had told her. 7 (D also gave evidence that when he was living with her he seemed to spend a lot of time in the toilet and, on one occasion, he asked her to come inside the toilet and have a look at his bottom to see if it was alright and at the time he appeared to be embarrassed. She says that she saw veins the size of a twenty cent piece come out of his rectum. This evidence, although not objected to, was both inadmissible and extremely prejudicial and the learned trial judge rightlly directed the jury to completely disregard it. That it was introduced is a a troubling feature of the case.) 8 Police made contact with the complainant some time after the phone call to Crime Stoppers. A statement was taken from the complainant on 17 June 1999 and a second statement was obtained on 21 December 2000. THE COMPLAINANT'S EVIDENCE 9 The complainant was born on 16 March 1980. He was therefore aged twenty-two at the time of trial. He was aged five or six years old during the period specified in the 1st and 2nd counts, eleven years old in the period specified in the 3rd and 4th counts and fifteen years old at the time of the 5th and 6th counts. The complainant gave evidence about events which were said to have occurred some sixteen or seventeen years before, in relation to counts 1 and 2, some eleven years before in relation to counts 3 and 4 and some six years before in relation to counts 5 and 6. 10 The complainant gave evidence that, when he was about five years of age, he moved with his parents and his sister to a house in Oatley. His paternal aunt and uncle lived nearby in Hurstville Grove. The appellant, who was about ten years older than the complainant, lived with his mother, father and older sister in the house next door to the complainant's aunt and uncle. The complainant's aunt and uncle were good friends of the appellant's parents. The complainant regularly visited his aunt and uncle's house. He rode his bike over there. The complainant made friends with the appellant and also with two other boys of a similar age who lived in the same street, G and M. 11 The complainant's first memory of something sexual happening to him whilst visiting his aunt and uncle was when he was about six years old. He said that he went next door to the appellant's house. He entered the appellant's room and the appellant locked the door and shoved a boot under it. They lay on the bed and the appellant asked him, "Do you wank?" The complainant said, "No". The complainant did not know what that meant at the time. The appellant took his pants off and masturbated and told the complainant to take his pants off but the complainant said "No". The appellant put his hand on the complainant's penis and moved his hand up and down. The complainant's penis was not erect to begin with but became erect. He was not sure how for long his penis was touched. The complainant could not remember whether there was any conversation. The appellant told the complainant that it "was between him and me" which the complainant took to mean that he was not to talk about it. The complainant thinks he rode home afterwards, and he did not tell anyone what had happened. This incident was the subject of count 1. 12 In respect of count 2, the complainant gave evidence that probably about six months after the first occasion, during the school year, and when he was aged six, he, the appellant and G and M were in the appellant's room. After M went home and they watched videos. He said that they used to watch "porno" videos but could not remember if this was one of them. The three of them were lying on the appellant's bed, with the appellant in the middle. The appellant took his pants off and masturbated and told the others to take their pants off. He told them to masturbate although the complainant could not remember what the appellant actually said in that regard. The appellant then told them to "wank" him. The complainant then did so because he was told to, and he saw G doing it to the appellant as well. The complainant was unable to remember what happened after that. G left and then he left. He thought that after he left the room he went outside and played with M and G. He did not tell anyone about what had happened to him. 13 In respect of count 3, the complainant said that the day before the appellant's 21st birthday party, which was held the weekend after his eleventh birthday, he was at his aunt's and uncle's house in the morning and jumped the fence to go over to the appellant's house. The appellant and others were setting up the backyard for the birthday party. As he jumped the fence the complainant ripped his foot open on a nail. The bottom of his foot was bleeding and the appellant told him to come to his room and he would fix it up. The complainant went into the appellant's bedroom where the appellant bandaged his foot. The appellant shut and locked the bedroom door, got undressed and told the complainant to get undressed. The appellant took the complainant's pants off and got moisturiser or something like that and placed his fingers into the complainant's anus. The complainant told the appellant not to. The appellant was masturbating and then inserted his penis into the complainant's anus. The appellant moved his penis in and out and then said he was going to come. The complainant did not really know what that meant. The appellant ejaculated and then he stopped and took his penis out of the complainant. The complainant then went back to his aunt's and uncle's house but did not say anything. When the complainant attended the 21st birthday party, his foot was bandaged. The appellant received a blow-up doll for his 21st birthday. 14 In relation to Count 4, the complainant rode his bike around to the appellant's house the day after the 21st party. He knocked on the door and was let in by the one of the appellant's parents who said that the appellant was in his bedroom. The complainant knocked on the appellant's door and the appellant told him to come in. The appellant locked the door and put a boot underneath it. The appellant was naked, lying on his bed with the blow up doll and he had a pornographic video on. The appellant was using the doll, he had his penis in it. The appellant asked the complainant if he wanted a go, but the complainant said "No". The appellant told the complainant to take his shorts off, but he did not. The appellant told the complainant to lie on the bed. The complainant did so, and then the appellant took his shorts off. The appellant kneeled over him and tried to put his penis in the complainant's mouth but the complainant would not let him do it. The appellant then masturbated himself and the complainant and then he sat over the top of the complainant and inserted the complainant's penis into the appellant's anus. The appellant masturbated and moved up and down on the complainant's penis. The appellant ejaculated on to the complainant's chest. The appellant got some tissues and wiped it off. The appellant then said, "Let's go for a swim". The complainant did not tell anyone about the incident because the appellant said, "it's between us". Extracts of a video recorded at the appellant's 21st birthday party established that the complainant did not have bandaged foot at the party. The complainant agreed said that he was mistaken as to when it happened but the appellant did ask him to go into his bedroom where he fixed his foot. He said the injury to his foot must have happened the day after the party. In relation to the blow up doll, the complainant agreed that the video showed the doll deflated hanging over the clothes line, but suggested that the appellant must have fixed the doll with the puncture kit that came with it. The complainant's uncle remembered that the complainant injured his foot on the weekend of the 21st party but he was unable to remember which day. The complainant's mother was pretty sure that the complainant injured his foot climbing the fence going over to clean up after the 21st birthday party. The appellant agreed that the complainant had injured his foot and that he had bandaged it for him but said that this occurred on the back step of the house and that he did not come into his bedroom. 15 In relation to count 5, the complainant gave evidence that in about 1995 he, together with his parents and sister, moved from Oatley to a house in South Hurstville. The house was a two-storey house, with his mother and father's bedroom upstairs and his and his sister's bedrooms downstairs. The complainant's bedroom had a single bed, a television and a lounge, as well as a large walk in wardrobe, which was about a quarter of the size of the room. The appellant drove in his red Gemini car to the house at South Hurstville about twelve months after the complainant's family moved there. The complainant was then aged fifteen. At the time of the visit the complainant was in his room watching TV. The appellant knocked at the door and came inside, shutting the door. He had his blue backpack with him. The appellant went in to the complainant's bedroom and shut the door. The appellant attempted to kiss and hug the complainant but the complainant pushed him away. The appellant produced a little brown bottle with a "Redex" label which he said was "Amyl". The appellant sniffed it and then told the complainant to do so. The complainant sniffed it and felt like his blood was rushing to his head and it made his head feel hot. The appellant then took him into the large walk-in wardrobe, took his pants off and told the complainant to do the same. The complainant did not. The appellant pulled them down and told the complainant to lie down. The complainant lay down on his stomach and the appellant spat on his fingers and put them in the complainant's anus. The complainant did not give the appellant permission to do what he did and, without asking, the appellant then inserted his penis into the complainant's "bottom". The complainant thought the appellant ejaculated. He said the appellant then masturbated him until the complainant ejaculated. The appellant then left the house but, before he left, he asked the complainant whether he wanted to go for a drive with him the following day. The complainant, who did not have a licence and was interested in cars, agreed. 16 In relation to count 6, the complainant gave evidence that the next night or the one after he did go for a drive with the appellant. The appellant picked him up from the South Hurstville house and drove the complainant to his workplace at Kings Cross. After leaving Kings Cross, they drove to near Bare Island at La Perouse. The complainant described Bare Island as an old fort with cannons and cells connected to a car-park by a bridge. They drove there to have a smoke of "pot" (marijuana). The appellant had provided the complainant with smokes of pot since he (the complainant) was aged about eight. That night they drove into the car-park. The appellant asked him if he wanted to jump the gates, which were across the bridge, and have a look around Bare Island, but the complainant said "No". The appellant then suggested that they take a walk around the rocks, so they did that. After walking around the water's edge they went to the car and had a "smoke". The appellant then took his pants off and told the complainant to do the same. The complainant did so because the appellant told him to. The appellant put the passenger seat, where the complainant was, down and then came over on top of the complainant so that the appellant's back was to the windscreen. The appellant had anal intercourse with the complainant. As he was doing this, the police drove by. The complainant told the appellant that the police just drove past, but the appellant said, "Don't worry about them because they can't see in". At the time there were others cars parked with people in them but he could not really see what they were doing. The appellant then let the complainant drive his car for about fifteen minutes, although he did not yet have his "L" plates. The appellant then drove the complainant home. The complainant did not tell his parents the next day because he felt ashamed and unable to talk about it. The complainant did not give the appellant permission to put his penis in the complainant's anus but the complainant said that he was frightened of the appellant since he told him, when he was about fourteen, that he (the appellant) was in the Church of Scientology and could leave his body and his spirit could follow the complainant around everywhere and watch what he was doing. That made the complainant feel worried. 17 The complainant said that he told the police in his initial statement that he thought he went to Bare Island with the appellant when he was eleven or twelve years old, a date that he could place because he got his junior boat licence at the age of eleven or twelve. He explained the difference between this and his evidence by saying that that he was "pretty anxious and upset" when making his statement. He agreed that he was given a copy of that statement and read it before he came to make his second statement eighteen months later but that statement repeated the date and the reason why it was recollected. It appears that the complainant told the Prosecutor in a conference prior to the trial that he was not aged eleven or twelve at that time but was aged fifteen, not yet sixteen, the age alleged in the indictment. 18 The complainant gave evidence that the appellant was circumcised and had a scar for a hernia operation which was on his right side, or left as one looks at it. The complainant said that the appellant had anal intercourse with him two or three times a week for years and claimed that he had seen this scar hundreds of times. It was actually on the left side. He said that the six occurrences that he gave evidence about "are the only ones I can remember what happened". He said was could not explain why he could not remember the details of other specific occasions. 19 It was not disputed that the appellant got a red Gemini when he was aged around sixteen or seventeen. 20 It will be observed that the complainant gave no evidence that reflected the substance of the complaints that he made to D as to being tied up and having cans inserted in his anus. He said that D "more or less guessed what had happened and then I was agreeing with her". He claimed that he told her that the appellant masturbated him, gave him pot and put his penis in his anus. He said that he could not remember the appellant ever having tied him up or (in effect) torturing him when he was tied up. He said that he would recall if the appellant had inserted anything in his anus other than his penis but then said that he was not sure if the appellant had done so, although he could not recall anything like that happening. He said that he could not remember "at the moment" the appellant inserting an aerosol can because, "There's a lot of things I can't remember". As to the complaint about the video being shown, the complainant said that the appellant videoed an occasion when they had sex and that, when showing videos to G and M on one occasion, that sequence came on, but the appellant quickly moved the video on and he did not think that G or M noticed. 21 The complainant had never told the police anything to the effect that he was frightened of the appellant because the appellant told him that his spirit could follow him. 22 The complainant told the police that the appellant's sister asked him and the appellant one day when they were in the kitchen of the complainant's home, "What are you doing in there, fucking?" and also asking the complainant, "What is Bruce doing to you?" The complainant said that he did not answer either question. The appellant's sister denied ever asking such questions. 23 The complainant's statement said that he only had sex with the appellant because "he influenced me to do so and I stopped when I realized it wasn't right". The complainant agreed that, although the word "influence" was not his, it was a correct statement. When asked by the Crown Prosecutor what he meant by "only having sex with him because he influenced me to do so" he said, "Because he used to give me pot, and so I had to go there and get it – I'm not quite sure...what you meant." The last such incident was that in count 6. He said in evidence that "he never wanted it to happen" but that he knew it was wrong probably from the age of 13 or 14. He said that he kept seeing the appellant from that point because he was scared of him. COMPLAINTS TO DOCTORS 24 In June 1998 the complainant consulted a general practitioner, complaining of panic attacks, depression and sleeping problems. He told the doctor that he was "sexually assaulted by a neighbour friend [and] it stopped around the age of 13, 14". In September 1998, the complainant gave to the psychiatrist to whom he was referred a history of repeated sexual abuse from the age of six to the age of fifteen or sixteen. When the complainant first spoke to police at the police station, after an initial telephone contact in October 1998, he alleged that he had been sexually assaulted from 1986, when he was six, to 1994 when he was fourteen. He was distressed and emotional and found it difficult to give details of the incidents. He said that he wanted some time to consider the details before making a statement. In the statement that he eventually made in June 1999, the incidents of which complaint was made covered the period from 1986 to 1996. He said that the reason he had not made a statement to police was that "he had a continual fear that he would encounter the perpetrator locally". THE EVIDENCE OF M AND G 25 G, who was born in September 1979, gave evidence that his family lived in the house next door to the appellant's house. G met the complainant through his uncle who lived two doors up. He used to go to the appellant's room and hang out there. They listened to music and watched TV. On five to ten occasions he, the appellant, the complainant and M watched pornographic movies in the appellant's bedroom. G said he could not remember when this first occurred, but it was not when he was aged six, seven or eight. The four of them used to see each other at least once every weekend and a couple of times through the week. When he was aged twelve he went to the appellant's 21st birthday party and saw a blow-up doll there, but he could not remember whether he saw the doll after the 21st birthday party. The four of them went boating and swimming probably when he was aged about age ten or eleven and did not occur when he was aged six. He said that he did not ever see the appellant masturbating in his bedroom and that the appellant did not ever tell or ask him to masturbate him. He did not ever see the complainant masturbating the appellant. 26 M, who was born in May 1980, gave evidence that, from as early an age as he could remember, he was a friend of G and the appellant. He met the complainant because the complainant's uncle lived across the road and the complainant would visit there. He did social activities with the complainant, the appellant and G. They went out in the appellant's boat, the complainant also had a boat, they played basketball at G's house and swam at the appellant's house. They used to go into the appellant's bedroom to watch TV and listen to music. On a few occasions they watched heterosexual pornographic movies with the door closed. W said he believed that he first started to mix with the appellant sometime after the appellant's 21st birthday party (Oct/Nov 1991). He got to know the complainant at about that time or after the 21st, although he may have seen him before that. He said they mostly hung out at G's or the appellant's house, and they would spend a lot of time at the latter's house in summer because of the big in-ground pool. He had not watched pornographic videos in the appellant's room prior to the appellant's 21st. Although he may have been in the appellant's bedroom before the appellant's 21st, he did not go in there when he was aged six, seven or eight. 27 The complainant's uncle said that, as best he could recall, the complainant became friends with G and M soon after the complainant's family moved to Oatley and started visiting them. He said that the complainant was aged ten or twelve when he started riding his bike over to their house, it could have been longer but he was not sure exactly. Quite often, when the complainant came to visit, he would go over to see the appellant and he just presumed the complainant was going in there to watch videos or something like that. THE DEFENCE CASE 28 The appellant gave evidence denying any sexual contact with the complainant at any time. It is not necessary to set out that evidence. It was not significantly affected by cross-examination. The appellant's sister, about twenty months older than him and who said that she was not close to her brother, categorically denied ever saying to the complainant words to the effect attributed to her set out above. THE SUMMING UP 29 The learned trial judge gave appropriate directions concerning the elements of the various charges, the independence of the charges, the possible use that might be made of a finding on one count adverse to the credibility of the complainant, delay, complaint and the necessity to carefully scrutinise the evidence of the complainant, which was not supported in any important respect by independent evidence. The appellant does not suggest that his Honour's directions were not adequate and appropriate. WERE THE VERDICTS UNJUSTIFIED? 30 The fundamental question is whether the verdicts of guilty in relation to counts 5 and 6 are "unreasonable and cannot be supported": s6(1) of the Criminal Appeal Act 1912. Put otherwise, the question for determination by the appellate court has been expressed as, "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen (1984) 181 CLR 487 at 494-495. This test applies in a case concerning alleged inconsistency between a verdict of acquittal and of conviction: see Spigelman CJ in R v Markuleski [2001] NSWCCA 290 [3] – [10], (2001) 125 A Crim R 1. 31 In MFA v The Queen [2002] HCA 53, (2002) 193 ALR 184, Gleeson CJ, Hayne and Callinan JJ said – "[34] Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. [35] It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones . It also overlooks the principles stated in MacKenzie , which were not qualified in Jones , and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M , which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence." (Citations omitted) 32 In M, the majority said (181 CLR at 493) – "In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or 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 these considerations." The application of the test was explained as follows (818 CLR at 494) – "In most cases a doubt experienced by an appellate court will be 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 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." 33 So far as the acquittals in respect of counts 1 and 2 were concerned, I think that they may readily be explained by the extreme youth of the complainant. The jury may well not have been prepared to accept that his memory could be relied sufficiently to enable them to be satisfied beyond reasonable doubt either as to the events themselves – as distinct from something like that happening – or as to the period in which it was said they occurred, particularly when the evidence of G and M was taken into account. Such a finding need not have been adverse to the complainant's honesty as distinct from his reliability. 34 However, I do not think that the verdicts in respect of counts 3 and 4 can be so easily explained. Of course, the jury might have taken the view that the complainant had simply made a mistake as to when he injured his foot. But, if this was the case, this would not have led to an acquittal, since that count (in my view, rightly) was left to the jury, even though the complainant himself acknowledged that he had erred by a day in his evidence as to when the incidents occurred. Mere confusion as to a day or so could not, therefore, explain these acquittals. The effect of delay on the ability of the appellant effectively to defend himself was, at least to some extent, qualified by the specificity of the occasion and the fact that a video of the party happened to have been taken and was available. Were it not for the fact that there was no supporting evidence in respect of counts 5 and 6, I would readily have accepted that the jury acquitted because, having regard to the direction that the evidence of the complainant should be very carefully scrutinised because it was effectively the sole basis for the prosecution's case, they simply required some supporting material before being prepared to accept that the case against the appellant was proved to the requisite standard. The Prosecutor submitted in this Court that the acquittals were explicable simply by reference to the age of the complainant at the time of the alleged offences and that the jury were just not prepared to act upon evidence depending upon the recollection of an eleven year old child about events that had occurred over ten years previously. This is not unreasonable, but my own view is that the evidence of the complainant as to consent, especially having regard to the last answer to the Prosecutor in re-examination quoted above, concerning what he meant by "influenced", taken with his description of the incidents, raised a very real doubt as to whether the complainant did not, in fact consent or, if he did not, whether the appellant knew that he was not consenting. Acquittal on this basis would have not necessarily have affected the complainant's credibility. 35 Because of the view that I have taken of the evidence as a whole, it is unnecessary for me to further analyse the issue of possible inconsistencies in the verdicts, although I must say that the verdicts, to my mind, smack of compromise. 36 The Prosecutor submitted in this Court that the complainant's evidence in relation to counts 5 and 6 was unequivocal and not inherently implausible, and argued that it followed that there was evidence to support the verdicts of guilty in respect of counts 5 and 6 and that it was open to the jury to accept that evidence. However, it is not possible to look merely at the evidence of the complainant. To my mind, the evidence of the history of complaints is of particular relevance. Leaving aside the problem inherent in the mode by which the complaints were initially elicited by D, the allegations against the appellant made by the complainant to her were markedly different in very significant respects, making all due allowance for the complainant's emotional state, to those which he made to the police and gave in his evidence. Failure of recollection is not, in my view, a credible explanation. If it be accepted, as I think is inevitable, that he grossly exaggerated what had happened, this is significantly adverse to accepting him as truthful, especially in light of his failure to candidly explain how it came about. It will be recalled that D said that the story was given to her bit by bit. It is easy to accept that this might well be so, but it militates against an explanation that he simply blurted out an embellished truth. The distinct assertion to the general practitioner and in two statements to the police that the incidents ended when he was thirteen or fourteen years old is not, in my view, sufficiently explained by his emotional state, of which there is no evidence when he spoke to the doctor or when he made the second police statement. This is especially significant when he gave a particular reason – the boating licence – for dating the last incident at that age. I am mindful of his reaction when he saw the appellant (it seems) driving passed D's house, but the complainant did not give evidence about that incident and his reaction does not help to determine whether the allegations to which counts 5 and 6 refer are truthful. Lastly, there is the fact that the complainant did not mention to the police that he was frightened of the appellant because he was an adherent of Scientology and his spirit could follow him everywhere, an apparently crucial aspect of the incidents under discussion. All these matters derive from the prosecution's case. It is also worth noting the evidence of the complainant's sister denying that she indicated, in effect, that she was aware of the appellant's conduct with the complainant. 37 The above analysis involves a consideration of matters having the effect of contradicting or undermining the probative value of the complainant's evidence. I have also carefully considered the evidence of the complainant himself of the circumstances of the incidents in counts 5 and 6. To my mind, assuming that they occurred, I cannot see a basis for inferring beyond reasonable doubt that, if they were not consented to, the appellant would have realised that this was so or was reckless as to whether the complainant was consenting or not. On his account, he was almost completely compliant, certainly to the physical actions of the appellant, which were not suggested to have been forceful in any respect. It should also be borne in mind that although complainant said that he was continuously sexually abused by the appellant, nevertheless he continuously sought out or consented to be in his company. I find this evidence difficult to reconcile with the complainant's evidence that he had not consented to the sexual activities. Consent is not a defence to some charges of sexual assault, but it was an element of those charges of which the appellant was convicted. At all events, the apparent inconsistency between the complainant's assertions and his acts is troubling. 38 When these considerations are taken together with the need to scrutinise the complainant's evidence with "great care" (vide R v Murray (1987) NSWLR, per Lee J at 19) because of the absence of any supporting evidence as to the crucial issues in the case, I am unable to see how the jury could fail to entertain a reasonable doubt concerning the appellant's guilt, making all due allowance for the undoubted advantage that they had of observing the complainant and the appellant give evidence. 39 Accordingly, I would allow the appeal and propose the convictions be quashed. Having regard to the reasons for doing so, there should be no new trial. ********** Last Modified: 08/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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