New South Wales Court of Criminal Appeal CITATION : Regina v Fry [2002] NSWCCA 127 FILE NUMBER(S) : CCA 60106/01 HEARING DATE(S) : 08/04/02 JUDGMENT DATE : 8 April 2002 PARTIES : Regina v Jeffrey Charles Fry JUDGMENT OF : Ipp AJA at 1; Bell J at 24; Smart AJ at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0114 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : C J Bruce (Appellant) L M B Lamprati (Crown) SOLICITORS : J Adams (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - appeal against conviction - inconsistent verdicts - conviction unsafe and unsatisfactory - appeal upheld. CASES CITED: Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 DECISION : Set aside the conviction on the first count. Order that a verdict of acquittal be entered. IN THE COURT OF CRIMINAL APPEAL 60106/01 IPP AJA BELL J SMART AJ Monday 8 April 2002 REGINA v JEFFREY CHARLES FRY Judgment 1 IPP AJA: This is an appeal against conviction. The appellant was charged before a jury in the District Court with two counts of indecent assault in aggravated circumstances. The aggravated circumstances were that the complainant was a child under the age of ten years of age. In fact, he was aged five years. The appellant was aged thirty years at the time. 2 Count 1 alleged that between 1 July 1998 and 4 October 1998 the appellant placed his penis against the bottom of the complainant. This was alleged to have occurred in the bedroom of the appellant. 3 Count 2 alleged that between 1 July 1998 and 4 October 1998 the appellant placed his penis in the mouth of the complainant. This was alleged to have occurred in the lounge room of the complainant. 4 The Crown supplied particulars of the offence to the appellant at the trial. In those particulars the Crown alleged that there were a further ten occasions when the appellant placed his penis in the mouth of the complainant and in the bottom of the complainant. According to these particulars five of these occasions occurred at the complainant's home and five occurred at the appellant's home. This additional sexual activity was said to be relevant as relationship evidence. 5 Essentially, the sole material evidence against the appellant was that of the complainant. The appellant did not testify. The Crown case depended on the jury's view of the credibility of the complainant. 6 The appellant was found guilty in respect of Count 1 and acquitted on Count 2. 7 There were a number of discrepancies and inconsistencies in the evidence of the complainant. 8 When testifying in Court the complainant said that the conduct of the subject of Count 1 occurred in the appellant's bedroom. Initially, however, he told the police that the relevant conduct occurred in the appellant's lounge room. 9 When the complainant first testified he said in regard to the "first occasion", the appellant put his penis into his mouth five times and in his bottom five times. This was consistent with the particulars of the offence as provided. Later, in his evidence in chief, he said that the appellant had done this to him on ten occasions, that is, at the complainant's home. 10 In regard to the second count the complainant said that the appellant had put his penis into his mouth on the first occasion at the appellant's home and said that this occurred five times. Again, this was in accord with the particulars of the offence. Later, however, in his evidence in chief, he said that the appellant had put his penis into his mouth and also into his bottom and that this occurred at the home of the appellant. Additionally, he said that this had occurred ten times. 11 The day before the trial the complainant had told the Crown Prosecutor that, in regard to Count 2, the appellant had only put his penis into his mouth and the complainant made no reference to the appellant putting his penis into his bottom. He made a similar statement to the police. 12 Later, in his evidence in chief, the complainant said that in regard to the sexual activity that occurred at the appellant's home, that is the second count, the appellant had put his penis into the complainant's mouth ten times and into his bottom ten times. The confusion in regard to the number of times this sexual activity was alleged to have occurred was compounded by the fact that, prior to the trial, the investigating police officer had asked the complainant how many times the appellant "had done this to you" and the complainant had replied "Nine". 13 Notwithstanding these discrepancies the jury, as I have said, convicted the appellant on the first count but acquitted him on the second count. At first sight these verdicts are inconsistent with each other having regard to the fact that the Crown case depended, as I have said, on the veracity of the complainant and the discrepancies in his evidence related both to the first count and the second count. 14 The Crown sought to explain the different verdicts by submitting that the inconsistency in relation to the second count was as to the sexual activity itself, whereas for the first count it was as to the precise place where it had occurred. 15 It was submitted that in view of the differing account which the complainant had given about the sexual activity in regard to the second count, the jury may well have felt that it was safer not to convict on that count. The jury could have considered that the complainant was confused as to that incident. It was said that it did not follow that he was necessarily an unreliable or untruthful witness and the jury ought to have so regarded him when considering his evidence as to the first count. 16 I do not agree, however, with these submissions. The inconsistencies as to the first count were serious. Not only did they involve the place of the occurrence but the number of sexual acts of which the charged act formed part. In my view, there was no real difference between the quality of the inconsistencies in regard to the first count and those in regard to the second. 17 A leading authority in relation to the adverse impact of inconsistent verdicts is Jones v The Queen (1997) 191 CLR 439. To paraphrase the judgment of Gaudron, McHugh and Gummow JJ (at 453) in that case, the jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to both counts in the indictment. 18 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. There are a number of possibilities which may have led to the jury acquitting the appellant on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished his overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of his evidence concerning the incident, the subject of the second count. 19 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 count. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that his evidence was more reliable in relation to the first count than it was in relation to the second count. 20 Moreover, the lack of any corroborative evidence and the youth of the complainant made it necessary for a reasonable jury to scrutinise his evidence with considerable care. 21 In my opinion the proper application of the test formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 492 requires the conviction of the appellant to be set aside on the basis that it was 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 count. 22 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 count wore a different complexion. For it meant that, when his evidence could be set aside against other reliable evidence it failed to carry sufficient conviction to reach the criminal standard of proof. 23 Accordingly, I would set aside the conviction on the first count and order that a verdict of acquittal be entered. 24 BELL J: I agree. 25 SMART AJ: I also agree. 26 IPP AJA: That will be the order of the Court. ********** 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.