New South Wales Court of Criminal Appeal CITATION : Regina v JJN [2003] NSWCCA 402 HEARING DATE(S) : 03/10/03 JUDGMENT DATE : 19 December 2003 JUDGMENT OF : Tobias JA at 1; Howie J at 2; Shaw J at 20 DECISION : (1) Appeal upheld; (2) Convictions and sentences quashed; (3) New trial ordered. CATCHWORDS : Criminal law - appeal - inconsistant verdicts - applicable principles - directions to juries Longman v The Queen (1989) 168 CLR 79; CASES CITED : M v The Queen (1994) 181 CLR 487; MFA v The Queen (2003) 77 ALJR 139; Regina v Markuleski (2001) 52 NSWLR 82; PARTIES : Regina JJN - Appellant FILE NUMBER(S) : CCA CCA 60226/03 COUNSEL : P Miller - Crown M Bozic, SC - Appellant SOLICITORS : LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1190 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60226 of 2003 Tobias JA Howie J Shaw J 19 December 2003 Regina v J.J.N. Judgment 1 Tobias JA: I agree with Shaw J as well as with the additional comments of Howie J. 2 Howie J: I have received the benefit of reading the draft judgment of Shaw J and, substantially for the reasons his Honour gives, I agree with the orders proposed. I would add a few additional comments in amplification of some of the matters to which Shaw J refers in relation to the ground that the verdicts were unreasonable and inconsistent. In the circumstances I do not believe it is necessary once more to set out the facts in any detail. 3 Counsel who appeared at the hearing of the appeal, Mr Bozic QC, conceded that there was no practical difference between the two grounds of appeal originally raised. The argument on behalf of the appellant was that there was no rational basis upon which the jury could come to different verdicts in respect of the counts alleged against him based upon an assessment of the complainant's reliability. Mr Bozic submitted that a finding that the guilty verdicts were unreasonable would arise from a consideration of what was said to be the unsatisfactory nature of the complainant's evidence, its defects and inconsistencies and the fact that, by reason of the acquittal of the appellant on some counts, the jury must have looked upon the evidence of the complainant "with disfavour"; see R v Markuleski (2001) 52 NSWLR 82 at [234]. 4 In the written submission on behalf of the appellant the argument relied upon was stated thus: In essence, the appellant's submission is that the verdict of not guilty on three charges and the verdict by direction on one, in combination with other factors, so affected the credibility of the complainant that a conviction on the other charges was not open to the jury. 5 Mr Bozic, appropriately with respect, acknowledged that this Court is to take into account, in considering the verdicts delivered by the jury, the directions given by the trial judge. In this case, but for the directions set out in the judgment of Shaw J in relation to the fresh ground of appeal, they were exceedingly fair to the appellant. The trial judge told the jury that they had to consider each of the seven counts separately. After warning the jury about the complainant's evidence in the passage set out in the judgment of Shaw J, his Honour said: So what I am saying to you in regard to the complainant's evidence is that you should not find the accused guilty solely on the evidence of the complainant unless you are satisfied beyond reasonable doubt that the complainant is a credible and a reliable witness. Further, if, for example, in the course of your deliberations in looking at each of these offences separately and individually, you feel that the complainant, for example, and I am not saying that you would necessarily find this, but is totally unreliable in regard to two of the offences, just cannot accept that at all, well as a matter of commonsense, you would then have to look at her evidence in respect of the other offences, and treat that with a great deal of caution before you could come to a decision that the accused was guilty of those matters. That again, is a matter that higher courts have considered from time to time and have asked trial judges to direct juries in regard to. 6 A direction to this effect has come to be known as the Markuleski direction in that it was considered in that case. Wood CJ at CL observed (at 257): ………………….there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts. In the present case the reference by the trial judge to evidence of "two of the offences" being found to be unreliable, may be explained because of the conjunction between some of the counts in the indictment, for example counts 4 and 5, the incidents at Regatta Park. 7 In light of the fact that the Crown had relied upon other alleged acts of impropriety between the appellant and the complainant as background or contextual evidence, his Honour directed the jury that they had to be satisfied that the "individual cases" had been proved rather than acting on "suspicions, feelings, or belief". His Honour went on: The Crown has alleged specific events have occurred, and you have to be satisfied beyond reasonable doubt that those specific events have indeed occurred, not some other events. 8 His Honour gave the jury an extensive Longman warning during which he said: Of course the fact that time goes by, means that evidence is liable to distortion by reason of various factors, including the passage of time, and the likelihood of errors increases of course the longer the delay goes on. But as I have already said to you, in that regard, you have got to take great care when looking at the complainant's evidence in determining whether you are prepared to accept her evidence beyond reasonable as establishing these charges, not that you are not entitled to accept her evidence, 9 At the end of his summing up, following a request that he do so, his Honour gave a warning in respect of the complainant's evidence under s 165 of the Evidence Act as follows: The second thing is, and you might think I'm going back over old ground, and again, I am giving this direction, but as an indication of any feelings I have in regard the matter, not because I am required to, as a matter of law, because as I said, the only outcome in this trial that I am interested in is seeing that a fair trial is had. That is that the complainant's evidence may be what is called unreliable, and, as such, there is need for caution on your part in determining whether to accept the evidence and the value that you should place on her evidence. 10 His Honour then went on to indicate to the jury a number of criticisms made of the complainant's evidence including the inconsistencies in her evidence about the particular circumstances giving rise to the counts in the indictment. As to that his Honour said: You have heard one reason why the evidence might be considered to be unreliable is the very, having regard to the very nature of how a number of these events have been changed in particular from time to time, from the time she made a statement to the time she gave evidence in one trial, the time she is giving evidence now. That is not saying that the complainant is being dishonest, but the question is, is her evidence reliable or is it unreliable, and the warning I give you is that because of all those things, it is evidence that you would have to treat with a great deal of caution before you could come to a conclusion of beyond reasonable doubt that the accused has commented these offences. Putting to one side the criticism made of that paragraph in the fresh ground of appeal, it reminded the jury of the need for caution by reason of apparent inconsistencies in the complainant's evidence. 11 In the course of his sentencing remarks the trial judge said the following: ……….. The victim made three statements to the police, two in August 1999 and one in April 2000. She also gave evidence at three trials. The delay in the police investigation was caused by apparently back of staff in the area at the time. Given the age of the victim at the time, namely 10 years of age, the number of times she was spoken to and a number of times she gave evidence, discrepancies in her accounts appear which were well detailed to the jury by [the appellant's] counsel [ ]. Despite all this though the victim was a most impressive young woman now aged 14 who she says is now trying to put all this behind her. She readily admitted the discrepancies and memory problems that she had and the Jury were no doubt impressed at her honesty in that regard. Apart from the issue of complaint, the victim's evidence was uncorroborated. Clearly the Jury felt that the complainant's reliability as opposed to her honesty on some counts was not sufficient to establish the charges beyond reasonable doubt. There was also be directed verdict as to counts six about which the Jury had already detected from their questions to me that there had been a difficulty with the evidence in regard to that particular matter. Whether I agree with it or not, I can understand the rationale behind the Jury verdicts which at first blush may appear to be somewhat inconsistent. 12 This Court must make its own independent assessment of whether the jury should have had a reasonable doubt about both the complainant's credibility and reliability from the evidence as can be gleaned from the transcript. It cannot allow the view of the trial judge to unduly influence that assessment. But this passage from the remarks on sentence reminds this Court of the need to bear in mind the advantageous position of the jury who have seen the complainant give evidence and be cross-examined over a considerable period of time. Although in recent times it appears that, at least in civil proceedings, there is a degree of scepticism about the ability of one person to determine whether another person is telling the truth from seeing the witness give evidence, the Court has to recognise and pay due regard to the fact that the verdicts of the jury may be appropriately and justifiably influenced by the demeanour of the witness. 13 It was observed by Wood CJ at CL in Markuleski that concern arising from, what could appear to be, inconsistent verdicts, might be alleviated by having regard to the directions and warnings given to the jury as to how they were to approach their task in assessing the evidence of the complainant, especially between different counts. In the present case the jury were repeatedly reminded of the importance of considering the reliability of the complainant in respect of each of the incidents giving rise to a charge in the indictment. It is unfortunate that his Honour went so far as to emphasise reliability at the expense of credibility. But provided that it was open to the jury to be satisfied beyond reasonable doubt that the complainant was honest, then the directions given emphasised appropriately the importance of the jury considering the reliability of the complainant as a separate and distinct issue from her honesty both generally and in respect of the various counts on the indictment. 14 There were clearly grounds upon which the jury might have doubts about the reliability of the complainant both generally and in respect of particular counts even though they accepted beyond reasonable doubt that she was honest about her allegations generally. There was nothing in the present case that indicated that the complainant could not have been telling the truth generally about her allegations other than her lack of reliability in respect to specific incidents. The jury were entitled to find that this unreliability was due to the length of time that had transpired between the incidents and the giving of evidence and the young age of the complainant at the time of the alleged offences. Although there was evidence that indicated that she was unreliable, especially in relation to the Regatta Park allegations, it did not follow that the jury should have disbelieved her general allegation of sexual abuse by the appellant or should not have discriminated between her evidence on one or more counts and her evidence on other counts. 15 There was evidence of complaint. True it is that such evidence does not amount to independent corroboration or support for the evidence of the complainant and, in this particular case, the trial judge told the jury it was not evidence of the truth of the allegation made in the complaint. But it was capable of supporting the complainant's credit generally in relation to her allegations of sexual abuse by the appellant and it is a matter to which this Court should have regard in the same way that the jury were invited to consider it. Although the complainant admitted that what she said to her mother about the specific allegations was not true, it was still evidence capable of supporting her general credit in respect of the alleged sexual relationship. 16 Although there was no evidence which otherwise supported the truthfulness of the complainant's accounts there was nothing which indicated that she should not be perceived as an honest witness trying her best to recall events occurring four years earlier as part of a course of conduct when she was aged 10 years. The jury were made aware of the dangers of acting on that evidence by appropriate warnings and directions, but there was no reason why they should not have done so where they were satisfied that the complainant was reliable in her account. 17 The different verdicts can be explained by the jury's failure to be satisfied of the reliability of the account relating to a particular count in the indictment to the necessary degree in light of the inconsistencies arising in her different accounts of the incident. But there was no reason why that dissatisfaction should have been felt throughout the whole of her evidence. In my view the different verdicts were not unexpected and were understandable. I am not persuaded that any of the conditions referred to by Wood CJ at CL in Markuleski at [234] existed to give rise to the possibility that a jury properly instructed must have looked with "real disfavour" on the credibility of the complainant. In particular, contrary to the submissions made on behalf of the appellant, I do not believe that the accounts given by the complainant were inherently improbable such that the jury should have rejected them. 18 The verdicts of guilty were, however, rendered unsafe by his Honour's directions as to how the jury might approach their assessment of the complainant's evidence in the passages set out in the judgment of Shaw J. Although the jury were entitled to come to the view that the complainant was honest and reliable beyond reasonable doubt in the allegations supporting the counts upon which the appellant was convicted, the Court cannot be confident that they did so. The convictions must be quashed. But the evidence was not such that the jury should have had a reasonable doubt had they been appropriately directed and, therefore, the Court should order a new trial. It is a matter for the Director of Public Prosecutions to determine whether the appellant should be required to stand trial on a fourth occasion. 19 Shaw J: The appellant appeals against a conviction for four charges entered at the District Court 17 December 2002 by Judge Williams after a trial lasting approximately two weeks. 20 The appellant was charged with 4 counts of aggravated indecent assault and 4 counts of sexual intercourse with a person over 10 years but below 16 years of age. In relation to each count the complainant, CH, was the same: the niece of the appellant. The circumstance of aggravation for each count alleging indecent assault was that the complainant was a person under the age of 16 years, being 10 years old at the material times. The following chart explains the charges and the result: Charge Date Location Plea Verdict IA 1/08/98 - 12/01/99 Emu Plains (Family home) NG NG IA 1/08/98 – 12/01/99 Emu Plains (Walkway) NG G SI 1/08/98 – 12/01/99 Emu Plains (River) NG G IA 1/08/98 – 12/01/99 Emu Plains (Regatta Park) NG NG SI 1/08/98 – 12/01/99 Emu Plains (Regatta Park) NG NG SI 1/08/98 – 12/01/99 Emu Plains (Bedroom) NG NG* IA 12/01/99 Emu Plains (Bedroom) NG G SI 12/01/99 Emu Plains (Bedroom) NG G * By direction 21 The appellant had pleaded not guilty to each charge and stood his trial before Judge Williams and a jury on 9 December 2002. This was the third trial for the appellant. The first trial was aborted after the jury had retired when one juror realised that he or she knew one of the witnesses. The second trial resulted in convictions on each count that were subsequently overturned by this Court: see R v N [2002] NSWCCA 281. 22 The grounds for appeal allege that the verdicts of guilty on counts 2, 3, 7 and 8 are inconsistent with the verdicts of not guilty on counts 1, 4, 5 and the direction in relation to count 6. It is also alleged that the verdicts of guilty were unreasonable and cannot be supported having regard to the whole of the evidence. There was a further ground of appeal raised after the hearing of the appeal. I will address the circumstances and outcome of that ground later in these reasons. Background facts 23 The appellant resided at the home of his sister and her family, including the complainant, during the period of time mentioned in the indictment, that is, between 1 August 1998 and 12 January 1999. The evidence 24 The complainant was the primary witness for the Crown. She was fourteen at the time of the trial. She testified that, at the material times, there were six people residing at the family home in Emu Plains. They were: herself; her mother, Zsuzsa; her two brothers, Andrew and Matthew; her uncle, the appellant; a friend of her brother, Jericho; and a family friend named George Christou. She said that she slept with her mother in her mother's bedroom. Her uncle also slept in that room on a separate bed. 25 Approximately three to four weeks after her uncle came to live in the family home he started to do 'sexual things'. She said: The first time it happened it was in my mum's bedroom…I was lying in bed around midnight, I think I'm not quite sure, and [J] was very drunk and my mum had a few to drink as well, and I was just lying down trying to get [to] sleep. It was pitch black and I felt a hand rubbing up my leg. I'm like, "what's that" and my mum - …I tried to wake my mum up and I said to mum – because I saw [J] kneeling next to the – just in front of the bedside table, and I said mum, "Can you please take [J] to bed. He is awake. Can you please put him to bed". I didn't tell my mum exactly what he was doing and then after that, he just kept doing it, and all she said was, "[J], can you just go to bed". Whenever my mum spoke, he moved his hand and he, you know, took it out from under the blankets. And when she was quiet, he started putting his hand up my leg again, and I'm like, "Mum please, can you put him to bed". And then mum got up – I'm pretty sure she got up and she took him to bed. (T23-24) 26 The complainant said that this touching was 'inside the thigh' and 'just below [her] vagina'. It took approximately 20 minutes and then the complainant fell asleep. This event was not the subject of any count on the indictment. 27 She said that this touching would occur often after that night, including: …in my mum's bedroom, …down the river, happened in the playground at Regatta Park, at the park down at Lennox, or Duke Oval where the cricket fielders are. (T25) 28 After the first incident that occurred in her mother's bedroom on the subsequent night, or the one following that night, the complainant said: …he was masturbating me, he made me masturbate him. (T26) 29 The complainant indicated that this meant him touching her vagina, or her touching his penis. This occurred in the appellant's bed in her mother's bedroom. The appellant invited the complainant to sit on his bed. She was wearing boxer shorts and a t-shirt if it was at night, or pants or shorts if it was during the day. The appellant was wearing underpants and a t-shirt. She could not recall if it was day or night. She said that the appellant touched her vagina and her clitoris. This event was the first count on the indictment for which the appellant was found not guilty. 30 The complainant said that she did not report the incident because: I thought, I didn't, I didn't think, I thought it was one time, I didn't think it would go on. (T28) 31 The next incident the plaintiff could remember was at the Regatta Park, near her home. She said: He asked if, in the plastic bubble at the playground, he asked if he could do 69 with me I did not know what that was at the time. And also he tried to sexually penetrate me and, you know, he put his fingers inside my and all that. (T29) 32 She said that 'I masturbated him and he masturbated me' (T37). The appellant put his hands down the complainant's pants 'and he put his fingers in me now and again' (T37). She said that she 'did it to him first' (T38). He undid the zipper of his jeans to expose the penis and she masturbated him until he ejaculated. These incidents were the subject of the fourth and fifth counts on the indictment for which the appellant was found not guilty. 33 The complainant said that after the first few incidents, the appellant said to her that: If I tell anybody he'd kill me and the people that you love and all that. (T40) 34 The complainant said that a further incident occurred whilst she and the appellant were sitting on a park bench near the 'Freeway Bridge' near her home. She said: When we were sitting on the park bench, because it was like a public walkway or where you walk your dogs or something, a lot of people walk past and John got me to masturbate him…He got his penis out and he grabbed my hand and pulled me closer, so that if anybody comes, I'm close to him, so they can't see as I was masturbating him. Whenever somebody would come, I would strop so it didn't look obvious and then heaps of people came so he goes, "There's too many people coming, so let's move down to the bush". So as we went down there. I was masturbating him and then he ejaculated and then he grabbed my hands and he tried to – sexually penetrated me. (T43) 35 The 'bush' was scrub near the banks of the River. At that location, the complainant said: …he grabbed my hands and he put them on my head and held my hands together in a cross shape and with one hand and then pulled my pants down to the ground and – well, not to the ground, pulled them down to my ankles, and we were lying down. Then he tried to – sexually penetrated me…he grabbed his penis and he put it inside me…in my vagina. (T44-45) 36 She said that she knew he had done this because it hurt. She told him to stop and he said, 'No, just one minute'. The complainant said this took about 5 – 10 minutes. The events on the park bench and the river bank were the subject of counts two and three respectively. 37 The appellant and complainant then went to the Lennox Shopping Centre, and then, Dukes Oval, across the road from the shopping centre. They sat down on a bench that was 'very open' which meant that '[f]rom every angle someone could see you'. The complainant said: I just sat down next to him and he grabbed my hand and then I just started masturbating him and then we got on our bikes and then went home. (T47) 38 On another day, again under the Freeway Bridge, the complainant said: It's like a little fishing spot where people go fishing and we went down there and he masturbated me. He put his fingers or finger inside me, I'm not quite sure. And I masturbated him. (T47) 39 These two events were not the subject of any count on the indictment. 40 The complainant was then asked about the 'very last occasion'. The complainant was lying on the appellant's bed wearing shorts and a T-shirt. Her mother was not present. She said: There were people on the property but not exactly in the house. (T49) 41 The complainant said that the appellant put his fingers inside her vagina, rubbing her clitoris. The appellant was wearing underwear and an 'Ice Cold Bitters' T-shirt. During the incident, the complainant said, Mr Christou came into the room. The appellant put on shorts and went with the complainant downstairs until Mr Christou left, and then they both returned to the bedroom. Mr Christou appears to have returned to the bedroom and the complainant then left to be with her mother. These events were the subject of the seventh and eighth count on the indictment. 42 At some point later, the complainant told her mother about the events involving her uncle. The complainant and her mother then saw police and the complainant was investigated by a doctor at the Westmead Children's Hospital. Those medical examinations did not reveal any internal physical trauma to the complainant's vagina. 43 The complainant said that soon after she told her mother, the appellant rang her from hospital and asked her if she had 'told anyone' and she told the appellant 'no'. The complainant's mother took her to see her uncle in the hospital. He asked the complainant if she had 'told people' and she repeated that she had not. 44 In cross examination, the complainant agreed that she had thought the events that had occurred, did so after February, but on later conversation with her mother, assumed that it was more likely to be after August. She said: Q. You see, it was your memory, wasn't it, that all these things happened to you after your birthday [in February], is that right? A. It was my memory but I can't remember the date. (T78) 45 However, in her first statement to the police, the complainant had indicated that the assaults began after February. The complainant indicated that she did not have a good memory of these incidents because she had 'gotten on with [her] life'. She remembered only a 'few things' about these incidents. 46 In relation to the incident at the bench near the river, the complainant repeated that the appellant made her masturbate him. She said: He grabbed my hand and he pulled his penis out of his pants, put his T-shirt over it so to anybody walking past they couldn't see it, and then did the movement with his hand at the same time as with mine. (T87) 47 She said that he only pulled his T-shirt over her hand when people walked past and that he would let go of her hand and she would pull away from him. In cross examination she said that the appellant did not ejaculate at the bench near the river. They then moved 'metres' towards the riverbank. She then masturbated the appellant and he ejaculated. He then wiped the complainant's hand and himself with the complainant's T-shirt. Minutes later, the appellant held down the complainant's hands and attempted to penetrate her with his penis. He did this for approximately five minutes. 48 The complainant was asked whether she had mentioned Dukes Park in her statements to the police made in August 1999. She said: Q. Are you telling the jury now that you have a memory of having put in one of those two statements….Duke Park? A. I don't have a memory, but something happened there, so it had to be in one of the statements. (T97) 49 The complainant later conceded that she had not mentioned Dukes Park in her first statements to the police. When asked about her memory of Dukes Park, the complainant said: I remember bits of it…I remember us sitting at the park bench. I remembered what happened down the river…(T115) 50 The complainant also recalled that Duke Oval could also be known as Lennox Park or the 'Cricket field'. 51 Similarly, with regards to the incident in the plastic bubbles at the Regatta Park, the complainant agreed that she had not mentioned the bubbles in her first statements to the police made in August 1999: Q. And yet you didn't say anything about those that plastic bubble at all in either on the 9th August or 10th august 1999 did you? A. I didn't say plastic bubbles, I said Regatta Park. (T106) 52 The complainant later conceded that she had no real memory of that day but she could remember what had occurred in the bubbles. In her first statement to the police the complainant had said that she and the appellant had been sitting on the ground and that he had tried to penetrate her. She said: Q. That's the area of your second statement where you refer to Regatta Park, right? A. Yes. Q. You say nothing about plastic bubbles, correct? A. Yes. Q, You say that in fact you were sitting on the ground and that you were pushed to the ground, correct? A. Yes. Q. And you say that in fact your uncle put his penis between your legs, isn't that right? A. Yes. Q. You haven't told the jury that today have you? A. Because I didn't remember. Q. You haven't told the jury anything about his penis going between your legs at Regatta Park, have you today? A. I didn't remember. Q. As far as Regatta Park is concerned, you don't really have any memory of that incident at all today do you? A. I remember when he asked me in the bubbles…I remember when he asked me in the bubbles about wanting to do a sixty-niner. (T113) 53 In his closing address to the jury, counsel for the appellant at trial put to the jury that the complainant's version of the Regatta Park incident was inconsistent with what was said to police in her first statements. He also noted that police had taken two different sets of photographs of Regatta Park, the first on 24 September 1999 and the second on 20 March 2001. Only the second photos related to the plastic bubbles. He put it to the jury that the second photos were required because the complainant had told police that Dukes Oval was the 'only park'. 54 The complainant said that she could only remember going to Regatta Park the one time with the appellant. She could not remember him trying to penetrate her with his penis on that day. The complainant could remember that the appellant had wiped himself on her T-shirt during the Dukes Park incident, but could not remember what occurred in the Regatta Park. 55 In re-examination the complainant said: Q. Was there any reason for not saying to the police officer "In the yellow bubble" or rather "Regatta Park"? A. Because I used to call it Regatta Park. If you take the dog for a walk you don't say "To the yellow bubble", I say "I am going to take them to Regatta Park". (T154) 56 The complainant agreed that she had not mentioned the first incident in her mother's bed in either statement. It was also put to her that she had not mentioned that incident at either trial. The complainant could not remember 'anything' she said at the first trial of the appellant. It was put to her that there were some discrepancies in her account of that first incident in her mother's bedroom between the first trial (in which she said that the appellant invited her to his bed) and the relevant trial (in which she stated that he appeared next to her while she was in her mother's bed). 57 There was no evidence given in relation to count six, which was the basis for the trial judge to direct the jury to enter a verdict of acquittal on that count. Summary 58 The appellant's grounds of appeal are interrelated. The inconsistency asserted is that the verdicts of acquittal cannot be reconciled with the verdicts of guilty. That would be an appropriate finding provided that the ground of 'unreasonableness' is made out with respect to the counts on which the appellant was convicted. That is, it would then be established that the verdicts of conviction are inconsistent with the verdicts of acquittal because a jury must have disbelieved or had doubts about the reliability of the recollection of the complainant and should not have convicted the appellant on any count. 59 The complainant's evidence was clear regarding some matters though it was, at other times, more uncertain and vague. That is, this was not a case in which the complainant's recollection and reliability was completely shaken. She was clear about certain incidents though unclear on others. 60 M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2003) 77 ALJR 139 provide authority for the proposition that a court of criminal appeal must overturn a conviction if the court has a view of the evidence that means that a jury should not have convicted an appellant. The majority in M said (at 494): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 61 There was a clear difficulty in the recollection of the complainant regarding the incident that occurred in her mother's bed (otherwise described as the 'first incident'). Aspects of that event were detailed in her evidence at trial that had never arisen in either of the two previous trials or in her statements to police. 62 There was, however, a clear recollection of what occurred at Dukes Park even though the appellant asserts that aspects of this incident were not mentioned in her statements to police. Counsel for the appellant at trial put to the jury two issues regarding this incident: (a) the mention of the incident starting on the bench at the oval, and the later incident of the appellant wiping himself on her T-shirt, had not been mentioned to police in the complainant's statements; and (b) the ' biological impossibility ' of a man post-ejaculation attempting penile penetration of a young girl. 63 The second submission was repeated in this Court. It was submitted that this would have been 'improbable'. The difficulty with this submission is that a jury of twelve people, properly directed by a trial judge, found it proved beyond reasonable doubt. Though the appellant asserts that it is unlikely that a person would sexually assault a young girl in an open park with people in the vicinity, again, a jury found this proved beyond reasonable doubt. Some weight must be given to that finding. In MFA v The Queen (2002) 193 ALR 184, Gleeson CJ, Hayne and Callinan JJ said (at [34]): 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 the 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. 64 The jury were warned that they should look at the evidence of the complainant with some care before they relied upon her evidence to convict. The issues raised in this appeal as demonstrating the 'unreasonableness' of the jury convicting the appellant were put to the jury as reasons not to convict the appellant on the word of the complainant. Nevertheless, the jury did convict the appellant on the Dukes Oval counts, and the incidents in the mother's bedroom on 12 January 1999. The complainant's version of events of that 'last time' (that is, the incidents involving the appearance of Mr Christou in the mother's bedroom during the assault) was also mostly consistent throughout the three trials. 65 Counsel for the appellant conceded before this Court that the complainant's evidence was 'stronger' in relation to these counts and the Dukes Oval counts than those in which the appellant was acquitted. 66 However, it is troubling that while the complainant seemed to have a clear recollection of something occurring in the plastic bubbles at Regatta Park, the jury returned verdicts of not guilty to those counts (i.e. counts four and five). 67 This could indicate two things. Either the jury disbelieved the complainant, or had doubts about her reliability as a witness, or else the jury were not satisfied beyond reasonable doubt that the complainant's account of the incident at Regatta Park was correct, given the inconsistencies between what was said to the police, what was said in the first trial and what the complainant testified as having occurred in the relevant trial. 68 In M v The Queen (1994) 181 CLR 487 at 494 Mason CJ, Deane, Dawson, and Toohey JJ said: 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. 69 Despite the acquittal of the accused on some counts on the indictment, I am not satisfied that a reasonable jury should not have convicted the appellant on counts 2, 3, 7 and 8. I am satisfied that it was reasonably open to the jury to convict the appellant on those counts. 70 However, after the Court reserved judgment in this appeal, the Court notified the parties that it wished to have submissions upon two passages in the summing up concerned with the manner in which the jury should approach the evidence of the complainant. 71 After giving directions generally on the manner in which the jury were to consider the evidence of witnesses and the fact that the appellant did not give evidence in the trial, his Honour turned to consider the evidence of the complainant and said (my underlining): In this case, a significant part of the evidence as to the actual offences themselves rests on the evidence of the complainant [ ]. The offences are denied by [the appellant]. You should therefore look at the evidence of the complainant with great care before coming to the conclusion as to what in fact occurred based on the evidence alone. This is a direction of law that I am required to give in cases like this, and is not an indication of any expression of how I see the evidence in any way whatsoever. I am required to give this direction of law. I am not expressing any opinion one way or the other on the evidence. But the complainant's reliability and credibility are matters for you, the jury to decide, looking at the whole circumstances of the case. Quite often in situations like this, it is not so much a question of whether someone is being truthful or honest, but more importantly, are they reliable as witnesses. Can we completely trust everything that they say as being correct, as a matter of fact, because I must say that generally speaking, it is very hard to determine whether someone is actually telling lies, and most people who come to court, or a large majority of people come to court to give evidence as witnesses are not lying. But whether they are reliable, whether they are credible, is another question . It is a matter of commonsense, if one person gives a version of events that is denied by another, you, as the jury must be most careful, when examining that evidence, before being able to say that you are satisfied that what is alleged as a matter of fact by the witness, [the complainant], is in fact what happened. You have heard arguments addressed to you by [defence counsel] as to why you should not come to that conclusion. I will come to some of those in a moment. 72 At the end of the summing up and notwithstanding that his Honour had given a very full Longman warning, both parties asked his Honour to give a warning under s 165 about the age of the complainant at the time of the alleged offences. His Honour complied with the request and gave the jury a lengthy caution as to the possibility that the complainant's evidence might be unreliable by reason of her age at the time of the allegations, 10 years, and the delay between the alleged events giving rise to the charges and the giving of her evidence before the jury. During the course of this warning his Honour said (my underlining): You have heard one reason why the evidence might be considered to be unreliable is the very, having regard to the very nature of how a number of these events have been changed in particular from time to time, from the time she made a statement to the time she gave evidence in one trial, the time she is giving evidence now. That is not saying that the complainant is being dishonest, but the question is, is her evidence reliable or is it unreliable, and the warning I give you is that because of all those things, it is evidence that you would have to treat with a great deal of caution before you could come to a conclusion beyond reasonable doubt that the accused has committed these offences. This was the last thing said by the trial judge to the jury before they retired to consider their verdicts. 73 After attention was drawn to these passages, the parties filed further written submissions. The appellant sought leave to add a further Ground of Appeal contending that his Honour erred in directing the jury that they had to be satisfied as to the reliability of the complainant rather than her truthfulness. The Crown submitted that leave should be refused, as there was no error in the passages quoted above. 74 It is clear that the principal issue before the jury was the credibility of the complainant. It could hardly have been otherwise. It was not the appellant's case that the complainant was truthful as to her allegations of sexual abuse by him upon her, but was simply mistaken as to her account of the particular incidents that gave rise to the charges before the court. Although the appellant did not give evidence, he had participated in an interview with investigating police during which he had denied any sexual contact with the complainant. Although the Crown has submitted that there was no 'full-blooded attack' on the complainant's credibility during the trial, there is no doubt that defence counsel was asserting that she was untruthful and using issues such as the inconsistency in her accounts and her unreliability generally as indicators that she was telling lies when making her allegations against the appellant. 75 The Crown has submitted that the jury would have been aware from the summing up as a whole that there were two issues before them: (i) was the complainant honest? (ii) if so, was she reliable? It was further submitted that this was the correct approach and the one that the jury should be assumed to have taken. 76 It is clear from those parts of the summing up where the trial judge gave what might be seen as formal directions about the onus and standard of proof, that the jury would have understood that, before they could have convicted the appellant of any offence, they had to be satisfied of both the honesty and accuracy of the complainant. But the vice in what his Honour said to the jury, in the first passage quoted above, was that they might have taken him to be indicating that the real issue for them to determine was the complainant's particular reliability in relation to the incidents giving rise to the charges rather than her general honesty in respect of her allegations of sexual abuse against the appellant. 77 There were three reasons given by his Honour in that passage to explain why the jury should concentrate on the reliability of the complainant rather than her honesty. These reasons did not relate to the particular complainant or her evidence but were in general terms. But that generality did not diminish what importance the jury might have given to his Honour's comments on the approach they should take to an assessment of the complainant's evidence. 78 The first reason given was that 'in situations like this it is not so much a question of whether someone is being truthful or honest, but more importantly, are they reliable as witnesses'. In the context of giving a Murray warning, the situation to which his Honour was referring was that the evidence in the Crown case rested to a significant part on the evidence of a complainant. But the fundamental issue in such a situation is whether the jury are satisfied beyond reasonable doubt that the complainant was truthful and accurate in her account of the appellant's sexual relationship with her. If the jury were not so satisfied, that is if they had a doubt about her honesty in that regard, the question of her reliability about particular incidents did not arise. In any event, unreliability can reach such a point that it might raise a doubt about the honesty of the witness. Whether the complainant was being honest was very much a question in this case and the trial judge should have said nothing that would suggest otherwise. The point to be brought home to the jury was that a finding beyond reasonable doubt that the complainant was truthful and accurate was not itself sufficient to prove each of the charges unless they were also satisfied beyond reasonable doubt that she was reliable in respect of all or any of them. 79 The next reason given by his Honour for the jury concentrating on reliability rather than truthfulness was that, generally speaking, 'it is very hard to determine whether someone is actually telling lies'. The jury might have taken this remark to suggest that, because it was difficult to determine whether any person, let alone the complainant, was an honest witness, they should pass over that issue and consider whether the person was reliable because this was an easier task to perform. But in truth, if his Honour were correct in his observation about the difficulty of the task in determining honesty, the appropriate advice to be given to the jury was not that they should simply ignore the issue. Rather his Honour should have caused the jury to understand that, despite the apparent difficulty in the task, they had to determine beyond reasonable doubt that the complainant was telling the truth before they could convict the appellant of any count on the indictment and, if they found the task too difficult, they had to acquit him. 80 The third reason is perhaps the most significant. His Honour informed the jury that 'most people who come to court, or a large majority of people who come to court to give evidence as witnesses are not lying'. The jury may well have accepted this statement as a reliable opinion arising from his Honour's experience as a judge and one that they could safely act upon. They could have taken it to mean that they could ignore the issue of the credibility of the witness because the statistical probability was that she was telling the truth in any event. Whatever might be the reliability of his Honour's observation about the general credibility of witnesses, there was no occasion for him to impart that information to the jury. The issue was whether the complainant as a particular witness was telling the truth, regardless of what might be said about witnesses in general. 81 It is significant that these statements were not simply comments made by the trial judge about the facts so that the jury would have appreciated that they could accept or reject them as they saw fit. They were given as guidance or advice to the jury as to how they might go about their task in determining whether to act upon the evidence of the complainant. They were said in the context of the jury being cautioned about looking at the evidence of the complainant 'with great care' and they followed directly after the jury had been told that his Honour had given the jury a direction of law as to the approach they should take to the evidence of the complainant. The statements carried with them the force of judicial experience. 82 The statement in the last quoted paragraph might not, if it had stood alone, been sufficient to have raised concern. But it emphasised to the jury once again that the issue was not the complainant's honesty but her reliability and it was said just before the jury retired. 83 No objection was raised at the trial to these passages and the Crown relies upon rule 4 of the Criminal Appeal Rules. But if objection had been taken, it is difficult to see what his Honour could have done to redress the situation. Nor was the point taken on appeal until the Court raised it. But in a case where the accused did not give evidence and the principal issue was whether the jury could be satisfied beyond reasonable doubt of the complainant's honesty and reliability in relation to her allegations, the passages had the effect of suggesting to the jury that they could find for the Crown on the issue of her credibility and simply decide the case on the reliability of her particular accounts of abuse. This was a serious misdirection and there has been a miscarriage of justice. 84 Leave should be granted to raise the new ground of appeal and to argue it. The ground has been made out. 85 The orders I propose are: (1) Appeal upheld; (2) Convictions and sentences be quashed; (3) Order that a new trial be held. ***** Last Modified: 12/30/2003 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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