Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RWC v R [2013] NSWCCA 58 Hearing dates: 10 December 2012 Decision date: 13 March 2013 Before: McClellan CJ at CL at 1 Latham J at 2 Adamson J at 84 Decision: 1. Leave to appeal granted 2. Appeal allowed 3. The convictions on counts 3 and 4 are quashed 4. Set aside the sentences imposed by O'Connor QC DCJ on 4 November 2011 5. Order a new trial on counts 3 and 4 Catchwords: APPEAL - appeal against conviction - unreasonable verdict - Criminal Appeal Act 1912 (NSW), s 6(1) - failure to give direction to jury - no inconsistency between "guilty" and "not guilty" verdicts in relation to multiple counts - jury's verdict not unreasonable - appellant denied a the chance of an acquittal on all counts by absence of a Markuleski direction - appellant denied right to a fair trial - leave to appeal granted on second ground of appeal - convictions quashed. Legislation Cited: Criminal Appeal Act 1912 Criminal Appeal Rules (NSW) Cases Cited: AE v R [2008] NSWCCA 52 DF v R [2012] NSWCCA 171 Jones v The Queen [1997] HCA 56 ; 191 CLR 439 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 R v Ford [2006] QCA 142 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 RWC v R [2010] NSWCCA 332 Category: Principal judgment Parties: RWC - (Applicant) Regina - (Respondent Crown) Representation: Counsel JA Griffin QC / AC Smith - (Applicant) N Noman SC - (Repondent Crown) Solicitors WE Kable - (Applicant) S Kavanagh - Solicitor for Public Prosecutions - (Respondent Crown) File Number(s): 2008/00017646016 Decision under appeal Date of Decision: 2011-11-11 00:00:00 Before: CE O'Connor QC DCJ File Number(s): 2008/00017646016 Judgment 1McCLELLAN CJ at CL : I agree with Latham J. 2LATHAM J : The appellant appeals against his conviction after trial on two counts of sexual assault upon his daughter when she was under 16 years of age. The appellant was tried on four charges but was acquitted in respect of the first two counts on the indictment. There is no appeal against sentence. 3There are two grounds of appeal, both of which arise out of the different verdicts. The first ground claims that the convictions are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 and the second ground alleges error in the trial judge's failure to give a direction to the jury in accordance with R v Markuleski [2001] NSWCCA 290 ; 52 NSWLR 82. That direction requires the jury to assess the credibility and reliability of the complainant's evidence on all counts, having regard to any doubts they experience in relation to her credibility or reliability with respect to any one count. 4Counts 1, 2 and 3 on the indictment were charges of aggravated sexual intercourse without consent with a person under the age of 16 years, said to have been committed between 5 July 2003 and 10 December 2004. Count 4 was a charge of aggravated indecent assault of a person under the age of 16 years, said to have been committed between the same dates. Counts 1 and 2 (digital and penile penetration) were said to have occurred on the same occasion. Counts 3 (digital penetration) and 4 (masturbation) were said to have been committed on the same occasion about a month after counts 1 and 2. 5The alleged assaults were notified to the police in June 2007, but the complainant did not wish to make a statement until November 2007. The appellant originally faced trial in 2009. Following his conviction on all four counts, he appealed to the Court of Criminal Appeal, which quashed his convictions and ordered a new trial on unrelated grounds : RWC v R [2010] NSWCCA 332. 6The prosecution case in the second trial, which took place in May 2011, consisted of a DVD recording of the complainant's evidence at the first trial in November 2009, a DVD recording of her interviews (two) with investigating police in November 2007, evidence from the complainant's mother and sister, evidence of complaint from Mr Turner, the evidence of the appellant's former partner (Ms Teague) given at the first trial, and the appellant's interview with police in December 2007. 7The accused called no evidence and relied upon the record of interview. The Crown Case. 8The complainant was born on 29 November 1993. Her mother and the appellant separated when she was about five years of age. She saw the appellant on a weekly basis until about 2005. She stopped seeing the appellant because she did not feel safe in his home. She described the appellant doing things that she did not like, including touching her sometimes. The appellant also kissed her on the lips, held her and made her sleep in his bed. This started happening when she was in year five (2004) at about the age of 10 or 11 years. 9The complainant and her sister KC would generally go to the appellant's house on Thursdays. On some weekends they would return to their mother's home on Saturday morning or Saturday afternoon and on some weekends they would go back to their mother on Sunday afternoon. The appellant would ignore KC who slept in her own room. The complainant also had her own room but she did not sleep there. 10KC observed that the appellant would kiss the complainant on the lips in an intimate fashion more than five or six times a day when they were staying at his home. KC also frequently saw the complainant and the appellant lying on the lounge together, side by side, and observed the appellant touching the complainant's thighs affectionately whilst the complainant sat on his lap. The appellant and the complainant would kiss and cuddle affectionately while sitting on the couch together in front of the television. KC told the appellant that she did not think it was right to behave in this way. The appellant told her to mind her own business. At about the end of year five, KC also told the complainant that the appellant's behaviour in this regard was not right. 11KC described other behaviour consistent with the complainant's account. According to KC, the appellant always ensured that the complainant sat in the front seat of the car next to him. The appellant held the complainant's hand while driving. The complainant did the appellant's housework and brought him beers from the fridge. The appellant would threaten to crash the car or move interstate if the complainant and KC did not stay with him. 12KC's evidence in this respect was admitted as tendency evidence. The appellant's legal representative opposed the use of the evidence as tendency evidence on the basis that the described behaviour was capable of bearing an entirely innocent complexion. 13The complainant slept in the appellant's bed almost every night she was at his home unless he was too drunk to tell her to do so. The complainant said she did not want to sleep in his bed but she did not think she had a choice. The appellant would tell her that he loved her and that it was the right thing to do. When she slept in his bed, the appellant would hold the complainant very tightly. On occasions, the appellant would touch her vagina and her breasts with his hands. On other occasions, the appellant tried to place his penis into her vagina and "it really hurt". The appellant told her she was not supposed to tell anyone. The appellant would have his penis in her vagina for "a while". She was unsure whether he ejaculated. The complainant thought that the appellant had put his penis inside her vagina on two occasions. The first occasion was about three quarters of the way through year five. 14Counts 1 and 2 related to an occasion before the complainant's birthday in November 2004. The complainant thought that it was close to the appellant's birthday which is at the end of September. The appellant said it was his birthday and that he had a present for her. She thought it was a Friday, at night. KC was staying at a friend's house that night and there was no-one else at the house. 15The complainant was in the appellant's bed and he was holding her very tightly. The complainant became scared and wanted to leave. She wanted to call her mother but the appellant would not let her. The appellant seemed pretty drunk and not sure of what he was doing. He held her hands with one of his hands and with the other hand he touched her vagina. He then put his hand inside her vagina and it "really hurt" (count 1). 16The appellant then put his penis inside her vagina (count 2). She did not know how she knew it was his penis inside her, although she thought it was. The complainant was trying to roll away but the appellant would not let her. While this was happening he did not say anything. The complainant was lying on her back and he was on top of her. The complainant was unsure whether she had any clothes on and was not sure if the appellant ejaculated. She did not know if there was any blood. When the appellant finished he told her that it was the right thing to do and that she was not supposed to tell anyone. The complainant was really scared, did not know what to do and stayed at the appellant's home. The next day she went back to her mother's house. 17During this period, the appellant drank a lot of alcohol, mainly beer in stubbies. She saw the appellant drinking on the night of this incident. 18Counts 3 and 4 were said to have occurred about a month later. The complainant thought it may have been on her birthday. The complainant and KC were at the appellant's house and the complainant was in bed with the appellant. This occurred during the day. The appellant had made the complainant sleep in his bed the night before. She thought it was about midday because of the radio clock next to the appellant's bed. She did not know where KC was at this time. The appellant did not seem to be as drunk on this occasion. The appellant touched her inside her vagina with his fingers (count 3) as he was touching his penis. The complainant said the appellant was rubbing himself because she could see the sheets moving up and down (count 4). The appellant was touching her but he did not place his penis into her vagina on this occasion. According to the complainant, the appellant ejaculated. She saw "white stuff" on the sheets. The appellant held the complainant with his arms and they stayed in the bed for a while. 19The complainant could not remember when it was that she stopped going to stay with the appellant, although she thought she last stayed with him before Christmas in 2004. During the holidays after these incidents occurred (Boxing Day 2004), she told her mother that she did not feel safe and that she did not want to go back to her father's home. The complainant did not explain to her mother why she did not want to go there. 20From about mid 2004 the complainant complained of constant bullying at school. She lost weight and suffered from poor concentration. Her school work deteriorated and she was observed talking to herself. Her mother noticed that when the complainant returned from the appellant's home, she would clutch her stomach, and suffered from vomiting and diarrhoea. 21As a result of this behaviour, the complainant started seeing the school counsellor. The complainant continued to suffer from depression and severe anxiety throughout 2004 and 2005. She was treated by a number of psychologists and a psychiatrist. She did not disclose the sexual abuse to any of them or to her mother or sister, KC. She was not relating well to her mother or KC. 22In mid October 2004, the complainant told a counsellor that the appellant was never drunk, unlike her mother's partner who drank as many as ten beers. 23On 17 October 2004, on the eve of a school excursion to Queensland, the complainant stayed with the appellant and begged him to allow her to remain with him rather than go on the trip. During the night, the complainant was sobbing and crying, saying "I don't want to go. I don't want to leave you." The complainant went on the excursion but told her teacher she wanted to go home. The complainant's mother described the complainant as over-protective of the appellant. 24On 3 November 2004, the complainant told her counsellor that she thought the appellant was a very good school principal. During other counselling sessions, the complainant said that she sometimes imagined seeing the appellant outside her classroom. The complainant told her teacher that she imagined that the appellant had come to her school but was unable to open the door to her classroom. 25In early November 2004, the appellant attended counselling sessions with the complainant to work out strategies to make things more positive for her. On 18 November 2004, she was described as animated, happy and natural. At this point in time, the counselling was focussed on minimising her sadness at being separated from the appellant. In late November 2004, the complainant described feeling "10 out of 10" when she was leaving the appellant. 26On 2 December 2004, the complainant saw her counsellor with the appellant present. As at 8 December 2004, the complainant was telling her counsellor that the appellant was the most important person in her life and that she wanted more access visits with him. 27During the trial, twelve documents written by the complainant between September 2004 and May 2005 were read to the court. Some were letters to her teacher or to herself, some were notes expressing her feelings at the time. 28The first six documents dated between 13 September 2004 and 1 November 2004 expressed her love for the appellant and her hatred of her mother. The complainant speaks of living full-time with the appellant, the appellant's sadness and loneliness in their absence and her mother's anger over the appellant's attachment to the complainant. The complainant said at trial that these feelings were engendered by the appellant's statements to her that if she didn't live with him, she didn't love him and that he would move to another State where she would not see him. The appellant was constantly accusing the complainant of not loving him. These accusations made her anxious, because she did love the appellant at that time. 29The remaining six documents dated between early January 2005 and May 2005 exhibit a marked change in the complainant's feelings towards the appellant. She expresses her hatred of the appellant and her love for her mother. She complains of the appellant's constant intoxication, his helplessness, and poor housekeeping. The complainant states that she wants to stop looking after him, comforting him, doing the cooking, and cleaning up his mess. The complainant states that she doesn't want to stay with the appellant and that she wants to remain with her mother. 30Counselling records of a consultation on 23 February 2005 demonstrated that the complainant was speaking to the appellant on the phone every Tuesday night for about 10 minutes. The complainant said that the appellant initiated these calls. The complainant accepted that she may have spoken to the appellant at the front of her mother's home, given him a hug and expressed her love for him on an occasion when the appellant brought KC home. On 24 October 2006 and 1 January 2007, the complainant sent emails to the appellant in which she talked about her exams and a new boyfriend. These emails were in response to emails that she received from the appellant. 31The complainant posted a message on a social networking site to KC's boyfriend, Mr Turner, on 30 May 2007, telling him that :- one day I was at his house and KC wasn't there. He told me to come to his room and lay in his bed. I did what I was told because I loved him so much and thought that it might make him happy if I did. I had no idea what would happen. Also he drank heavily every day. Then when I lay down on his bed he pulled down my pants. I wanted to stop him but I couldn't move and then he raped me and nobody knew and I never told anyone. 32Given the terms of this complaint, it would appear that it related to count 2. The reference to KC being absent and the complainant being "raped" by the appellant are consistent with the complainant's account of penile/vaginal intercourse. 33KC was told of the message by Mr Turner. KC confronted the complainant, who became angry that Mr Turner had betrayed a confidence. The complainant's mother was informed and the police were contacted. 34During the appellant's interview with police, he explained that he had employment related problems in 2004 that resulted in his dismissal from his then position of Primary Deputy Principal at the end of 2004. Over this period of time, his health deteriorated and he suffered acute stress. His house was unkempt and dirty because of his ill health. He said that the complainant had suffered a breakdown as a result of witnessing his condition. He described the complainant's strong attachment to him and his co-operation with the counsellor in attempting to negotiate a separation from the complainant. 35The appellant denied that he kissed the complainant on the lips and he denied that the complainant slept in his bed at any time in 2004. He denied all of the complainant's allegations. He considered that they had an outstanding father-daughter relationship. Despite not having a visit from the complainant since 2004, he tried to maintain a positive relationship with her. The appellant had no criminal history. 36The officer in charge of the investigation gave evidence and was cross-examined. He acknowledged that, in cases where there is a suggestion of vaginal penetration, a medical examination would usually be conducted in order to ascertain whether there was any damage to the genitalia or whether DNA evidence might be available. The officer agreed that if the complaint was made proximate to the time of the offence, the medical examination would result in swabs being taken from the genital area and that the collection of bedding material for the purposes of DNA examination was a common forensic tool. Ground 1 : Unreasonable Verdicts. 37The first ground is framed in the following terms :- The convictions of the appellant in relation to counts 3 and 4 are, in the light of the appellant's acquittal in respect of counts 1 and 2, unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912. 38The appellant's argument thus turns on the alleged inconsistency between the "not guilty" and the "guilty" verdicts in circumstances where the jury was directed that :- the Crown case largely depends on ..... accepting the reliability of the evidence of ..... the complainant. [Unless] you are satisfied beyond a reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. It is fundamental to the Crown case that you accept the evidence of [the complainant]. If you don't accept her as a truthful and reliable witness as to any essential element in respect of the offences, then the accused must be acquitted. 39It is submitted that the acquittals demonstrate that the jury's approach to the assessment of the evidence of the complainant was unreasonable : R v Markuleski [2001] NSWCCA 290 ; 52 NSWLR 82. 40Further, the appellant relies upon the decision of this Court in AE v R [2008] NSWCCA 52. In particular, the appellant seeks to draw a direct comparison between the circumstances of that appeal, which lead the Court to allow the appeal against conviction on one count where the jury had acquitted on all remaining twelve counts, and the circumstances of this appeal. 41The appellant argues that an examination of the whole of the evidence in the trial discloses no rational explanation for the acquittals on counts 1 and 2, other than doubts about the complainant's credibility. It is submitted that :- (i)there was no additional evidence capable of supporting the convictions on counts 3 and 4, (ii)the complainant's evidence on counts 3 and 4 was no more detailed than her evidence in relation to counts 1 and 2, (iii)there was no appreciable difference between the time frame relating to counts 3 and 4 and that relating to counts 1 and 2, such that the complainant's memory of the events underpinning counts 1 and 2 might be said to have been affected, and that therefore, there was no logical or reasonable basis for distinguishing between the counts. 42The appellant draws support for the foregoing submissions from the circumstances of the jury's deliberations. Approximately four hours after retiring to consider its verdicts, the jury sent a note to the judge indicating it had reached a verdict on one count only. The jury was given a Black direction. The jury recommenced its deliberations at 3:50 pm. At 5 pm the jury returned with its verdicts on all counts. The appellant submits that these events demonstrate an illogical approach to a consideration of the complainant's evidence, given that there was a temporal connection between counts 1 and 2 on the one hand, and counts 3 and 4 on the other. 43The departure point for a consideration of this ground is M v R [1994] HCA 63 ; (1994) 181 CLR 487. The joint judgment of Mason CJ, Deane, Dawson & Toohey JJ, held at 493 - 494 that :- Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory the question which the court must ask itself is whether it 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. But 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 had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations. ... In most cases a doubt experienced by an appellate court will be a 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 as 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. 44The test thus formulated in M was applied by Gaudron, McHugh and Gummow JJ in Jones v The Queen [1997] HCA 56 ; 191 CLR 439 in circumstances where the jury returned seemingly inconsistent verdicts. The majority (Brennan CJ, Gaudron, McHugh and Gummow JJ) allowed the appeal and quashed the verdicts of guilty on the first and third of three counts of sexual assault. The substance of the majority's view (at 455) was that :- 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 and third counts. 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 and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory. (emphasis not in original) 45The italicised portions of the above extract were the subject of comment in Spigelman J's judgment in Markuleski. That appeal was also concerned with the application of the test in M to allegedly inconsistent verdicts. The "other reliable evidence" refers to the evidence of witnesses in the defence case who testified as to their presence on the occasions of the first and second counts. The delay between the alleged offences and complaint was in the order of four years. As Spigelman CJ noted at [16] :- it was the combined operation of three factors - credibility, absence of corroboration and the effect of a lengthy and unexplained delay - which led the court to conclude that it was not open to the jury to convict. Two of these factors - credibility and effect of delay - involve matters of fact and degree the significance of which turned on the particular circumstances of the case. 46In addition, Spigelman CJ observed that the absence of a direction in Jones, warning the jury of the adverse consequences to the accused's defence occasioned by the delay, had not received appropriate emphasis in later cases of alleged inconsistent verdicts : Markuleski at [21]. Later cases had tended to focus on the "credibility factor". 47The extensive analysis of decisions in this State and other jurisdictions based on inconsistent verdicts undertaken by Spigelman CJ in Markuleski need not be re-visited here. The conclusion reached in Markuleski, that appellate courts had wrongly applied Jones as if it established a rigid principled approach to alleged inconsistent verdicts, was later endorsed by the High Court in MFA v The Queen [2002] HCA 53 ; 213 CLR 606 at 617 - 618 :- 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. 48Against this background, I turn to a closer examination of the facts and circumstances of the instant case, having regard to the appellant's submissions summarised at [41] above. The Complainant's Credibility. 49It may be accepted that there was no appreciable difference in the lapse of time between all four incidents. However, the complainant first gave a detailed account of the incidents three years after they were said to have occurred. Accepting that the evidence of the sexual assaults derived from the interviews, the complainant's capacity to accurately recall each of the two episodes must have been affected to some extent by the passage of time. 50The delay in complaint was in the order of two and a half years. The Crown Prosecutor's address to the jury, as summarised by the trial judge in the course of the summing up, invited the jury to consider the complainant's age at the time of the alleged offences, the fact that she loved the appellant, was told by him that there was nothing wrong with the sexual activity and that she was not to tell anybody. The complainant's anxiety over the appellant's emotional distress, his physical and psychological deterioration and her sense of responsibility for his care (all of which were acknowledged by the appellant) compounded the difficulty of making such a disclosure. The jury was entitled to accept this as a reasonable explanation for the delay in complaint. 51The trial judge correctly directed the jury that the evidence of complaint went "only to the consistency of conduct of the complainant and cannot be used as evidence of the truth of the allegations that the accused sexually assaulted the complainant". The jury were also reminded a number of times to consider each charge separately. 52With reference to the "significant delay between the allegations in 2004 and the complaint in May 2007 and the arrest of the accused in December 2007", the trial judge said :- You have heard evidence from Detective Senior Constable Scott in cases of sexual assault, if there is an immediate report, it is not unusual for medical examinations of the victim to be conducted, in which injuries might be detected consistent with sexual assault. Bodily fluids can be analysed by way of DNA testing, clothing and sheets etc can likewise be examined for the presence of semen. Any potential forensic evidence that may have been available, had the matter been reported immediately, is unavailable to the accused, which may have had the effect of exculpating him. In that sense, the accused does suffer a significant forensic disadvantage and has suffered some prejudice in not having such evidence available to him. 53The direction on complaint was given after this direction on the jury's approach to the evidence of the complainant :- Now wherever in a criminal trial the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness is important that the jury are told that they should exercise caution. That is what I'm going to tell you now. You must exercise caution before you convict the accused because the Crown case largely depends on your accepting the reliability of the evidence of a single witness, in this case the complainant. This being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of the complainant very carefully, in order to satisfy yourself that you can safely act upon that evidence to the high standard required in a criminal trial. ... In a criminal trial where the Crown case relies substantially upon the evidence of a single witness, the jury must always approach that evidence with particular caution, because of the onus and standard of proof which is placed upon the Crown. I am not suggesting for one moment that you are not entitled to convict the accused upon the evidence of the complainant. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond a reasonable doubt. In considering the complainant's evidence and whether it does satisfy you of the accused's guilt, you should of course look to see if it is supported by any other evidence. 54While this direction drew attention to the twin aspects of credibility, honesty and reliability, it is important to appreciate that the defence case at trial was that the complainant's allegations were lies, fabricated by her with the assistance of "leading questions" from the police. It was squarely put that the complainant was merely attention-seeking when she wrote to Mr Turner, and that her maintenance of the lie was a feature of her characterisation of herself as a victim. The complainant's veracity was the real battleground at trial, not her reliability. The complainant's reliability was nevertheless called into question by the nature of the cross-examination and counsel's closing address. 55The cross-examination of the complainant highlighted the fact that between August 2004 and February 2005 the complainant was counselled by a number of trained professionals. She exhibited anxiety, depression, eating disorders, self-harm, some obsessive compulsive traits and fantasies relating to the appellant which were variously considered to be associated with bullying at school and the nature of her relationship with the appellant. On any view of that material, the complainant was a very disturbed young girl. 56This psychological history was relied upon by the appellant at trial in three respects. First, that the complainant was already suffering from a mental illness before the alleged offences in October or November 2004. Second, that the complainant had numerous opportunities, arising out of her contact with trained professionals outside the family, to disclose the sexual activity if it was occurring, particularly in circumstances where the focus of much of the counselling was the complainant's relationship with the appellant. Third, that the complainant's separation from the appellant after Christmas 2004 was explained by the implementation of a strategy by her counsellors to lessen her attachment to the appellant. 57The Crown maintained that the complainant's disturbed psychological state obviously arose out of a highly dysfunctional relationship with an emotionally fragile, needy father, who ultimately took advantage of the complainant by seeking emotional and sexual comfort from her as though she were a surrogate wife. It was pointed out that the complainant was not psychotic. Moreover, many aspects of the complainant's description of her relationship with the appellant before the commission of the offences were supported by KC. 58The impact of KC's evidence as tendency evidence was and is, in my view, considerable, particularly where the only disputed aspect of her evidence was the appellant kissing the complainant on the lips and the regularity with which the complainant sat in the front seat of the car. KC was not shaken on this evidence. 59The jury was directed in the following terms :- The evidence is before you because the Crown says there is a pattern of behaviour that reveals that the accused had a tendency to act in a particular way or to have a particular state of mind, namely to be sexually attracted towards the complainant. The evidence of the accused having that tendency can only be used by you in the way that the Crown asks you to use it if you make two findings beyond reasonable doubt. The first finding is that you are satisfied beyond reasonable doubt that one or more of those acts occurred. In making that finding, you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you are satisfied that a particular act relied upon actually took place. If you cannot find any of those acts are proved beyond reasonable doubt, then you must put aside the suggestion that the accused had the tendency advanced by the Crown, namely to be sexually attracted towards the complainant. The second matter is this, you must ask yourself whether from the act or acts you have found proved, you can infer or conclude beyond reasonable doubt that the accused had the tendency the Crown alleges, namely to be sexually attracted towards the complainant. If you cannot draw the inference or conclusion beyond reasonable doubt, then again you must put aside any suggestion that the accused had that tendency alleged. So if having found one or more of the acts attributed to the accused have been proved beyond reasonable doubt and you can from the proved act or acts infer or conclude beyond reasonable doubt that the accused had the tendency to act in a particular way or having that state of mind that the Crown alleges, you may use the fact of that tendency or state of mind in considering whether the accused committed the offences charged. 60It is unlikely, in my view, that the jury would not have been satisfied to the requisite standard that some of the activity described by KC occurred, even if they entertained a doubt that the appellant kissed the complainant passionately on the lips. KC's description of the appellant and the complainant "spooning" on the couch in front of the television, holding hands, and of the appellant fondling the complainant's thigh while she was sitting on his lap, was uncontested. 61Further, it is also very unlikely that the jury would not have been satisfied to the requisite standard that the appellant's conduct in this regard demonstrated a sexual interest in the complainant. The defence suggestion that this behaviour lacked any sexual connotation was, and is, unconvincing, particularly when it was common ground that the appellant did not conduct himself in that way towards KC. KC's uncontradicted evidence was that she told both the appellant and the complainant that their behaviour was sexually inappropriate. The appellant told her to mind her own business. 62It is therefore not the case that there was no evidence supporting the complainant's account of the sexual activity between herself and the appellant. In some respects, that conclusion begs the question posed by the appeal : if the complainant was accepted as a witness of truth, why would verdicts of guilty not be returned in respect of counts 1 and 2? In my view, the answer lies in the jury's assessment of the complainant's reliability with respect to counts 1 and 2, coupled with the jury's principled consideration of each count, the directions on complaint and the directions which highlighted the forensic disadvantage to the accused occasioned by the late complaint. 63The complainant was interviewed for the first time on 23 November 2007 shortly before she turned 14 years of age. At the beginning of the interview, she became emotional and started to cry when describing in general terms the appellant's behaviour towards her. The complainant went on to describe the first time that the appellant put his hand and his penis inside her vagina, consistent with the summary set out at [14] - [16] above. 64When the complainant was asked whether she was wearing clothes she replied "I think so". She was asked how the appellant placed his hands inside her clothing and she replied "I don't know". She thought that the appellant was not wearing clothes. Later, when describing the act of penile/vaginal intercourse, the complainant said that she was not sure if she had any clothes on at that particular time. 65When describing the second occasion, the complainant said that she thought it may have been on her birthday. She described the appellant touching her "in her vagina" with his fingers and then touching himself on his penis. She said that she could see the appellant rubbing himself, that he had no clothes on and that it was daytime. She was asked "did you see anything come out of his penis this time?" She replied that she saw "like white. ... like, sperm or whatever", which went on the sheets. She confirmed that the two occasions she had described were the only times that the appellant had touched her genitalia. 66The second interview took place on 26 November 2007. The interviewing police sought further details from the complainant with respect to each incident. In relation to the first occasion, the complainant said that she could not see the appellant's penis. When asked "how do you know then it was his penis that was inside you?", she replied "I don't know, I just think it was." 67In relation to the second occasion, the complainant said that the appellant was under the covers of the bed, and that she saw that he was rubbing himself because "the sheets [were] moving and stuff. They were moving like up and down and stuff". The complainant said that she could not see the appellant's penis. She knew that the appellant had placed his fingers in her vagina because of the position of his arm. She confirmed that she saw semen on the sheets after the event. 68There are a number of distinguishing features of the complainant's account of the first and second episodes. The first was at night and the complainant was unsure of a number of matters, including whether she was wearing clothes, how the appellant placed his hand inside her clothing and whether it was in fact the appellant's penis that penetrated her. The complainant associated penetration of her vagina with pain, but could not say with any degree of particularity how that came about. 69Accepting that the terms of the complaint conveyed that the complainant believed the appellant had penile/vaginal intercourse with her on this occasion, the complainant's evidence of this episode nonetheless introduced a measure of doubt. The jury may well have drawn back from acting upon the complainant's evidence of forceful penetration in the absence of medical evidence tending to confirm that penetration did occur. 70By way of contrast, the complainant's evidence of the second episode was not attended with the same qualifications. It occurred in daylight, albeit they were under the bedclothes. The complainant described the appellant "touching" her in her vagina with his fingers. The absence of forensic evidence for the purposes of this offence would arguably not have troubled the jury, particularly where the complainant's description of the assault did not include the experience of pain. Her description of the appellant rubbing himself, the movement of the sheets and her evidence of ejaculation was clear and unequivocal. Obviously, even if forensic evidence of this event were available, it was not necessarily probative of the complainant being in the appellant's bed. 71These considerations are consistent with the jury's "cautious approach to the discharge of a heavy responsibility" : MFA at 617 [34]. 72The decision in AE is not relevantly analogous to the instant case. In AE the jury convicted one out of thirteen counts, all based upon the evidence of the one complainant. In particular, the evidence in support of counts 9 and 11 was in identical terms (acts of penile/vaginal intercourse in a car whilst parked in a State forest at Christmas time in consecutive years), yet the jury acquitted on count 9 but convicted on count 11. AE falls into that category identified by Wood CJ at CL in Markuleski at [234] where "verdicts of not guilty were returned on a preponderance of the counts in an indictment". 73I am not persuaded that the circumstances of the jury's deliberations provide any support for the contention that the verdicts are unreasonable. It is impossible to determine whether the verdict upon which the jury first agreed was one of "guilty" or "not guilty", or to which count that verdict related. The jury simply carried out the instruction to consider each count separately. 74Having reviewed the whole of the evidence at trial, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of counts 3 and 4. There is nothing unreasonable or illogical about the appellant's acquittal on counts 1 and 2. I would dismiss this ground of the appeal. Ground 2 : Failure to Give a Markuleski Direction. 75The appellant concedes that this ground is subject to Rule 4 of the Criminal Appeal Rules. No request for a direction of the kind now said to be essential to the integrity of the trial was requested by the appellant's counsel. 76In Markuleski, Spigelman CJ said :- 184 As with many aspects of the process of weighing evidence, a judge may be able to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. I express considerable reluctance to add to the number of directions and warnings which trial judges are already required to give. McHugh J noted in KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11 at [37]: "The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings." 185 Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so. 186 In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. 187 Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies "as a general rule". Its absence is not necessarily fatal (as it was not in Davies itself)... 188 It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. 189 On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. 190 Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts. 191 The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts. (italics not in original) 77The Chief Justice went on to observe at [196] that the trial judge in Markuleski "did direct the jury's attention generally to the interconnection of credibility issues amongst the various charges". If that had been the only criticism of the summing up, the Chief Justice would have been of the view that no miscarriage of justice had occurred. It was the combined effect of the absence of directions on the effect on the credibility of the complainant of delay in complaint and an acquittal on one or more counts that tipped the scales against a fair trial. 78Here, the trial judge gave an appropriate direction on the effect of delay in complaint. However, there was no reference to the interconnection of credibility issues and the trial judge's directions to the jury on the subject of its separate consideration of the charges was not supplemented by any form of words that drew to the jury's attention the relevance of a doubt about one aspect of the complainant's evidence to its assessment of the complainant's credibility generally. Whilst it may not be strictly correct to say that this was a "word against word" case, given the availability of the tendency evidence, the complainant's reliability loomed large in the trial. 79In DF v R [2012] NSWCCA 171, Hoeben JA (Johnson and Button JJ agreeing) referred to the rationale for a Markuleski direction, citing with approval at [28] the following passage in Keane JA's judgment in R v Ford [2006] QCA 142 at [124] :- 124 ... In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred. 125 It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer "to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count." (Markuleski at [121]). The purpose of such a reference is to ensure fairness to the accused "in a word against word case" (Markuleski at [121]) by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count. (italics not in original) 80I have come to the view that there was, in the circumstances of this trial, a risk that the appellant was denied the chance of an acquittal on all counts by the absence of the Markuleski direction. Such a direction was required, in order to balance the direction to the jury that it consider each count separately, particularly where the verdicts of not guilty were the product of doubts about the complainant's reliability. 81I would grant leave to appeal on this ground and uphold the ground. In these circumstances, the appellant has not received a fair trial. I do not regard this case as an appropriate one for the application of the proviso. The appellant's convictions on counts 3 and 4 ought be quashed. 82The appellant is eligible for release to parole on 2 December 2013. Whilst the order I propose contemplates a new trial, it is a question for the Director whether there is any utility in prosecuting the appellant a third time. 83The orders I propose are :- (1)Leave to appeal granted. (2)Appeal allowed. (3)The convictions on counts 3 and 4 are quashed. (4)Set aside the sentences imposed by O'Connor QC DCJ on 4 November 2011. (5)Order a new trial on counts 3 and 4. 84ADAMSON J : I have had the benefit of reading the draft reasons of Latham J. As to the first ground of appeal, I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree for the reasons given by Latham J that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 3 and 4. As to the second ground of appeal, I agree with the orders proposed by Latham J and with her Honour's reasons. 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. Decision last updated: 18 March 2013