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DF v R [2011] ACTCA 11 | Case summary | Zoe

ACTACTCA

DF v R [2011] ACTCA 11

[2011] ACTCA 11

Court of Appeal (ACT)|2011-06-23|Before: Gray P, Rares J, Teague AJ, As Teague AJ, Hayne JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2011-06-23

Before

Gray P, Rares J, Teague AJ, As Teague AJ, Hayne JJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

DF v THE QUEEN

[2011] ACTCA 11 (23 June 2011)

APPEAL – appeal against conviction – trial by judge alone – conviction not shown to be unsafe or unsatisfactory – erroneous implementation of the onus of proof in judge’s reasons – application to adduce further evidence refused – appeal allowed – new trial ordered.

Criminal Appeal Act 1912 (NSW) s 6(1)

Supreme Court Act 1933 (ACT) ss 37N, 37O(2), 37O(2)(a)(i)

Azzopardi v The Queen (2001) 205 CLR 50 followed

SKA v The Queen (2011) 276 ALR 423 followed

MFA v The Queen (2002) 213 CLR 606 followed

M v The Queen (1994) 181 CLR 487 followed

Morris v The Queen (1987) 163 CLR 454 followed

Fleming v The Queen (1998) 197 CLR 250 referred to

Fox v Percy (2003) 214 CLR 118 referred to

CDJ v VAJ (1998) 197 CLR 172

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 14 of 2010

No. SCC 14 of 2008

Judges: Gray P, Rares J and Teague AJ

Court of Appeal of the Australian Capital Territory

Date: 23 June 2011

IN THE SUPREME COURT OF THE ) No. ACTCA 14 of 2010

) No. SCC 14 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DF

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges: Gray P, Rares J and Teague AJ

Date: 23 June 2011

Place: Canberra

THE COURT ORDERS THAT:

The appeal be allowed.
The appellant’s conviction on Count 1 of the indictment be quashed.
A new trial on Count 1 of the indictment be held.

IN THE SUPREME COURT OF THE ) No. ACTCA 14 of 2010

) No. SCC 14 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

This is an appeal against a conviction imposed by a trial judge on a trial by judge alone, against DF (the appellant) that between 1 January 1987 and 31 January 1987 he committed an act of indecency against the complainant that being 15 years of age.
We have had the benefit of reading the judgment of Teague AJ and gratefully adopt his account of the facts and do not repeat them except where necessary.
As Teague AJ has pointed out in his reasons the primary judge found the complainant to be a convincing witness. Her Honour concluded that she was satisfied beyond reasonable doubt that the appellant committed the act of indecency alleged in the first count of the indictment in the manner and at the time alleged by the complainant (at [305]).
We have concluded that despite the primary judge’s recitation of appropriate directions and warnings in her reasons, those reasons, read as a whole, have failed to respect the fundamental principle that, absent a statutory qualification, an accused carries no onus of proof. In an accusatorial trial, an accused is not required to explain or contradict matters already in evidence and is presumed to be innocent until his or her guilt is proved by the prosecution beyond reasonable doubt: Azzopardi v The Queen (2001) 205 CLR 50 (Azzopardi v The Queen) (at 73-75 [62]-[68]) per Gaudron, Gummow, Kirby and Hayne JJ. The Legislative Scheme
The jurisdiction of the Court of Appeal on an appeal against conviction is exercised under s 37O(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act). That relevantly provides: (2) The Court of Appeal on an appeal against conviction must— (a) allow the appeal if it considers that— (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or (ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or (iii) on any other ground there was a miscarriage of justice; or (b) dismiss the appeal.
The appellant’s grounds of appeal claimed: (a) The learned judge failed to give effect to the presumption of innocence and the requirement of the Crown to prove the charges beyond reasonable doubt.

The issues raised by grounds (a) to (h), in substance, concerned the way in which the primary judge approached the onus of proof in her reasons. In effect, the gravamen of the appellant’s argument was that her Honour failed to assess the evidence as a whole in accordance with the principles in Azzopardi v The Queen (at 73-75 [62]-[68]). The appellant pressed ground (i) on the bases of his arguments in support of grounds (a)-(h).
The well known formula “unsafe or unsatisfactory” is equivalent to the formulation now found in s 37O(2)(a)(i) of the Supreme Court Act and its analogues, such as s 6(1) of the Criminal Appeal Act 1912 (NSW): SKA v The Queen (2011) 276 ALR 423 (SKA v The Queen) (at 427 [12]) per French CJ, Gummow and Kiefel JJ applying MFA v The Queen (2002) 213 CLR 606 (at 623-624, [58]) per McHugh, Gummow and Kirby JJ. In SKA v The Queen their Honours referred to the function of a court of appeal under an analogue of s 37O(2)(a)(i) as being that stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 (M v The Queen) (at 493), namely: 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 or 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 (see Whitehorn v The Queen (1983) 152 CLR at p 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at p 532; Knight v The Queen (1992) 175 CLR 495 at pp 504-505, 511). 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 has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No 2] (1984) 153 CLR at p 621).
Moreover, in determing an appeal under s 37O(2)(a)(i) of the Supreme Court Act and its analogues, an appellate court must make its own evaluation of the evidence, both as to its sufficiency and its quality: SKA v The Queen (at 427 [14]) applying Morris v The Queen (1987) 163 CLR 454 (at 473) per Deane, Toohey and Gaudron JJ. However, in M v The Queen (at 494), the majority said that, in most cases, a doubt experienced by an appellate court in such an evaluation will be a doubt that the jury ought also to have experienced and that it was only where the jury’s advantage in seeing and hearing the evidence was capable of resolving a doubt experienced by the appellate court, that the latter might conclude that no miscarriage of justice occurred. This reasoning was applied by the majority in SKA v The Queen (at 427 [13]). Similar considerations apply to the functions of an appellate court where a conviction followed a trial by a judge sitting without a jury. In the latter situation, the appellate court is assisted in its evaluation by the trial judge’s reasons: cf: Fleming v The Queen (1998) 197 CLR 250 (at 267 [45]) per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ, see also Fox v Percy (2003) 214 CLR 118 (at 126-129, [24]-[31]) per Gleeson CJ, Gummow and Kirby JJ.
In a criminal appeal, the appellate court must pay due regard to the trial judge’s assessment of the credibility of witnesses, but in doing so, the appellate judges must still form their own evaluations based on the whole of the evidence, giving due weight to the trial judge’s advantage in seeing and hearing the witnesses. In the end result, however, the question on appeal is not whether there was evidence to support the verdict, but rather, whether on the appellate court’s independent evaluation of the whole of the evidence, it was open to the trial judge to be satisfied that the appellant was proved guilty of the charge beyond reasonable doubt. As French CJ, Gummow and Kiefel JJ said of the appellate court’s function in assessing whether a conviction is unsafe or unsatisfactory in SKA v The Queen (at 436 [23]): It was not sufficient to say that the complainant’s account of the incidents was sufficiently particular to enable a jury to accept it.

In our opinion, the reasons of the primary judge are expressed to show that she approached the assessment of the evidence so as to fragment it inappropriately. Her Honour commenced by accepting the complainant as convincing. But she then appears to have approached the assessment of the subsequent evidence on the basis that the defence had an onus to raise a reasonable doubt. Moreover, in explaining why she acquitted the appellant on the second count, her Honour’s language suggested that she had done so because it was more likely than not that the incident had not occurred in the time period charged, and that this likelihood raised a reasonable doubt in her Honour’s mind.
We set out below, with our emphasis, the passages in the numbered paragraphs of her Honour’s reasons that have caused us to conclude that she misapplied the onus of proof and failed properly to evaluate the whole of the evidence in arriving at the finding of guilt: “68. The next issue on which the defence sought to raise a doubt was whether the accused could have been at his home in Canberra at a time that was consistent with C’s story.
None of the evidence given about the family’s habits in January excludes the possibility of the accused ever having been at his home in Canberra during daylight hours in January 1987. Nor does that evidence make it so unlikely that he could have been there at a relevant time that I should have a reasonable doubt about C’s evidence placing him in the Canberra house once, for a brief period, during the day, in January 1987.
The evidence about the family’s habits in January does not exclude the possibility of the incident taking place as described during the period specified in the indictment...
DB gave evidence that she was still living at home in 1987. In January, she had been working in the Department of Finance for nearly 12 months. She did shift work, which involved alternate weeks on early shift (7.00 am to 3.00 pm) and late shift (3.00 pm to 11.00 pm). She gave evidence that in the weeks when she worked the late shift, she would sleep in late, and get up only around lunchtime to shower, dress and go to work. This evidence was indirectly supported by her sister NJ, who gave evidence for the prosecution. Nothing in this evidence, however, rules out the possibility that DB was at home and out of bed on a weekend day, or that she was at home and out of bed on a weekday after finishing an early shift. It does not raise any reasonable doubt in my mind about her availability to participate in events as described by C.
On the basis of this evidence it seems unlikely that the accused and his wife would have retired to their bedroom during, or even at the closing stages of, a family function. The evidence suggests that a day-time rest would have been quite unusual at least for A, but it does not completely rule out the possibility that she and the accused might have been resting in the bedroom, on the day after a family function, when guests from the function called in to say goodbye before leaving Canberra to go home.
Nor is it clear that the incident as described by C is necessarily implausible. At first glance it does seem unlikely, especially given the alleged presence in the room of the accused’s wife A and possibly one or more members of the complainant’s family. On the other hand, acts of indecency committed in the presence of other people, especially those involving victims who might be assessed as unlikely to make immediate complaints, are by no means unknown to the criminal courts; see, for instance, R v OL [2004] QCA 439, McMurdo P at [33] and [38]. If the incident took place as described it could have been blocked from the vision of other people by the side of the bed and the complainant’s body as she bent over the accused.
Counsel sought a strong direction about the significance of the accused’s good character as testified to by the willingness of several of his adult children to trust him with their own adolescent daughters. The evidence of the accused’s children that they have no concerns about leaving their adolescent daughters in the accused’s company is significant, and I have no reason to doubt the sincerity of those witnesses, or their devotion to the welfare of their children. On the other hand, as mentioned, the value of their evidence is, except in the case of HM, diminished to the extent that it appears to be based on faith rather than evidence. Accordingly, while I have taken account of the good character that is in evidence in considering the accused’s guilt, and have considered it as a factor affecting the likelihood of the accused having committed the offences charged, I have found that the character evidence is [not] sufficiently strong to raise a reasonable doubt about the otherwise convincing evidence against the accused.
Beyond that, however, there was no indication of any particular evidence that would have supported the accused’s defence but that he had been unable to obtain. In saying this, I recognise that the scope for establishing that something could not have happened at any time over a period of 31 days will in many cases be difficult if not impossible, and this appears to be such a case. On the other hand, I have been able to identify some evidence that might have enhanced the defence’s attempt to establish that the offences were so unlikely to have happened as to give rise to a reasonable doubt about C’s evidence...
The second matter is that, in contrast to many of the cases in which a Longman warning has been significant, there was in this case no denial of the incidents to set up against the complainant’s evidence, except, of course, the unsworn denial implicit in the accused’s pleas of not guilty (Azzopardi v The Queen (2001) 205 CLR 50, per Gaudron, Gummow, Kirby and Hayne JJ at [62]). That is, the accused says that he has been disadvantaged by the inability to produce evidence that the incidents alleged could not have happened, but he does not say that they did not happen. In respect of each charge, one possibility is that everything happened as C has said, except the acts of indecency; in which case even an immediate complaint could not have been defended except by an unqualified denial.
I emphasise at this point that in noting the absence of a denial by the accused I am considering the extent of forensic disadvantage suffered as a result of delay; I am not in any sense treating the accused’s failure to give evidence as showing a consciousness of guilt. I draw no inferences from the accused’s failure to give evidence; rather, I simply note, as seems unarguable, that if the accused had given sworn evidence denying C’s accusations, I would have had to consider that evidence in considering, in my role as fact-finder, whether I had any reasonable doubt about C’s evidence. In the absence of such evidence, there is nothing to consider. This is not in any sense the same as treating the accused’s failure to give evidence as any kind of admission, or as using that failure to fill gaps in the evidence tendered by the prosecution or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

As already noted, C was a convincing witness, and there was no challenge to her direct evidence of the act of indecency covered by this count. For the reasons explained at [143] to [234] above, I do not consider that C was giving evidence of a “recovered” memory or that for any other reason her evidence was unreliable.
I am satisfied beyond reasonable doubt that the accused committed the act of indecency alleged in the first count in the manner described by C. Despite the evidence canvassed at [64] to [85] above, I am also satisfied beyond reasonable doubt that that event took place at some time between 1 January and 31 January 1987 and that C was at that time above the age of 10 years but under the age of 16 years.
I emphasise that in reaching my conclusion on this charge, I have taken account of all the directions and warnings identified in this judgment as necessary or appropriate. In particular I have considered the warnings and other comments that s 165B of the Evidence Act would have required me to give a jury if this had been a jury trial, and for reasons explained at [254] above I have also considered the evidence on this charge by reference to the Longman warning that “it would be dangerous to convict on [the complainant’s] evidence alone unless ..., scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, [I was] satisfied of its truth and accuracy”. Having paid full regard to all those directions and warnings, I nevertheless remain satisfied of the truth and accuracy of the complainant’s account of the incident that gave rise to this charge, including the matters she relies on to date the incident, and nothing I have heard in the trial, nor any of those directions or warnings, has given rise to any doubt about that evidence that I would consider reasonable.
I note specifically that in assessing the evidence about the timing of this incident, I have been satisfied by C’s evidence, and the matters she relies on to place the incident in January 1987, and no reasonable doubt has been raised by the evidence of other witnesses canvassed above. This is not the same as accepting C’s evidence simply because the defence has not been able to exclude the possibility of her evidence being accurate, and that latter approach is not the basis on which I have been satisfied beyond reasonable doubt that events took place as described by C.

I am satisfied beyond reasonable doubt that the incident in the accused’s bedroom took place in the manner described by C. However, in this case I have a doubt, which I consider reasonable, about whether the incident took place during the period specified in the indictment.
Despite the evidence of C and NJ, I consider it more likely than not that there was no family gathering as such at the accused’s home on the day after the twins’ 21st birthday party...
...Because it seems unlikely that the family gathering reported by C took place on the day after the birthday party involving the heart-shaped cakes, I am left in reasonable doubt whether the incident described by C in fact took place on the day after the birthday party... (emphasis added)
The passages that we have emphasised suggest that her Honour placed an onus on the appellant to raise a reasonable doubt rather than it being for the prosecution to prove its case beyond reasonable doubt. In particular, the passage at [264] quoted above wrongly stated that “… there was in this case no denial of the incidents to set up against the complainant’s evidence” albeit that her Honour qualified this immediately afterwards. The qualification referred to an unsworn denial implicit in the plea of not guilty. In fact, in Azzopardi v The Queen (at 73, [62]) Gaudron, Gummow, Kirby and Hayne JJ held that an accused’s plea of not guilty “stands as that denial”. Their Honour’s also said (at 73, [62]): ... the not uncommon case in which an accused is charged with a crime, such as a sexual assault, in which the prosecution case depends largely, if not entirely, upon the evidence of the alleged victim. In that kind of case, while the defence will usually contradict the account given by the victim, there is no basis for concluding that there is any additional fact known only to the accused, and therefore not the subject of evidence at trial if the accused remains silent, which would explain or contradict the evidence given by the victim. The central issue in such a case is whether the evidence called by the prosecution persuades the jury to the requisite standard of the elements of the offence. That will largely depend on the jury's assessment of the evidence of the alleged victim. It does not depend upon the jury inferring that any event or fact took place which was not the subject of evidence. In the words of Mason CJ, Deane and Dawson JJ in Weissensteiner (v The Queen (1993) 178 CLR 217 at 228), this type of case would not, therefore, be a case "call[ing] for explanation or contradiction in the form of evidence from the accused”. (both emphases added)
The primary judge in [264] of her reasons erroneously understood the appellant’s plea as simply an unsworn and implied denial by him that the complainant’s account was correct. The effect of that misunderstanding caused her Honour to refer to evidence called by the appellant as failing to raise a reasonable doubt.
It would have been open to the primary judge to conclude, as she did, that the complainant’s account of the first assault was possible, notwithstanding the other evidence. But her Honour’s reasons analyse the evidence piecemeal from a starting point that the complainant’s account was convincing and, so, had to be shaken. The tribunal of fact in a criminal trial must consider all of the evidence and weigh it before it can come to a conclusion of being satisfied that an accused is guilty beyond reasonable doubt.
Nowhere did the primary judge consider the combined effect of all of the instances that she dismissed individually as not giving rise to a reasonable doubt. It may have been that, as her Honour postulated, it was still possible that the complainant’s account and the prosecution case of guilt was proved beyond reasonable doubt. However, the passages that we have emphasised in her Honour’s reasons convey that she failed to weigh the evidence as a whole. It is clear that the evidence included all the possibilities that the facts were consistent with guilt. The primary judge was satisfied that the complainant remained convincing beyond reasonable doubt because of her findings that her account was possible despite the other evidence which might point to the contrary. In this context, the number of such “possible” accuracies, which her Honour addressed, itself was a factor to be considered in assessing whether she remained convinced beyond reasonable doubt by the complainant’s evidence when arriving at her ultimate findings.
The troubling feature about her judgment is the way in which her Honour approached the question of reasonable doubt. For example, at [259], her Honour referred to her being able to identify some evidence that might have enhanced the appellant’s attempt to establish that the offences were so unlikely to have happened as to give rise to a reasonable doubt about the complainant’s evidence. Her Honour referred to the fact that there was no suggestion that the defence had been unable to obtain the appellant’s leave records for January 1987 or those of his wife or that he had been unsuccessful in obtaining information about the details of DB’s leave or shifts at that time. That seems to suggest an onus on the defence to put these matters forward.
More particularly, when her Honour came to the acquittal on the second count, her phraseology and reasoning process suggests that she either placed an onus on the accused to raise a reasonable doubt or she approached consideration of the existence of such doubt as needing to be reasonable on the balance of probabilities. For example, in [309], her Honour said that despite the evidence of the complainant and NJ, she considered it “more likely than not that there was no family gathering as such at the accused’s home on the day after the twins’ 21st birthday party”.
While her Honour may have made that factual finding, and thus been able confidently to arrive at a decision to acquit the accused in respect of that count, the issue was not whether it was more likely than not that there was a family gathering. Rather, the issue was whether the prosecution had proved beyond reasonable doubt that the family gathering had taken place, as was necessary to its case, on the day after the twins’ 21st birthday. Her Honour’s approach was to say at [310]: Because it seems unlikely the family gathering reported by [the complainant] took place on the day after the birthday party … I am left in reasonable doubt … (emphasis added)
Again, it may be that what her Honour meant was simply that, after considering the whole of the evidence, she was not satisfied beyond reasonable doubt that the family gathering referred to by the complainant had taken place at the time when the indictment alleged. However, that is not how her reasons were expressed. And, it is the way in which those reasons, read as a whole, were expressed that has caused us to conclude that her Honour did not assess the evidence as a whole before arriving at her conclusion about whether the Crown case had been proved beyond reasonable doubt.
In [307] her Honour said that she had not approached accepting the complainant’s evidence beyond reasonable doubt on the first count on the basis that the defence had not been able to exclude the possibility of that evidence being accurate. She said that she arrived at that conclusion despite the evidence she had canvassed in [64]-[85]. There, her Honour had rejected the evidence given by the appellant’s witnesses. Her Honour’s approach was exemplified in [78]-[81], where she asserted that none of the evidence given about the family’s habits in January 1987 excluded the possibility that the accused had ever been at home in Canberra during daylight hours. The primary judge said that the evidence of the defence witness did not make it so unlikely that the appellant could have been there at the relevant time, that she should have a reasonable doubt about the complainant’s evidence placing him there at the relevant period.
Once again, the issue was not whether the defence evidence made matters “so unlikely” that the complainant’s evidence was not to be accepted. It was whether, despite the complainant’s convincing evidence, a reasonable doubt existed viewing the evidence as a whole. Likewise, in [104] her Honour rejected the existence of a reasonable doubt because the evidence did “not completely rule out the possibility” that the complainant was correct. A reasonable doubt does not arise because a possibility has not been completely ruled out; it arises if, having considered the evidence as a whole, the tribunal of fact is not satisfied by the Crown of its case beyond reasonable doubt.
At [80] her Honour referred to the evidence of the family’s habits as not excluding the “possibility” of the incident in the first count taking place as described by the complainant during the period specified in the indictment. Given the preponderance of this evidence, the question ultimately is whether her Honour was satisfied beyond reasonable doubt by the prosecution’s case. The accused did not have an onus. However, he raised issues on the evidence which, when weighed in the balance, could have led to the prosecution case being insufficient to satisfy the standard of proof beyond reasonable doubt.
As Teague AJ reasons, it is implausible that her Honour deliberately ignored her own directions. So much may be accepted, but the primary judge’s reasoning in those paragraphs that we have set out appears to us to fail to apply the fundamental direction that the prosecution had the onus of proving its case beyond reasonable doubt. Her Honour’s explanation of how she arrived at the state of mind of reasonable doubt on the second count, was that the defence evidence, referred to in [309], had led her to consider that it was more likely than not that there was no family gathering and that that evidence was likely to be reliable.
The complainant’s account of the second incident was, in itself, striking. It was that the appellant was lying on the floor beside a bed on which his wife was lying when he kissed the complainant on the mouth, and put his hand up her shirt touching her breast. This was at the time that the complainant and her family was saying goodbye to the appellant and his wife. Her Honour concluded at [234] that the complainant’s account of this event was “unlikely” but not “necessarily implausible”. Yet her Honour accepted the complainant’s account that such an incident occurred.
The categorisations “unlikely” and not “necessarily implausible” about the reliability of the prosecution’s central witness’ account of the second offence reflects the same misconception of the onus of proof borne by the prosecution as appears more explicitly in [308]-[311] of her Honour’s reasons. Of course, one can be satisfied beyond reasonable doubt that a very unlikely or implausible event occurred. In life, as the aphorism goes, the truth can be stranger than fiction. Judges and juries can find that very unlikely or implausible events occurred, because one’s experience of life has shown that such events do occur.
But here, the trial judge’s reasoning process in [308]-[311] revealed that her conclusion, that she was left in reasonable doubt about the second offence, was clouded by her finding that it was more likely than not that a central part of the complainant’s account of the assault, namely its occasion, was not correct.
Regrettably, we have been driven to the conclusion that, subconsciously, her Honour did not adhere to the direction she gave herself about the criminal onus as her reasons at [308]-[311] show. Her Honour was only prepared not to accept the evidence of the complainant, that she found had been given convincingly, when the appellant had proved on the balance of probabilities that that evidence was more likely than not to be wrong. Unsafe and unsatisfactory – ground (i)
The issue raised by the appellant’s final ground of appeal requires an assessment as to whether the verdict was unsafe or unsatisfactory. This requires an independent determination of whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty on count 1: SKA v The Queen (at 429, [21], [22]). As we have explained, the primary judge’s approach to the operation of the onus of proof was erroneous.
However, having examined the whole of the evidence we are satisfied that it would have been open to a trial judge or jury, correctly applying the onus of proof and assessing the evidence as a whole, to have found the appellant guilty on count 1. Had this been an appeal from conviction after a jury trial on the same evidence with correct directions given by the trial judge as to the onus of proof, we are satisfied that the verdict would not have been set aside on the ground that it was unsafe and unsatisfactory. The evidence, viewed as a whole, does not give rise to doubt in our minds, or to a suggestion that “… notwithstanding that there is evidence upon which a [judge or] jury might convict, “nonetheless it would be dangerous in all of the circumstances to allow the verdict of guilty to stand:” SKA v The Queen (at 427, [14]) applying what Mason CJ, Deane, Dawson and Toohey JJ said in M v The Queen (at 492-493). Fresh evidence
We agree with the reasons of Teague AJ for rejecting the application to adduce fresh evidence. Conclusion
For these reasons, in our opinion the trial miscarried because of the primary judge’s erroneous approach to the onus of proof. The appellant’s conviction on count 1 must be quashed. A new trial on that count should be held. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Gray and his Honour Justice Rares.

The task of a fact-finder is rarely more difficult than when there is one complainant speaking of, but being challenged about, her recall of events that took place many years earlier. This appeal is against a judgment which included a clear acceptance of a complainant as a credible witness in such circumstances. The judgment also contained a detailed rejection of a number of factors raised on behalf of the accused as indicators of a lack of credibility. Those factors gave rise to a “compartmentalisation” difficulty, which impacted on how the judgment was written, how the appeal was conducted and how I have written these reasons.
The judgment was that of Penfold J, the appellant having elected for trial by judge alone. The appellant was charged with two counts, arising from two incidents. The first count was that he, between 1 and 31 January 1987, committed an act of indecency upon the complainant, then aged 15. The second count was that he, between 21 and 30 March 1987, committed an act of indecency upon the complainant without her consent. Her Honour found the appellant guilty on the first count and not guilty on the second count.
Her Honour’s judgment was painstakingly long, indeed 96 pages and 318 paragraphs long, for a hearing that lasted only three days. She addressed the compartmentalisation difficulty by using many headings. When those representing the appellant addressed the compartmentalisation difficulty, they had trouble dealing with it consistently. The thrust of the oral submissions of Mr. Salmon QC for the appellant differed in many respects from the written summary and both departed significantly from the original grounds of appeal. There was little consistency in the use of the terms, factors, grounds, headings or strands upon which he relied. The main focus during argument on the appeal proved to be on certain words, and phrases used in the judgment. In these reasons, the words, issues and instances are used to address items in the various categories of factors. Some of the issues or instances are more clearly linked to the evidence and the claimed inconsistency or implausibility thereof. Some focused almost solely on the words and phrases in the judgment.
The oral testimony of the complainant was, put shortly, as follows. As to the first incident, she had visited Canberra in January 1987 with her younger sister. She visited the home of her uncle (the appellant), where he lived with his wife and children. On the critical January day, she was following one of her cousins out of the house to get to a rumpus room. That course necessitated her passing a toilet. As she did so, her uncle left the toilet and confronted her. He used his left hand to take her around the ribs under her shirt. He rubbed her nipple with his thumb. He tried to put his right hand down her shorts close to her vagina. He tried to kiss her and partially forced his tongue into her mouth. She told him to stop or she would call out to her cousin. He did stop. She went outside to the rumpus room and said nothing to her cousin, as she feared she would not be believed.
As to the second incident, she had travelled to Canberra in March 1987 with her family to attend a function at the home of the accused. On the day after the function, the family went back to the home to say goodbye to her uncle and aunt. At the time of the visit, both uncle and aunt were lying down in their bedroom, she on the bed, and he on the floor. The complainant stepped over the feet of her uncle to kiss her aunt. She then stepped back and bent down to kiss her uncle on the cheek. He tried to force his tongue into her mouth. He then put his right hand up her shirt and touched her left breast over the top of her bra. That involved making skin-to-skin contact with her stomach. He then said to her: “Love you, behave” and she said to him: “Love you too”. She pushed him away from her.
As to what she had told others of the incidents, the complainant said that between January and March 1987, she had told her then best friend that she did not want to go to her uncle’s Canberra home, as her uncle always touched her. Later, she told that same best friend that her uncle had touched her again and tried to kiss her and put his tongue in her mouth. In 1992, she had spoken with her mother about events involving her younger sister, and she then told her mother that her uncle had touched her. In about August 2006, a male cousin rang her about court proceedings brought against her uncle by a grand-daughter, and this led to her deciding to complain of the incidents to others.
Cross-examination of the complainant was extensive and included questions as to four matters presently relevant; her recall that there were wetsuits and skis in the rumpus room; her recall of aspects of the bedroom incident, including the capacity of her aunt to see what was occurring; her having kissed her uncle at a funeral in 2001; and her reasons for deciding in 2006 to reveal what she had as to the incidents in 1987.
Oral testimony was given by 11 witnesses. Five were prosecution witnesses: the complainant; her 1987 best friend; the complainants Mother; one cousin (a daughter of her uncle and aunt, and the mother of the grand-daughter who complained about her uncle, and to whom I will refer after this as the outsider cousin); and a policewoman. Six were defence witnesses: her aunt; four cousins (the son and the three daughters of her uncle and aunt, other than the outsider cousin); and the former husband of a cousin.
Her Honour noted her statutory obligation to give herself a wide range of directions. The four relevant paragraphs included directions as to the onus and standard of proof, that some parts of the evidence of a witness might not be accepted while other parts were, and that the evidence on each count needed to be considered separately.
The central issue in the trial was as to the credibility of the complainant. Her Honour affirmed her acceptance of that credibility. Her opening assessment at [25] was that the complainant “was a convincing witness”. More detailed analyses follow at [27], [48] and [316].
How high a hurdle to an appellant does such an affirmative assessment by a trial judge represent? In Fox v Percy (2003) 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ said (at [30]): It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”
That qualification in Fox v Percy (at [30]) was followed, and supported by, a telling observation of Atkin LJ to the effect that an ounce of merit or demerit in the evidence, that is to say, comparing evidence with known facts, is worth pounds of demeanour. Gleeson CJ, Gummow and Kirby JJ then said (at [31]): Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
When I read transcripts of evidence, I look for the same indications of greater credibility, that I look for when I hear the oral testimony, allowing for the differences in circumstances. I have to accept that a degree of subjectivity must affect any such review. I check for such matters as whether the answers appear to be unduly terse or rambling or relatively precise, and whether the answers are responsive to the questions, and whether there appears to be a readiness to make sensible concessions. I read carefully the transcript of the evidence of the complainant. The impression that I gained was that she gave her answers in a particularly convincing way.
The words quoted from Fox v Percy at [31] call for a comparison of oral testimony with “contemporary materials, objectively established facts and the apparent logic of events.” I acknowledge that those three headings are not to be treated as a prescription. Nevertheless, it helps to look for the different factors under such headings. Where, as here, the events are alleged to have occurred more than twenty years earlier, there are major problems facing the person facing the allegations in providing evidence of contemporary materials and objectively established facts. That appears to be a significant factor behind the appellant relying on four matters going to the apparent logic of events. The complainant was criticised as having been motivated to lie by a desire to see her uncle convicted. Further, the appellant criticised as implausible those aspects of the evidence of the complainant which related to: wetsuits and water-skis; the bedroom incident; and the kiss at the funeral.
As to motive, the complainant was asked a number of questions about her links from 2006 with the outsider cousin and that cousin’s daughter, namely the grand-daughter who had been the complainant in the earlier proceedings. Almost all of the questions called for relatively simple factual answers. At one point in the cross-examination it was put to her that she was aware that the outsider cousin was angry that her father (the complainant’s uncle) had got away with things against her daughter. The complainant answered that the outsider cousin was not angry. Called on to elaborate, the complainant answered: “No, because we feel we’ve won anyway regardless of the outcome of any of the court cases.” The complainant was not asked to elaborate further. It was not put to her directly that she had a motive to tell lies about what had occurred.
In submissions to the trial judge and on appeal, much was sought to be made of the one answer in providing a basis for an improper motive for making her complaint against her uncle. The trial judge addressed the issue of motive, both directly and indirectly, under four different headings between [162] and [184]. Her Honour concluded that there was no evidence that the complainant had a motive to lie. Her Honour specifically referred to the answer quoted above, noting that she would not speculate on its meaning. During submissions on the appeal, some suggestions as to the results of drawing inferences as against speculating were advanced. I was satisfied that what was effectively being called for was speculation and that the analysis of her Honour was unexceptional.
Three instances of the implausibility of the complainant’s account were raised on the appeal. The first was as to the presence of wetsuits and water skis in the rumpus room. The focus here is on the answers given to questions put to the complainant in cross-examination as to whether she remembered anything to do with the rumpus room to which she was heading at the time of the January incident. The complainant spoke of her recall that there were wetsuits and water skis in the rumpus room. The subject of wetsuits and water skis was later raised with other witnesses. It also formed one of the “multiple aspects of the case” upon which counsel for the appellant at the trial sought to rely to undermine the case against the appellant. Indeed, when pressed as to which factor (of the factors or grounds or strands upon which he relied) that he sought to advance as his strongest, Mr. Salmon opted for that relating to the claimed implausibility of the complainant’s evidence as to wetsuits. Her Honour addressed the wetsuits aspect in detail between [68] and [81] under the heading: “Could the accused have been at home as C described?” She reviewed the evidence on the subject, and then concluded (at [81]): ...The evidence about where the wetsuits and water-skis were kept might raise some doubt about whether that was what C actually saw when she walked into the rumpus room after the incident, but it is not sufficient to raise a reasonable doubt about the timing of the incident, having regard to the other aspects of her memory that she relies on to place the incident in January 1987 (see [58] above).
The thrust of the criticism made on behalf of the appellant was that her Honour failed to give appropriate weight to the evidence of the aunt and other members of the family. It was said that that evidence clearly showed that the complainant was wrong, and that that error should have had an enormous impact on her Honour’s assessment of the credibility of the complainant. I have reviewed the stages of development of this matter from the complainant’s few answers in cross-examination, through the testimony of other family members, through her Honour’s analysis, to the elevated status accorded to wetsuits on the hearing of the appeal. In my assessment, what started as a matter of detail of little consequence should have remained that way. It was accorded by her Honour the status it merited, and her analysis is, in my assessment, unexceptional.
The second instance of implausibility was as to the bedroom floor events. The complainant answered questions about the events in the bedroom of her uncle and aunt at the time that she went to thank them and kiss them goodbye in March 1987. Many such questions were answered in both evidence-in-chief and cross-examination. There was oral testimony from family members about various matters going to the plausibility of the complainant’s recall. That evidence was the subject of a review by her Honour, who accepted that what the complainant said was unlikely, but did not find that the incident had not occurred. On behalf of the appellant it was argued that this had to be seen to be an error in the light of the indications of the implausibility of any indecent exchange given the timing of events and the position of the complainant, the aunt and the uncle. After a close assessment of the evidence and the review, I cannot accept that her Honour’s final summation of “unlikely” rather than “totally implausible” is inappropriate.
The third instance of implausibility was as to the hug at the funeral. The complainant was asked in cross-examination whether, at the funeral of her grandmother in 2001, she had hugged her uncle and expressed her condolences. She accepted that she did, and she explained why she did, in terms that “...it was a family and Nan had died, and I was an adult…”. On behalf of the appellant, it was put that the complainant’s funeral greeting was totally inconsistent with her hating her uncle and was yet another factor which went to the issue of whether the incidents occurred at all. Her Honour was criticised for treating the form of the greeting as a matter of little consequence. I can see no fault in her Honour choosing to treat it precisely as she did.
There were a number of instances where the appellant raised criticisms of words used by her Honour in her judgment. The criticisms of words were typically coupled with a criticism of the approach and the conclusion. Four of those criticisms can be addressed quite briefly.
The first focused on the words used at [304]. As her Honour had noted elsewhere, and in an appropriate way, the appellant did not give evidence. At [304], under the heading “The first count” her Honour wrote: As already noted, C was a convincing witness, and there was no challenge to her direct evidence of the act of indecency covered by this count. (My emphasis) It was put on behalf of the appellant that, by these words, her Honour misunderstood the “challenge”, and had failed to come to terms with the body of evidence that cast doubt on so much of what the complainant said. In my assessment, that contention involves putting an unjustifiable interpretation on the words used. Her Honour might have inserted after the words “no challenge”, the words “by direct evidence”. If she had done so, her meaning would have been the more obviously consistent with her other references to the relevant evidence, and would have been beyond any criticism.
The second focused on the dismissive words used by her Honour as to the limited relevance of a 2006 report on the medical condition of the appellant. On behalf of the appellant the criticism was made that the words used were too dismissive. Given the combination of the outdated nature of the report and the concession of counsel for the appellant at the trial that it could be given little weight, I am unable to accept that any weight could be given to this factor.
The third focused on the provision by her Honour of a particular example in the context of her analysis of the “significant forensic disadvantage” question necessarily to be addressed where a trial proceeds many years after the events which are the subject of evidence. That particular example was of the possibility of checking out employment records of the accused. On behalf of the appellant, the use of the example was criticised on the basis that the choice of the example rendered at least suspect the rest of her analysis of the subject. Her Honour’s analysis, under the heading: “Section 165B – Significant forensic disadvantage” extended from [257] to [266]. It started with her Honour’s acceptance that the nature of the delay “necessarily causes some difficulties for all parties and in particular the accused”. Her honour used quotations which stressed the “obviousness” of the disadvantage, then highlighted that the delay in the instant case was of some 20 years. Her honour then analysed a number of particular considerations which appeared to her to be of particular relevance in the instant case. The employment records were mentioned as one such consideration. They were no more than an example of a possibility not taken up. The analysis concluded with findings by Her Honour. She first acknowledged that the delay had inevitably made it more difficult to find specific evidence to refute the specifics of the complainant’s complaints. Her honour then added the qualification that the delay had little or no impact on the defence’s ability to test the details of the complaints and the clarity of her recollections about the incidents alleged. In my assessment, the analysis was commendably rigorous and the ultimate findings were unexceptional.
The fourth focused on the words, approach and conclusions of her Honour as to the evidence of the good character of the appellant led from members of his family. At [38] to [40] and from [236] to [241], her Honour, under headings “Accused’s family members”, “The accused’s daughter DB” and “Character evidence”, made a series of comments and findings. She noted that she had been urged to treat the good character evidence as being of considerable significance. She accepted that it was significant, and then made the qualification that the value of the evidence was diminished to the extent that it appeared to be based on faith rather than evidence. The criticism made on the appeal was effectively that there was no reason for her Honour to express her reservations as she did. A further criticism was made that she had not singled out for especially favourable comment the evidence of a particular witness, who had been married to one of the appellant’s daughters. Having reviewed the passages in the judgment as against the evidence, I can only repeat in this instance that, as with previous instances, the analysis appeared appropriately rigorous and the ultimate findings were unexceptional.
The final focus of attention rests on how her Honour expressed herself in [308] to [316] under the headings “The second count” and “Review of finding on first count having regard to finding on second count”. Her Honour, in the light of the evidence of a daughter about suffering an illness at a critical time, accepted that the complainant had erred in her recollection of the date when the second incident occurred. Her Honour still found that the complainant was to be believed as to the incident having occurred. On behalf of the appellant, it was argued that her Honour should have found that the incident did not occur at all. At [310], her Honour gave detailed reasons as to why she had doubts about the date, and she then spelt out what she perceived to be the appropriate implications. I am unable to accept that the findings were clearly erroneous. However, I do accept that her Honour could have chosen her words more carefully, particularly in [308] to [311].
In what follows, I have set out, with all emphasis in italics font, but some also in bold font, the whole of those paragraphs: The second count: 308. I am satisfied beyond reasonable doubt that the incident in the accused’s bedroom took place in the manner described by C. However, in this case I have a doubt, which I consider reasonable, about whether the incident took place during the period specified in the indictment. 309. Despite the evidence of C and NJ, I consider it more likely than not that there was no family gathering as such at the accused’s home on the day after the twins’ 21st birthday party. In particular I am impressed by the evidence of HM and her mother A that by the Sunday morning after the Saturday night party, HM was suffering from tonsillitis and that she spent the day in bed. The evidence of these witnesses, like C’s evidence about the particular incidents she alleges, related to matters that would have made an impact on the witnesses at the time, and their memories of these matter are likely to be reliable. 310. The absence of a family gathering as such would not necessarily rule out the possibility that C’s family, having left C’s grandmother’s home, might have called in at the accused’s home to say goodbye on the way out of Canberra. However, the family gathering at the accused’s home after the 21st birthday party, like the connection with the heart-shaped cakes, seems to be an important part of C’s memory of the second incident (see [90] above). Because it seems unlikely that the family gathering reported by C took place on the day after the birthday party involving the heart-shaped cake I am left in reasonable doubt whether the incident described by C in fact took place on the day after the birthday party with the heart-shaped cakes of whether it took place at the end of a family gathering after another event, for instance the gathering to celebrate the grandmother’s 70th birthday which A said was held on the day after NJ’s wedding in 1988 and which C seems likely to have attended or a gathering after JA’s wedding which was mentioned in the counselling notes. 311. If the incident took place when C’s family was leaving the grandmother’s 70th birthday party, or on another occasion again it cannot have happened within the dates specified in the indictment, and therefore I cannot be satisfied that the second charge has been made out beyond reasonable doubt The references in bold font to reasonable doubt are used before and after the references in italics. However, the words which are italicised and not in bold font are words linked to an assessment on the balance of probabilities.
Could, indeed should, such use be perceived as reflecting not just inconsistency, but error, on the part of her Honour? Has her Honour failed to observe her own directions? At [117] and [118], her Honour said:

In my assessment, her Honour has not erred. That assessment is made primarily because, having so clearly directed herself as to her legal obligations, it is implausible that she would deliberately ignore her own directions. That conclusion has indirect support from the non-inclusion of any reference to this possible inconsistency in any of the appellant’s grounds or written or initial oral submissions. In my assessment, the infelicitous use of terminology reflecting both criminal and civil standards in four consecutive paragraphs can be seen to have been linked to the compartmentalisation difficulty to which I have earlier referred. The key issue at the trial was the credibility of the complainant. There were many instances of matters said to detract from that credibility. Those instances varied in character. A compartmentalised approach to the assessment of each instance was called for.
Her Honour routinely adopted the practice of using headings to deal with the varying instances. She departed from that practice in framing paragraphs [308] to [311]. It would have been preferable for her Honour not to have done so. I am unable to accept that that departure should be perceived as a failure to understand and apply the law as to which she had given herself full and appropriate directions.
There is one final matter to be addressed, albeit briefly. It relates to the application made on behalf of the appellant under s 37N of the Supreme Court Act 1933 (ACT) to introduce further evidence on the hearing of the appeal. The evidence sought to be introduced was the victim impact statement of the complainant which had been placed before her Honour at the sentencing hearing. The statement provided some details of the complainant’s life history that would not have been available at the time of the trial. There was a major procedural hurdle to be overcome before the statement could be introduced. It was accepted that the applicable test was as spelt out by McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172, (at [111]): The power to admit the further evidence exists to serve the demands of justice.
That test required the satisfying of a particular premise in the instant context. It was that the picture of the complainant presented by the victim impact statement was very different from that which emerged from her evidence. That premise could not be made out. What the complainant wrote in the statement was very much consistent with her oral testimony. There was no inconsistency of substance. There was some additional detail. That detail was of little consequence. The application failed at the procedural hurdle. The demands of justice would not have been served by its admission.
The appeal should be dismissed.