Herbert v The Queen [2002] WASCA 362

Herbert v The Queen [2002] WASCA 362 - WASCA 2002 case summary — Zoe

[84]

"[This] does create a real difficulty for the defendant to such an extent that it is a rule of law that the jury in circumstances such as this must in fact be warned that you have to be very careful, that there could be a danger, a danger of convicting an accused person on the basis of the complainant's evidence alone when there is no other evidence or corroboration as in this case, when it occurred such a long time ago unless you are satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence, of the complainant's account and allegations, beyond a reasonable doubt.

The difficulty is that the defendant loses the opportunity of being able to challenge a lot of the allegations. For example, one of the things that happened, just one example, they lose the opportunity of being able to look at any medical evidence that might have been available if the matter had come to light at an earlier date, say, soon after the incident involving the anal

penetration had occurred. They lose the opportunity of being able to say, 'Well, hang on. If the complainant says this happened in such and such a month, that month I was away' or 'That month I never looked after the children in the afternoon or the evening' or something of that nature. They lose that opportunity so you wind up in a situation where a person in Mr Herbert's circumstances cannot say anything in detail other than these incidents did not occur.

You might recall he said things like, 'Well, I don't remember giving C any milk at that time,' in relation to the incident where it was said that milk was poured on his penis and he asked C to lick it off. He said he certainly wasn't in the habit of changing nappies or looking after the children in that kind of detailed way. He is not in a position - other than he agrees that he was living in the house, that the children were with him, that he would look after them in the sense of being the adult in the house when their mother was out, that they came into the bedroom that he was sharing with the children's mother from time to time. He denies going around the house naked in the way that has been described in some of these allegations, but other than that, he is in a position of simply denying it, but not able to be able to go to any sort of details in any kind of forensic way.

That is why the effluxion of time is particularly difficult. It is not just a matter of people's memories fading because of 10 years. It means that the defendant loses opportunities of being able to challenge the evidence in some way because the detail simply isn't there. For example, in terms of the time in which most of these incidents occurred, spanning a period of over a year, they lose the opportunity of being able to pinpoint things and saying, 'Well, that couldn't have happened that way because that was the week I was working' or 'I wasn't there during the day and they said this happened in the morning. I had gone to work by 6 o'clock,' things of that nature.

What that means, because of that, because of the fact that you only have the account of Jeremy Cheyne, because these incidents happened such a long time ago and it is 10 years ago, 10 years being a significant period of time, particularly taking into account that he is almost 16 and was between the ages of 4 and 5 when these incidents occurred ..."

[122]

"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 [R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82] 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."

[124]

"84. In support of this submission, the appellant invoked observations in the reasons of the majority of this Court in Jones. That was a case where an accused had been charged with three counts involving sexual offences alleged by a single complainant. The jury found the accused not guilty on the second count but guilty on the first and third counts. By majority, this Court set aside the convictions in respect of the first and third counts on the ground that those verdicts were unreasonable. It entered an acquittal. Kirby J dissented on the basis that the differences between the jury's verdicts were explicable upon rational grounds founded in the differentiation of the evidence relevant to the respective counts. He cited the reasons of this Court in its then recent decision in MacKenzie v The Queen. In that case, this Court had examined the authorities on suggested inconsistency between verdicts.

85. The principles in MacKenzie apply to the present case. This is not an instance of 'legal or technical inconsistency', whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where 'logic and reasonableness' necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this Court said in MacKenzie that 'if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.

86. Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and commonsense' and suggest a compromise in the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission."

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Judgment (142 paragraphs)

Herbert v The Queen [2002] WASCA 362 (23 December 2002)

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Cases Cited (8)