HS v R

Court of Criminal Appeal (NSW)|2023-03-01|Before: Beech-Jones CJ, McNaughton J

HEADNOTE [This headnote is not to be read as part of the judgment] HS (the Applicant) (a pseudonym) was found guilty of two counts of indecent assault of a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (Counts 1 and 2), following a trial before a jury in the District Court. The Applicant was also acquitted of two further counts: committing an act of indecency towards a child under the age of 16 years (contrary to s 61N(1) of the Crimes Act) (Count 3) and attempting to have sexual intercourse with a child under 10 years (contrary to s 66B of the Crimes Act) (Count 4). The Applicant was sentenced to an aggregate sentence of imprisonment for 3 years 6 months, with a non-parole period of 2 years and 4 months. The Applicant sought leave to appeal against his convictions but not his sentence. The counts all related to offences allegedly committed against the Applicant's niece (the complainant). Counts 1 and 2, on which the Applicant was convicted, involved similar instances in which the Applicant asked the complainant to sit on his knee, hugged his arms around her stomach and pressed his erect penis into her back. It was said that such incidents occurred on a regular basis. In support of these counts, the Crown led tendency evidence at trial, to the effect that the Applicant had committed similar offences against a cousin of the complainant, HA, while HA lived with the Applicant and his wife. The two counts on which the Applicant was not convicted involved separate offending. Count 3 involved an allegation that, shortly after the complainant's seventh birthday, the Applicant came up behind the complainant while she was in her bed, and exposed his penis to her. Count 4 involved an allegation that the Applicant used his left hand to cover the complainant's mouth, while she was in bed, and tried to put his penis into her mouth, touching her cheek in the process. On the Crown case, this had been interrupted by the Applicant's wife (the aunt of the complainant). The sole ground of appeal was that the verdicts of guilty on Counts 1 and 2 were unreasonable in that they were inconsistent with verdicts of not guilty in relation to Counts 3 and 4. The essence of the Applicant's case on appeal was that, in the absence of immediate complaint or medical evidence, the Crown case turned solely upon the complainant's credibility, and that by reason of the jury's acquittal of the Applicant on Counts 3 and 4, the jury must have entertained a doubt as to the complainant's credibility. The Court held, granting leave to appeal but dismissing the appeal: It was open to the jury to return verdicts of guilty in relation to Counts 1 and 2 while declining to do so in relation to Counts 3 and 4: [3] (Beech-Jones CJ at CL); [41] (Davies J); [43] (McNaughton J). There were several factors, unrelated to credibility, which may have caused the jury to have a reasonable doubt about Counts 3 and 4. First, the complainant had acknowledged that her memory of what happened in the bedroom was not clear. Second, the events the subject of Counts 3 and 4 were neither in the complainant's initial complaint to her stepmother and father, nor were they in her "mood journal" which she took with her when the matter was first reported to the police. Third, it was made clear at the police interview that the complainant had "recently remembered" those events. Fourth, the Applicant's wife denied having interrupted any such incident: [4] (Beech-Jones CJ at CL); [36]-[39] (Davies J); [43] (McNaughton J). On the other hand, the tendency evidence led by the Crown provided cogent support for Counts 1 and 2: [3] (Beech-Jones CJ at CL); [40] (Davies J); [43] (McNaughton J). Discussion of the correct approach to inconsistent verdicts: [2]-[3] (Beech-Jones CJ at CL); [24], [33] (Davies J); [43] (McNaughton J). Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; TK v R (2009) 74 NSWLR 288; [2009] NSWCCA 151, applied.

Judgment

BEECH-JONES CJ AT CL: The circumstances of this appeal are set out in the judgment of Davies J.
In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ("MFA"), Gleeson CJ, Hayne and Callinan JJ observed (at [34]): "… [a verdict of not guilty of a sexual offence] 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." (emphasis added)
In this case the guilty verdicts on counts 1 and 2 are readily reconcilable with the acquittals on counts 3 and 4 by the application of the reasoning in this passage. In particular the jury accepted that it was more probable than not that the complainant was telling the truth but "require[d] something additional before reaching a conclusion beyond reasonable doubt". In the case of counts 1 and 2, that something additional was the tendency evidence described by Davies J at [20] to [22] which involved conduct that was strikingly similar to counts 1 and 2.
I agree with the orders proposed by Davies J.
DAVIES J: The applicant stood trial in the District Court at Penrith before her Honour Judge Beckett and a jury of 12 on an indictment containing the following counts: (a) Count 1: Between 14 May 2012 and 15 October 2012, the applicant indecently assaulted [TB], a child then under the age of 16 years, namely, six or seven years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). (b) Count 2: Between 14 May 2012 and 15 October 2012, the applicant indecently assaulted [TB], a child then under the age of 16 years, namely, six or seven years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). (c) Count 3: Between 14 May 2012 and 28 December 2012, the applicant committed an act of indecency towards [TB], a child then under the age of 16 years, namely six or seven years, contrary to s 61N(1) of the Crimes Act 1900 (NSW). (d) Count 4: Between 14 May 2012 and 28 July 2012, the applicant attempted to have sexual intercourse with [TB], a child then under the age of ten years, namely, six or seven years, contrary to s 66B of the Crimes Act 1900 (NSW).
The applicant pleaded not guilty to all counts. On 25 February 2021, the jury returned verdicts of guilty to counts 1 and 2, and verdicts of not guilty to counts 3 and 4.
The applicant was sentenced to an aggregate sentence of imprisonment for 3 years 6 months commencing 5 June 2019 and expiring 4 December 2022 with a non-parole period of 2 years and 4 months expiring 4 October 2021.
The applicant was a maternal uncle to the complainant. The Crown case at trial was that the applicant allegedly committed the acts, the subject of the four counts on the indictment, during the time that the complainant lived with the applicant and his wife at Colyton.

Count 1

The complainant said that she was in the dining room of the house at Colyton, and the applicant was sitting at the dining room table. He was sitting on a chair and it was facing outwards. The dining room was next to the kitchen.
The complainant said that when she walked into the dining room after she had walked home from school, the applicant told her to come over and sit on his knee. The complainant said that she sat on his knee for a short time and then felt something around the area on her back. The complainant said that the applicant's arms were hugging around her stomach, and his hands were near her belly button. She said it was hurting because it was quite hard.
She asked the applicant if she could hop off but he said, "No". She sat there for a little bit and kept on trying to get out of the applicant's arms, but he would not let her go. When she managed to get off him she said that the applicant just sat there and was motionless.
It seems that the complainant only found out that it was the applicant's erect penis that was pressing against her back when she told her stepmother of the incident.

Count 2

The complainant said that the same sort of thing happened about a week later. The complainant said that it occurred on a Friday afternoon. She had been playing outside with her cousins and they were jumping on a trampoline. When she went inside to get a drink the applicant said to her, "Come over and sit on my knee". The complainant said she did not really want to, but the applicant told her that she would be in trouble if she did not. She went over and the applicant picked her up because she could not get on his lap by herself.
After a couple of minutes, the complainant said that the applicant had an erection. She said that she felt the same thing on her back. She felt very uncomfortable. The applicant had his hands across her belly, and they were holding her. She said about ten to 15 minutes later the applicant let her off his lap, and she went back outside to play with her cousins. She was upset at the time and one of her cousins asked her what was wrong. She said, "Nothing", because the applicant had told her she would be in trouble if she told anyone.
These two incidents were not isolated incidents. They occurred on a regular basis.

Count 3

The complainant said that not long after her seventh birthday she was in her bed. The applicant came up behind her really quietly in her bed. She woke up because she heard something. The complainant said that the applicant pulled his pants down and she saw his penis.

Count 4

The complainant said that the applicant used his left hand to cover her mouth. The applicant came around to the side of her bed and tried to put his penis into her mouth. She didn't want him to do so, and she closed her mouth really tightly. His penis then touched her cheek near her mouth.
The complainant said she told him to stop, and then her aunt came into the room. The applicant pulled his pants up quickly, and her aunt said to the applicant, "What are you doing? Get out." The applicant then started to get angry and left the bedroom behind her aunt.
The complainant said that her two female cousins were in the room, but they were asleep on a bunk bed.

Tendency evidence

Tendency evidence was admitted concerning offences committed by the applicant against a cousin of the complainant, HA. HA had been living with the applicant and his wife since July 2007.
In October 2012, HA was 13 years old. The applicant woke her one morning and asked her to go into the dining room. The applicant turned the lights off and closed the doors. He then came up behind HA and put his arms around her so that she could not move. He pushed the front of his body into her back and began moving his hips from side to side, pressing his penis into HA's bottom. HA started to cry, and the applicant asked her to stay still. She cried louder, the applicant became angry, and stopped rubbing against her.
In November 2013, when HA was 14 years old, she was asked to make tea and coffee for the applicant and his wife. The applicant and his wife had been using their laptops in the sunroom of the house. Whilst HA stood at the kitchen counter, the applicant walked up and stood close behind HA. He said, "just even standing like this makes something go up. Do you believe me?" HA said "no", and the applicant pushed his penis into the top of HA's leg. The applicant said "I bet you believe me now", laughed, and walked away.

Ground of appeal

The applicant now seeks leave to appeal from the jury's verdict on one ground only: The verdicts of guilty in relation to counts 1 and 2 are unreasonable in that they are inconsistent with verdicts of not guilty in relation to counts 3 and 4.

Legal principles

In Walker v R [2019] NSWCCA 4, Hoeben CJ at CL (Rothman and Price JJ agreeing) said: [103] There was no dispute between the parties as to the legal principles to be applied. The test when considering whether inconsistent verdicts were handed down by a jury is one of logic and reasonableness (Mackenzie v The Queen [1996] HCA 35; 190 CLR 348). Those principles were recently restated in Jafary v R. In order to succeed, the applicant "must satisfy the court that the verdicts cannot stand together", i.e. that "no reasonable jury who applied their minds properly to the facts of the case could have arrived at that conclusion" (Mackenzie at [366]). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (Mackenzie at [366], Jafary at [31]). [104] There is no general rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [35] and [89]. [105] The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury's role in that system (MFA at [34]). [106] The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA at [34], it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part. [107] It should also be borne in mind that the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require "some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant" (MFA at [34]). As their Honours observed: "34 … [a finding of guilt] 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. …" (See similarly R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [8], [34] and [219]-[221]). [108] Their Honours also observed that other factors that "might cause a jury to draw back from reaching a conclusion beyond reasonable doubt" in respect of a particular count may include "where 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" (at [34]). [109] It is necessary for the court to scrutinize the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment the court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46]. [110] As the applicant rightly submitted, on appeal the correct starting point for considering whether verdicts can be reconciled is not the convictions, but the acquittals. This is to follow the approach stated by Simpson J in TK v R [2009] NSWCCA 151; 74 NSWLR 299 (with whom McClellan CJ at CL and Latham J agreed) at [128] where her Honour said: "128 … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … : Her Honour went on at [130] to stress that: 130 … [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. …"

Submissions

The applicant submitted that by reason of his acquittal on counts 3 and 4, the complainant's credibility was not accepted in relation to those counts. However, he submitted, there was no corroborating evidence for counts 1 and 2, including no evidence of immediate complaint or medical evidence in support of the Crown case. The applicant submitted that the convictions in relation to counts 1 and 2 depended totally upon the credibility of the complainant.
The applicant submitted that the present case fits with the circumstances described by Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [78] where his Honour said: There are cases in which nothing at all appears to differentiate the complainant's evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of 'logic and reasonableness' is not satisfied.
The applicant submitted that the evidence of the complainant's aunt, HM, which did not support the Crown contention in relation to counts 3 and 4, might explain why the complainant's evidence was not accepted in relation to those counts, but did not explain why the complainant's evidence was accepted in relation to counts 1 and 2.
The Crown submitted that three matters distinguished the nature and quality of the evidence in relation to counts 1 and 2 on the one hand and counts 3 and 4 on the other, to satisfy the test of "logic and reasonableness" from MacKenzie v The Queen (1996) 190 CLR 348 at 366.
First, the Crown submitted that the complainant acknowledged that she did not have a clear memory of what happened in the bedroom. The Crown submitted that in her JIRT interview of 11 April 2019 the complainant appeared to read from a typed document that she had brought to the interview before describing that incident, and that her stepmother had helped her remember what had happened in the bedroom.
Secondly, the complainant's initial complaint to her stepmother and father was limited to a description of conduct that constituted counts 1 and 2, namely being made to sit the applicant's knee and feeling his erect penis touching her back. That was the only conduct described in her handwritten "mood journal" that she took with her when the matter was first reported to the police on 28 February 2019.
Thirdly, the Crown submitted that the tendency evidence in relation to the complainant's cousin, HA, provided cogent support for the complainant's evidence in relation to counts 1 and 2. The common feature was that the offending took place in the applicant's home, while the victims were under his authority, by his pressing his penis against their bodies. Further, the offending took place during a similar period.

Consideration

In my opinion the verdicts of guilty in relation to counts 1 and 2 are not unreasonable, and are not inconsistent with the verdicts of not guilty in relation to counts 3 and 4. An examination of the evidence in relation to counts 1 and 2 on the one hand and counts 3 and 4 on the other hand results in a reasonable explanation for the jury's verdicts.
The starting point is that consideration of whether the verdict of a jury is unreasonable or cannot be supported having regard to the evidence proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]. Further, where inconsistency is raised, the correct starting point is not the convictions but the acquittals. If such an explanation can be found without resort to doubts about the complainant's credibility, the guilty verdicts may not be unreasonable: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128].
Applying those principles, it is not correct to say, as the applicant submitted, that because he was acquitted in relation to counts 3 and 4, the complainant's credibility was not accepted in relation to those counts. Such a submission adopts a binary approach to the credibility of the complainant between conviction and acquittal. What was said in Pell at [39] does not lead to the conclusion that a complainant was not believed but, rather, whether by reason of inconsistencies, discrepancies, other inadequacy or in the light of other evidence, the jury acting rationally should have entertained a reasonable doubt as to proof of guilt.
Further, the applicant's further submission that, because the complainant could not have been accepted in relation to counts 3 and 4, she should not have been accepted in relation to counts 1 and 2, is equally fallacious.
There are a number of reasons why the jury may have had a reasonable doubt about counts 3 and 4. First, at the time the complainant first made a disclosure of the sexual assaults to her stepmother, she had written in what she called her mood journal about the incident constituting count 1. Nothing was said in that journal about the bedroom incident constituting counts 3 and 4.
Secondly, when the complainant and her stepmother made disclosure to the complainant's father, he sent a text message to the complainant's mother (from whom he was separated) saying: I've just been told by [TB] that when she was staying at [HS] and [HM]'s when she was younger that [HS] made her sit on and he got a erection. [TB] tried to get off his lap but he wouldn't let her go.
Thirdly, at the police interview, it became clear that the complainant had "recently remembered" the bedroom incident. She gave evidence that her stepmother had sat next to her whilst she (the complainant) produced the typed document that she also showed to the police at the time of the interview. The complainant gave evidence that she did not have a clear memory of what happened in the bedroom.
Fourthly, although the complainant gave evidence that the applicant's wife (her aunt) came into the room and saw the applicant doing what the complainant alleged, her aunt denied that in her evidence.
Contrary to the applicant's submission, the evidence of the complainant concerning counts 1 and 2 was not uncorroborated. It was supported to a very significant extent by the tendency evidence in relation to the complainant's cousin AH. That evidence showed that the applicant's modus operandi in relation to both the complainant and her cousin was almost identical. It is likely to have given the jury great confidence in the truth of the complainant's account.
The acquittals on counts 3 and 4 were entirely logical and reasonable. The convictions in relation to counts 1 and 2 were entirely open to the jury on the evidence led at the trial.

Conclusion

I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
MCNAUGHTON J: I agree with Davies J.

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: 22 March 2023

Crimes Act 1900(NSW)ss 61M, 61N, 66B

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