Jonathan James Aiken v R

The trial judge's directions 27In light of the grounds upon which the appellant relies, it is convenient to refer to some of the salient parts of the trial judge's directions. Her Honour told the jury: You must consider each charge separately and return a separate verdict of guilty or not guilty on each of the charges . It may not follow that because the accused is guilty or not guilty in respect of one charge, he is therefore guilty or not guilty in respect of another. You must consider each count or charge only by reference to the evidence which applies to it. ... You must exercise caution before you may convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of a single witness, in this case, N. That being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account he has given to you, you cannot find the accused guilty. Before you can convict the accused you should examine the evidence of the complainant very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial . You may not convict unless you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt. You will therefore be concerned to assess, not only what he says but also his honesty and reliability as a witness. ... As I have said, you must give separate consideration to each of the individual counts. As I have directed you to at the beginning of the trial, this means that you are entitled to bring in a verdict of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome . If you were to find the accused not guilty on any one count, particularly if that were because you had doubts about the reliability of his evidence, you would have to consider how that conclusion affects your consideration of the remaining counts. That is, if you found that the evidence of the complainant was unreliable, for example, if it has been demonstrated to you, by cross-examination, that the "letterbox incident", or as it was described by Mr Paish, "the J. in hospital incident", if you were satisfied that that incident could not have happened in the way that the complainant described, because there was no mail on Sunday, and taking into account the range of available days upon which this could have happened, then, if you accept that that account was unreliable, and of course it is a matter for you, you then take that into account when looking at the other incidents and the counts that are related to those other incidents. However, you should not regard the existence of multiple charges as an invitation to compromise. For example, if six of you were for a verdict of guilty and six of you believed the accused was not guilty of anything it would be wrong in these circumstances to compromise by convicting him of some but not all of the charges. ... Even if you accept that N. is honest, somebody could be absolutely honest but at the same time be totally wrong for whatever reason. To establish this offence the Crown must prove beyond reasonable doubt that at the time and place alleged, and again I stress that it has to be at the time and place alleged not at some indeterminate time in the past, the accused by his act assaulted the complainant . (emphasis added) ... 28After a request from trial counsel, her Honour redirected the jury in the following terms: What I will tell you now is that if you have a reasonable doubt on any one count or counts in any of the three separate incidents because you are not satisfied that N. is reliable on this incident, that is, on the letterbox, the fence or the last incident, you may take that doubt into account in considering if he is reliable on all the other matters you are considering, that is on the other counts referrable to the other two incidents.

The relevant legal principles 29The principles to be applied are uncontroversial. In M v R (1994) 181 CLR 487, Mason CJ, Deane, Dawson & Toohey JJ, in a joint judgment formulated the test, which is to be applied in determining whether the verdict of a jury is to be set aside upon the basis that it was unreasonable, in the following terms: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question, the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations. (at 493) 30In MFA v R [2002] HCA 53; 213 CLR 606 the High Court considered the application of that test in the context of a contention that the verdicts in a particular trial are inconsistent. Gleeson CJ, Hayne and Callinan JJ in their joint reasons said: 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. It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski ( that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones . It also overlooks the principles stated in MacKenzie , which were not qualified in Jones , and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M , which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence. (footnotes omitted) (at paras 34,35) 31McHugh, Gummow and Kirby JJ in their joint reasons said: 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. 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 . (footnotes omitted) (emphasis added) (at paras 85-86) 32In TK v R [2009] NSWCCA 151, McClellan CJ at CL observed: The significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury's verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried. (at para 8)

Ground 1 33Counsel for the appellant contended that the verdicts in relation to counts 6 - 8 are unreasonable primarily because of what is asserted to be an inconsistency between those verdicts and the verdicts returned in relation to counts 1 - 5. Putting the matter another way, it is submitted that in accordance with what was said by the High Court in MFA (supra) that there is no proper basis upon which the verdicts can be reconciled. In support of this submission, it was contended that "that there is no appreciable difference between the version of events given by the complainant in relation to each of the three incidents. ... Nor can it be said in relation to the specific allegations that the complainant revealed any uncertainty as to the matters of detail, that his account of those details revealed a faulty recollection or that his account of the first two incidents was not as reliable as his account of the third incident". Such discrepancies as existed in the complainant's account in relation to the first two incidents were not, it was contended, sufficient to enable the jury to return the verdicts which it did. The only inference available, so it was submitted, was that the jury "did not accept the complainant, to the requisite standard, that these incidents had occurred". 34In support of these submissions, counsel relied upon what the trial judge had recorded in a certificate which her Honour had granted pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 . In it the trial judge said: I have had the benefit of seeing and hearing the complainant in his video recorded interviews and in his (giving of) evidence by closed circuit television. For my part, I cannot appreciate a difference or clarity in the reliability of that evidence to explain the verdicts rendered. 35In Louizos v R [2009] 194 A Crim R 223 this court indicated that a certificate should only be issued in an appropriate case. Howie J, with whom other members of the court agreed, said: A certificate relieves the appellant of obtaining leave from this Court to argue a ground of appeal that raises a question of fact or of mixed fact and law. As a matter of practice this Court never enforces the requirement of seeking leave to argue a ground of appeal unless r 4 of the Criminal Appeal Rules applies . In Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556, Basten JA, with whom other members of the Court agreed, stressed the significance of the issuing of a certificate, because in effect it interferes with this Court's jurisdiction to refuse leave. His Honour stated that such a course should only be adopted where the appropriateness of the appeal was not in doubt or where the judge feels that he or she has gained particular insight into the proceedings that may not be apparent to this Court. That was an application for leave under s 5F of the Criminal Appeal Act , but it seems to me that the same considerations apply in granting a certificate in respect of a conviction appeal. If a certificate is to be given in such cases as identified by Basten JA, it would be expected that the trial judge would indicate, either by reasons given in open court when granting the certificate or by a report to this Court, the reasons why the certificate was given. ... The Judge also granted a certificate in respect of the unreasonable verdict ground. If the certificate was granted because the judge believed that the verdict was unreasonable, this Court would be assisted by the reasons for that opinion having regard to any insight or advantage that the trial judge might have gained and that might be lost to this Court when reviewing the evidence on the papers. However, without reasons little regard can be had to a bald expression of opinion by a trial judge that the verdict was unreasonable or against the weight of the evidence. If the granting of the certificate does not mean that the judge considered the verdict unreasonable, there is no purpose in it. (paras 20- 1,24) 36Those observations appear to me to be apposite to the present case: see also R v Sloane (2001) 126 A Crim R 188. In any event, counsel for the appellant recognized that her Honour's opinion could not be determinative of the matter, notwithstanding whatever advantages she may have enjoyed as the trial judge. 37Having carefully analysed the evidence, I am not persuaded that the appellant has demonstrated that the verdicts are irreconcilable. 38The fact that the dates upon which the various incidents occurred was essential in proof of the charges was made clear by the Crown Prosecutor in his final address to the jury: He said Let me add this important rider and applies to all the offences, and I forget to say it, you must find that the offences occurred between the dates as pleaded, between 1 December 08 and 14 January 2009. I f you think that perhaps he got the dates wrong and it happened some other time outside, before, a long time before, even, ladies and gentlemen, you still must return a verdict of not guilty, because the Crown has pleaded that those are the dates , it goes hand in glove with the way that, as I explained to you ar the beginning of the case, an accused person is entitled to know with as much precision as possible, the case that's been mounted against him or her. So the dates are important, and I remind you, as I'm sure Mr Paish will spend a good deal of time on this, if you suspect that these things happened to N., even if you strongly suspect they happened, that's not good enough, not even strong suspicion amounts to proof beyond a reasonable doubt of the elements of the offences . So let me make that plain to you, ladies and gentlemen, you must find that these things happened, the elements of each offence happened, and are proved to your satisfaction beyond reasonable doubt between the dates as pleaded . (emphasis added) 39As I have indicated, the trial judge also directed the jury that it had to be satisfied that each of the incidents about which the complainant gave evidence occurred between the dates specified in the indictment, namely 1 December 2008 and 14 January 2009. So far as the "last incident" was concerned, it is true that the complainant gave conflicting evidence as to whether it had occurred 2 days or 2 weeks prior to his disclosure of the matter. Nevertheless, in re-examination as I have indicated, he confirmed that the correct position was that it had happened two days earlier and accordingly, the jury was entitled to accept that part of the complainant's evidence as to when the incident had occurred. 40What is clear however is that, on either version, the incident had occurred well within the period specified in the indictment. 41That part of the complainant's evidence stands in contrast with the evidence he gave about the two earlier events. In essence, the jury could well have determined, given the uncertain state of the evidence as to precisely when each of those incidents had occurred that it was reasonably possible that each of them had occurred prior to 1 December 2008. It may well then have simply acted in accordance with the directions of the trial judge and thus felt bound to acquit the appellant. Such a process of reasoning, which in my view the appellant has not shown to be an unreasonable approach, would not reflect upon the complainant's overall honesty. So far as "the fence incident" is concerned, the evidence of the complainant and both of his parents is that it could have occurred in October 2008, whereas "the letterbox/J. in hospital" incident may have occurred in July 2008 or at some other undefined time. 42It was apparent from some of the evidence to which I have referred that the complainant's account as to the dates upon which, and the order in which, events occurred was revealed by counsel to have been inaccurate. 43Moreover, as I indicated earlier, the complainant conceded, during the course of cross-examination, that he had "a problem with dates" and with "memory retention" as well as suffering from attention deficit disorder. 44Furthermore, in my view, it is not without significance that the complainant only referred, during the course of the interview conducted on 15 January 2009, to "the last incident". Indeed, it was not until the second interview, which was conducted on 7 May 2009, that the complainant first revealed the details of the earlier two incidents. 45In essence, the events which gave rise to counts 6 - 8 in the indictment were, on any view of the evidence, the most recent in a multiplicity of sexual encounters ranging over a two year period. They were, accordingly, the freshest in the complainant's memory and were, as I have said, the only matters to which he referred in his initial complaint. There was no controversy, assuming that the events actually occurred, that it was within the time-frame specified in the indictment. Moreover, being the last in a series of events meant that the complainant did not have to place it, unlike the other two incidents, in a sequence of similar events. Those factors gave the evidence in relation to those counts a quality which differentiated them from the balance of the counts on the indictment. It was therefore open, in my view, for the jury to find that it was a reasonable possibility that the two incidents giving rise to counts 1 - 5 did not occur during the relevant time-frame, but at some other time. I would accordingly reject this ground of appeal.

Ground 2 46In respect of this ground of appeal the appellant has identified four features of the evidence which, it is submitted, require the verdicts to be set aside. I have already dealt at some length with particular (d) of this ground when considering Ground 1. So far as particular (a) is concerned, it was not ultimately contended, and nor could it be, that there was any delay in the complaint, at least in respect of "the last incident". If anything, the complainant's fairly prompt complaint in respect of it supported his credibility, even allowing for the differences between it and the version which he provided to police. On the other hand by way of contrast, there was several months delay before the complainant made the allegations which gave rise to counts 1 - 5 in the indictment. Other than that, it is true as particular (c) asserts, there was no direct corroboration of the complainant's evidence. Furthermore, as particular (b) indicates, and this was common ground at the trial, there were a number of inconsistencies in the complainant's evidence. However, neither that fact, nor the fact that the complainant's evidence was uncorroborated, is an uncommon feature of offences of this kind. 47As I have just said, there were inconsistencies in the complainant's account. The Crown Prosecutor in his address to the jury acknowledged as much. I have already referred to the complainant's conflicting evidence as to whether the "last incident" occurred 2 days or 2 weeks before he first made complaint. He also seemed confused as to whether the appellant's wife was at home on the occasion of "the fence incident". There were also inconsistencies between what he told his parents and what he told the police. Each of the complainant's parents gave evidence that the complainant had told them on 14 January 2009 that the appellant had attempted to have anal intercourse with him whereas the complainant made no such allegation when interviewed by police. Nor, according to their evidence, did the complainant tell them on 14 January 2009 that the appellant had sucked his penis. Moreover, each of them gave evidence that on that evening the complainant told them that he had fellated the appellant whereas in his evidence the complainant said that the appellant had fellated him. It should be noted however that they each gave evidence that he had given them other details on subsequent occasions. 48However those aspects of the complainant's evidence, as well as the other deficiencies which were revealed in his evidence, even in combination, do not in my view, warrant a conclusion that the verdicts in respect of counts 6 - 8 were unreasonable or otherwise give rise to a miscarriage of justice. I would reject this ground of appeal.

Ground 3 49There was however another basis upon which the conviction in respect of count 8 was impugned. The evidence which was led in respect of that count emerged from the recorded interview which was conducted with the complainant by the police on 15 January 2009. It was in a narrow compass and was in the following terms: Q No. All right. The next thing you told me is that other stuff happened. What other stuff happened? A Um, he put his mouth on it. Q OK. He's put his mouth, is this on the same, this is? A On the same day. Q OK. Put his mouth on what? A On the private part? Q On whose private part? A Mine. Q OK. And what was he doing with his mouth? A I especially don't know. Q OK. Was his mouth opened, closed or something else? A Um, how do you mean like? Q (continued)...was his mouth closed or open or something else? A Open I think. Q OK. A Like he put it. I'm not sure. Q And tell me more about what he was doing with his mouth? A Um, I don't know how to say it, but yeah - That's all he was doing. - And then I jerked because them um yeah and that... 50The trial judge directed the jury in the following terms: Now the three incidents during that period are the "fence" incident when the accused asked for J.'s mother assistance, that's count 1. On that occasion it is alleged that, along with the indecent assaults, which I'll come back to, the accused placed his mouth on the penis of the complainant. I direct, as a matter of law, in respect of each of those counts 1, 4 and 8, that the placing of the mouth of a person on the penis of another is sexual intercourse at law. The Crown does not have to prove anything other in respect of the sexual intercourse element than that. 51"Sexual intercourse" is defined in s61H(1)(b) of the Act to mean "sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person". 52It is submitted that merely placing the mouth of a person on the penis of another falls short of what is comprehended by the definition of "sexual intercourse" in s 61H(1)(b) of the Act. In R v Preval [1984] 3 NSWLR 647 this Court held, in a respect of a provision couched in identical terms, that penetration of the lips is sufficient to constitute a penetration of the mouth for the purposes of the section. By way of contrast, there was no evidence of penetration of the appellant's lips in the present case. Indeed the evidence was left in a somewhat ambiguous and unsatisfactory state. In any event, it is apparent that no one at the trial turned their mind to this issue until after the appellant was convicted. Debate then ensued with the result being that the trial judge decided to include reference to the matter in the certificate which she issued. In the certificate, her Honour indicated that had she been requested to do so, she would have redirected the jury in accordance with s 61H(1)(b). Her Honour also expressed her view that the evidence did not satisfy the requirements of the section. Although the distinction which is drawn is a fine one, I am disposed to accept the appellant's submission. In my view, the evidence which was led in support of count 8 was insufficient to support the charge. Moreover, it is clear as her Honour candidly acknowledged, that she failed to properly instruct the jury as to the elements of the offence. 53In my view the court should uphold this ground and quash the conviction in respect of count 8. The parties agreed that in the event that the court reached such a conclusion it was appropriate, in accordance with s7(2) of the Criminal Appeal Act 1912 , that a verdict of guilty of indecent assault should be substituted. It is apparent from what I have also said in considering Grounds 1 and 2 that it was open to the jury to accept the complainant's evidence that the incident occurred as he had described it. That being so, it is common ground that the alternative offence had been established. 54In the ordinary course of events the court would, in those circumstances, proceed to re-sentence. Counsel for the appellant indicated that if the court was to reject Grounds 1 and 2 but uphold Ground 3, then he would seek leave to appeal against the sentences imposed in respect of counts 6 and 7. The Court was advised by the parties that the trial judge had indicated, in fairly unequivocal terms, that had the appellant stood for sentence in respect of counts 6 and 7 alone, then a sentence falling short of full-time imprisonment may have been appropriate. Her Honour had then said, so the court was informed, that given that the appellant had been convicted of the more serious offence to which count 8 gave rise, then nothing but a full-time custodial sentence for that offence could be countenanced. In those circumstances her Honour explained that it was inexpedient to do other than impose short concurrent sentences of fixed duration in respect of counts 6 and 7. In other words the sentences imposed in respect of counts 6 and 7 were, in a practical sense, constrained by the sentence which was imposed in respect of count 8. Given that context, the parties were also in agreement that it was appropriate that orders should be made to remit the entire sentencing proceedings to the trial judge. That would ensure, it was agreed, that appropriate consideration could be given to the sentences which should be now imposed in the light of the altered circumstances occasioned by the upholding, as I have proposed, of Ground 3. 55I propose the following orders: (a) The appeals against conviction in respect of counts 6 and 7 be dismissed. (b) The appeal against conviction in respect of count 8 be allowed and the conviction quashed. (c) In substitution therefor a verdict of guilty in respect of the offence of indecent assault pursuant to s 61M(2) of the Crimes Act be entered. (d) Grant leave to appeal and allow the appeals against the sentences imposed in respect of counts 6 and 7. (e) Quash the sentences imposed in respect of counts 6 and 7. (f) Remit all three matters to the trial judge for sentence.

Amendments 06 April 2011 - Text replaced in sentence commencing: "By way of contrast ..." Amended paragraphs: 52 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: 06 April 2011