LYSLE v R

Judgment 1BASTEN JA: I agree with RS Hulme J. 2RS HULME J: In early 2010 the abovenamed Appellant stood trial on three charges. The first two were in identical terms, viz.:- That between 1 February 1981 and 31 March 1981 he did assault a female then under the age of 16 years and at the time of the assault did commit an act of indecency upon her. 3The third count differed only in that the end date of the period nominated was 31 August 1981. During the period covered by the charges, the complainant was eight. 4The Appellant was convicted on the first two counts but acquitted on the third. There are two grounds of appeal, viz:-

1. The convictions were unreasonable and cannot be supported by the evidence, as in the particular and relevant circumstances those verdicts are inconsistent with the verdict returned in relation to the remaining count on the indictment. There is no reasonable basis for the inconsistency.
2. A miscarriage of justice occurred as a result of impermissible questions asked by the Crown Prosecutor. 5Not in contest was that in early 1981 the complainant, her sister, brother and mother commenced to live in a caravan at the side of the house occupied by the Appellant and his wife. The complainant's mother was the Appellant's wife's sister. Sometime later the two sisters commenced going to play Bingo on Monday nights on a regular basis. According to the complainant and her mother, but not the Appellant and his wife, the complainant and her siblings were left in the caravan, in bed, before the two women went out. 6The complainant's evidence concerning the first count was to the effect that on one of these nights the Appellant entered the caravan, picked her up out of it and took her into his lounge room. There, he took hold of her hand and used it to stroke his thigh and eventually touch his testicles. She said the touching lasted for 10 to 15 minutes after which the Appellant sent her back to the caravan, saying, "Come up next Monday night". 7Her evidence concerning the second count was that she woke at about 9.00 o'clock, remembered that she had to go up to the house, got out of bed and did so. In the house, she sat on the lounge. The Appellant touched her inner thigh and then moved his hand up to touch her vagina on the outside of her underwear. After about five minutes, the Appellant's wife and complainant's mother returned from Bingo early. The Appellant said to the complainant, "If they ask, you come up to use the toilet". The two women walked in, the complainant's mother asked "What are you doing up here?" and the complainant said "I come up to use the toilet". Then, the mother took the complainant back to the caravan. 8Her evidence in chief concerning the third occasion was that she again went up to the Appellant's lounge room on a night when her mother and aunt were at Bingo. She sat on the lounge and the Appellant sat before her, putting his hand on her left leg and then commencing to move it in the direction of her vagina. The complainant said she told him to stop, saying, "I get sore on Monday nights" after which the Appellant took his hand away, got up from the lounge and the complainant returned to the caravan. 9In her original statement to police, the complainant had said that the Appellant had put his hand on her right thigh and after the Appellant had stopped she must have "fallen asleep on the lounge but I woke up and mum got home and we moved back out to the caravan". In cross-examination, the complainant gave evidence that the second incident was the only occasion when she was in the house when her mother and aunt came home from Bingo and denied that she had been in the house on more than one such occasion. 10The only witness as to the happening of the assault and the acts of indecency was the complainant. There was limited support for some other aspects of her evidence. The complainant's mother confirmed that the children were always in bed before she left for Bingo, that there was one occasion when she and her sister returned early from Bingo and saw the complainant in the lounge room with the Appellant. She asked the complainant why she was there. The complainant did not reply, but "looked sort of scared" and the Appellant said that the complainant "had a bloody nose". 11The complainant's mother said she looked around, observed that there was no blood on clothes or any tissues or face washers or towels in the lounge room and it looked to her as if the complainant hadn't had a nose bleed. She did not pursue the matter with the complainant. 12The complainant's sister, K, gave evidence that, from time to time, her mother went out. She and her siblings had to go to bed before her mother left and that did not occur before the children were asleep. There were two occasions she could recall when the Appellant came into the caravan, lifted the complainant out of bed, took her outside the caravan and shut the door. At the time, K was 13. 13The Appellant was interviewed by police on 20 June 2008. He denied the allegations. The interview was recorded and a DVD taken at the time played to the jury. In addition, the Appellant gave evidence and again denied assaulting the complainant. His wife also gave evidence. 14There were a number of inconsistencies between the three sources of evidence referred to in the immediately preceding paragraph and between the evidence of the Appellant and his wife on the one hand and the evidence of the complainant's mother on the other. One has been referred to above. The only other one to which I need refer is that, according to the Appellant's evidence, there were a number of occasions when the children were watching TV when his wife and the complainant's mother returned home while the Appellant's wife said that there was only one and that on that occasion, the complainant and her brother and one of the children she had with the Appellant were on the lounge. 15It should also be mentioned that the jury retired to consider its verdict at 2.27 pm on 2 March 2010. Very shortly thereafter, the jury asked for a copy of the complainant's "transcript and original police statement". They were informed that the transcript of the evidence but not the police statement would be provided. The jury very shortly thereafter retired. They left court that day at 3.30 pm. 16The trial judge had another commitment and the jury resumed its deliberations at 12.10 pm on 3 March. Fifteen minutes later, they asked "is it possible to view DVD or audio of (complainant's) testimony and (Appellant's) testimony given in court?" 17At 2.31 pm, they were recalled, told they could have the evidence replayed in court immediately or have "tapes cut" so they could play them in the jury room but the preparation of the tapes would take a little time. The jury retired again at 2.36 pm and soon afterwards informed one of the court officers that they wished to hear the evidence in the jury room. 18At 3.48 pm, the jury were informed that the "CDs" (rather than tapes) were available and a transcript of the Appellant's evidence would be available in a few moments. The jury retired again at 3.49 pm. 19At 4.30 pm on 3 March, the jury sent a note to the presiding judge which was in terms:- We, the jury, are unable to reach a unanimous decision on indictments 1 and 2 and require further direction. But we have reached a unanimous decision on indictment 3. 20It may be inferred that the reference "indictment" was intended to refer to "count". 21There followed discussion between the judge and counsel as to what should occur in consequence and while this discussion was occurring another note from the jury was received indicating that they had reached a unanimous verdict on all counts. At 4.36 pm, the verdicts were taken and were as indicated above.