In a number of cases the presence or absence of corroboration has been accepted as a relevant point of differentiation. The jury convicted in cases where there was corroboration, but not otherwise (see, eg, King v The Queen (an appeal to the High Court was successful on other grounds - Bull v The Queen (2000) 201 CLR 443); R v Petterwood; R v Hilsley (at [60] and [78]); R v KCW [1999] NSWCCA 112 at [95]-[106]; R v ARD (at [23], [121]-[124] and [201]); R v PLV (at [21]-[34]).
11 It is important to remember that the task which the court is required to undertake is to determine whether the verdict of conviction is unreasonable "was it open to the jury to be satisfied beyond reasonable doubt?" Although apparently inconsistent verdicts may require careful analysis the endeavour which the appeal court is embarked upon is to determine whether the jury's reasoning process has failed and is not logical. As Wood CJ at CL said in Markuleski where proof of criminality is required beyond reasonable doubt "the occurrence of different verdicts is entirely to be expected … ." His Honour points out that acquittal does not amount to a finding that the alleged event did not happen. The jury may well have been satisfied on the probabilities but stepped back from convicting when instructed that on each charge they must be satisfied beyond reasonable doubt [222].
12 In the present case the trial judge cautioned the jury about the care with which they were required to assess the complainant's evidence. His Honour told the jury that he had "warnings to tell you about your approach to that." His Honour said "in the circumstances of this case I think it is prudent to warn you, you must scrutinise the evidence of the complainant very carefully before you rely on it to a degree where you are satisfied beyond reasonable doubt."
13 His Honour later said:
"I give you the warning because in the past there have been cases, not necessarily sexual assault cases but certainly including sexual assault cases, where the evidence of the criminal acts came from one source only, and the past experience of this Court is that on some occasions that evidence has subsequently been demonstrated as having been unreliable. Evidence can be unreliable because it is a deliberate lie. It can also be unreliable because it is not accurate.
Now you must be satisfied beyond reasonable doubt the complainant is honest and is also accurate. That is why the complainant's age at the time of the offence and her age now are important factors in assessing her reliability. That is also why the passage of years since the alleged events occurred is a factor that you should take into account in assessing her accuracy. You should also, as I say, remember that the passage of years inhibits the defence in accurately identifying the specific time when the offences are alleged to have occurred and answering with precision the charges levelled. You will also need to remember that a dishonest or an inaccurate witness, and particularly an inaccurate witness, can be a convincing witness. Frequently there can be independent supporting evidence, that is evidence given independent of the complainant such as, for instance, a confession or stained clothing or a blood soaked towel or medical evidence which supports the complainant's testimony.
In this case there is no independent evidence supporting the complainant's evidence of the actual acts which constitute the criminal acts upon which the Crown relies. You may think that the telephone call of 7 September 2003 was an attempt to obtain independent evidence but nothing in that telephone call supports the Crown case.
Now there is some independent evidence supporting the complainant's testimony in other areas generally such as the evidence of [LF] who said she saw the accused and her sister at the bedroom door facing towards the bedroom door overnight. You need to understand that that evidence is not evidence that supports the complainant's evidence of the specific criminal acts that she alleges against the accused, and it will be a matter for you, but I do direct you, that if you accept it, it is evidence which is capable of being supporting evidence in this sense, that you might be able, and that again would be a matter for you, to infer the formulation by the accused of an intention to commit a criminal act of a sexual nature. But it does not go to the very criminal acts that the Crown relies upon.
The absence of independent supporting evidence is not the complainant's fault. The complainant would say, 'Well it is the circumstances of the offence, he took me to a room and I was alone with him and the passage of time means that I have lost the benefit of the wet towel and so on.' Members of the jury the defence say, 'The passage of time has also affected us in that we cannot say what we were doing at the relevant time.' So the absence of independent supporting evidence is not the complainant's fault, but the absence of independent supporting evidence makes your task in assessing her evidence, one that requires very careful scrutiny of her evidence before you can be satisfied beyond reasonable doubt of her account and of the essential elements of each offence.
A careful scrutiny of her evidence does not mean that if you reject her account on one charge you must reject her account on another. To convict the accused on any charge you will need to be satisfied beyond reasonable doubt that the complainant has not only been honest but also accurate in the details she gave to you concerning the essential elements.
I have just given you a warning that you should approach the complainant's evidence with great caution and that the basis of that warning was that the experience of the Court is that it would be dangerous to convict the accused in respect of any charge on the unsupported evidence of the complainant.
I want to remind you now that with the complainant, as with all witnesses, you are the sole judges of the facts and of the witnesses. As such it will ultimately be a matter for you to determine bearing in mind the warning that I have just given you, whether you accept or reject, in whole or in part, the particular witness' evidence. Notwithstanding that I have given you a warning, and even though you may come to a view that there is no independent material, in fact I direct you that there is no independent material which confirms or supports the evidence of the complainant, it is still open to you, bearing in mind the warning that I have given you, to accept the evidence of the complainant as proving the Crown case against him.
So if I can just encapsulate all that in quick summary. The complainant is the only witness who gives direct evidence of the criminal acts. There is no supporting evidence for her of the essential elements of the charges. The experience of the Court is it is dangerous to convict in such a situation. For all of the reasons that I gave you there are a number of warning signs. I have warned you that it is dangerous to convict bearing in mind all that material that I have just referred to. But at the end of the day if you bear in mind that warning, you are still entitled to accept and believe her evidence beyond reasonable doubt if you want to, rather, if you are satisfied that it is the proper approach. Now that completes all of the evidence (as said) that I want to say about assessing witnesses."
14 There are some fundamental elements in those directions repeatedly emphasised by his Honour. They may be summarised in the following terms:
· it would be dangerous to convict the appellant relying only on the unsupported evidence of the complainant;
· the jury should approach the complainant's evidence with great caution and very careful scrutiny;
· the jury must be satisfied beyond reasonable doubt of the complainant's account of the essential elements of each offence;
· notwithstanding the judge's warnings the jury is still entitled to accept her evidence beyond reasonable doubt.
15 Hall J has exhaustively considered the evidence in the present case. I need not repeat it. Consideration of the evidence, the course of the trial and the judge's directions and the verdicts of the jury leads me to the conclusion that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the counts upon which he was convicted.
16 The complainant gave a lucid and consistent account of the events which allegedly comprised counts 1 and 2. Although the alleged assault and sexual intercourse were not the subject of corroborating evidence there was reliable evidence which provided considerable support for the complainant's account of the relevant surrounding events. That evidence confirmed that the complainant had babysat at the appellant's house. It also confirmed that at the time of the alleged offences the appellant's wife was away and the person George Lager, who was identified by the complainant, had resided in the appellant's house at the relevant time.
17 If the proceedings against the appellant had been confined to counts 1 and 2 there could be no question that the jury's verdict would withstand a challenge which relied on s 6(1). The complainant gave cogent evidence providing consistent accounts of the events in detail. She gave evidence of various surrounding events, which were confirmed by evidence from others which was not shown to be unreliable. Furthermore, the jury were given a number of warnings including a warning about the dangers of convicting on the "unsupported" evidence of the complainant. Mindful of these warnings they took the trouble to obtain and consider the transcript of the complainant's evidence.
18 The alleged events which comprise counts 3 and 4 occurred on a different occasion to counts 1 and 2. The charges were supported by evidence which could not raise factual inconsistencies with the evidence supporting the other charges.
19 It was submitted that the jury rejected the complainant's evidence on counts 3 and 4 finding her allegations to be fanciful. It was said that the fantasy emerged from the fact that she visited the appellant's home about a week after the initial assaults and does not appear to have resisted his advances in respect of the fourth assault.
20 With respect to those who have a different view I do not find anything particularly surprising about this evidence. The complainant said that at the time she was having difficulty communicating with her parents. This accounted for her lack of contemporaneous complaint and must have been accepted by the jury for convictions to be returned on counts 1 and 2. The appellant was a friend of her parents. In those circumstances although other children may have reacted differently, I have no difficulty in accepting that the complainant may have sought to conduct herself as if no problems had arisen. I do not believe the explanation for the verdicts of acquittal lies in the jury finding the circumstances of the alleged offences to be fanciful or inherently improbable.
21 Furthermore, I am not concerned that the complainant delayed many years after the event before finally complaining. Having been unable to communicate about the events at the time her explanation that she, as she got older, "I like to think myself as a survivor not the victim. So I just wanted to pretend it didn't happen" is entirely believable. The delay in complaint was explained in a manner which the jury, acting rationally, could accept.
22 To my mind the explanation for the jury's verdicts in relation to counts 3 and 4 is likely to be that they were unable to identify any evidence which supported the complainant on these counts. Having been told of the need to consider the evidence on each charge separately the jury were reminded of the need to be satisfied "beyond reasonable doubt that the complainant has not only been honest but also accurate in the details she gave." They were then immediately told that "it would be dangerous to convict the accused in respect of any charge on the unsupported evidence of the complainant."
23 In relation to the third count apart from the evidence of the complainant there was no other evidence which supported the complainant on any detail in her evidence relevant to the offence. Given his Honour's directions as to the caution with which the jury must approach its task I see no reason to conclude that the acquittal on count 3 raised concerns with respect to the credibility of the complainant.
24 The evidence in relation to the fourth count comes from the complainant and her sister. The complainant said that she was at home with her sister when the appellant and George came around. They talked in the lounge room for a while when in the complainant's words "somehow, I can't remember here (sic) he got me to go out with him."
25 She said that the appellant had a cigarette and "I was just out the back with him, then he pulled me towards him by the waist and started kissing me."
26 She gave the following evidence:
"Q. And what happened then?
A. He finished his cigarette and he just grabbed me by the hand and I thought he was taking me back, just back into the lounge room but instead of going off into the lounge room, he took me up the hallway.
Q. What happened. When you say up the hallway. Whereabouts did you go?
A. To my bedroom.
Q. What happened in your bedroom?
A. He then got a towel and placed it under me, removed my pants and just took his pants down to his ankles and had sex with me again.
Q. When you say he placed the towel under you --
A. Yes.
Q. When you say "he had sex with me" can you tell us how he had sex with you?
A. He placed his penis in my vagina.
Q. Do you remember what you were wearing on that day?
A. No, no.
Q. Did you see, when you came back into the house, did you see Lyndell. This is when you came from the yard into the hallway?
A. No.
Q. What about George?
A. No.
Q. How long did you remain in the bedroom, do you remember?
A. About twenty minutes.
Q. What happened then?
A. Then we walked out of the bedroom, he went into the bathroom, and I sat on the lounge.
Q. When he went into the bathroom did you go in there with him?
A. No.
Q. Do you know what he did in the bathroom?
A. I heard the tap running. I think he was washing the towel out.
Q. You then went into the lounge, did you?
A. Yes."
27 The complainant's sister also gave evidence. In relation to the fourth count. She confirmed that the appellant would often come to the family home to visit. She recalled an occasion when he visited with his friend George whilst her parents were out. She said that she recalled the complainant going outside and the complainant later joining him after being called to by the appellant. She then said that later:
"A. There's a long hallway that separates the lounge room from the bedrooms. I heard the back door close and they walked up the hallway. The next time I seen [the complainant] they - [the complainant] and Steve they were standing at our bedroom door.
Q. You and [the complainant] shared a bedroom is that right?
A. Yes.
Q. They were at your bedroom door. Do you recall whether the light in the hall was on?
A. No, it wasn't. The light in the lounge room was on which reflected into the hallway."
28 When the complainant's sister was cross-examined she disclosed that she had first been asked to recall the events of the relevant night when spoken to by the complainant in September 2003. She revealed significant uncertainties with respect to the year in which the event occurred and whether her youngest sister had been born at the time. She could not recall whether George had been to the home before the incident and revealed that she had had discussions with the complainant to try and "work out (the) time frame." She had also spoken with her parents about the relevant events. Perhaps surprisingly, her last memory of the appellant that night was seeing him "at the bedroom door" where she "could see his back." She does not remember either the appellant or George leaving the house.
29 Given the uncertainty of the sister's recollection and the fact that her recall of the events came after discussions with the complainant and their parents I have no difficulty in accepting that the jury concluded that they could not utilise her evidence as supporting the complainant. The uncertainties as to the year in which the events were alleged to have happened, whether her sister had been born and her lack of recall in relation to more peripheral matters would have left the jury without evidence supporting the fourth count.
30 I do not believe that the jury's request for the transcript of the complainant's evidence in relation to counts 1 and 2 has particular significance. It may be that before making that request the jury had decided to acquit on counts 3 and 4. Of course, if they had done so, they would have acted contrary to his Honour's direction to first consider counts 1 and 2. But, if this was the course which they took, it is rationally explained by the jury having concluded that there was nothing to support the complainant on counts 3 and 4 and accordingly, it was only necessary to carefully scrutinise her evidence in relation to counts 1 and 2. Whatever be the explanation the fact that they asked for the transcript both confirms the care with which the jury approached their task and confirms that the jury, having heard the evidence and, after reviewing the transcript, were satisfied that the complainant's evidence could be accepted on counts 1 and 2 beyond reasonable doubt.
31 It is important to remember the powerful impact of a warning given by a trial judge. When that warning is couched in terms that "it would be dangerous to convict" I have no doubt that a jury would approach its task with great care. Faced with such a warning many jurors would conclude that whatever be their view of the complainant's evidence a conviction was not possible without at least some evidence which confirmed some aspects of the complainant's account of the events.
32 I have already indicated that in my view the allegation in counts 3 and 4 could not be described as fanciful. Furthermore, I do not believe the verdicts returned by the jury justify a conclusion that the jury rejected the complainant as a credible witness.
33 In the present case I do not believe the verdicts of acquittal can be explained as merciful or returned after concluding that convictions on counts 1 and 2 would be sufficient. However, it is not possible for this Court to capture the atmosphere of the trial and the "subtle conclusions" available to a jury are not available to an appeal court. It may even rationally be the case that the evidence of the complainant on one count was adjudged as certain and reliable but on other counts the jury was left with a doubt. It may also be, as Wood CJ at CL points out in Markuleski, that the jury accepts a complainant on one or more counts, but maintains reservations as to whether the complainant has resorted to exaggeration to reinforce the claim of wrongdoing on the other counts.
34 The appellant raised 3 further grounds of appeal. Ground 3 requires consideration of the fact that the jury raised a question with the trial judge in relation to the onus of proof. The question was in the following terms:
"We require clarification of the legal definition of what constitute reasonable doubt, ie does this mean we need to be a 100% sure either way."
35 The appellant submitted, in my opinion correctly, that to that point it would seem that the jury were unsure of how to apply the directions which they had been given as to the onus of proof.
36 After discussing the matter with counsel his Honour provided a further direction in which he said to the jury:
"… I should also remind you what needs to be proved beyond reasonable doubt are the fundamental propositions contained in the indictment in respect of any charge … In order for the Crown to prove the guilt of the accused, it must prove in the first charge the three fundamental propositions. In the second charge the two fundamental propositions. In the third charge the three fundamental propositions and in the fourth charge the two fundamental propositions. All of those must be proved beyond a reasonable doubt for the Crown to succeed in each of the respective charges."
37 I am satisfied that any confusion which the jury maintained in relation to the onus and standard of proof was dispelled by these directions. Accordingly, I reject ground 3.
38 Ground 4 raised for consideration the trial judge's direction that the jury were to consider the counts in a sequential manner. Howie J has considered these matters and I agree with his Honour that the directions given by the trial judge were not appropriate. However, having regard to the fact that the jury sought the transcript of the complainant's evidence only in relation to counts 1 and 2 I am satisfied that the jury gave independent consideration to each count and did not follow the sequence suggested by his Honour. I would dismiss this ground of appeal.
39 In ground 5 the appellant complained that his Honour did not tell the jury that if they had a doubt about counts 3 or 4 it could be taken into account when determining counts 1 and 2. During the course of the summing-up the trial judge told the jury that they were required to consider each count separately. He said:
"In the course of that separate consideration, however, should it come to pass that you entertain a reasonable doubt, in respect of the complainant's reliability, in relation to one or more than count, then you are entitled to examine whether the complainant's reliability, believability, is she believable? If you have problems about the complainant's believability in respect of the first count or in respect of the second count, you are entitled to say, does my attitude in respect of her believability mean that it will impact also on the 3rd and 4th count?"
40 This direction was confused. That confusion arose from the trial judge's instruction that the jury should consider each count separately. However, the judge did effectively indicate that, although they should consider each count separately, if the jury had a reasonable doubt in respect of the complainant's reliability on one count, they could consider whether she was believable in respect of her evidence in relation to the other counts. The reference by the trial judge to the various counts in the passage I have quoted should be understood as an illustration of how the jury might go about its task rather than the prescription of a mandatory process. Although the conventional direction about credit in relation to multiple charges is required I doubt whether a rational jury would confine a judgment about the reliability of a complainant by separately considering the evidence on each count. Even without instruction from a trial judge any sensible person would ask the question "can I believe the complainant", and they would answer the question having regard to the whole of her evidence.
41 Although the direction which was given would have been improved by greater clarity I do not believe it can explain the jury's decision to convict on counts 1 and 2 or has led to a miscarriage of justice. There was no complaint made about this direction at the trial which was a clear indication that counsel did not perceive any significant problem to arise.
42 I would dismiss the appeal.
43 HOWIE J: I have received the very significant benefit of reading the judgment of Hall J in draft. I agree with the orders his Honour proposes for the reasons given by him. I wish to make a brief comment about the ground alleging that the first two counts were unreasonable. I also wish to briefly say something about the ground of appeal complaining of the trial judge's directions as to the approach the jury were to take in their deliberations. I rely upon the account Hall J has given of the evidence.
44 I have also had the benefit of reading in draft the judgment of McClellan CJ at CL who has come to the view that the verdicts on counts 1 and 2 are not unreasonable. The Chief Judge concludes that any doubt the jury might have had about the complainant's evidence in support of counts 3 and 4 could have been overcome by evidence in respect of counts 1 and 2 that generally supported the reliability of the complainant's account. This was so notwithstanding that the jury had been warned that it was dangerous to convict on the uncorroborated evidence of the complainant and there was no corroboration of her allegations of the sexual assaults giving rise to the first two counts.
45 It is clear that the test to be applied by this Court in determining a ground of appeal that challenges the reasonableness of a verdict remains the same regardless of the evidence and circumstances upon which such a ground of appeal relies. It is the test stated in M v The Queen (1994) 181 CLR 487: see MFA v The Queen (2002) 213 CLR 606 at 614 to 615. The issue is whether this Court finds that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. However, if, after having considered all of the evidence, having paid due regard to the advantage of the jury and having taken into account the atmosphere of the trial, this Court has a doubt about the guilt of the accused, that is a doubt that a reasonable jury ought to have entertained: M v The Queen at 494.
46 Here the issue of the reasonableness of the guilty verdicts on counts 1 and 2 is raised by the jury's acquittal on counts 3 and 4. There is nothing else in the evidence in respect of the first two counts that would suggest that otherwise the verdicts were unreasonable. In such a case the focus of attention is often whether there is any apparent explanation for the different verdicts. That is understandable because, if there is such an explanation, then the Court is generally relieved from having to assess the evidence itself to determine whether the guilty verdicts are unreasonable. Sometimes the apparent explanation for the different verdicts will be in the variable quality of the evidence called by the Crown in support of the different charges, for example there may be corroboration in respect of some charges but not others.
47 Sometimes, in perhaps relatively rare cases, the apparent explanation will be found in the breadth of the jury's power to bring in whatever verdict it pleases provided that it is consistent with the evidence and the law as explained by the trial judge. The jury's powers are so wide that they can determine to bring in a verdict for a less serious charge than a strict adherence to the evidence might warrant, notwithstanding that they are motivated by a degree of compassion for an accused or by a sense that fairness warrants a conviction for a lesser serious offence: see Boulattouf v R [2007] NSWCCA 102. They can even acquit on one or more counts notwithstanding that strictly there may be evidence that warrants a conviction on all counts; see MacKenzie v The Queen (1997) 190 CLR 348 at 368 and quoted by Hall J at [203].
48 The difficult case is one such as the present where there is no obvious explanation for the different verdicts but it could not be said that they are illogical or irrational. If they were, the Court would quash the guilty verdicts without a consideration of the evidence supporting them on the basis that they are unreasonable because they appear to be the result of a compromise. In the present case the ground of appeal is to be determined, not by trying to explain the verdicts and how the jury must have approached their task, but by considering the evidence in support of Counts 1 and 2 bearing in mind that the jury acquitted on Counts 3 and 4 and the implications arising from the fact that the Crown failed to prove its case on those two allegations: see MFA v The Queen at [34]. The observations found in that passage and set out in the judgment of Hall J at [193] inform this Court as to the possible implications that arise from the jury's decision to acquit on some of the counts and cautions against acting on assumptions that may not be valid. However, there is no bright line test for determining whether a verdict is unreasonable. There will always exist a tension between this Court's statutory duty to ensure that a miscarriage of justice has not occurred and the right of a jury to determine verdicts as they will.
49 As Hall J has pointed out, the verdicts of not guilty on counts 3 and 4 could only mean that the jury must have had a doubt about the credibility of the complainant on those counts. It was not a case of the jury having a doubt about the particulars of the events giving rise to the charges such that, although they believed that the appellant had been sexually assaulting the complainant, they had a doubt as to whether he had done so on these occasions because of some question as to whether the complainant was confused about the events. The occasions giving rise to counts 3 and 4 were unambiguous and fell within the dates specified in the indictment.
50 Nor was it a case where there was corroboration of counts 1 and 2 but not of counts 3 and 4 so that the different verdicts could be justified on that basis. On the contrary there was support for the complainant's allegations in counts 3 and 4 even though the jury were entitled to, and probably did, doubt the reliability of her sister's evidence. Although there was evidence of opportunity for the appellant to commit the offences in counts 1 and 2 that evidence could not itself, in my view, account for the difference in the verdicts. It may be that the jury were distracted by the conflict in the evidence as to whether the complainant could have been in the house with the appellant on the particular occasion when she alleged the offences in the first two counts occurred. Although there was evidence that generally supported the complainant's account of the opportunity for the appellant to commit the offence, it was no more than that.
51 It might well be the case that they acquitted on counts 3 and 4 on the basis of the warning given by the Judge that it was dangerous to convict on the uncorroborated evidence of the complainant. But it seems to me that the evidence in support of counts 1 and 2 has to be reviewed in light of the fact that, having scrutinized the complainant's evidence in support of counts 3 and 4 with care, as they were directed to do, they were not prepared to accept it to the necessary standard of proof, and this notwithstanding that they had seen the complainant give evidence and were in a better position than this Court to evaluate her.
52 If it is accepted that there was no corroboration of counts 1 and 2, the jury were required to approach the evidence of the complainant on those counts in the same way that they approached the evidence in relation to counts 3 and 4. They were not prepared to accept her evidence as credible in counts 3 and 4 yet apparently they were prepared to do so in counts 1 and 2. In my opinion any doubt that existed in relation to the complainant's evidence on counts 3 and 4 ought also to have existed in relation to counts 1 and 2. In my opinion there is nothing about her evidence in relation to those allegations that could have enabled the jury to overcome the danger that they must have found existed in relation to a conviction on counts 3 and 4. The fact that she may have been found to be reliable in respect of the opportunity of the appellant to commit the offence in my opinion does not raise her evidence above that in relation to counts 3 and 4.
53 Put simply, having regard to the fact that the jury in their advantageous position of having seen the complainant give evidence did not accept her account beyond reasonable doubt in relation to counts 3 and 4 raises a doubt in my mind that she should be accepted in respect of counts 1 and 2 in all the circumstances of this particular case. This is not to suggest that it is simply the fact that the jury acquitted the appellant on counts 3 and 4 that makes the verdicts on counts 1 and 2 unreasonable. My decision is based upon a consideration of all the evidence, including the delay in complaint and other matters touching upon the complainant's credibility but in the light of the jury's failure to accept her evidence to the requisite degree in counts 3 and 4. I accept that minds might reasonably differ in making such an assessment, as is the case whenever this Court is considering a ground of appeal based upon a consideration of the evidence to determine whether a verdict was unreasonable.
54 During the course of argument in this Court an issue arose about the directions given by the trial judge as to the approach the jury should take in determining the four counts on the indictment. As a result the appellant was granted leave to add a further ground of appeal complaining about the directions given by the Judge in this regard notwithstanding that no objection was taken at the trial. The particular passages to which objection is now taken are as follows (my underlining):