R v ACK

IN THE COURT OF CRIMINAL APPEAL 60191/98 SPIGELMAN CJ JAMES J IRELAND J Tuesday 9 May 2000 REGINA v ACK JUDGMENT 1 SPIGELMAN CJ: I invite James J to deliver the first judgment. 2 JAMES J: The appellant ACK has appealed against his conviction after a trial in the District Court before his Honour Judge O'Reilly and a jury on two counts of aggravated indecent assault allegedly committed in January 1993. The victim of both offences was the appellant's daughter, (who I will refer to as "the complainant" or "S"). 3 S was born in February 1978 and was accordingly fourteen years old, nearly fifteen, at the time the alleged offences were committed. That the victim was under the age of sixteen years constituted the circumstances of aggravation relied on by the Crown on the two counts of aggravated indecent assault. The Crown could also have relied on the fact that the alleged victim was under the authority of the appellant as constituting circumstances of aggravation. 4 At the trial the appellant was also charged with having sexual intercourse with S without her consent at some time between 1 December 1992 and 4 January 1993, this being the first count in the indictment. However, the appellant was found not guilty on this charge. 5 Aggravated indecent assault is an offence under s 61M of the Crimes Act, for which the maximum penalty is imprisonment for seven years. Although his Honour's remarks on sentence are not entirely clear, his Honour would appear to have sentenced the appellant on each count to a sentence of imprisonment for three and a half years, consisting of a minimum term of six months commencing on 1 April 1998, the date of sentencing, and expiring on 30 September 1998, and an additional term of three years. In arriving at these sentences his Honour took into account that the appellant had served nineteen months of pre-sentence custody. 6 In the event of his appeal against conviction being unsuccessful, the appellant seeks leave to appeal against the sentences imposed by Judge O'Reilly. 7 The case has had a most unfortunate history. The appellant was committed for trial at the conclusion of committal proceedings in 1993. A first trial in August 1994 was aborted on the second day of the trial. At a trial held in September 1994 before his Honour Judge Nield and a jury the appellant was convicted on all charges, that is, the charge of sexual intercourse without consent and the two charges of aggravated indecent assault. However, an appeal to the Court of Criminal Appeal was allowed on 22 April 1996 and a new trial was ordered. 8 The appellant had been in custody since he was sentenced by Judge Nield in September 1994 but was released on bail at the beginning of May 1996, after his successful appeal to the Court of Criminal Appeal. He had been in custody for a period of approximately nineteen months. 9 A further trial was held in November 1996. However, this trial was aborted at a late stage. 10 The trial before Judge O'Reilly was held in June 1997. After being sentenced by Judge O'Reilly on 1 April 1998, the appellant served the minimum terms of the sentences imposed by Judge O'Reilly. He has been at liberty since 30 September 1998 but, of course, remains subject to the additional terms of the sentences imposed by Judge O'Reilly. 11 The only witnesses who gave oral evidence for the Crown at the trial were the complainant herself, a friend of the complainant Miss H and a police officer who had been in charge of the criminal investigation. 12 In addition to this oral evidence, the transcript of evidence which had been given by a medical practitioner at the aborted trial held in November 1996 was, by consent, read as part of the Crown case. 13 The Crown case depended almost entirely on the evidence of the complainant. Miss H's evidence was virtually confined to giving brief evidence of a complaint made to her by S. The evidence of the police officer was confined to evidence that he had conducted an interview of the appellant on 21 January 1993, in which the appellant had denied the allegations made against him by S. The evidence by the medical practitioner did not advance the Crown case and was, arguably, inconsistent with some of the complainant's evidence. 14 The complainant gave evidence that for a few months up to 6 January 1993 she lived in a house in a Sydney suburb with her father the appellant and her younger half-brother N, who was also a child of the appellant and who was born on 3 January 1981. The complainant also had three other half-brothers, children of the appellant, who were older than she was; namely, Z, who was born in 1967; M, who was born in 1972; and O, who was born in 1974. In late 1992 and early 1993 these three older half-brothers of the complainant were living in Adelaide. 15 The complainant gave the following evidence relating to the three counts in the indictment.

Count 1 16 The complainant gave evidence that one night about a month before 6 January 1993 her father had taken her into his bedroom, undressed her and put his penis in her anus and had then withdrawn his penis and ejaculated over her legs. She tried to push the appellant off, telling him, "No."

Count 2 17 On N's birthday, on 3 January 1993, there was a party for him at the house. After all the guests had left, the appellant told the complainant to stay up with him in the lounge room of the house. The appellant was drinking whisky. About 6 o'clock in the morning the complainant went to bed, after the appellant had told her to go to bed. The appellant followed the complainant into her bedroom, which she shared with N, lay down next to her, took her clothes off and rubbed his penis against her vagina. The complainant was crying and tried to push the appellant away. Afterwards, the complainant got up, had a shower and sat in the lounge room. The appellant went to sleep in the children's room.

Count 3 18 One night between 3 January 1993 and 6 January 1993 the appellant came into the complainant's bedroom. The complainant said in evidence that the appellant came into her bedroom at night. She continued:- "And he took my clothes off and his, he was hitting me and like grabbing onto my head, my hair and banging my head against the head bed and he was telling me to be quiet in case I woke up my brother and "

The appellant rubbed his penis against the complainant's vagina and ejaculated on her legs. 19 At about midnight on 6 January 1993 the complainant's older half-brothers, Z, M and O, and a cousin I, came to the house where the appellant, the complainant and N lived and the complainant and N left the house with them and went with them to Adelaide. There had been previous telephone contact between the group and the complainant. 20 The complainant, without any objection, gave evidence that she had been sexually abused by the appellant all her life, "heaps of times," starting when she was only two years old. The complainant, also without objection, gave evidence that in 1989 she had previously complained about being sexually abused by the appellant. 21 Miss H, who was apparently slightly younger than the complainant, gave evidence that in 1992 she was a neighbour and friend of the complainant. Some day after school broke up in 1992 she and the complainant were at the complainant's house. She noticed the complainant was crying and asked her what was wrong. The complainant said that "her father used to go in her bedroom and start touching her and stuff. He rubs his penis all over her." 22 As I have already stated, the transcript of part of the evidence a medical practitioner had given at the trial in November 1996 was read to the jury by Judge O'Reilly. 23 Because the charges against the appellant were so old, having been laid before 10 June 1994, the appellant had the right, which he exercised, to make an unsworn statement. In his statement, which was fairly brief, the appellant said that he had never done anything wrong sexually with the complainant. The defence case at the trial was limited to this unsworn statement by the appellant. 24 The only ground of appeal against conviction which has been pressed on the hearing of this appeal has been that the verdicts of guilty were unsafe and unsatisfactory. Having regard to the decision of the High Court in Fleming v The Queen and the subsequent decisions of this Court, the expression "unsafe and unsatisfactory" should have been avoided and the ground of appeal should have followed the terms of s 6 of the Criminal Appeal Act. 25 The principles to be applied by a Court of Criminal Appeal in deciding whether this ground of appeal against conviction should be allowed have been stated by the High Court in such cases as M v The Queen (1994) 181 CLR 487, especially at 492-494, and Jones v The Queen (1997) 191 CLR 439, especially at 450-451, and there is no need to repeat them here. 26 The principal matters relied on by counsel for the appellant in support of this ground of appeal were (1) what were submitted to be inconsistencies between the complainant's evidence and the evidence of the medical practitioner, and (2) what were submitted to be inconsistencies between the complainant's evidence at the trial and previous assertions by the complainant. A further matter relied on was the alleged inconsistency between the verdict of not guilty on the first count in the indictment and the verdicts of guilty on the second and third counts in the indictment. I will deal with each of these matters in turn. 27 As for the first matter, the complainant gave evidence that when the offence charged in the third count was committed the appellant had banged her head against the bedhead. In cross-examination she said that there had been a number of quite heavy blows. The complainant also gave evidence that since she had been two years old the appellant had penetrated her anus with his penis many times, although she did say that mostly what the appellant had done was rub his penis against her body. 28 The complainant was examined by the medical practitioner on 6 January 1993. Parts of his report, which were read by the trial judge at the trial, were as follows: "Ano-genital examination did not reveal any evidence of acute injury… The anal area demonstrated a small skin fold measuring approximately 1.5 mm in length in the 12 o'clock position... The physical findings are within normal limits, apart from the presence of a small skin tag in the anal region at 12 o'clock. The significance of this finding is unclear, but in keeping with the history of previous anal intercourse there is no evidence of any physical injuries to other parts of her body. The history suggests prolonged exposure to physical, sexual and emotional abuse. The physical findings neither refute nor support the allegations." 29 In oral evidence given at the trial in November 1996 Dr Tait said that, if there had been a large number of anal penetrations, he would have expected to find some loss of muscle tone in the anal reflex but he qualified this evidence by saying that S had since gone through puberty and a lot of physical changes occur at puberty. Dr Tait also said that at a young age children "would have no idea of what is going on and their interpretation of anal intercourse would probably not be what we would interpret it as." 30 It was submitted by counsel for the appellant at the trial and also before this Court that the medical evidence was inconsistent with the evidence of the complainant. However, it seems to me that the jury, in assessing such a submission, would have been entitled to regard as significant the medical evidence that the physical findings neither refuted nor supported the complainant's allegations. In my opinion, the jury would also have been entitled to regard as significant the oral evidence given by the medical practitioner at the trial in November 1996 to the effect that a young child subjected to sexual assault would be unlikely to have any clear idea of what was happening and that such a child's interpretation of anal intercourse would probably not be in accordance with an adult's interpretation. 31 I pass to the matter of alleged inconsistencies between the complainant's evidence and previous assertions by the complainant. 32 A number of alleged inconsistencies between the complainant's evidence and previous assertions made by the complainant are, in my opinion, of little weight. 33 (i) In December 1989, shortly before she turned twelve, the complainant had made an earlier complaint about her father interfering with her sexually. The complainant said in evidence at the trial that she had made a complaint to a teacher who she trusted. The complainant had been removed from the appellant's home and had gone to live with an aunt. 34 Court proceedings, which would appear to have been in the nature of care proceedings, were instituted. Whilst she was living apart from the appellant, the complainant was visited by her grandmother, the appellant's mother. The complainant said in evidence at the trial: "My grandma came up to me and said to me, 'Your father's changed and he's promised not to touch you' and he (that is the appellant) was crying outside the courtroom and that really hurt me, so I went back home." 35 The complainant said in evidence she had believed what her grandmother had told her and had withdrawn her complaint. She did not accept that she had told the court in 1990 that the allegations she had made against the appellant were not true. The complainant said in her evidence that she had said "I didn't want to go on with it any more". She returned to live with the appellant in February 1990. The complainant gave evidence that one short visit was made to the home by an officer of the Department of Youth and Community Services. After this visit the appellant had resumed sexually abusing her. 36 It seems to me that the jury, who saw and heard the complainant give her evidence, was in a much better position than this court to determine whether the complainant's withdrawal of her previous allegations was inconsistent with her evidence that the offences charged had been committed. 37 (ii) In her evidence the complainant denied that she had spoken to her half-brother Z on the telephone, before she left the appellant's home on 6 January 1993. She was cross-examined by reference to an assertion she had made in a statement made to the police on 8 January 1993, when asked what had "brought this matter into the open", that "I told my older brother Z on the phone, when he phoned from Adelaide." When what the complainant was recorded as saying in her statement of 8 January 1993 was drawn to her attention, she said that, when she had made the statement to the police, she had intended to refer to her cousin I and not her brother Z. Possibly contributing to the confusion was the fact that the complainant's cousin I was apparently sometimes referred to as "Bro." 38 It seems to me to be immaterial whether the telephone call was from the complainant's brother Z or from her cousin I. Both Z and I came to the appellant's house on 6 January 1993 and participated in the complainant's leaving the house that night. 39 (iii) In her evidence the complainant said the appellant had wanted her to drink whisky but she had never taken it. However, the medical practitioner recorded in his statement that he had been told by the complainant on 6 January 1993 that: "Her father had made her get drunk on occasions by forcing her to drink whisky with him." 40 When what she had apparently told the medical practitioner was brought to her attention in cross-examination, the complainant said that her father's forcing her to drink whisky had occurred when she was younger. She sought to explain her denial in her evidence that she had drunk whisky, on the basis that she had thought that she was being asked only about the occasion on which the second alleged offence had been committed. The complainant had given evidence that the appellant had been drinking whisky on the night on which the second alleged offence had been committed. 41 It seems to me that the complainant's explanation is rendered more plausible by the actual sequence of questions she was asked in cross-examination, which commenced with a question "did you drink whisky as well? (on the occasion on which the second alleged offence had been committed), and it would have been open to the jury to accept it. 42 The complainant said in her evidence "he has never gone in," that is, the appellant had never penetrated her vagina. When interviewed by an officer of Youth and Community Services on 15 December 1989, after she had made her earlier complaint, the complainant had answered questions which distinguished between her vagina and her "bottom" and when asked, "Did he touch you on the inside of your vagina or outside of your vagina?" she had replied, "Inside." 43 The complainant said in her evidence that at the time she was interviewed by the officer from Youth and Community Services her English was imperfect, that she had probably thought the interviewer meant her anus, that she was shy when answering the questions put by the interviewer and that she did not ask for any question to be explained, because "I didn't want to seem like an idiot." 44 It seems to me, as before, that it was very much a matter for the jury, who had the advantage of seeing and hearing the complainant, to determine whether the complainant's explanation should be accepted. 45 It was strongly argued on behalf of the appellant that the terms of three letters the complainant had written to the appellant from South Australia in 1993 were so inconsistent with the complainant's allegations against the appellant that the verdicts of guilty could not stand. These three letters were in the following terms (retaining the original spelling and punctuation):- (1) "To Dear dad I love you very much and dont forget if enything happens you know that I will do something please dad I will never mean to hurt you and if I ever do please forgive me because your my dad and that will always be there in my heart if eny body touches you or put you in jail I will kill my self and never let them touch you I will fight untill I die and I will never forget you if you think we hate you your rong because we never take our minds of you and always cry for you because no one can take your place and no one can hurt us or you HABBIBI and you know that if you need us just call us on a number I will give it to you when we put on a phone at a new house. Z- is a donkey M- is a donkey O- is a donkey S- is a donkey V- is a donkey every one in adelaid is a donkey and you know that and I know that please leave photoes with with you and dont give them to any one. I saw my mother Margaret and shese alwrghte. We love you dad and amto Elham. We will be back for eva enshaellah from S-." *** (2) "Dear Dad Hi How are you? Dad I want you to know something I love you and amto Elham a lot and I wouldent want enything happen to you dad I know you herd I was in hospital well Im better now I wish you were here to confert me but your so far and I hate the idea. I wish I could come back one day I dont want you to cry because ever since I've known Z- every day I cry and I hate him big girl now and no one can tell me who to hate and who to love more because youve never taught us because you have the greatest heart in the wourld dad I love you a lot I love you so much and Bat Elbaba please dad dont tell grandmother enything because she is telling amto S- everything and now I cant get any more money from working because Amto told Z- and Z- dosent want me to work eny more and I dont have enymore money and I dont know how to get it enymore enyway I love you". *** (3) "….We write this letter so we could discuss what realy happened. He use to ring up nealy every week to talk to N- and I sa they could get us out of the house and against my father. He wanted us to go against him and my dad use to know who we were talking to and tell us of because my father didend want us to communicate becase Z-'s mother had a divorce and Z- want to take action now because he love's her and he dosent like his father because his mother has told him a lot of ( ) and Z- started to teach us on the phone he said that youse need a break and a holiday so why dont you do as we say we dident know why he took us to hospital and then we got checked and we were fine and then he took us down to the police station and told us what to say and then we done it. We dident know why he took us to the police station to say lies about our dad then he told us that he is very mad and he hates our dad and he dosent want us to stay with him he wanted to use us for my dad so he could go to jail because of his mother he want's to take action he dident do anything to O- and M- when O- and M- got to know my dad their mother kicked them out of their house then my dad took them and put them in our home. My father looked after them and he trusted them in our home and O- and M- and Z- started to contact each other and started to teach us. My father looked after us very good he is the best and use to get us every thing and never done nothing wrong to us if he did we wouldent be writing this letter when we came here to adelaid. When Z- rented the house we went to live with him Z-, O-, M-, N-, S-. We started to see what he is realy like and he started to talk about my father and making us hate him and he want him to get in trouble and when we first started to live with him we started to see something we have never seen befour. We dont want to live with people who take drug's and they started to give us drug's we have never seen befour. Evry night me and my brother have been crying every night since weve been with them and he start's to hit us always hits me on my head and Ive got bruces on my head and my brother has bruces on his arm's. We dont want to live with them we want to live with our father. S". 46 It was submitted, as is clearly the case, that the first two letters were in affectionate terms and that the third letter contained assertions that the complainant's half-brother Z had induced her to make false allegations of sexual misconduct against the appellant. 47 The complainant said in her evidence that the first letter had been written from Z's home in South Australia and that the second letter had been written from a foster home in South Australia. She did not suggest that she had been forced to write either of these letters. However, she said that at the time she wrote the first letter she was unhappy and was not getting on with Z. She said: "I just wanted to get back to New South Wales where everyone was and I just wanted to be home." 48 At the time she wrote the second letter she had just come out of hospital. "I heard that he (that is the appellant) was going into hospital and he was making himself sick, so I wrote this letter." 49 The complainant said in evidence that what she said in the third letter was not true. She had written the letter in Adelaide at the home of her uncle, a brother of the appellant; that her uncle had been angry; that her uncle had told her what to put in the letter; and that after she had finished writing the letter her uncle had taken the letter from her. 50 As before, it seems to me that the jury, having seen and heard the complainant give evidence, had a considerable advantage, compared with this court, in deciding whether the complainant's explanations for writing the letters should be accepted. The jury could have thought that there were some indications in the letters themselves, which supported the complainant's explanations. As regards the first letter, the jury might have asked themselves why, if nothing untoward had happened, the complainant thought that the appellant might be put in "jail". As regards the third letter, the jury might have regarded the complete exculpation and fulsome praise of the appellant as suspicious and as unlikely to have emanated from the complainant. 51 It was submitted that the verdict of not guilty on the first count was inconsistent with the verdicts of guilty on the second and third counts. However, the different verdicts on count 1 and counts 2 and 3 are capable of being explained on the basis of the evidence of complaint. The complainant complained to Miss H that the appellant had rubbed his penis over her, being conduct of the kind alleged in the second and third counts on which the appellant was convicted, but did not complain to Miss H that she had been anally penetrated, which was conduct of the kind alleged in the first count. 52 After conducting an independent examination of the nature and quality of the evidence, after paying regard to what are alleged to have been inconsistencies, inadequacies and other weaknesses in the complainant's evidence and after having regard to the jury's advantage in having seen and heard the complainant give evidence, I have concluded that I do not consider that the jury ought to have entertained a reasonable doubt or that there is a significant possibility that an innocent person has been convicted. 53 The medical evidence did not add to the Crown case. However, it did not really detract from the Crown case, except insofar as it threw doubt on the complainant's assertion that she had been subjected to anal intercourse many times from being a young child. In my opinion, the jury were entitled to consider that the complainant's evidence should be accepted as being generally truthful, even if she might have been exaggerating in this part of her evidence. The jury were also in a far better position than this Court is to determine whether the appellant's explanations of the alleged inconsistencies between her evidence and her previous statements and between her evidence and the contents of the three letters should be accepted.

54 The complainant made an early complaint. She had made a complaint in 1989 that she had been sexually abused by the appellant and there was nothing to suggest the this earlier complaint in 1989 had been improperly induced by her half-brother Z. The jury were entitled to give weight to the parts of the oral evidence of the medical practitioner which I have previously referred to. At the trial the appellant merely made an unsworn statement and did not give or call evidence. 55 I would propose that the appeal against conviction be dismissed. 56 SPIGELMAN CJ: I agree. 57 IRELAND J: I also agree. 58 (Mr Drewett, for the appellant, said he had nothing to submit on the application for leave to appeal against sentence.) 59 JAMES J: If no submission is put, I would not be disposed to give leave to appeal against sentence. It is a case in which the minimum terms of the sentences have already been served, although it is true that the appellant is still subject to the additional terms. It would appear to me that the sentences which were imposed by Judge O'Reilly were not manifestly excessive. 60 It is difficult to draw any comparison between the sentences passed by Judge O'Reilly and the sentences for the same offences passed by Judge Nield. Judge Nield was sentencing after a trial in which the appellant had also been found guilty of the offence of sexual intercourse without consent. I think it is apparent from the sentences imposed by Judge Nield that Judge Nield regarded the offence of sexual intercourse without consent as the most important offence and that his Honour, who was sentencing the appellant before the decision of the High Court in Pearce v The Queen, chose to make the sentence imposed for the most important offence the principal sentence and was concerned more with the overall total effect of the sentences than with the sentences actually passed for the less important offences. 61 The High Court has of course since given its decision in Pearce, to which this court must conform. However, the fact that Judge Nield sentenced the appellant back in 1994 seems to me largely to invalidate the attempted comparison sought to be drawn between the sentences imposed by Judge Nield and the sentences imposed by Judge O'Reilly. 62 SPIGELMAN CJ: I agree with the further reasons with respect to the application for leave to appeal against sentence. 63 IRELAND J: I also agree. 64 SPIGELMAN CJ: The order of the court is the appeal against conviction is dismissed. Leave to appeal against sentence is refused.

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.