Principles
30 The principles upon which the Court, on appeal, will interfere with the verdict of a jury have been the subject of much authority. They were expressed authoritatively by the High Court in M v The Queen (1994) 181 CLR 487. The joint judgment in MFA v R (2002) 213 CLR 606 (Gleeson CJ, Hayne and Callinan JJ) cited the joint judgment of the majority in M v The Queen (Mason CJ, Deane, Dawson and Toohey JJ) 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 or unsatisfactory, the question which the Court must ask itself is whether it thinks 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 has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations." ( M v The Queen at 493)
31 The joint judgment in MFA of McHugh, Gummow and Kirby JJ also adopted the test in M and described it in the following terms:
"[55] Nevertheless, in M the majority of this Court favoured what might be termed a 'broader' test for unreasonableness or unsupportability of a verdict. Instead of asking whether a jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt applying the criminal standard of proof beyond reasonable doubt acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence'."
32 Section 6(1) of the Criminal Appeal Act qualifies the symbolic acceptance of the verdict of a jury as the final determination of guilt or innocence (MFA at 621 [48]). This is because, in the context of a criminal trial, the requirement of finality of factual assessment by a jury must be qualified by the importance of the liberty of the individual and the fundamental requirement of the criminal justice system to prove guilt beyond a reasonable doubt. Finality of the verdict of a jury must be balanced against the importance of the liberty of the individual and it is to that balancing exercise that the provisions of s.6(1) of the Criminal Appeal Act are directed. "But it involves a function to be performed within the legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials." (MFA v The Queen at 624 [59])
33 In a fundamentally different context Gleeson CJ said of the importance of a jury trial:
"Depending upon the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind." ( Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 566)
34 The context of that statement was in relation to a civil trial by jury, but the same sentiment and the same principles have been expressed in relation to verdicts of a jury in a criminal trial. The High Court has reminded us that "a verdict of a jury, particularly in serious criminal cases, is accepted symbolically, as attracting to decisions concerning the liberty and reputations of accused persons especial authority and legitimacy and hence finality." (MFA at 621 [48]) I mention this once more because, ultimately, the matters raised by the appellant turn on asking this Court, as a court of appeal, to overturn a verdict of a jury because the appellant considers there was a basis upon which the jury could have determined otherwise. The principles that bring about finality for a jury trial ought not to be set aside for the purpose of quashing this conviction simply on that basis.
35 In this case the complainant gave direct evidence of the incidents which gave rise to the charges. While there are some minor inconsistencies and lapses of memory, not unsurprisingly after thirty years, the evidence that she gave was given impressively and, even reading the transcript, it is evident that the witness was an impressive witness. While the denials of the appellant contained in records of interview were before the jury, the appellant chose, on advice, not to give evidence. In the circumstances, the jury was entitled to believe the complainant on those matters that went to the elements of the charge.
36 The appellant complains that, in hindsight, he ought to have chosen to give evidence. That may be so. Nevertheless, the appellant was advised and, in the manner that the appellant has disclosed, was advised in terms that essentially left it to the appellant to make that decision based upon whether the appellant felt he would be able to withstand cross-examination. The appellant chose, on advice, not to give evidence. The Court of Criminal Appeal cannot, in those circumstances, quash a verdict on the basis that the appellant now regrets not giving evidence. The advice that was given to him, in as far as it was disclosed to the Court, was perfectly proper, sound advice and would not form the basis of an appeal based upon the appellant having been misled or advised incompetently.
37 The absence of physical evidence or corroborative witnesses, a matter raised by the appellant, is not an uncommon feature of sexual offences. In this case, the submissions of the appellant merge, somewhat, with the issues associated with the delay in bringing the charges. Again a delay in complaint and the bringing of charges in sexual offences is not uncommon. In circumstances where children are the alleged victims of sexually inappropriate conduct, the combination of the disempowerment of the child and the authority figure of the perpetrator, together with the social pressures associated with causing conflict with the family or generally airing that which is in the past often leads to the suppression of these complaints until an older age. There can be little doubt that the delay causes significant problems in defending such claims. Some of those problems were evident in the trial of these charges. The death of the appellant's mother is one such example. The inability of the appellant to recall details, quite understandably, of events thirty years earlier, is another. Each of these, however, were the subject of appropriate addresses by the judge and matters for the jury.
38 Lastly, it is alleged that the fact that the appellant was found not guilty of the fourth count is inconsistent with his guilt in the other three. There is no formal inconsistency in the different results, nor as a matter of logic or common sense, is it a necessary, or even a likely, contradiction.
39 The summing up of the judge makes clear that an element of the fourth count was the year in which it occurred, and there was contradictory evidence as to what year the incident occurred. The most likely reason that the defendant was found not guilty of the fourth count was that the jury took the view that the charge, as alleged, was not made out because he did not commit that offence in the year in which the charge alleges or that it could not be proven beyond a reasonable doubt. The inability of the jury to find, beyond a reasonable doubt, that the offence was committed in the year in question, even though the complainant gave evidence of the year, does not lead to a conclusion that the complainant can not be believed on the other charges or such evidence as goes to the elements of the other charges. Indeed, in relation to the fourth count, there was corroborative evidence of the complainant's account given by the appellant's ex-wife, but it was for a year different from that which was charged.
40 Each of the other matters, which were the subject of appeal, were matters raised by defence counsel at trial and put to the jury. Further, they were matters to which his Honour directed attention in his summing up. Each of them were matters for the jury and were not such that would give rise to a finding that the verdict was one which was not open to the jury.