30 Counsel for the Crown submitted that the acquittal on this count could be explained, consistently with the convictions, because the mother's evidence placed the occasion in 1977, outside the period charged in the count between 31 July 1974 and 31 July 1976. This is a possible explanation, and the jury received general directions which may have led them to think that they should acquit on this count on that basis (1-2, 13-14). However the Judge did not specifically direct the jury to acquit if they accepted the mother's evidence on the date, and counsel for the appellant did not seek such a direction.
31 In my judgment the most probable explanation for the acquittal on this count is that the jury either accepted the mother's evidence that the appellant was asleep, apparently drunk, with his head on the kitchen table when she arrived, or they had a reasonable doubt about the complainant's evidence that she was being molested at the time.
32 The acquittal on this count is significant because the complainant's evidence on an important matter was contradicted by independent and apparently reliable evidence which cast real doubt on her evidence about the offence. The occasion was a dramatic and significant one for both the complainant and her mother, and one would think there was little scope for confusion with an incident earlier on the same day, or on another occasion. It was also the most recent of the offences charged when the complainant, according to her mother, was 12, and one would think that her memory was more reliable at that age than when she was younger.
33 The appellant was convicted on the first count of an indecent assault which occurred when the complainant was only 4. She had been taken by her parents to her aunt's home at Guildford to be minded during the day. The appellant, the aunt's son, was there and the complainant was left alone with him in the house. There was no corroboration for the complainant's evidence concerning the indecent assault itself, but her mother did corroborate her evidence about the visit to her aunt's home at Guildford because there was only one such visit (T 39 22/11/00).
34 The complainant said that while she was in her aunt's house the appellant, who was then 20 years of age (T 57 22/11/00), put her on a bed and touched her in the vagina area. She blacked out and woke up to find that he was wiping her in that area with a wet cloth (T 5-6 21/11/00). In her evidence-in-chief she said that she thought she still had her panties on (T 7).
35 She said in her evidence-in-chief that she made her first complaint about her sexual abuse in childhood when she spoke to S, a female friend, in the early 1990s. S placed this conversation in October 1989 (T 36 22/11/00). According to the complainant she did not "go into details" (T 29). However, in cross-examination she agreed she told S that the abuse started when she was 4 (T 31), and that she could not remember if the account she gave S "about the incident at Guildford when [she] was 4, was that it involved a grown man having sexual intercourse with [her] including full sexual penetration", but "I probably did. I don't remember today if I said that, or if it really happened" (T 31-2, 36).
36 She said that she could remember S asking her the question "what, you were 4 years old and this man had full sex with you?", but she denied that S was making it clear that she found this hard to believe (T 37), and she denied changing her account of this incident afterwards to make it easier to believe (T 37).
37 S, who was called by the Crown, gave the following evidence about a face to face conversation with the complainant in 1990 in the course of her cross-examination (T 37 22/11/00):
"Q. Did you ask her a question and was the question that you asked [the complainant] a question in these terms 'What, you were 4 years old and this grown man would have sex with you? He had full penetration with you?'.
A. Yes.
Q. And did [the complainant] answer that by saying 'yes'?
A. Yes".
38 The complainant's evidence in cross-examination revealed other, but minor, inconsistencies. Contrary to her evidence-in-chief (T 7 21/11/00) that she had her panties on, she first said that she didn't remember, and then that she had them off (T 33 21/11/00), and that her earlier evidence was incorrect because she had been very nervous and so stressed that she couldn't think straight. She also said that she thought the wet cloth the appellant used to wipe her was a face washer. However, in her statement to a woman police officer on 23 June 1997, she had merely said that the appellant was wiping her with "something" (T 34-6).
39 The Judge did not give any specific directions in relation to this count and did not refer, except in a general way, to the conflict between the complainant's evidence and that given by S (T 25).
40 The jury were entitled, if they saw fit, to disregard the inconsistencies about the panties and the face cloth, but the conflict between the complainant and S was altogether a different matter. S's evidence about the terms of the complaint made to her in 1990 were substantially corroborated by the complainant's admissions about this conversation during her cross-examination. In these circumstances the jury acting reasonably were either bound to accept the evidence of S, or at the very least to have a reasonable doubt about the reliability of the complainant's evidence in relation to this count.
41 If the complainant remembered in 1990 that full sexual penetration had occurred, how could she forget that later and, by 1997 and at the trial, only remember that she had blacked out? How credible was her complaint in 1990 that full sexual penetration had occurred? If it had occurred at that time, how could the complainant's mother have failed to notice signs of this over the next few days while she was bathing and dressing her daughter? If S's reaction made the complainant realise that she must have been mistaken in thinking that full sexual penetration had occurred, and she changed her story, how could the jury be satisfied that the new story told to others for the first time in 1997 was reliable?
42 These difficulties for the Crown case on this count were greatly aggravated by the complainant's age at the time of the alleged offence, and the very long delays, of 21 years before the complaint to S, 28 years before the complaint to the police, and 31 years before the trial.
43 In my judgment the conflict, between the complaint made to S in 1990, and the complainant's evidence at the trial, was such that the jury, acting reasonably, should have had a reasonable doubt about her evidence on this charge. In my judgment the verdict on this count was unsafe and unsatisfactory and must be set aside. However I can see no basis for a conclusion that the conviction on this count was inconsistent with the acquittals on the other counts. There was nothing in those acquittals which as a matter of logic and reasonableness was inconsistent with the conviction on this count.
44 There remain for consideration the convictions on the carnal knowledge counts 5 and 6. The complainant associated the events which were the subject of the fifth count with a hole being burned in her dressing gown. On the night in question her father had not returned from the hotel, and her mother had gone out leaving the complainant in the care of the appellant. In her evidence-in-chief she said that when she went to the toilet that evening she put some of her faeces on toilet paper which she wiped on the appellant. He called her "a little bitch" and went to the laundry to clean himself up.
45 She said that after he returned he began touching her sexually and this culminated in sexual intercourse. It was a winter's night and when the complainant was getting undressed she threw her dressing gown onto a bar heater. When her father returned unexpectedly she grabbed her clothes, including her dressing gown, and ran to her bedroom where she got dressed and went to bed. When she retrieved her dressing gown she noticed that a hole had been burnt in it (T 16-19 21/11/00). She said the hole was burnt in the back of the gown (T 19).
46 In cross-examination she maintained her evidence that the heater was a bar radiator, and denied that it was a kerosene heater (T 11 22/11/00). She said that hole was in the back of the gown and not the front, but then conceded that in the Magistrate's Court she had said that the hole was in the front of the gown (T 11), but in further cross-examination she agreed that earlier she had told the police that the hole was at the back (T 13).
47 The complainant's mother remembered an occasion when her daughter's dressing gown was burnt, but said that the hole was in the front (T 41-2 22/11/00). She said that the lounge room was not heated by a bar radiator, but by a kerosene heater (T 46). She did not ask her daughter to tell her how it was that the hole had been burnt in her dressing gown (T 42).
48 In his record of interview the appellant denied the faeces incident (Q 126-130), but recalled an occasion when he called the complainant "a little bitch" (Q 131). A question about his knowledge of the hole burnt in the dressing gown was asked but not answered at the end of a tape and the question was not asked again (Q 140).
49 The complainant said that she was about 7 at the time. Her evidence about this occasion was clear and consistent subject only to the differing accounts of where the hole had been burnt in the dressing gown and the type of heater which had caused the damage. The jury were entitled to treat the mother's confirmation of the damage to the dressing gown as extremely significant and the differences as to the location of the damage and the type of heater as insignificant. Clearly the gown had been in contact with the heater, whatever it was, while the complainant was not wearing it. Why would she take off her dressing gown on a winter's night in the lounge room, leave it on the heater in the first place, and then leave it there long enough for a substantial hole to be burnt in it?
50 The jury saw and heard the complainant and the appellant give evidence and in view of the significance of the damage to the complainant's dressing gown they were, in my judgment, entitled to convict on this count despite the difficulties with the complainant's evidence on counts 2, 3, 4, and 7 and their acquittals on those counts. As a matter of logic and reasonableness this conviction is not in my judgment inconsistent with those acquittals.
51 The complainant associated the events which were the subject of the sixth count with an occasion when the appellant gave her a blue backless dress which she became very fond of and wore a lot. Later on the evening of that day the complainant's mother went out leaving her with the appellant. According to the complainant's evidence when they were alone the appellant initiated sexual contact and this culminated in sexual intercourse. After this was over he went outside to the toilet. The complainant said she "snuck out" to see what he was doing and saw him masturbating on the toilet. She went back to the lounge and fell asleep. When her mother returned she was woken up and put to bed (T 19-21 21/11/00). This was the last occasion she remembered having intercourse with the appellant (T 13 22/11/00).
52 Her mother remembered the blue dress (T 42 22/11/00) and said that she had not bought it for her daughter, but she was not sure that the appellant had given it to her (T 42). The appellant in his record of interview denied giving her the blue dress (Q 146). The complainant's evidence on this count was clear and consistent and she was not cross-examined about any prior inconsistent statement. The jury were entitled to be impressed with her evidence associating this occasion with the appellant's gift of a blue dress. In my judgment the jury were also entitled to convict on this count, despite their acquittals on others. As a matter of logic and reasonableness this conviction is not inconsistent with the acquittals on other counts.
53 Moveover in my judgment the jury were entitled to take the view that the appellant's statements in his record of interview about the complainant's sexual advances to him by word and deed when she was a young child corroborated her evidence that a sexual relationship existed between them. The relevant answers are to questions 65, 88, 90, 91, 92, 95, 131, 132, 134, 215, 216, 218, 223, 224, 226 and 227. The jury were also entitled to treat as far fetched the appellant's suggestions during his record of interview that the complainant had made these allegations against him because of a dispute between himself and her mother about rent. See the answers to questions 110 and 241. It is also significant that this suggestion was not put to the complainant in cross-examination.
54 For these reasons I would allow the appeal against conviction on count 1 and enter a verdict of acquittal but dismiss the appeal against conviction in relation to counts 5 and 6.
55 The trial Judge sentenced the appellant to a fixed term of 18 months on count 1, the indecent assault count on which the appellant was convicted, to commence on 21 February 2001 and expire on 20 August 2002. He sentenced the appellant on counts 5 and 6 to imprisonment for a term of 4 years to commence on 21 February 2001 and expire on 20 February 2005 with a non parole period of 2 years to expire on 20 February 2003. The setting aside of the conviction on the first count provides no basis for disturbing the jointly concurrent sentences imposed on counts 5 and 6. He received no additional effective sentence because of his conviction on this count, and in layman's terms if it did not go up it should not come down.
56 I have had the benefit of reading the reasons for judgment of Smart AJ in draft form. His Honour favours allowing the appeal on sentence in respect of counts 5 and 6 and reducing the head sentences to 3 years and the non-parole period to fifteen months. I respectfully disagree. Any sentence of full time custody will bear heavily on this appellant and life has not been kind to him. However all the material referred to by Smart AJ was before the very experienced sentencing Judge, and with respect I can discern no error in his exercise of the sentencing discretion. The only change apart from the acquittal being entered by this Court on the first count is the lapse of time since the sentences were originally imposed on 21 February 2001 but this has not been unusual.
57 SULLY J: I have had the benefit of reading in draft the judgments of both Handley JA and Smart AJ.
58 As to the conviction appeal, I agree with Handley JA. On the matter of sentence I agree with Smart AJ.
59 I agree with the orders proposed by Smart AJ.
60 SMART AJ: This appeal has caused me some concern in view of the doubts entertained by the trial judge, namely:
"Each case depended upon the credibility of the victim and it is difficult to see why the jury convicted on counts 1, 5 and 6 and not the others. I do not believe the mother's evidence of support for the victim's supporting details were (sic) such as to make any difference on the totality of the evidence when one considers the jury's findings of not guilty in respect of the other matters."
61 The mother's supporting evidence as to counts 5 and 6 went to details that were not at the core of the case. Those as to count 5 were, however, of some importance. This was a memorable incident as the complainant in her anger, on her evidence, put faeces on some toilet paper which she wiped on the appellant. The complainant identified this as the occasion on which she removed her warm winter dressing gown (and pyjamas) and the appellant had vaginal intercourse with her. This was interrupted by her father's return. This was the occasion on which her dressing gown was burned. It was not unimportant that the mother confirmed that there was an occasion on which the dressing gown was burnt and that there was a heater in the lounge room.
62 As to count 6, the details of the alleged incident were quite memorable but not as memorable as those relating to count 5. The complainant said that after they had intercourse the appellant went to the toilet at the back of the house. She said that she "snuck out of the back door and I was peeking around the corner at him in the toilet" and saw him "masturbating on the toilet", the toilet door being open at that stage. She said that this was the last occasion on which she and the appellant had intercourse. She said that earlier in the evening he had given her a backless blue dress which had flowers upon it, and some earrings. She said that she loved the dress and wore it all the time. The complainant's mother confirmed that the complainant had a blue backless (or halter) dress. The mother said that she did not buy the dress and that she was not sure that the appellant gave it to her.
63 The jury must have found that the evidence of the complainant as to these incidents with the additional detail as to the surrounding circumstances was compelling. The evidence of the mother provided some support for the evidence of the complainant as to the surrounding circumstances. It was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on these counts. Such verdicts were not inconsistent verdicts: Jones v The Queen (1997) 191 CLR 439, R v Markuleski (2001) 52 NSWLR 82 and Mackenzie v The Queen (1996) 190 CLR 348. Further, they were reasonably supported by the evidence: Jones v The Queen (supra).
64 I agree with Handley JA for the reasons he gives that the appeal against conviction on count 1 should be allowed and that the appeal against conviction on counts 5 and 6 should be dismissed.
65 I have found the question of sentence troubling. The judge was bound to impose the correct sentence for each offence and then deal with questions of concurrency: Pearce v The Queen (1998) 194 CLR 610. Unless the three sentences were made concurrent to reflect the principle of totality, it is not easy to appreciate why they would otherwise be made concurrent. Count 1, the indecent assault was alleged to have occurred between 31 July 1969 and 1 March 1970, Counts 5 and 6 refer to separate incidents. The incident the subject of count 5 took place between 1 January 1972 and 31 December 1972 and during the middle part of that year. The incident the subject of Count 6 took place between 31 July 1972 and 31 December 1973 and later than the incident the subject of count 5.
66 In general my mind baulks at a result whereby an offender receives the same effective sentence for two offences as he did for three offences where it is held that the conviction on the third offence was not reasonably supported by the evidence. This is despite the fact that the sentence for each offence must be looked at individually. I accept that there may be cases where there ought to be no adjustment to the sentences where a conviction on one offence is set aside but the convictions on other offences remain and all sentences are concurrent. It is necessary to look at the facts in a little more detail.
67 The judge held that given the verdicts of acquittal on counts 2, 3, 4 and 7, one could not be satisfied in respect of the other alleged acts of sexual intercourse put before the jury as relationship evidence. Accordingly, he sentenced the appellant on the basis that the three acts upon which the appellant was convicted were isolated acts.
68 The appellant was born on 26 February 1949 and is a disability pensioner. The complainant was born on 31 July 1965. She and the appellant were first cousins. The offences were alleged to have occurred between 1969 and 1973. At the trial in November 2000 the offences were between 27 to 31 years old. The complainant did not tell anyone about the appellant's conduct until October 1989 when she complained to a girl friend. There was no complaint to the police until 1997. I regard an indecent assault on a four year old girl as a serious matter.
69 The appellant had no previous convictions.
70 The pre-sentence report and the medical reports reveal that the appellant was greatly disadvantaged as a child with few opportunities and is now a ravaged man in a parlous state.
71 As the judge found, the appellant was one of five children, raised in a very dysfunctional family. His father died of his alcoholism. He has had no contact with his mother or siblings for 10 years. He was introduced to alcohol at an early age. By the age of 17 he was binge drinking heavily. He continued to drink heavily until relatively recently. The judge made these further findings.
"He has lived mostly in boarding houses with other alcoholics and disturbed people. For the past eleven months he has resided in a boarding house managed by a retired nurse who seems to be benevolent and nurturing of the residents therein. The prisoner has, as a result, refrained from drinking in more recent times because he was nearly evicted because of his alcohol abuse.