R v Currie

IN THE COURT OF CRIMINAL APPEAL CCA 60245/01 CCA 60462/01 DC 00/51/0049

HEYDON JA DOWD J WHEALY J

Judgment 1 HEYDON JA: On 18 December 2001 the court pronounced orders in relation to this appeal against the conviction of the appellant on 11 August 2000 after a trial by jury presided over by Twigg DCJ, QC. These are my reasons for concurring in those orders, pursuant to which the appeal was allowed and a new trial ordered in relation to the alternative charge on which the appellant was convicted. 2 The appellant was charged with having sexual intercourse with Emma Kate Barrett without consent in circumstances of aggravation, namely, that at the time of the offence he did by means of offensive weapon (a knife) threaten to inflict actual bodily harm to the complainant and her children. That charged a contravention of s 61I of the Crimes Act 1900.

Reasons for allowing the appeal and ordering a new trial 3 The reasons for allowing the appeal arise out of the following events. 4 On 11 August 2000 the jury retired to consider its verdict at about 11am. At 11.50am the trial judge received a written question from the jury. The question sought confirmation about whether the jury could find a verdict of sexual intercourse without consent, but also find a verdict of not guilty of aggravated sexual intercourse without consent. After some debate with counsel in which s 61Q of the Crimes Act was identified as the source of the possible alternative verdict, the transcript records the following: "SEGAL: The indictment only contained one count. There was no addresses taking into account the possibility of an alternative verdict, although it might have been taking the addresses as a whole, it might have been something that the jury has started to think about, but it wasn't something that I specifically addressed, because there was only one count on the indictment and I'd prefer your Honour take the position that because of the case as run, that your Honour says to the jury, in the circumstances because the trial has run on the basis of an indictment without an alternative, although there is a legal alternative, but because of the way the trial has run up until this point of time, that your Honour say to the jury, 'It's not a question you can answer.' That's the defence response. HIS HONOUR: Thank you Mr Segal, I propose to answer the question in the affirmative and give them the legal position. JURY RETURNED TO COURT AT 12.05PM HIS HONOUR: Ladies and gentlemen I have your question, which I received at 11.50am today, 11 August, I have marked it for identification 12. I will read it onto the record. 'Confirm whether the jury can find a verdict of guilty of sexual intercourse without consent, but not guilty of aggravated sexual intercourse without consent.' The answer shortly is 'Yes', if you have a reasonable doubt as to the existence of the aggravating factor, but are satisfied beyond reasonable doubt that there was a sexual assault, then you would say when asked for your verdict, 'Not guilty of the offence charged, but guilty of sexual assault.' Such a verdict would mean that you are satisfied beyond reasonable doubt that the accused did have intercourse with her, that she did not consent and that he knew that she was not consenting, but that you were not satisfied that aggravation has been proved beyond reasonable doubt. Does that make it clear Mr Foreman? FOREMAN: That's clear your Honour. JURY RETIRED TO FURTHER CONSIDER ITS VERDICT AT 12.08PM." 5 The jury returned at 3.55pm. They acquitted on the count charged but convicted on the alternative count. 6 Ground 2 of the Notice of Appeal was: "The appellant did not receive a fair trial and was denied procedural fairness when the statutory alternative count was left to the jury." 7 The appellant accepted that if this ground succeeded the appropriate order was an order for a new trial, not an acquittal. 8 The appellant submitted, first, that had the defence known that the alternative verdict was a possibility it would have cross-examined witnesses "with a view to developing submissions that the complainant put up resistance and had means of raising the alarm by means of her screaming or otherwise fighting off or discouraging an intruder". That argument fails. That type of cross-examination was just as open on the charge actually preferred from the outset. 9 The appellant submitted, secondly, that his counsel had been denied any opportunity to submit "that even without the presence of a knife or threats to her children, the jury might yet not be satisfied beyond reasonable doubt that the will of the complainant was overborne". That argument fails. Counsel for the appellant did not ask the trial judge for that opportunity when putting submissions about the possibility of an alternative verdict. 10 At a very late stage counsel for the appellant supplied the court with references to R v Pureau (1990) 47 A Crim R 230 and R v Heaton (CCA, unreported, Gleeson CJ, Priestley JA and Sharpe J, 1 June 1990). They were discussed in R v Quinn (CCA, unreported, Priestley JA, Wood and McInerney JJ, 31 July 1991). At pages 17-20 of that case, Priestley JA said, discussing R v Pureau: "The principle in R v Pureau (unreported, Court of Criminal Appeal, 15 March 1990, Hunt, Enderby and Sharpe JJ) was relied on for this proposition. In Pureau, the appellant was charged with robbery in company with wounding. The jury found him not guilty of that, but guilty of attempting to commit that offence. No mention of an alternative verdict was made by the Crown Prosecutor in either opening or closing address, nor had counsel for the appellant addressed upon it; the issue was raised for the first time by the judge in his summing up. Hunt J delivered the principal reasons. He referred to R v Cameron [1983] 2 NSWLR 66, in which the availability of the alternative verdict had been raised by the trial judge for the first time during the course of an application for a directed verdict at the end of the Crown case. The court said: 'In a normal case where the Crown seeks an alternative verdict, this is a matter which is open to the jury and litigated by the parties from the commencement of the Crown case. To raise the question for the first time at the conclusion of the Crown case may in many cases produce an injustice to the accused unless the situation is as clear as it was, for example, in Coughlan's case [Court of Criminal Appeal, 26 August 1977]. It is, we believe, unwise for a trial judge to introduce these matters on his own initiative …' (at 71). Hunt J noted that he had been a member of the court in Cameron and stood by what was said in that case. He continued: 'The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to then, it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused. It must be conceded that the factual situation which gives rise to the prospect of an alternative verdict of attempt is often not apparent until the trial is under way. [He noted that that may have been so in the instant case, and continued.] The trial judge would therefore be more likely to conclude that the late raising of this particular alternative verdict had not prejudiced the accused. But it is difficult to imagine circumstances which would justify it being raised for the first time during the summing-up, when neither counsel had had at least the opportunity of addressing upon it if they had wished to." (at 8-9) However, Hunt J did not base his eventual conclusion in Pureau on the late raising of the alternative charge. Indeed, he noted that the Crown had a good argument that, in the circumstances of the case, no actual miscarriage of justice was caused to the appellant by the alternative charge not having been raised before the closing addresses. Hunt J rested his opinion on the appellant's second point in the case, which was that the trial judge's directions to the jury gave them no assistance as to how they should consider the Crown case on the alternative charge. His Honour's view was that the conviction must be quashed. Enderby J agreed with Hunt J, but added that he thought the most unfortunate aspect of the trial was the way in which the subject of attempt arose. He regarded what happened as being in the nature of an ambush. He said: 'Defence counsel had no opportunity to put submissions to the jury concerning this alternative serious charge that was being levied against his client. It had not been dealt with in the addresses; it had been sprung on both counsel for the Crown and counsel for the defence by his Honour. Because of that, this trial was not a fair trial.' Sharpe J agreed with Hunt J's reasons. The appellant in the present case also relied in this court on R v Heaton (Court of Criminal Appeal, unreported, Gleeson CJ, Priestley JA and Sharpe J, 1 June 1990). In that case the appellant had been charged with stealing from the person. He was found guilty of the lesser offence of simple larceny. The possibility of a conviction for stealing never arose until after final addresses. The trial judge then indicated he proposed to direct the jury that there was available an alternate verdict of simple larceny. He proceeded to sum up on that basis. In the circumstances of the particular case, Sharpe J, who gave the leading reasons, was of the view that there was a gross procedural irregularity in the course followed by the trial judge. Gleeson CJ agreed saying that a combination of two circumstances caused the serious irregularity. The first was the possible alternative verdict having been first raised by the trial judge of his own motion after final addresses; the second was that in his summing up the trial judge gave inadequate instruction as to the varying possible views of the facts that might result in one verdict rather than the other. I simply said that I agreed. It seems to me that the effect of Pureau and Heaton read in the light of earlier cases on the same topic is this: when the possibility of the jury finding a verdict against an accused on a lesser charge than that in the indictment is raised for the first time by the trial judge in the course of summing-up, then the circumstances will be rare in which taking that course will not prejudice the accused. Nevertheless, it is possible that even in such circumstances, an accused will not be prejudiced. Whether or not a subsequent verdict against the accused on the lesser charge will be quashed will depend upon the appeal court's view whether prejudice was caused to the accused." 11 In R v Heaton, pages 8-9, Gleeson CJ said: "There are in this case two circumstances which in combination, gave rise to a serious procedural irregularity. First, there is the circumstance that the subject matter of the possible alternative verdict was first raised by the learned trial judge of his own motion after the conclusion of final addresses. Secondly, there is the circumstance that in his summing up his Honour informed the jury that it was open to them to find the appellant guilty of the lesser charge but gave them practically nothing by way of instruction as to the varying possible views of the facts of the case that might result in one verdict other than another. That was an important deficiency in the summing up and, I would add, it produced the clear risk that the jury might find the alternative verdict as a compromise without really understanding what was involved in their decision. That, in itself was something against which the jury should have been specifically warned." 12 The appellant advanced oral argument to the effect that the trial judge did not give the jury: "any guidance as to how they might assess the evidence of the plaintiff should they be considering the statutory alternative. We say his Honour did not relate the particular elements of the statutory alternative to the evidence, ie there was no direction [along] the lines that should you not find the accused guilty of aggravated sexual assault you would have to find beyond reasonable doubt that being woken up, dragged down the hallway, mouth covered, biting and screaming, were enough to satisfy. He further could have given a direction; you may consider whether the production of the knife was what overbore her will, the complainant, or whether the actions up to that point did in fact beyond reasonable doubt overbear her will. It was left to the jury to speculate as to how they might go about properly finding a verdict of sexual assault." 13 There is force in this argument. One matter in the present case which unquestionably could have caused prejudice was the failure of the trial judge to give directions as to the varying possible views of the facts that might result in one verdict rather than another. There was no specific warning against a compromise verdict on an ill-understood basis. Counsel for the appellant did not ask the trial judge for a warning of the kind Gleeson CJ described. However, since Gleeson CJ regarded what happened as "a serious procedural irregularity" and "an important deficiency" in R v Heaton, prima facie the appeal should be allowed. The Crown argued against this on the basis that the issue was whether failure to give a direction was unfair. It contended that the failure to give the directions in R v Pureau and R v Heaton was unfair because these cases were complicated, but the failure to give it here was not since the facts were simple. The Crown relied on Priestley JA's references to prejudice at the end of the passage quoted above from R v Quinn. However, R v Heaton was not particularly complex, turning on the difference between stealing and simple larceny. Gleeson CJ did not regard the case as one making the warnings unnecessary, and he used the strong language already quoted. Similarly, the present case was not so simple that the risk of prejudice which the warnings are designed to obviate did not exist. Indeed, in another part of the Crown argument, it was submitted that here there was "rather a complex circumstance of aggravation". Hence the failure to give the warning justifies allowing the appeal and ordering a new trial. The Crown did not submit that the proviso should be applied. 14 The only complaint in writing about the trial judge's directions made by the appellant was that there was no direction "as to how they might assess the credibility of the complainant should they entertain a doubt about her reliability in respect of one count. They might take that into account in assessing the reliability of the complainant in relation to another count." Since the appeal has been allowed in relation to the failure to give a R v Heaton warning, it is not necessary to consider this argument, which also underlay Ground 3. The argument could not justify any more favourable order than an order for a new trial.

Reasons for not ordering an acquittal 15 The complainant advanced various other arguments and contended that this Court should enter an acquittal. One discrete argument related to Ground 4. Ground 4 was: "The appellant did not receive a fair trial because of the acceptance into evidence of Exhibit D, the alibi notice."

The appellant conceded that Ground 4 on its own, even if it succeeded, could not justify a new trial. It certainly could not justify an acquittal. Accordingly it is unnecessary to consider it further. 16 Ground 5 was: "The learned trial judge did not direct the jury that versions of the complainant given to Fallon Loadsman and Melinda Miller, differing from those given to Teena Barrett and the jury on oath, were to be taken into account in assessing her credibility."

While if that ground were made out it might justify a new trial, it would not justify an acquittal. Hence it need not be considered further. 17 The principal ground of appeal was Ground 1: "The verdict of guilty is inconsistent and unreasonable." 18 In order to understand the arguments advanced, it is necessary to set out the appellant's summary of the evidence: " Narrative of complainant The complainant's evidence was that she was living at 100 Skinner St Grafton in about August 1999 with her three daughters then aged 6, 3 and 2. About two months later at the beginning of November 1999 she moved back to Sydney. The accused visited around the 1st November 1999 on the occasion of a removalist being at her premises. He left after some talk and drink. She said the accused rang her the next morning and that later that night he came asking if he could come in. A friend 'Freddo' was invited in to 'say goodbye'. They both left. She said the accused returned later that night, alone. The accused said to the complainant he 'wanted to sleep with' her. He left the house without anything of a sexual nature occurring. The complainant left Grafton, returning a few days before Christmas. The complainant went to her home in Skinner St. She had an early night, sleeping in her loungeroom. She says she was woken up as she was dragged from the loungeroom into the hallway, with the person's hands over her eyes and mouth dragging her backwards. She bit his hand. (t/c 7.8.00 p.6 11.35-43) She said he dragged her into the bedroom and dropped her on the floor. She started screaming for help and then 'he's pulled a knife and told me to 'shut up' and that he won't hurt me or the girls, which I did.' (p.6 11.45-50). In the bedroom at the front of the house it gets most of the light off the street. She described the knife as 30cm long with a brown handle and serrated edge. He had pointed the knife at the complainant as he said the words of threat (p.7 11.33041). The person she said was Des Currie. The complainant said she was told to undress which she did and penile sexual intercourse took place without her consent whilst she was scared. When he finished he 'collapsed' on her. She got up and walked past the girls in the loungeroom. The accused got up. There was talk and he left. Thereafter the complainant packed up and went to Sydney taking the knife with her which she later used as a kitchen knife. (t/c p.9 1.49) The complainant attended a doctor for a 'morning after pill' on 22nd December 1999, that is the day following the alleged sexual intercourse. Later that day she spoke to her niece Fallon Loadsman. She said to Fallon Loadsman 'someone raped me last night'. Later that same day she went to a barbecue and said to her friend Melinda Miller ' … that fella came over and raped me at knifepoint.' (t/c 7/8/00 pp. 13-14) Reports to others and referral to police Evidence was called from Fallon Loadsman, Melinda Miller and Teena Barrett. Each gave a version of what the complainant had said to them in relation to the incident. To Fallon Loadsman on 22nd December 1999 the complainant said, in part that: '… some queer cunt broke in and raped me last night … … She said they ('the kids') were in bed beside her and they weren't hurt …' (t/c 8/8/00 p.20) … The girls were in bed with me. I woke up with a knife to my throat and a hand over my mouth …' (t/c 8/8/00 p.23 11.45-7) To Melinda Miller on 22nd December 1999 the complainant said, that: '… She woke up with a hand over her face and a knife at her throat and a man telling her to be quiet and he wouldn't hurt the kids, the girls, and he then dragged her through the house and raped her …' (t/c 8/8/00 p.25 11.31-35) To Teena Barrett on 9th January 2000 the complainant in part said that: ' … she'd been raped … she was asleep she woke up being dragged out of bed and pulled down the hallway and she said she bit the person on the hand and when they let go she screamed a little bit but then he pulled out a knife and told her to be quiet or he'd hurt her or the kids …' (t/c 10/8/00 p.136 11.46-54) David Walker gave evidence that he had spoken to his own wife, Teena Barrett, about Emma Barrett on 9th January 2000 and the next day went to the police (t/c 9/8/00 p.75) William Drew went to the police on 10th January 2000 with David Walker and others. (t/c 9/78/00 p.75) Date of allegation The date of the alleged offence is accurately established as the night of 21st December 1999, the one night that the wife of the accused was in hospital. It is the Crown case that that is the night of the offence and is established by Grafton Hospital admission record Exhibit E. Dr Kennedy (Ex C) established the date as 22nd December 1999 upon which the complainant was prescribed a 'morning after pill'. … DNA Evidence from Robert Goetz was to the effect that semen of the appellant was detected on the bed of the complainant. Det. Griffith cut out a portion of bed which had tested presumptively for semen. (t/c 9/8/00 p.109) Movements of appellant Albert Robinson referred to as Freddo gave evidence that he had visited the home of the complainant with the appellant. That there had been a visit by Freddo in the company of the appellant was not in dispute. It was crucial for the prosecution case. It was this encounter upon which the prosecution relied to establish in the mind of the complainant the name and appearance of the person 'Des' whom the complainant said had been the person later in her house on [the] night of 21st December 1999. This visit to the home of the complainant was placed in ' … late October early November …' of 1999. (t/c 8/8/00 p.31 11.23-30) Patricia Cole gave evidence to the effect that the evening that Deidre, the wife of the appellant had been in hospital, that he had visited her between 5 and 7 in the evening and again between 9 and 11pm. (t/c 9/8/00 p.116) Kenneth Currie, the father of the appellant, was staying at the home of the appellant and his wife. He gave evidence to the effect that he had gone to bed at 9 or 10 on the evening that Deidre was in hospital. The appellant said he was going to the hospital. He next saw the appellant in the early morning, at ' … 3 o'clock or something - not sure …' (t/c 9/8/00 p.121 1.45 - p.122 1.5) Detective King gave evidence as to the alibi notice which was tendered Ex D following objection. (t/c 9/8/00 p.58) The notice referred to the two witnesses mentioned above, Patricia Cole and Kenneth Currie. Defence evidence The accused gave evidence. He denied having sexual intercourse with the complainant around 21st December 1999. (t/c 10/8/00 extract p.4) On 21st December 1999 he had visited his wife in hospital and taken her a meal. He had gone back to Trish (Patricia) Cole's and returned a dinner plate. He had the intention of visiting the hospital again but had run out of petrol and left his car near the hospital. He had made his way home by way of a lift with Bunon Walker. His father was sleeping in the loungeroom but awoke. The accused went to sleep and did not leave the house until next morning. On the next morning he put petrol in his car and picked up his wife from hospital. (t/c 10/8/00 p.6) He had no bite marks on his hand when he picked his wife up. He said he had visited the home of the complainant with Albert Robinson (Freddo) previously They had smoked marijuana. There was a truck driver there. (t/c 10/8/00 extract p.8) He took Freddo home and returned to the complainant's place. The truck driver was there. Alcohol was drunk. The truck driver left. The appellant and the complainant had sexual intercourse on the bed. He ejaculated outside of the person of the complainant. He did not see the complainant again after that. (t/c 10/8/00 extract p.9) Deidre Currie the wife of the appellant gave evidence. She said the appellant had told her after he was charged that he had sex with the complainant but prior to the night she had been in hospital. (t/c 10/8/00 p.145 1.55) She said that she had seen no bite marks after being released from hospital, which was the continuation of the day after the night of the alleged sexual assault. (t/c 10/8/00 p.149)" 19 The arguments of the appellant in support of Ground 1 were lengthy and to some degree inconsequential. The background to the key arguments pointed to differences in the terms of the three complaints made; lateness of complaint to the police (which prevented them ascertaining whether there was a bite mark on the appellant); and unsatisfactory circumstances of identification. Yet no submissions were put that the appeal should succeed because of failure to give a direction pursuant to Longman v R (1989) 168 CLR 79; or because the identification evidence was inadmissible; or because no satisfactory warning about the identification evidence was given; or because the complaint evidence was wrongly admitted; or because the complaint evidence should have been admitted only on a limited basis. The arguments in relation to these matters do not justify either lengthy examination or a conclusion that the appeal should be upheld. Rather it is necessary to concentrate on the three key arguments advanced, which were these. First, acquittal on the count charged and conviction on the alternative count represented a compromise between a verdict of sexual intercourse without consent and with the use of a knife, on the one hand, and a finding that there had been consensual intercourse, leading to acquittal, on the other. Secondly, the different versions given by the complainant to the court and to the hearers of her complaints revealed unreasonableness. Thirdly, the acquittal on the count charged meant that the jury had disbelieved the complainant on her evidence as to the use of a knife and it followed that she ought also to have been disbelieved on whether she consented or not.

Appellant's compromise verdict arguments 20 The specific arguments advanced on this issue were as follows: "The jury asked a question before evidence was concluded as to whether the complainant had mentioned a knife in the statement to Det King (which she had). This indicates the concern of the jury or one of their number about the 'knife' issue. The question was at lunchtime on 10th August 2000 before evidence was completed as to whether the complainant had mentioned a knife in the first instance to Det King. (t/c p.30 10/8/00) The Learned Trial Judge at the outset indicated sitting times, and that they went to 4 pm under normal circumstances unless there was a request for variation. Whilst not a criticism of his Honour, it is noted that no request was made of the jury on the Friday on their retirement as to whether they would like to sit on or come back on another day (be it Saturday or Monday). The jury retired shortly after 11.00am on the 11th August 2000, his Honour having commenced summing up shortly after 10am that day. (Transcript reference to 10/08 s/u p.22 11/8/00 is inaccurate). The jury question came at 11.50am, within an hour of retiring. The verdict came at 3.55 on the Friday afternoon, five minutes before the scheduled end of the day's sitting. His Honour had said on day one that the court would sit until 4pm with special arrangements possible on request (t/c p.10 7/8/00), but the coincidence of verdict as 5 minutes to 4 is noted. That is, the jury deliberated for nearly 4 hours after redirection as to an alternate verdict. They returned a verdict 5 minutes before scheduled end of the day's sitting on a Friday afternoon, the judge having given no specific direction that the jury could deliberate beyond 4pm." 21 The appellant also submitted that the jurors would have known that the alternative verdict carried a lower sentence. Appellant's arguments on the different versions 22 The appellant submitted: "That the verdict is unreasonable may be tested against different versions given by the complainant. The versions to others are admissible as first hand hearsay. They are evidence as to the truth of that which is asserted. (Evidence Act s60) On the 22nd December 1999 the complainant told both Fallon Loadsman and Melinda Miller that she had been woken in the loungeroom next to her children with a knife at her throat and a hand over her mouth or face. By 9th January 2000 the version was different as delivered to Teena Barrett to the effect that a knife had been produced at least in the hallway and after she had screamed. The version directly to the jury accorded with that of 9th January 2000. The result is that the complainant has provided directly or indirectly, evidence of the fact as to what really happened which is contradictory and impossible to reconcile. That is, the knife and threat to children occurred from the start, and, the knife was produced after dragging, biting and screaming."

Appellant's arguments on inconsistency between disbelieving the complainant about the knife and believing her about non-consent 23 The appellant submitted: "There is nothing in the surrounding circumstances of the facts associated with the two verdicts in this appeal which distinguishes the reasoning of the jury as between one count and the other. The bald conclusion is that version of the complainant was not accepted. The quality of the complainant's evidence as to her assertion as to the use of a knife was just as strong in relation to every other aspect of her version. … It is here submitted that inconsistency between the verdict of not guilty to the count of aggravated sexual intercourse on the indictment and the verdict of guilty to the statutory alternative of sexual assault simpliciter is not logical and reasonable. … The verdict it is submitted remains logically insupportable. On the one hand the jury appears to have accepted the complainant as to identification but does not accept the version of the complainant as to a crucial element. The presence of semen was supportive of either the version of the complainant or the appellant and so had no real bearing on the verdict." 24 The appellant also submitted that the jury rejected the appellant's evidence that a knife had been used, and that left the appellant's evidence of non-consent without support: "It is respectfully submitted that it would be a too superficial analysis to say that the will of the complainant was overcome by being woken, dragged down the hall and dropped in the bedroom. On the version of her oral evidence she had prior to the production of a knife been able to bite the intruder with a 'full bite' enough for the man to take his hand off her mouth. (t/c 8/8/00 p.24 11.10-20). Further, she had the presence of mind to scream. These are indicia of capable resistance. It was only after the production of the knife and the threat to her children that her resistance subsided. The significance of the production of the knife is greater based on the version given to Teena Barrett. The complainant said prior to the knife she had ' … screamed a little bit but then he pulled out a knife …' (t/c 10/8/00 p.136 1.50). This ceased with the production of the knife indicating that in the mind of the complainant she had not given up on screaming as a mode of coping with the situation. She had not fully completed the screaming self protection mechanism before it was cut short by the production of a knife. The house being in a residential area, if sparsely housed. There was a street which ran outside and at least one of the house windows was open. The street outside was serviced with street lights. The complainant screamed loudly twice. She said 'help, help' at the top of her voice. When she saw the knife she did not scream thereafter. (t/c 8/8/00 p.31) The complainant lived with her daughters as a family unit. One of them at least, aged 6, was of an age where she could raise an alarm if awoken by her mother's screams. Unsavoury as the prospect is of being saved from rape by one's child, it cannot be taken for granted that without proof of the use of the knife there was discrete proof beyond reasonable doubt of the absence of consent to sexual assault."

Crown arguments 25 The Crown submitted that for the appellant to succeed he had to show that the verdict of guilty is "unreasonable and cannot be supported": Criminal Appeal Act 1912 s 6. That depends on whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v R (1994) 181 CLR 487 at 494-5. That test applies as much to cases involving an alleged inconsistency between an acquittal and a conviction as to other cases: R v Markuleski [2001] NSWCCA 290 at [3]-[10]. The Crown referred to MacKenzie v R (1996) 190 CLR 348 at 367: "Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." 26 The Crown also referred to M v R (1994) 181 CLR 487 at 493: "… the question which the court must ask itself is whether it thinks that 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 these considerations." 27 The Crown then pointed to the detail of the complainant's account in evidence in chief, her adherence to that version in cross-examination, the substantial confirmation of it by three early complaints and by her attendance the next day for emergency contraception, the fact that the occurrence of sexual intercourse was confirmed by DNA evidence pointing strongly towards the appellant, and the fact that the appellant's alibi was far from complete, leaving him ample time to have sexual intercourse on the night of 21-22 December (which he denied, though he admitted consensual sexual intercourse on an earlier occasion). The Crown submitted that there was evidence to support every element of the charge on which the appellant was convicted. 28 The Crown then submitted that the crime was not non-consensual intercourse while having a knife, but non-consensual intercourse coupled with a threat to inflict actually bodily harm with a knife. The Crown submitted that the jury may have accepted that the appellant had a knife, but not that its use accompanied by a statement that the complainant should shut up and that she and the girls would not be hurt amounted to a threat to cause actual bodily harm by use of a knife. That is, it was submitted that the jury construed what happened as a statement that the appellant would not harm the complainant or her children, not as a threat that he would. Or, it was submitted, the jury may have accepted the complainant's evidence of what was said and treated it as a threat, but only "a pretty wishy-washy threat, … not a threat to inflict actual bodily harm on her or the children by means of that knife. Hence the acquittal did not have any adverse impact on the complainant's credibility." 29 The Crown also submitted that even if the correct view is that the jury was not satisfied that a knife was used at all, there was no inconsistency: "It is necessary to distinguish between a case where a jury may not accept the complainant's version in a particular respect and cases where a jury rejects the substance of the evidence (this distinction was referred to by Spigelman CJ in R v Markuleski … at [79]. The jury may have accepted the basic story of the complainant at less than the full alleged detail for a variety of reasons. One such reason may have concerned the particular circumstances in which the observations of the knife was made, the complainant had just been woken and dragged from her bed, she was screaming, the room was very dark, she did not see where the knife came from, and she did not know what he did with it after he pointed it (TR 7/8/00 6-7) (T 8/8/00 3). It must be remembered that the jury had the benefit of seeing and hearing both the appellant and the complainant and clearly believed the substance of the complainant's evidence, which was sufficient to satisfy them beyond reasonable doubt that the appellant was guilty of the offence of sexual assault."

Though the darkness may also have prevented reliable identification being made initially, the complainant had good opportunities for observation before the appellant left. She did not have such good opportunities in relation to the use of the knife. In short, the jury was entitled to accept parts of the complainant's evidence even if it did not accept other parts: it did not follow from non-acceptance of the part about the knife that the jury rejected or should have rejected the substance of the complainant's evidence. 30 The Crown responded to the submission of the appellant that if there was no proof that the knife was used, there was insufficient evidence to infer a lack of consent by submitting: "There was other cogent evidence of lack of consent and knowledge of lack of consent such as: the uninvited entry of the appellant to the complainant's home at night; the forceful dragging of the complainant from her bed, in the loungeroom, along the length of the hallway to the bedroom; the biting of the hand of the appellant; the complainant's screaming for help; the appellant's orders to the complainant to get undressed and to lay on the bed; the complainant's protests, 'No' and 'Just don't'; the appellant's oral threats during the assault, 'Do you want to see me get wild, do you want to see me get wild with you, just be quiet'; the complainant's evidence that she felt sick and scared and did not consent." 31 In relation to the different versions given by the complainant, the Crown submitted: "An analysis of the evidence of 'different versions', shows that the only difference between the complainant's account and that given by Ms Loadsman and Ms Miller was that they both reported that the complainant had said that she had woken up with a knife at her throat, whereas the account given by the complainant, and as reported by Ms Barrett, was that the knife was produced later. Whilst that difference could possibly have contributed to the jury not being satisfied beyond reasonable doubt of the aggravating factor, the difference was not such that the jury were required thereby to reject the substance of the complainant's evidence." 32 In relation to the compromise question, the Crown submitted: "There is no evidence that the verdict of guilty on the alternative charge was a compromise verdict. Whilst Barr J found that in the circumstances of the particular case in R v Robinson [2000] NSWCCA 59, that it was highly probable that members of the jury had made a compromise in order to bring matters to an end, that was in the context of a finding that the verdict in the case were inconsistent and called for an explanation which could not otherwise be found. As submitted above, in this case there was no inconsistency justifying an analysis of the timing of the verdict. In the absence of any inconsistency, there is no basis for interfering with a verdict on the basis that it was delivered at 3.55pm on a Friday."

Conclusions on "compromise" arguments 33 In my opinion the circumstances pointed to by the appellant do not demonstrate that a compromise occurred. To conclude that there was a compromise would be speculative. It is true that Gleeson CJ said in R v Heaton that a failure to give directions about an alternative verdict could lead to the risk of a compromise, but a compromise of that kind would not justify a new trial, since on the evidence a properly directed jury would abstain from any compromise. The Crown arguments contend that because there was no inconsistency, there was no compromise; in my opinion there was no evidence of any compromise quite independently of any question of inconsistency. In any event, as will be seen, there was no inconsistency here.

Conclusions as to different versions 34 The differences in the versions were not great, and related only to precisely when the knife was produced. It is as possible that Miss Loadsman and Miss Miller misunderstood the complainant as it is that the complainant in fact said different things. Even if she did say different things, that might be less damaging to her general credibility than if she had given an absolutely identical story, to the last detail, on all occasions. By themselves the inconsistencies in the versions do not justify a conclusion that the verdict was unreasonable.

Conclusions on inconsistency 35 Whether verdicts are inconsistent or not depends on whether there is some reasonable explanation for them. 36 The acquittal on the count charged did not necessarily flow from a positive belief on the part of the jury that there were no circumstances of aggravation through the use of a knife. That acquittal could have rested equally on the inability of the jury to be satisfied about that beyond a reasonable doubt. 37 So far as the Crown submitted that one possible explanation is that the jury may have concluded that a knife was displayed at some stage, but were not prepared to conclude beyond a reasonable doubt that it was used as part of a threat to inflict actual bodily harm, the submission is not strong. That construction of the complainant's evidence is possible, but unlikely. 38 The other possible explanation advanced by the Crown is that the jury were prepared to conclude beyond doubt that there was intercourse with the complainant and that it was non-consensual, but not prepared to conclude beyond a reasonable doubt that there was a knife, or were unable to agree on when it was displayed. That latter outcome may have been because of the particular circumstances in which the observations of the person attacking the complainant were made - she had just awoken, was dragged from her bed, and the room was dark. It may have been because of the differences between the complainant's version to Miss Loadsman and Miss Miller (the complainant woke up with a knife at her throat) and the complainant's version in evidence and to Miss Barrett (the knife was produced later). 39 In R v Markuleski [2001] NSWCCA 290 at [79], Spigelman CJ pointed out that while material suggesting a jury finding of dishonesty, or a rejection of the substance of the complainant's evidence, rather than unpersuasiveness on some point might create a conflict, a jury could accept a complainant as truthful, even if her recollection was faulty in some respects, but not key ones, or even if they were cautious about some of the details but not the substance of the story, or even if they thought part of the complainant's evidence was exaggerated but she was generally truthful, or even if they found a lack of sufficient particularity as to time, place or circumstance to justify conviction, but believed her generally. 40 In my opinion the appellant has not demonstrated that inherent in the acquittal on the count charged is a finding of dishonesty, or a rejection of the substance of her evidence, or anything more than a doubt about her observation of a knife or recollections about it. The second category of explanation advanced by the Crown is reasonably available. Accordingly there is no inconsistency between the acquittal on the offence charged and the conviction on the alternative charge. The jury's views of the evidence and of the complainant's reliability are not internally conflicting. It is undesirable to comment in too much detail on the complainant's evidence in view of the fact that there is to be a new trial. But there was ample evidence to support a conclusion of non-consent even if the knife evidence was left out of account: the appellant, on the complainant's evidence, behaved with a considerable degree of physical and verbal violence and encountered the complainant in circumstances calculated to terrify her and overbear her will. While it was open to the jury to accept the appellant's denials, a choice between the versions was a matter for the jury. The choice actually made has not been demonstrated in this appeal to be unreasonable. 41 For those reasons Ground 1 fails. 42 DOWD J: The appellant, Desmond Jeffrey Currie, appealed against his conviction following a jury trial, on an offence of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900 ('the Act'). He was sentenced on 27 April 2001, to imprisonment for five years, commencing on 24 July 2001 and to expire 23 July 2006, with a non-parole period of two year expiring 23 July 2003. The offence carries a penalty of fourteen years imprisonment. 43 The Crown also appealed on the ground that the sentence was manifestly inadequate. The decision was reserved. On 13 December 2001, the Court announced its decision, that the conviction be quashed and the Court ordered a new trial on the offence on which he was convicted. The appeal in respect of the sentence was dismissed. The appellant remained in custody as he was serving a balance of parole of two years and one month, expiring on 13 February 2002. Subsequent to that date, appellant applied for and was granted bail by me. 44 I now set out below my reason for Judgment on the appeal. 45 The appellant was indicted before Twigg QC DCJ, at Coffs Harbour District Court, on a count alleging that he, between 20 December 1999 and 22 December 1999, at Grafton, in the State of New South Wales, did have sexual intercourse with Emma Kate Barrett without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence he did by means of an offensive weapon, threaten to inflict actual bodily harm on Emma Kate Barrett and her children, who were nearby. The maximum penalty for that offence is imprisonment for twenty years. 46 The appellant pleaded not guilty. On 11 August 2000, the jury returned a verdict of not guilty of aggravated sexual intercourse without consent, but guilty of the offence referred to in paragraph 1. Crown Case 47 The complainant, Barrett, met the appellant in November 1999 when he visited her home in South Grafton on two consecutive nights. In the first of these visits, he knocked on the door and said his name was "Des", she having seen him previously in the local area. 48 The appellant told the complainant that her friend Daphne had asked him to call around on the complainant, who invited the appellant to join her for a drink, which, together with the removalist, who was assisting her in a move to Sydney, occurred. 49 The complainant subsequently gave the appellant clothes to give to her friend Daphne, and the complainant gave him the complainant's telephone number so that her friend Daphne could contact her. 50 On the following night, the appellant visited the complainant's home in the company of a friend, Alan Robinson. He and Robinson left together. The appellant returned alone, and told the complainant that he had left something on the table, and walked into the house. He then made sexual advances towards the complainant, which she rejected, and nothing of a sexual nature occurred. The appellant left. The following day the complainant left South Grafton for Sydney. 51 The complainant returned to the home at South Grafton on 21 December 1999 and went to sleep in the lounge room with her three children. Some time later in the evening, she was awakened, dragged into the bedroom and was dropped on the floor. She screamed for help. She gave evidence at the trial that her attacker produced a knife and told her to "shut up" and if she did, that he would not hurt her or her daughters. 52 The complainant said that in her bedroom there was enough light to see her attacker whom she recognised as the appellant, and that he was mostly wearing black and had a T-shirt tied over the bottom half of his face, and was wearing a black beanie, and that she could see "… a bit of scruffy hair out of the sides".

53 The appellant told the complainant to undress and lie on the bed. He had penile vaginal intercourse with her. He told her to turn over to her hands and knees, and had intercourse with her from behind. The complainant said that she told the appellant "No" or "Just don't", and that the appellant kept saying to her: "Do you want to see me get wild, do you want me to get wild with you, just be quiet". 54 After intercourse, the appellant asked the complainant if she wanted a smoke, and she told him to leave the premises, which he did. 55 After the appellant had left, the complainant found her own black beanie in the bedroom as well as a knife, which was from her kitchen. The complainant moved back to Sydney in January 2000 and threw the beanie into a clothing bin, where other items of unwanted clothing were put. She took the knife and continued to use it as a kitchen knife, later handing it to the police. 56 The complainant's evidence was that she subsequently found that the locked back door was not working properly, and the door was not locking. She subsequently had the door fixed. 57 The day after the attack, the complainant attended a medical centre in Grafton requesting a "morning after" pill, but did not tell the doctor of the attack. The complainant said she did not tell the doctor because she did not want him to call the police, and she did not want to involve the police because of embarrassment. The doctor's corroborative statement was admitted in evidence. 58 The complainant told her niece of the rape after the niece noticed the complainant taking the "morning after" pill. The niece's evidence was that the complainant said that when the complainant awoke, there was a knife at her throat. She also told a friend, Melinda Miller, that she had been raped, and she identified a person, whose name was Des, who had been to her house with the mutual friend Alan Robinson. Miller's evidence also was that the complainant told her she woke to find the knife at her throat.

59 On 9 January 2000, the complainant told her former sister-in-law that someone had broken into her house and raped her, and said that the person's name was Des. Her sister-in-law told her husband, David Walker, what the complainant had told her, and following a conversation with his cousin, they spoke with a Billy Drew, who, with another man, attended the police station where they spoke to the police about the matter. 60 The sister-in-law's evidence (Transcript 10/8/2000 at p136, ll 46-54) was that the complainant told her she had been pulled down the hallway, screamed, and that the appellant then had pulled out a knife. 61 An area of staining of the mattress showed a positive presumptive test for semen. The appellant had samples of blood and hair taken from him. His DNA profile was found to be the same as the semen occurring in fewer than one in ten billion persons in the population. 62 The appellant's wife had been admitted to hospital on the evening of 21 December 2000. The appellant, who had accompanied his wife, returned to his home, but later that evening left the house and was not seen by the appellant's father until 3:00am the next morning, when the appellant arrived home with a friend. Another witness, Patricia Cole, said that the appellant left her home to go to his home at about 11:00pm.

Appellant's Case at Trial 63 The appellant, in his evidence, denied having sexual intercourse without the complainant's consent. He said that he left the home of Patricia Cole at about 10:15pm, with the intention of going back to the hospital to see his wife. He said that his car ran out of petrol, and that he pushed the car to a nearby hotel, and that his friend, Mr Bunon, to whose home he then went, gave him a lift home, where Mr Bunon met his father. 64 The appellant said that he met the complainant when he visited with his friend, Freddo, and that they had smoked marijuana, and during that time the complainant had asked him to come back. There was also a truck driver there at the time, and after the truck driver left, he and the complainant ended up in bed, and that he and the complainant had had consensual intercourse, and that he had ejaculated, but not inside the complainant. 65 The appellant alleged that Bill Drew has persuaded the complainant to go to the police because Drew was interested in the appellant's wife, and Drew saw this as a means of getting rid of the appellant. 66 The appellant's wife gave evidence that she did not see any bite marks on the appellant; that she would have noticed such marks as she was close to her husband, always touching him and holding his hands. She said that she knew Bill Drew, and that Drew had expressed a romantic interest in her.

The Trial 67 At trial, the jury retired to consider their verdict at 11:00am on Friday 11 June 2000, and came back with a question at 11:50am, in which the jury asked whether they could find a verdict of guilty of sexual intercourse without consent, but not guilty of aggravated sexual intercourse without consent. After legal argument, the trial judge directed the jury, without any explanation, that the short answer was "yes". The charge had been brought under s61J of the Act and thus, pursuant to s61Q of the Act, there was available the alternative statutory verdict of sexual assault without consent. 68 The jury's verdict to guilty of the statutory alternative was at 3:55pm that same day.

Grounds of Appeal (1) The Verdict of Guilty is Inconsistent and Unreasonable 69 The appellant relies on Jones v The Queen (1997) 191 CLR 439, as considered in R v Markuleski (2001) 52 NSWLR 82, as to the duty of an appellate Court to properly seek to reconcile verdicts in cases of multiple counts, where there is an apparent inconsistency. 70 In Markuleski, Wood CJ at CL referred to McKenzie v The Queen (1996) 190 CLR 348, citing the judgment of Gaudron, Gummow and Kirby JJ at p366: "…. where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the original process in a criminal trial, the test is one of logic and reasonableness ….". 71 The appellant submitted that the verdict of guilty to the statutory alternative of sexual assault without circumstances of aggravation, is not logical and reasonable. 72 The appellant relied on the competing versions of when the knife was produced, in the version she gave to her niece and her friend, to that which she had given to her sister-in-law, that latter being the version, which she gave to the jury on 9 January 2000. This version alleged that the knife was produced in the hallway, after she had screamed. It is put, therefore, for the appellant that the evidence of the fact of what really happened is contradictory and impossible to reconcile, that it, had the knife and threat to the children occurred at the very beginning, in the hallway, or was the knife produced after the dragging, biting and screaming. 73 The appellant puts it that it would be too superficial analysis to say that the will of the complainant was overborn by being woken, dragged down the hall, and dropped in the bedroom. In her oral evidence, the complainant had bitten the assailant with a "full bite", prior to the production of the knife, enough for him to take his hand off her mouth, and that she had the presence of mind to scream. It is put that this is an indication of capable resistance, and that it was only after the production of the knife and the threat to her children that the resistance subsided. 74 The evidence that the complainant gave to Teena Barrett was that the complainant had screamed a bit, but that he had pulled out the knife, indicating that she had not given up screaming as a mode of coping with the situation. 75 It is put on behalf of the appellant that in McKenzie (supra), the alternative count was in the trial from the commencement, and the parties had had full scope to explore the issues raised on the different counts. 76 The appellant further submitted that although it was a sparsely housed residential area, that there was at least one of the house windows open, and that the complainant was able to scream "help, help" at the top of her voice when she saw the knife, but did not scream thereafter. 77 It is further put, in support of the contention that it is a compromised verdict, that the timing of the verdict at 3:55pm is an indication of possible compromise: R v Robinson (2000) 111 A Crim R 388 at paragraphs 67-68 per Barr J, and that the jury had asked a question before the evidence was concluded, as to whether the complainant had mentioned a knife to Det. King, which she had. In relation to this, I do not think that any inference can be drawn from the timing of the verdict. The jury had most of the afternoon to consider the matter, and the fact that the verdict occurs at a particular time does not of itself give rise to an inference of compromise. 78 In support of the contention that the verdict is unsupportable, the jury appeared to have accepted evidence as to identification, where the evidence of identification was in unsatisfactory circumstances, but did not accept the version of the complainant on another crucial element. It is further put, that in the circumstances of the dim lighting, that identification was not ideal and that there was no line-up in terms of the Evidence Act 1995, although no point is taken as such, to this fact on appeal. 79 It was also submitted by the appellant, that evidence given by the appellant's wife that she had not seen any bite marks on the appellant, could not be substantiated by the appellant, as the appellant had been deprived of the opportunity to produce prompt medical evidence because of the delay in complaint (Longman v R (1989) 168 CLR 79). Finally it was put that the contradictory versions do not go to her version of complaint, but represents contradictory evidence of the fact asserted, and if that evidence of the knife is not accepted by the jury, it is unclear as to when the complainant's will had been overborn. 80 In McKenzie, it was held per Gaudron, Gummow and Kirby JJ at p367: "It is not the role of the appellate court to substitute its opinion of the facts upon which one is open to the jury". 81 In M v The Queen (1984) 181 CLR 487 at page 493, it was held that: "…. the Court must not disregard a discount, either the consideration that they 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 jury must therefore have regard to these considerations". 82 The complainant's version in evidence-in-chief was maintained by her in cross-examination, and was supported by the witnesses called by her. The DNA evidence supported her case, in that, the semen had the same DNA profile as the appellant. The jury was entitled to reject the appellant's evidence, particularly in the light of the evidence of the appellant's father, that the appellant did not get home until about 2 or 3 o'clock in the morning. 83 Identification is an issue for the jury to decide on the evidence before it. This of itself does not make the verdict unreasonable. Similarly any discrepancy in her evidence does not of itself make the verdict unreasonable or unsupportable. This is clearly a jury matter. 84 As a matter of law, there is no inconsistency in the verdict of guilty found by the jury and the verdict of not guilty in the charge under s61J of the Act. The only difference in the jury's verdict was that the jury was not satisfied beyond reasonable doubt about the circumstances of aggravation. 85 It was submitted by he Crown that it is too simplistic to characterise the circumstances of aggravation as merely the possession of a knife or use of a knife, or even threats with regard to a knife. 86 For the Crown to prove the more serious offence, it was necessary to prove the threat to inflict actual bodily harm upon the complainant or her children by means of a knife. 87 The jury may have been satisfied that the appellant held a knife, and that he threatened her or her children, but may have not been satisfied beyond reasonable doubt that the appellant's words amounted to a threat to cause actual bodily harm by means of the knife. 88 It must be remembered that the variation in the corroborative witnesses that I have referred to above, may have caused some doubt as to the circumstances surrounding the knife, without the jury necessarily disbelieving the actual circumstances that gave rise to the finding of guilty on the lesser charge. 89 It can simply be said that the proper interpretation of the jury's verdict was, that they were not satisfied beyond reasonable doubt that the appellant had in his possession, a knife, but nevertheless the verdict of guilty was not inconsistent with the finding of not guilty on the aggravated charge. 90 In my view, cumulatively, of all the matters raised collectively as well as individually, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence of sexual intercourse without consent. For the reasons expressed above I do not have a doubt as to the guilt of the appellant.

(2) The appellant did not receive a fair trial and was denied procedural fairness when the statutory alternative count was left to the jury. 91 The appellant submitted that he was denied any opportunity through his Counsel to make submissions concerning the jury's question about the lesser offence, as to issues about the presence of the knife, or threats to the children and the overbearing of the will of the complainant. 92 It was put, and in my view, correctly, that the manner in which the alternative count arose, deprived the jury of directions as to how they might access the credibility of the complainant had they entertained a doubt about her reliability, in respect of the one count, and the fact that they may take that doubt into account in assessing the reliability of the complainant in relation to another count. 93 Such a direction was referred to by Spigelman CJ in Markuleski at para 191, when he referred to the proposition that a reasonable doubt with respect to the complainant's evidence on any count ought to be taken into account on the complainant's credibility generally. 94 It is appreciated that a count which has statutory alternatives create difficulties for Counsel and the Judge to address, as against where there are two counts she specifically pleaded against an accused. It seems to me, that in the circumstances of this case, where the issue was in fact raised as to the ability of the jury to make a finding on the alternative count, there is a need in that point in time for guidance to be given as to how to consider the count separately. This did not occur.

95 In R v Pureau, (1990) 47 A Crim R 230, Hunt J, (as he then was, and with whom Endeby and Sharpe JJ agreed), held to the effect that in reviewing the Learned Trial Judge's directions, the Trial Judge had given no assistance to the jury as to how the jury were to consider the Crown's case on the alternative charge, and therefore the conviction must be quashed: (see R v Quinn (Unreported, NSWCCA, 31 July 1991), 96 In R v Heaton, (Unreported, NSWCCA, 1 June 1990), Gleeson CJ also said that there was practically nothing given, by way of instruction to the jury, as to the possible views of the facts of the case that might result in one verdict other than another, and that there was a risk that a jury might find an alternative verdict as a compromise, without really understanding what was involved in the decision. Applying Heaton and Pureau, there being no warning given, the appeal should be allowed and a new trial ordered. (3) The jury did not receive a direction to the effect that, should they have a doubt as to the credit of the complainant on one count they may take that into account in assessing her reliability on the other. 97 It is my view, as indicated in my remarks on ground two, that although the alternative count was not contemplated in the Summing-Up, the question from the jury gave rise to circumstances that then obliged the Court to take into account the doubt as to the complainant's credit on one count, to be taken into account in assessing her reliability on the other elements of the offence. I consider that this ground is made out and is in part covered by the reasoning in respect of ground two above. This would also justify an order for a new trial.

(4) The appellant did not receive a fair trial, because of the acceptance into evidence of Exhibit D, the alibi notice, 98 It was considered by the appellant in the hearing that ground four, even if it succeeded, would not justify a new trial, and it is not necessary in light of the findings that I have made on grounds two and three to further discuss this ground.

(5) The Learned Trial Judge did not direct the jury that versions of the complainant, given to Fallon Loadsman and Melinda Miller, differing from those given to Teena Barrett and the jury on oath, were to be taken into account in assessing her credibility. 99 In relation to this ground, the findings that I have made and the view that I have taken in ground two and ground three, it is not necessary to elaborate this ground as it is subsumed within the reasons that I have given as to grounds two and three. 100 In the light of the findings that I have made I considered that the appellant was entitled to a new trial, but a new trial limited to the counts on which he had been found guilty as he had already been acquitted on the charge with which he was indicted. 101 WHEALY J: I agree with the reasons of Heydon JA.

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