R v KRL

SOLICITORS: Gregory P Elks (Solicitors) (Appellant) S Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2006/00005270

MASON P BARR J BELL J

Tuesday 18 December 2007 KRL v R Judgment 1 MASON P: I agree with Bell J. 2 BARR J: I agree with Bell J. 3 BELL J: The appellant was tried in the Sydney District Court in October 2006 on an indictment that charged him with six sexual offences, which were alleged to have been committed against his daughter, CAS, when she was aged 10 or 11 years. At the date of the trial CAS was aged 51 years. The first three offences were alleged to have occurred in the course of the one episode of offending which took place on the morning after the funeral of KRL's father (the first episode). This was in November 1965. The remaining three counts were also said to have occurred in the course of one episode which took place on the morning after a school concert in which CAS performed (the second episode). The concert was said to have been on a date in 1966. 4 The jury acquitted the appellant of the offences charged in counts two to six and convicted him of the offence charged in count one. 5 On 13 December 2006 the trial Judge sentenced the appellant, who was then aged 74 years, to imprisonment for a term of three years to commence on 13 December. A non-parole period of nine months was specified. The appellant had filed a notice of intention to appeal against his conviction and the trial judge admitted him to bail pending the determination of the appeal. 6 The appellant appeals on the ground that his conviction is unreasonable and is not supported by the evidence. There is no appeal against the sentence.

7 The indictment charged the appellant as follows: 1. Between 1 November and 30 November 1965 at *****, KRL did assault a female, namely CAS, and at the time of such assault did commit an act of indecency upon CAS, she then being under the age of 16 years, namely 10 years. The offence was one provided by s 76 of the Crimes Act 1900 (NSW) (the Act) (as it then stood). 2. Between 1 November and 30 November 1965 at *****, then being the father of CAS, did unlawfully and carnally know CAS, a girl then above the age 10 years and under the age of 17 years, namely 10 years. This was an offence contrary to s 73 of the Act (as it then stood). 3. Between 1 November and 30 November 1965 at ***** KRL did commit upon CAS an act of buggery. This was an offence contrary to s 79 of the Act (as it then stood). 4. Between 1 January and 31 December 1966 at ***** KRL did assault a female namely, CAS, and at the time of such assault committed an act of indecency upon CAS, she then being under the age of 16 years, namely 10 or 11 years. This was an offence contrary to s 76 of the Act. 5. Between 1 January and 31 December 1966 at ***** KRL, then being the father of CAS, did unlawfully and carnally know CAS, a girl then above the age of 10 years and under the age of 17 years, namely 10 or 11 years. This was a further offence contrary to s 73 of the Act. 6. Between 1 January and 31 December 1966 at *****, KRL did commit upon CAS an act of buggery. This was a further offence contrary to s 79 of the Act. 8 The only evidence capable of establishing the appellant's guilt of each of the offences was that of CAS. I summarise it below. 9 CAS was born in August 1955. She was the second of three children. She had an older brother, P, and a younger brother, J. When she was aged about three years her parents separated and she and her brothers went to live with the appellant's parents in their home, which was in a country town (the family home). By the time CAS was aged around 5 years P was no longer living in the family home. 10 CAS commenced primary school in 1960. 11 The appellant, his de facto wife and their three infant children visited the family home in November 1965 in order to attend the funeral of the appellant's father. 12 CAS said that the first episode occurred on the morning after the funeral. She could not remember having had breakfast. She had been going out to put things on the line. The appellant was behind her, "coaxing" her into the shed, which was located in the back yard of the family home. The shed was of timber construction with swinging doors that did not lock. It served as the garage for the family car, a 1939 black Ford. 13 The appellant opened the doors to the shed and they both went inside and he then closed the doors. CAS was wearing a dress and a pair of knickers. She gave this account of the indecent assault charged in count one: When he got inside the shed, we were at the back of the car. He was running his hands through my hair and down over my breasts down inside my clothing. He'd then get my hands onto him and I'd have to undo his belt and his zip and pull his pants down and then fondle him. … Q. Well using the expression 'he'd have his hands'. When you used the words 'he'd have his hands' are you referring to this particular occasion? A. Yes. He'd have his hands on my hands and he'd be pushing my hands down towards the front of him. He was helping me undo his clothes. Q. What did you do? A. I just undone his, finish undoing his clothes and then he had hold of his penis and was gesturing for me to touch his penis and play with him and fondle him. … Q. What state was his penis when you first saw it? A. Semi-aroused. Q. What did you do? A. When I'd finished playing with him and sucking on his penis, he was aroused. (T 16.10.06 57-58) 14 CAS was kneeling or crouching down at the back of the car at the time of these events. She estimated that she had sucked the appellant's penis for "probably five minutes". (T 16/10/06 58.21)

15 After the indecent assault CAS said that they had moved to the inside of the car and by this time her knickers had been removed. She was lying on the backseat with the appellant kneeling in front of her. She sucked his penis again. She went on to describe the offence of carnal knowledge which was charged in count two: A. Then he hopped on top of me and by that time my dress was off and on the floor. Q. How did your dress come to be off and on the floor? A. He was taking it off while I was sucking on his penis. Q. And what was the next thing that happened? A. He put his penis in my vagina. Q. How did you know that it was his penis in your vagina? A. Because his hands were always up around my breasts or my face. Q. What position were you in when he had his penis in your vagina? A. On my back on the seat. He'd pushed me back down into the seat. Q. What did he do? A. Penetrated my vagina. (T 16.10.06 5-25) 16 CAS said that the appellant told her, "don't tell anybody, it's our little secret". (T 16.10.06 59.28) 17 CAS was not able to say how long the episode of vaginal sexual intercourse lasted.

18 CAS said that immediately after the vaginal intercourse the appellant rolled her over and penetrated her anally (the offence of buggery charged in count three). She gave the following evidence in chief concerning this offence: Q. What did he penetrate you anally with? A. His penis. Q. How do you know that it was his penis? A. Because his hands were always on my shoulders. Q. You've used the phrase 'his hands were always on my shoulders', do you remember where his hands were on this occasion, the day after the funeral? A. On my shoulders. Q. How long did that happen for? A. I couldn't remember. (T16/10/06 59.55 - 60.9) 19 CAS said that she had felt nauseated and she cried. She recalled that the appellant had a "real musky smell". (T 16/10/06 60.24) 20 CAS said that she had kept her eyes closed throughout these assaults. 21 After the assaults the appellant told CAS to walk out of the shed first, saying that he would come out later. He helped her to put her knickers back on and she put her dress back on and left the shed. She went to the bathroom and cleaned herself up. She then and complained to her grandmother saying, "my father had just abused me". (T 16/10/06 62.2) The grandmother dismissed CAS' complaint saying that it was all in her imagination. 22 CAS described a red blanket with tassels attached to it, which was on the back seat of the car at the time of these assaults. She had not seen this blanket around the family home and did not know who owned it or how it came to be in the car on this day. 23 The three incidents which formed episode two (counts four to six) were said to have taken place the following year, when CAS was in Class 5B at school. They occurred the day after a fancy dress concert. She was not able to say when in the school year the concert had taken place. CAS turned 11 in August 1966. She did not know whether the concert had been before or after her eleventh birthday. The appellant had come to visit the family and to see the concert. He stayed for a couple of days. 24 On the morning after the concert CAS was in the backyard and the appellant came up to her and coaxed her into the shed. He put his hands on her shoulders and they walked towards the shed. No one else was in the backyard. She was wearing a dress and a pair of knickers. CAS recalled that the appellant was wearing a pair of pants, "jockey" underwear, and she believed a shirt. (He had been wearing a t-shirt on the occasion of the first episode.) The assaults took place after breakfast but before lunch. 25 CAS's evidence of the assaults the day after the concert mirrored her evidence of the assaults in the first episode. The appellant pushed her knickers down and fondled her as they were standing at the back of the car. She undid his pants. He had his hands on her shoulders and pushed her down, so that his penis was in front of her and she sucked it as she squatted in a semi-crouched position. Her eyes were closed. She estimated that she had sucked his penis for "probably about five minutes". (T 16/10/06 67.30) (count four)

26 After this CAS got into the car. The appellant pushed her back onto the seat and "he penetrated my vagina". (T 16/10/06 67.35) She was asked how she knew that she had been penetrated by the appellant's penis and she responded that, "his hands were on my shoulders and there was nothing else around, there was just him". (T 16/10/06 68.2-3) (count five) CAS could not remember how long the act of vaginal intercourse had taken, it could have been 10 minutes and it could have been half an hour. 27 CAS said that after the appellant withdrew his penis from her vagina he rolled her over and penetrated her anally. (count six) She knew that she was being penetrated by the appellant's penis because he had his hands on her shoulders. She thought this assault had gone on for "probably 10 minutes". (T 16/10/0 69. 5) 28 The appellant told CAS not to tell anybody and that, "it's our little secret" (T 16/10/06 66.21). She recalled that he had a musky, dirty, unclean smell. 29 After the episode of anal intercourse CAS pulled her dress down and the appellant helped her to put her knickers on. He got dressed and on this occasion he left the shed first, telling CAS to wait a few minutes and then to follow him out. 30 CAS was unable to say whether the appellant ejaculated on any occasion during any of the assaults on either occasion. 31 Following the second episode CAS went to the bathroom and cleaned herself up. After this she said that she had, "told my grandmother". (T 16/10/06 69.58) 32 CAS said that after the second episode she complained to her Aunt Doris that the appellant had sexually assaulted her. She said that her Aunt Doris had not believed her. Four or five months later CAS spoke to her Aunt Shirley, telling her that the appellant had sexually assaulted her. She said that Aunt Shirley, "didn't say she didn't believe me but she didn't say she did believe me". (T 16/10/06 70.36-37)

33 CAS' grandmother died in 1990. Aunt Doris died in 1991. Aunt Shirley, who is the wife of the appellant's brother, John, was alive at the date of the trial. The Crown led no evidence to explain why she had not been called to give evidence. 34 CAS married RB in 1975. They separated in 1979. Prior to their wedding, on an occasion when they were at the family home, CAS told RB that her father had sexually assaulted her. 35 CAS first spoke to the police about these matters in December 2002. She made a statement in May 2003. Her explanation for not making an earlier complaint to the police was that she was frightened of the appellant and, "I just did not have the strength and the stability to do anything about it." (T 16/10/06 73.13-14) 36 CAS confronted the appellant with her allegations of sexual abuse in 1997. She called to his home accompanied by her second husband. The purpose of the visit was to find out why the appellant had abused her when she was a child. He denied the allegation, saying that it was all in her imagination. 37 In cross-examination CAS said that the mower and garden equipment had been kept in an old disused toilet in the backyard. She agreed that in her statement she had said that the mower had always been kept in the shed. In evidence she maintained that most of the time the mower was kept in the disused toilet. The thrust of the cross-examination was that CAS had tailored her evidence with a view to minimising the occasions when other members of the household may have been expected to go into the shed. 38 CAS was not able to say whether the appellant arrived at the family home on the day of the school concert. She could not recall whether he was accompanied by his de facto wife on this occasion.

39 CAS agreed in cross-examination that she had visited her father when he was in hospital in 1994. This had not been a social visit, she had gone to the hospital, "to front him for what he had done to me". (T 17/10/06 34.15-16) She did not dispute that she may have taken flowers and a basket of fruit for him on this occasion. 40 CAS' younger brother, J, gave evidence. He recalled that the mower was always kept in the shed. The doors of the shed were capable of being locked by a mechanism involving a chain. He was not able to recall whether or not the appellant had stayed at the family home in 1966. 41 RB, CAS' first husband, confirmed that CAS had complained to him that the appellant had molested her. The conversation took place in the family home in 1974 and CAS had been very upset at the time. 42 Detective Senior Constable Scott gave evidence that on 2 August 2003 she spoke with the appellant at his home and told him of the allegation. The appellant said that he had not touched his daughter. 43 The appellant gave evidence denying any sexual misconduct with CAS. He had stayed overnight at the family home in November 1965 at the time of his father's funeral. He denied that he had ever attended one of CAS' school concerts. Money had been short in those years and he had not visited the family home on any occasion in 1966. CAS visited him in hospital in 1994 and brought him flowers and the basket of fruit. He had kept the basket, which was tendered in evidence. He recalled an occasion when CAS had visited him at his home with her husband. He denied that she had accused him of sexually assaulting her during the course of the visit. 44 The trial Judge gave directions to the jury concerning the assessment of the reliability of CAS' evidence and the impact of the delay on the appellant's ability to defend the allegations. These are not the subject of complaint. The relevant passages in the summing up are set out below: Members of the jury it is common ground in this case that the only evidence in respect of each of the counts in the indictment comes from CAS. She is the totality of the evidence of this alleged behaviour in all of the six counts. The Crown calls her as the only witness who can say that these events occurred. She therefore is, to say the least, essential to the proof of the Crown case. I must direct you as a matter of law that you should examine and scrutinise CAS' evidence with the greatest of care before you decide whether you can accept the evidence of that witness. Because it is for the Crown to prove its case and to prove its case beyond reasonable doubt and the evidence given by CAS is the only evidence relating to an essential matter which the Crown must prove, then it does follow that you must be satisfied beyond reasonable doubt that you should accept the evidence of CAS, otherwise the accused must be found not guilty. You must be satisfied beyond reasonable doubt that you accept her evidence in relation to the essential ingredients of each of the charges. If you are not satisfied beyond reasonable doubt in respect of her evidence touching each of the elements of the offence you must find the accused not guilty. It therefore is important that you concern yourself in assessing not only what CAS says, but also her honesty and reliability as a witness. Members of the jury you would know in your experience of life no doubt some people who would honestly tell you something. Such a person may honestly believe that what they are telling you is true, but that is not the end of the matter. You have to also determine, even though they believe what they are telling you is true, is what they are telling you reliable? You no doubt in your experience of life would know some people who would tell you something and honestly believe what they were telling you is true, but your experience would be "I do not know whether I will accept that unless I can get a bit of support from someone else". That is what is meant by contrasting honesty with reliability. Because you can have a very honest witness who is also mistaken. You can have a very honest witness who is also reliable. The prosecution must prove to your satisfaction beyond reasonable doubt that CAS is both of those things. That she is honest and that she is reliable in relation to the evidence that she has given about each of the elements of the offence.

Now the Crown has put to you that you have seen CAS give evidence and no doubt it is an embarrassing experience for her and the Crown has put to you to accept that some of the things she said would lead you to conclude that what she says has the ring of truth. Members of the jury as I have said to you assessment of witnesses is exclusively for you. For the person gets in the witness box, who you have never seen before, and tells you about what happened forty odd years ago and you are asked to assess whether first of all the witness is being honest and secondly whether her evidence is reliable and that is why you must approach your task very carefully. You will take into account the submissions of the crown as to how you assess CAS. When you are dealing with these witnesses as regards the accused and CAS you are talking about something that happened more than 40 years ago. You bring your common sense and your experience of life. You might think to yourself, your own experiences, that sometimes you believed something happened six months ago and you find out you were mistaken. You honestly believed something had happened but when you have obtained other evidence you realise you were mistaken. Your memory played a trick on you. In this case you are dealing with a person who is giving her recollections more than 40 years on and recollections that were recorded when she was a child herself. You have got to approach that task very carefully. … [His Honour next reminded the jury of a number of notable events that occurred in 1965 or 1966 by way of illustrating that "it is easy to say '40 years' - but think about 40 years and how much has gone on in that time".] Members of the jury it is very important when you assess the evidence of CAS that you take into account that this is a recollection given, formed, as a child all those years ago. I will come back to that in due course. When I said to you that the Crown must prove beyond reasonable doubt that CAS' evidence was both honest and reliable you will take into account the submissions on behalf of the accused that you would not accept it as reliable. As much as the Crown puts to you that you will accept its reliability, Mr Nicol gives some examples to you where it is shown, so he submits and these are exclusively for you, to be unreliable: the lock on the door of the garage, where the mower was kept. You must also look at this case in this light. How does any person defend an accusation from a person 40 years on, when potential witnesses have passed away, when memories have faded? The things that one can say potential witnesses have gone, potential evidence has gone. The true fact is, you might think that you do not even know what evidence has gone. People think back to when they attended funerals and if they are in families they might stay over, lots of kids running around the place, lots of adults. Sometimes the kids have moved off to stay the night down the street with a kind neighbour or a close friend. When allegations are not made to the authorities for nearly 40 years, all that evidence is gone. If you were in the position where someone said you had done something improper 40 years ago, where would you start? You might think to yourself, as I was putting to you, 'what was happening 40 years ago? First of all, how old was I? What did I do? Was I at school?' But even though you can think about evidence that is gone, you might think that some evidence has gone that no one even knows about. You must take that into account when you are considering these allegations and when you are considering the reliability of CAS' evidence, because any person in our society who is accused of impropriety so many decades after is at an enormous disadvantage in establishing the truth. The answer, of course, is the prosecution has to prove that the accused is guilty; the accused does not have to prove his innocence, but the passing of time robs the accused of the capacity to produce evidence. I will come to that later. I emphasise to you it is for the Crown to establish that CAS is honest and reliable. It is not for the accused to show that she was dishonest or unreliable. That is not his role. Members of the jury, I also direct you as follows: if it be the case that you have a reasonable doubt with respect to CAS' credibility or reliability on any one count, you should take that doubt as regards her reliability into account in assessing her reliability and credibility generally when you come to consider the remaining charges. Members of the jury, I am required at law to direct you that the evidence given by CAS may - and it is a matter for you - and I repeat - may be unreliable. The reason it may be unreliable is she is recounting what she says is in her memory, which was laid down when she was only 10, when she was a child herself and, not only that, it is a recollection that goes back some 40 years or thereabouts. I direct you, as a matter of law, her recollection and her memory, her evidence, may be unreliable. It is a matter for you to assess whether you consider it reliable or unreliable. … As regards the delay, it is important that I give you certain warnings. It is most important that you appreciate fully the effects of delay in the ability of the accused to defend himself by testing prosecution evidence, and by adducing evidence in his own case to establish a reasonable doubt about his guilt. The prosecution has got to prove the guilt of the accused beyond reasonable doubt, but the delay of the order of 40 years is such, members of the jury, that it would, you might think, create enormous difficulties in adducing evidence and testing the evidence given in the prosecution's case. In this regard, I refer you to the following specific difficulties encountered by the accused in testing the evidence of the prosecution, the evidence of CAS, by either testing her in cross-examination or adducing evidence in his own case. I give you this direction as a result of the experience that the courts have had over decades and decades in cases of this nature. You must appreciate what an enormous difficulty it is to have allegations made such a long time after the event. The delay in instituting the prosecution is something of the order of 37, 38 years. There is, you would expect, the possibly of distortion in human recollection. The delay in instituting the prosecution is something of the order of 37, 38 years. There is, as you would expect, the possibility of distortion in human recollection. All of us like to believe our recollections, our memories, are excellent, but are there occasions when they're shown not to be? You will take into account the nature of the allegations. How does one establish that the allegations are not true? Of course, the prosecution has got to prove it is true; it is not for the accused to establish that it isn't true. But the accused, by delay is robbed of the opportunity of producing witnesses. As an example, CAS says she complained to her grandmother. Her grandmother was her "de facto" mother. If CAS is accepted that she made that complaint immediately after the sexual assaults, and which were very significant sexual assaults you might think on a 10 year old child, and the child is crying, the grandmother discounts it and says "it's your childish imagination". Now it is a matter for you whether you accept CAS made that complaint, but if, for example, she did, why is the grandmother, who is the de facto mother, saying that? Some children, you might think in your experience of the world, at some stages during their lives, can have fertile imaginations, and it may be, if you accept that the complaint was made, that the grandmother had a lot of experience of this child, 10 year old CAS. Now that witness, because of the passing of time, has passed on. That evidence potentially is lost. The accused has no opportunity to explore with that potential witness, firstly, was it said, was the child crying?; secondly, was the complaint dismissed?; and thirdly, why was it dismissed? And you will have regard to the fact that CAS's allegation is, not only was it dismissed then, but next year virtually the same routine took place, again immediate complaint to the de facto mother, the grandmother, and again dismissal of it. There is no suggestion that the grandmother ever spoke to the accused about these allegations. That is an example of how this accused is significantly disadvantaged in producing evidence before you. As I have said to you, in effect, a verdict of not guilty does not mean that you do not accept at all what CAS has said; a verdict of not guilty means this: the prosecution has not proven the guilt of the accused beyond reasonable doubt. You will take into account, as regards the difficulties encountered by the accused in testing the case and adducing evidence in his own case, the age of the complainant at that time of the allegations. She was 10. It is very easy to say someone is 10. Not all 10 year olds are the same. Some are a lot sharper, a lot more worldly than others. What type of 10 year old was she? Was she a girl who did have a good imagination? Was she a girl who made allegations against others on occasions? You will take into account, members of the jury, that not only is there this enormous delay, which adversely affects the accused's capacity to test the evidence and produce evidence to you, the only evidence in the case - the only evidence - is the evidence of CAS's recollection of what happened when she was 10 and 11. I remind you that it is not difficult to sit and think about evidence that has been lost by the effluxion of time, but I remind you that you will also consider what evidence may have been lost that we don't know about, that you don't know about, whether there could have been someone, had there been a more timely complaint, who would be able to give evidence that might cast doubt upon the evidence of CAS. As Mr Nicol said to you, the evidence is lost. One can't speculate whether it would be positive or negative, but the Crown must prove the guilt of this accused beyond reasonable doubt. Members of the jury, by reason of these difficulties additional care and caution is required by you in the way you approach the prosecution evidence. The way the case is put to you is that CAS appeared a pretty straightforward person in the witness box, and therefore, although she is a complete stranger to you, you will be able to say "there's an honest and reliable person". The way the case is put to you by the accused is "wouldn't you want some supporting evidence that shows this happened?" - if there had been some medical evidence, wouldn't you want some evidence from the grandmother or the aunts? And as is put to you about the complaints, why is it that each of the aunts to whom complaint was made also dismissed it? Is it the case that these people just were uncaring of the complaint and just dismissed it out of hand, or was the complaint, if you are satisfied it was made, dismissed for good reason? … [His Honour then gave a Jones v Dunkel direction concerning the failure of the Crown to call Aunt Shirley]. Members of the jury, having carefully considered the matters to which I have referred you, and the warnings that I have given you, it is then a matter for you to determine what weight you give to CAS's evidence in this case. Members of the jury, unless you are satisfied as to truth and the accuracy and reliability of CAS's evidence, unless you have scrutinised her evidence with much care, and, unless you have considered all the circumstances relevant to evaluating her evidence and paid due regard to the warnings that I have given you as the law requires me to give, you would not be in a position to be satisfied beyond reasonable doubt. In other words, it is a matter for you as to whether you are satisfied beyond reasonable doubt in relation to the charges, but only after you have satisfied yourself beyond reasonable doubt of the truth and accuracy of CAS's evidence, and you have scrutinised that evidence with much care, you have considered all the circumstances regarding its evaluation, and you have paid careful heed to the warnings that the law requires me to give to you. (SU 14 - 32) 45 The test to be applied in determining whether the verdict should be set aside on the ground that it is unreasonable is that set out in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 493: 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 that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 46 The High Court discussed the application of the test in M to a case in which it is asserted that a verdict is unreasonable having regard to verdicts of not guilty returned by the same jury in MFA v R [2002] HCA 53; 213 CLR 606. Gleeson CJ, Hayne and Callinan JJ in their joint reasons said (at 617 [34]): The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. 47 Their Honours emphasised in this context that in cases where an indictment contains multiple counts, the trial judge will ordinarily direct the jury both that the evidence of a witness may be accepted in whole or in part and to give separate consideration to each count. I have set out the directions given in these respects above. 48 McHugh, Gummow and Kirby JJ in their joint judgment in MFA said (at 631 [85]): In judging suggested inconsistency, this Court said in MacKenzie ((1996) 190 CLR 348 at 367) that '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'. … [86] Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and commonsense' and suggest a compromise in the performance of the jury's duty ( McKenzie at 368). Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission ( McKenzie at 368)." 49 It is the appellant's contention that nothing differentiates CAS's evidence, which the jury accepted as establishing the offence charged in count one, from her evidence in support of the balance of the counts, which the jury did not accept and, accordingly, that the test of "logic and reasonableness" is not satisfied: R v Markuleski (2001) 52 NSWLR 82 per Spigelman CJ at 101 [78].

50 In relation to counts four to six, which relate to the second episode, the Crown submitted that CAS' inability to fix the date of the concert with any precision might explain the acquittals. She was not able to say whether the concert took place at the beginning, the middle or the end of the year. The appellant denied that he had visited the family home on any occasion in 1966. Each offence was particularised as having occurred between 1 January and 31 December 1966. The jury might have considered that the Crown had failed to establish beyond reasonable doubt that any of these offences occurred in the period particularised in the indictment. Such an approach would not demonstrate that the jury had rejected CAS' evidence as credible in the sense of both being truthful and reliable on matters of substance: Markuleski at 101 [79], 103 [92] - [93]. 51 The focus of the submissions was upon whether the conviction in light of the verdicts of not guilty on counts two and three is an affront to logic and common sense suggesting that the jury compromised in the performance of its duty or failed to give effect to the Judge's direction that a doubt concerning the reliability and credibility of CAS' evidence on any one count should be taken into account in assessing reliability and credibility with respect to remaining counts. 52 It is necessary to bear in mind the different ingredients of the offences charged in counts one, two and three. Count one was a charge of indecent assault. The jury were directed that the act of indecency may also constitute the assault and that "indecent" means contrary to the ordinary standards of respectable people in the community. His Honour explained that the Crown allegation in relation to count one was that the appellant indecently touched CAS and invited or coaxed her to suck his penis. In relation to count two the jury were directed of the need for proof of penetration to any extent of the appellant's penis into the genitalia of CAS. In relation to count three the jury were directed of the need for proof of the penetration of the appellant's penis to any extent into the anus of CAS. 53 In the Crown's submission, the jury might have approached counts two and three upon the basis that they could not be satisfied beyond reasonable doubt of proof of penetration. The Crown contended that a cautious jury may have declined to convict the appellant of offences for which medical evidence may have been available had there been a timely investigation. 54 Mr Nicol, who appeared for the appellant at trial and on the appeal, pointed to CAS' evidence that she knew in relation to both the vaginal and anal assaults that she was being penetrated by the appellant's penis because, although she had her eyes closed, she was aware of his hands on her shoulders and around her face. In Mr Nicol's submission there was no reason to accept her account of fellatio, but draw back from accepting her account of vaginal and anal intercourse. 55 The jury were directed that in assessing the evidence of CAS they were to take into account that her recollection was formed as a child (SU 17.9) and (SU 19.9). In my opinion, acting in accordance with this and the other directions, the jury may have approached the matter upon the basis that CAS' evidence was able to be acted upon as establishing the fact of the indecent assault beyond reasonable doubt but that her unsupported evidence did not establish the offences that required proof of penile penetration to that standard. CAS' eyes were closed throughout the assaults. While there may be thought to be no room for mistake concerning the indecent assault, the jury may have considered that it was possible that CAS' understanding of the assaults inside the car was mistaken. In my opinion the acquittals on counts two and three do not carry with them that the credit of CAS was diminished.

56 One matter that was referred to in the written submissions filed on the appellant's behalf, but not developed beyond the statement of the facts, concerns a communication from the jury during the course of their retirement. The jury retired to consider its verdict at 11.00am on Friday 20 October 2006. The jury returned at 2.55pm with a note stating, "The jury is hung on one of the counts, what is the process from here". (T 20/10/06 33.5) His Honour gave a direction consistent with the direction in Black v R (1993) 179 CLR 44 and the jury retired at 3.00pm. The jury were permitted to separate around 4.00pm and resumed deliberating on Monday 23 October 2006. On that day the jury returned to Court at 11.55am and his Honour noted: I received a note from your foreperson indicating that the position that had existed on Friday still applies. Members of the jury, there is no further direction I can give you at law other than that you should continue with your deliberations and at 2.00pm I will make inquiries of you assuming you have not reached a verdict in relation to all of the matters by that stage. (T 23.10.06 8) 57 The jury returned to Court at 2.10pm and the foreperson was sworn and confirmed that the position remained as indicated in the earlier communication and that the foreperson did not consider they would gain any benefit from further deliberation with respect to "that remaining count". 58 It is apparent that his Honour was satisfied after this examination that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. His Honour gave a majority verdict direction. 59 The jury returned its verdicts at 3.04pm. It was not submitted, and I do not consider, that this history is suggestive of the verdict on count one being a compromise verdict. 60 There was evidence to support the verdict. An examination of the transcript of the trial does not reveal inconsistency or other inadequacy in the evidence of CAS. Her evidence related to events many years prior to the trial, but this was a matter that was the subject of detailed directions. The jury were entrusted with the task of determining guilt and the jury heard the evidence of CAS and the other witnesses called for the Crown and the evidence of the appellant. For the reasons I have set out above I do not consider that the verdict is an affront to logic and reason when viewed with the acquittals on the remaining counts. Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. 61 For these reasons I propose the following order.

2. Pursuant to sections 18 and 28A of the Criminal Appeal Act 1912 direct that the non-parole period commence on 18 December 2007. The non-parole period will expire on 17 September 2008. The balance of the sentence is two years and three months and will expire on 17 December 2010. Direct the appellant's release on parole at the expiration of the non-parole period.

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