R v KWG No. SCCRM-00-160, SCCRM-00-161 [2000] SASC 398

Court of Criminal Appeal: Lander, Wicks and Martin JJ

1 LANDER J. I have had the advantage of reading in draft the reasons of Martin J. I agree with his Honour's reasons and his conclusions.

2 There is no rule of law or practice which requires a judge, when a person is charged with more than one sexual offence on a child or an adult, and where there is no corroboration of the complainant's evidence, to instruct a jury that if they are not satisfied beyond reasonable doubt that the complainant has been truthful in relation to any one count that the jury must acquit the accused on all accounts. Jones v The Queen (1997) 191 CLR 439 is not authority to the contrary.

3 In Jones v The Queen (supra) the court was concerned with the constitutional role of the Court of Criminal Appeal which was called upon to review the verdicts of a jury which appeared to be inconsistent and thereby to determine whether the convictions were unsafe and unsatisfactory.

4 The role of the Court of Appeal in reviewing the jury's verdict is quite different to that of the jury in reaching its verdicts.

5 Assuming there to be evidence which is capable of supporting a conviction the jury has the constitutional obligation to determine the facts. It is not for the judge to usurp the jury's function by instructing the jury to ignore evidence which is capable of supporting a conviction.

6 Nor should a jury be instructed that in those circumstances if they acquit on one count and convict on others their verdicts are liable to be set aside by a Court of Criminal Appeal; Lucas v The Queen [1970] HCA 14; (1968) 120 CLR 171 at 174/175.

7 Where the complainant's evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant's evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant.

8 Indeed, in some cases, it might be appropriate to warn the jury that "there is nothing to distinguish the evidence of a complainant on one charge from her evidence on another charge."; R v ARD [2000] NSWCCA 443 paragraph 9 per Speigleman CJ.

9 For the reasons given by Martin J leave to amend the notice of appeal should be refused and the appeal against conviction should be dismissed.

10 I also agree for the reasons given by Martin J that the appeal against sentence should be dismissed.

11 The appellant has been able to demonstrate error on the part of the District Court Judge in relation to his application of sentencing principles.

12 The Judge was wrong as Martin J has demonstrated to have regard to count 7 as a subsequent offence. I agree therefore that it is appropriate for this Court to consider the question of sentence afresh.

13 Whilst the appellant is an old man the offences for which he was convicted were very serious. He is not entitled to rely upon his age to avoid the consequences of serving an appropriate sentence.

14 The appellant has demonstrated no contrition or remorse. His plea, which of course he was entitled to enter, put the complainant through the embarrassment and stress associated with giving evidence on subjects of this kind.

15 I agree, for the reasons given by Martin J, that the same head sentence and non parole period imposed by the District Court Judge should be imposed by this Court.

16 In my opinion, notwithstanding the age of the appellant, no good reason has been demonstrated for suspending the sentence of imprisonment.

17 I would also therefore dismiss the appeal against sentence.

19 WICKS J. I agree that the appeal against conviction and the appeal against sentence should both be dismissed. I would also refuse leave to amend the notice of appeal. I would make the above orders for the reasons given by Martin J.

20 MARTIN J. The appellant was born on 3 October 1920. He was charged on Information with the following offences:

Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

KWG in about June or July 1992 at Klemzig, had unlawful sexual intercourse with W, a person of the age of 14 years, by inserting an object into his anus.

Inducing a Child to Expose his Body. (Section 58A(1)(b) of the Criminal Law Consolidation Act, 1935).

KWG in about June or July 1992 at Klemzig, with a view to gratifying prurient interest, induced W, a person of the age of 14 years, to expose part of his body.

Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

KWG in about June or July 1992 at Klemzig, had unlawful sexual intercourse with W, a person of the age of 14 years, by performing an act of fellatio upon him.

Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).

KWG in about June or July 1992 at Klemzig, indecently assaulted W, a person of the age of 14 years.

Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

KWG in about October 1992 at Klemzig, indecently assaulted W, a person of the age of 14 years.

Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

KWG in about October 1992 at Klemzig, had unlawful sexual intercourse with W, a person of the age of 14 years, by performing an act of fellatio upon him.

Inducing a Child to Expose his Body. (Section 58A(1)(b) of the Criminal Law Consolidation Act, 1935).

KWG between the 24th December, 1992 and the 1st February, 1993 at Klemzig, with a view to gratifying prurient interest, induced W, a person of the age of 14 years, to expose part of his body."

21 The offences were alleged to have been committed on three identifiable occasions. A jury convicted the appellant of counts 1-4 and 7 which arose out of the first and third occasions, but acquitted him on counts 5 and 6 which were based upon the second occasion. The appellant appeals against the convictions, primarily on the ground that the verdicts of guilty are unsafe and unsatisfactory. Following conviction the learned trial Judge imposed a single sentence of six years and fixed a non-parole period of two and a half years. The appellant complains of errors in the sentencing process and that the sentence is manifestly excessive.

22 W was born on 11 April 1978. He gave evidence of a disruptive childhood during which he was frequently in conflict with the police and school authorities. W was introduced to the appellant by a friend. During a period of about six months W visited the appellant frequently at the appellant's flat. The appellant often provided him with ice-cream, coffee or a pizza and they played games such as chess and checkers. On occasions they watched videos. W enjoyed visiting the appellant after school. He found the appellant to be a friendly person with whom he could share his feelings.

23 According to W, during one of his visits to the appellant's flat he found pornographic material which included a picture of a vibrator. He said he asked the appellant about the item and was told that it was a vibrator. Subsequently the appellant showed W a vibrator and tickled his hand with it. On another occasion the appellant used a vibrator to tickle W from his neck to his waistline. W said that eventually the conduct during the visits involved sexual activities. In addition to the episodes that were the subjects of the charges, W spoke in general terms of numerous sexual assaults by the appellant upon him, including anal intercourse. No details of the other assaults were elicited.

24 Counts 1 to 4 were based upon an occasion that occurred in mid 1992 at the appellant's flat ("the first occasion"). W said the appellant asked him if he would pose for photographs in his underpants. According to W, the appellant loaded his automatic camera with black and white film and laid a sheet on a bed. At the request of the appellant, W removed his clothes and adopted various sexual poses while the appellant took photographs. Handcuffs and a testicle extender were used. According to W, the appellant inserted a vibrator into W's anus. That particular incident was the subject of the first count of unlawful sexual intercourse.

25 A booklet of 24 photographs was tendered in evidence which W identified as the photographs taken on the first occasion. The photographs had been provided to the police by an anonymous person. The appellant admitted taking the photographs. They depict W in various sexual poses. The photographs concentrate upon W's penis and anus. More than one photograph depicts a vibrator inserted into the anus of W.

26 The first occasion was also the subject of the second count which charged the appellant with inducing a child to expose his body with a view to gratifying prurient interest. The photographs provided compelling evidence of prurient interest.

27 W said that following the taking of the photographs, the appellant performed an act of fellatio upon him. That act was the subject of count 3 which was the second charge alleging unlawful sexual intercourse. According to W, the appellant also masturbated W. That act was the subject of the charge of indecent assault in count 4.

28 At the conclusion of the first occasion, the appellant gave W $20.

29 As mentioned, the appellant was acquitted on counts 5 and 6 which were charges of indecent assault. Those charges arose out of an occasion in mid-1992 when, according to W, the appellant and another male adult ("H") were involved in sexual activity with W at the appellant's flat ("the second occasion"). W said that the appellant and H offered a sports massage and that the massage developed into the appellant and H taking turns in performing fellatio upon W and masturbating W. He said the episode continued for about half to three quarters of an hour.

30 The third occasion also involved H and was the basis of count 7 which was the second charge of inducing a child to expose his body with a view to gratifying prurient interest. W said that the appellant and H spoke to him about photos that could lead to W being in a retail store catalogue-type publication. At the outset W posed while wearing clothes, but the session developed into the taking of pornographic photographs which included the use of handcuffs and a vibrator. The appellant was involved and made suggestions for poses. No photographs of that occasion were produced in evidence.

31 W said he continued to see the appellant until the appellant was arrested. The involvement of the police did not come about as a consequence of W volunteering a complaint to the police or any other person. In about April 1993, the 24 photographs to which I have referred were provided to the police by an anonymous person. The police set about locating W. On 10 September 1993, prior to the police speaking with W, the appellant was arrested. Three days later the investigators spoke with W. Over some hours they began compiling a statement. The interviewing officer described W as laconic in his responses and said it was very difficult to obtain information from him. The officer said W appeared to be increasingly tired through the interview and somewhat distressed. Late at night, after obtaining about six pages of statement, the officers ceased the interview. Arrangements were made to continue two days later. However, W declined to be further interviewed. As to why he was not prepared to finish the statement, W said:

"At the time I was going through a lot of emotional difficulties. I'd just been kicked out of my home with my mother and I had just been put in the system, I had just become a ward of the State and a few other issues came into place, at the time I felt I couldn't do it."

32 During cross-examination W said that he spoke with a teacher at his school. He was in tears and very emotional. The teacher was trying to comfort him and she told him that he did not have to continue with the statement. She called the police on his behalf.

33 As a consequence of W's unwillingness to continue, the Director of Public Prosecutions withdrew the charges. The appellant subsequently complained to police that, after the appellant was arrested, W had attempted to extort money from him and assaulted him. W denied that allegation.

34 Following his arrest, the appellant changed his address. W admitted setting out to find where the appellant was living and that he attended at the appellant's new residence. He said he did so because he wanted to speak with the appellant. After the Director of Public Prosecutions indicated that the charges against the appellant would be withdrawn, the appellant discontinued his complaint against W.

35 In 1997, W approached the police with a view to finishing his statement. As to why he changed his mind, W said:

"...a couple of years back I decided that I was strong enough to deal with it and I could start looking at my own problems again, that's when I went back and finished the statement, to make a step."

36 The prosecution case was centred upon the evidence of W, the 24 photographs and evidence given by the appellant in a previous trial. The jury were told during the Crown opening that they would hear of evidence given on oath in the same court by the appellant at an earlier hearing. The evidence was read to the jury. During the reading of cross-examination, the learned trial Judge explained to the jury that both W and the appellant had given evidence at a previous trial of the appellant, but the Judge had declared a mistrial and the trial had to be commenced again. His Honour emphasised that no other jury had been asked to consider a verdict in connection with the charges under consideration.

37 The transcript was read to the jury with the express consent of counsel for the appellant. The appellant gave evidence about meeting W and of discussions with W about W stealing from shops. He denied that any sexual activity had ever occurred between him and W. He spoke of the occasion when W brought some pornographic material to the flat. W told the appellant he found the material in the toilet. The appellant said he had a vibrator at the premises. His explanation for having the vibrator was as follows:

"I had fallen off my horse and had acupuncture treatment from a Chinese acupuncturist in OG Road, Klemzig. He had given me a little jar of Tiger Balm ointment to rub in my neck after the acupuncture treatment was over. It's very difficult to reach, because the crick in my neck was way back (INDICATES), so I bought a vibrator, which I could use as a massage instrument."

38 The appellant said in his previous evidence that W went into the appellant's bedroom where he apparently took the vibrator from the wardrobe. When the appellant followed some minutes later, W was sitting on the edge of the bed with his t-shirt raised and was using the vibrator on his stomach. W denied this allegation during cross-examination.

39 In his previous evidence the appellant spoke of his association with H. They were both interested in gardening and H showed the appellant how to pot orchids. They met about once a month for a chat and a cup of coffee. They also shared an interest in photography. The appellant said he had completed a course in the United Kingdom just after the war and H told him that he was doing a course at a TAFE college. The appellant gave the following evidence:

"A. He [H] had a book one day - I can't remember the name of it - it was a grey book, grey covered book and it had photographs of children done by professional photographers - extremely well-known and very good photographers, famous photographers - and the photographs were outstanding. He had bought that book, he told me, at a book sale in Rundle Mall. Because we were both interested in photography, he showed me the photographs and discussed them.

Q. Was there anything pornographic about the photographs contained in that book.

A. Not really. There were, I think, two or three photographs of nude children, but there was nothing visible.

Q. So, outwardly, to the general public, at least, I imagine, from what you've told the members of the jury, there was nothing pornographic about it.

40 As to the events of the first occasion, including the taking of the 24 photographs, in the previous trial the appellant gave the following evidence:

"Q. I want to take you to the events described by [W], where he alleges that you took a number of photographs shown in Exhibit P1; you might recall that evidence.

Q. I don't want you to go through them. You've seen those photographs, have you not.

Q. They are 24 photographs of a sexual nature depicting [W]. Did you take those photographs.

Q. I want you to explain, in your own words, to the members of the jury, how it came about that you took those photographs.

A. Well, after I saw [W] playing with the vibrator on his stomach, and in the course of conversation with [H] on one of his subsequent visits, I mentioned what I had seen [W] do, and he said, "Do you think he would let me take a photograph of him doing it?". I said, "I didn't know". He said, "Would you ask him?", I said, "I don't really think so, but I'll mention it if the opportunity arises". I mentioned it to [W] some time later, and [H], incidentally, had said that he would give [W] $20 for a study of him. As I understood it, he was to be fully dressed, with just his jersey lifted up and using the vibrator on his stomach; that was all. That was the arrangement I had with [W]. [W] said that he wouldn't be very keen on letting [H] take the photographs, but he would let me, because he knew me better.

Q. Was there any discussion with [H] as to what clothing, if any, [W] should wear, in the event that you took the photographs.

A. No. I think it was understood that he would be wearing his normal clothing, just with his T-shirt lifted.

Q. The photographs which you have admitted taking in Exhibit P1 before you, where did those photographs take place.

Q. What did you tell [W] about what you intended to photograph him on.

A. I told [W] I intended to photograph him using the vibrator on his stomach.

A. Well, when he went into the bedroom, he suddenly took his clothes off, went into the wardrobe, got out a bag of children's clothing that was in my wardrobe -

Q. Just pausing there, the bag of children's clothing that was in your wardrobe, where had that bag come from.

A. Yes. David Kitchen used to have a paper round and used to do a lot of letterbox pamphlet dropping. This took a great deal of his time and his school work suffered. During a conversation one day with [H], [H] said, well, he could get him a job modelling for the pamphlets, instead of dropping them off in letterboxes, and it would take very much less time and be better paid. I spoke to David about it, David agreed, and David subsequently mentioned it to his parents and told me that his parents had agreed. I had passed on a message to [H], and [H] said that in order to arrange this modelling course, or whatever you like to call it, he had to show them some photographs of David dressed in different items of clothing. He said mainly the advertising people wanted to ensure, themselves, that David was a very good looking boy, or reasonable looking boy, that he wasn't fat, because they didn't want a fat child, and that he was otherwise suitable for modelling these clothes.

Q. Incidentally, when you had this conversation with [H], where he asked you, in effect, if [W] would agree to being photographed with the vibrator in the way that you've described, did you have any idea, from anything said by [H], that he might have had a predilection to children, or sexual activities involving children.

Q. In any event, the bag. Before the photographs in P1 were taken by you, you said there was some children's clothing in a bag in a wardrobe. Had [H] delivered that bag to your unit.

A. Yes, to photograph David, and when I went to give it him back, he said, "Can you hang on to it for a while?", because he was going somewhere or other and didn't want to take it with him, so he put it in my wardrobe.

Q. You've told us that [W] went to the bag and obtained some clothing.

Q. Did you direct him to that bag, or did he know about that.

A. No, I did not. I don't know how he knew about it. I presume he had seen it there, or that [H] had told him. I don't know; it must have been one or the other.

Q. You certainly didn't direct his attention to it.

Q. So, can you explain now how it was that [W] came to be in the positions that are shown in those photographs, and how it was that you came to be taking those photographs.

A. That's a question I've asked myself a hundred times over. [W] took his clothes off and put some of the clothing on from the bag, I took a couple of pictures of him dressed in the clothing from the bag, then he took his clothes off again and got the vibrator out of the wardrobe. I didn't ask him to, I didn't give him any direction to. When he was getting the vibrator out, the handcuffs were in the wardrobe too, because, having bought them for [W], I hadn't had the opportunity of delivering them; I had put them in the drawer and forgotten about them, and they were there with the vibrator. Then, [W] started using the vibrator, again, without instruction from me, absolutely and entirely, and now you're going to ask me, I know, why I continued taking the photographs, and I honestly can't answer that. It's something which I regret so much.

Q. Did you instruct him in any way as to the poses which are shown in each of those photographs.

Q. Did he, in effect, insert the vibrator into his anus himself.

Q. Prior to this incident, when you took these photographs, had there been any sexual activity of any kind between you and [W].

Q. You took those photographs, you've told the members of the jury.

Q. You mentioned that [H] had offered to pay [W] $20 for the taking of those photographs.

Q. Did you provide $20 to [W] for the photographs.

A. [H] gave me the $20 when he gave me the film, before I took - when he gave me the blank film, the unexposed film.

Q. Apart from the incident that you are now, or have been, describing - the photographs taken in Exhibit P1 - after that time, was there any other occasion whatsoever that you took any photographs at all, either by yourself, or together with [H], of a pornographic nature of [W].

Q. Was there ever any occasion where you performed an act of anal intercourse involving [W].

Q. Was there ever an occasion where you masturbated [W] .

Q. Was there ever an occasion where you performed fellatio on him, or that he performed fellatio on you.

Q. So, are you telling the members of the jury that the only occasion that you did anything - and I put this in very general terms - of a sexual type of activity, was the taking of the photographs on the occasion shown in Exhibit P1.

Q. Have you ever owned, or had in your possession, a blue vibrator.

Q. In one of the photographs - and I don't need you to go through them - you heard the evidence of [W] that in the photographic session that you've admitted taking, [W] said in evidence that he put on himself what he described as a testicle extender. Do you remember that evidence.

Q. Do you agree that that happened in your presence.

A. I don't know. That is something which I have thought over a great deal.

Q. Can I ask you this; do you know whether that testicle extender might have been in the bag that was provided by [H].

A. I don't know; it could have been. It certainly wasn't mine, and I would add that, after the photographic session, the testicle expander disappeared again.

41 The appellant denied that the events of the second and third occasions occurred.

42 The evidence of the appellant given during cross-examination was also read to the jury. It is unnecessary to canvass that evidence in detail. It is sufficient to observe that the appellant's explanation for discussing the topic of W and the use of the vibrator with H, and his claim that he was not concerned that a man in his early fifties had indicated to him that a photograph of a 14-year-old boy with a vibrator would make a good photograph, both lacked credibility. Similarly, it was almost inevitable that the jury would reject his claim that it did not occur to him at the time that the vibrator suggested a sexual theme. The appellant claimed he was trying to help W by suggesting that he pose for a photograph with a vibrator because he was trying to give him a means of earning some money. He said he expected one type of photograph to be taken, namely, of W using the vibrator while fully clothed. He was taken by surprise when W took all his clothes off and put on different clothing. The appellant said that the vibrator used when the photographs were taken was the vibrator to which I have referred. His attention was drawn to another vibrator which had been found at his premises and he gave the following explanation:

A. If I might explain more fully. After the pictures were taken, some weeks afterwards, [H] gave me a set of prints. I looked at this set of prints and I was horrified, disgusted. I took the prints out into the back garden and I burned them. I took the vibrator and I cut it up with a Stanley knife. When I next saw [H] I asked him to destroy any prints he had himself, and to destroy the negatives, which he said he would do. I thought that was the end of it. Later I had another incident when I was riding my horse, when I actually fell off, and again I went back to the acupuncturist. Again, he gave me treatment and told me to use that tiger balm again. Having destroyed the vibrator, I bought another one.

Q. Have you ever heard of neck massagers; the electric ones.

Q. Was a vibrator the first thing that came into your mind for treating your neck.

A. It was the only thing I thought of. I couldn't reach around to where the pain was. It was the only thing I thought of that would extend my hand far enough.

Q. Are you truly serious in saying you got the vibrator to use on your neck.

43 The appellant maintained during cross-examination that W had posed in the various positions depicted in the photographs without any suggestion or direction from the appellant. He said he presumed W was doing "these other gyrations" for a reason. He agreed he did not have to take the photographs and that the normal objective of photography was to produce something artistic. Asked why he took them, the appellant said he did not know and that he "got carried away". He could not explain what made him get carried away other than to suggest it was a "mental aberration". He admitted moving around to obtain different angles and various distances from W, but denied that he got very close to him. He suggested that some of the photographs had been enlarged. The appellant acknowledged that W's penis was a centre of attention. He also acknowledged that the vibrator in W's anus was a focus of attention. He was unable to explain why those parts of W's body were the focus of his attention other than to suggest that it was "instinctive". He admitted that he may have been sexually excited.

44 It is unnecessary to canvass any further details of the evidence given by the appellant in the previous trial. In many respects, it was utterly unconvincing.

45 In support of his contention that the verdicts were unsafe and unsatisfactory, senior counsel for the appellant emphasised a number of statements that he submitted were lies told by W. He argued these were not just inconsistencies or lapses of memories and that there was a "cavalier" aspect about the appellant's evidence when confronted with the lies.

46 The first topic addressed by counsel concerned the evidence given by W as to when he met H. During examination, W was asked about an occasion when another person was present at the appellant's flat. W gave evidence of the massage and sexual activities to which I have referred that were the subject of counts 5 and 6. On one view of his evidence-in-chief, W said that he first met H on the occasion when those activities occurred. However, he was not asked the specific question and his evidence was not clear.

47 During cross-examination, the cross-examiner created a significant degree of confusion. It appears that when he gave his statement to the police, W said that he first met H at the home of the appellant in about October, 1992 (the date alleged in counts 5 and 6). However, it had become apparent during the evidence given by W in the previous trial, that the date of October could not have been correct. The cross-examiner appears to have treated the statement to the police as evidence and to have assumed that the erroneous statement was a lie. The confusion having been created, the witness accepted a proposition that he had lied about the date. However, a reading of W's evidence in its entirety demonstrates that he was not acknowledging that he had lied on the topic. When he was asked why he had lied, W responded:

"Because there was a conflict in dates on the statements. That is the only reason it appears to be a lie."

Later when again confronted with the incorrect statements about the date, W said that he had the date mixed up. He was then asked:

A. I said it was a lie because that is the way it sounds when you put it to me that way."

48 Counsel for the appellant reluctantly accepted that, in the initial cross-examination about the date of the second occasion, a misunderstanding may have existed between the cross-examiner and W. However, he suggested that in later evidence W was given every opportunity to explain his position. I do not agree. The cross-examiner referred to previous evidence, which was acknowledged by W, but at no time did W agree that he had lied.

49 On this topic, reliance was also placed on the following evidence:

"Q. You knew Mr [H] at the time the black and white photographs were taken, didn't you.

Q. We don't need to go through all of this again, do we.

Q. When the black and white photographs were taken.

A. Yes. It is not the case of "I might have remotely known him", you knew him perfectly well.

50 The first answer in which W used the word "remotely" was confusing. It was given against the background of the confusion and misunderstanding created by the cross-examiner earlier in the evidence. In my opinion, while the issue of the date upon which W met H may have been significant in the context of the acquittals on counts 5 and 6 which is discussed later in these reasons, and while it was a matter for the jury whether they regarded W's evidence on this topic as including lies in the sense of deliberate untruths, the evidence in its totality conveys a strong impression that W had made a mistake as to when he first met H. When he was reminded of other events which demonstrated that he must have met H prior to October 1992, W readily agreed that he had met him some months prior to October, 1992 and prior to the taking of the photographs.

51 The second topic to which counsel drew attention in the context of lies by W was the visit by W to the appellant's new residence after the appellant had been arrested. Counsel argued that, having given a false and incomplete statement to the police, W tracked down the appellant and attempted to extort money from him. He said the jury could have reached that conclusion from a combination of factors. First, W sought out the appellant and attended at his premises. Secondly, W lied about certain aspects of those events and, finally, the appellant had made a complaint about W's conduct in this regard. The complaint was before the jury in the form of a letter from the appellant's solicitor to the police. As the appellant did not give evidence at the trial, counsel agreed that the letter of complaint was not evidence of the truth of the contents.

52 In the context of the appellant's case that W sought out the appellant after he had given a false and incomplete statement to the police, an attempt was made to demonstrate that W had lied in evidence as to the timing of his visit to the appellant in relation to his giving of the statement. However, upon a close analysis of the evidence, it is obvious that the cross-examiner misunderstood W's evidence. In addition, W did not give contradictory evidence as initially suggested by counsel. W gave consistent evidence that he visited the appellant after the appellant had been arrested, but before W had given the statement to the police. There was no evidence to contradict him in this regard. In these circumstances there was no basis upon which a jury could find that W lied as to the timing of his visit. The timing given by W undermined the case for the appellant that W sought to extort money from the appellant after W had made a false statement to the police.

53 As mentioned, W admitted that he sought out the appellant. In that context, he gave evidence that he made inquiries of Mr David Kitchen, the person who had originally introduced him to the appellant. In his previous evidence, however, W had denied that he approached Mr Kitchen. W agreed that he had lied in his previous evidence. Similarly, he had lied to the police about approaching Mr Kitchen. As to why he had lied, W said that it looked "incriminating" if he even talked to Mr Kitchen and he lied to avoid "being caught out talking to" Mr Kitchen. Asked if he did so because of Mr Kitchen's association with H, W responded "because of David Kitchen."

54 W was not asked why he was concerned about "being caught out" talking to David Kitchen. There is no suggestion that, at any time, W denied attending at the appellant's new premises. If he had falsely denied seeing the appellant, such a false denial may have been demonstrative of a consciousness of guilt about attending at the appellant's premises. However, in the context of his agreement that he found out where the appellant was living and attended at those premises, a lie as to approaching David Kitchen for the new address was not capable of casting any sinister light on the reason for visiting the appellant or the events of that visit. The lie was not indicative of a consciousness of guilt as to the events at the appellant's premises. The lie was, however, relevant to the credibility of W as it demonstrated that he was prepared to lie to the police and on oath.

55 The third topic about which the appellant submitted that W lied concerned pornographic material that W took to the appellant's flat. At that time, W falsely told the appellant that he had located the material in a toilet. W had found the material on the side of a road. As to why he lied to the appellant, W responded:

"I was a kid. I don't know why I lied at that time."

56 In my opinion, while the false statement to the appellant was relevant to W's credit, it was of little significance in the jury's assessment of the reliability of his evidence concerning the events that were the subject of the charges. W was then aged 14. It is not surprising that when giving evidence approximately eight years later he was unable to recall why he lied to the appellant.

57 There was a further aspect of W's evidence that was capable of being viewed as a lie given in evidence. During cross-examination he was asked whether, from time to time, he checked the drawers in the appellant's premises. He denied doing so. However, he acknowledged that in previous evidence he had admitting checking the drawers from time to time. W was not then asked whether the evidence he had just given was a lie. The cross-examiner returned to the topic the following day and extracted from W an acknowledgment that his current evidence had been a lie. However, the question that preceded the admission that the evidence was a lie did not accurately quote the witness's evidence. In addition, the question was accompanied by a statement which assumed that because the evidence in the later trial was different from the evidence given on the first occasion, the later evidence was a lie. It is unfortunate that counsel continued to make that assumption. The earlier evidence to which I have referred demonstrated the risk that the witness would accede to the assumption, not because a deliberate untruth had been told, but because the cross-examiner "made it sound that way". Notwithstanding those difficulties, it was open to the jury to conclude that the witness had lied on oath before the jury as to whether he had looked through the appellant's drawers.

58 In conjunction with the lies, a further matter was highlighted by counsel. W admitted that when he first spoke to police in 1993, he did not allege that the appellant had inserted his penis into W's anus or that the appellant had inserted a vibrator into W's anus. W agreed that it was possible he was being asked about H when the taking of the initial statement ceased, but said that he had not got far into explaining everything about the appellant at that time. During re-examination W confirmed that, at the time the taking of the initial statement ceased, he had not told the police everything that had happened between him and the appellant. According to W, in 1997 he told the police everything that he could remember had occurred between him and the appellant.

59 Against the background of the evidence and matters relied upon by the appellant as demonstrating that the verdicts were unsafe, it is necessary to have regard to the directions given by the learned trial Judge, particularly as to the significance of lies and delay. His Honour told the jury that he was required to give them certain warnings about the evidence which they were obliged to take into account. There is no complaint about the adequacy of those warnings. His Honour told the jury that their assessment of W's evidence was critical and that it was "almost entirely unsupported by other evidence". He referred to admissions by W that he may have lied to the appellant and that he lied to both the police and to the court on each of the two trials. His Honour then gave the following directions:

"Obviously, the fact that a person lies on some occasions does not prove that he lies on all occasions. Equally obviously, knowledge that a person is sometimes a liar must cause to you (sic) be careful before accepting him.

You will remember that the case has to be proved beyond reasonable doubt. If you have doubts about whether [W] has told you the truth about some matter under consideration, it is inevitable that that matter will not have been proved beyond reasonable doubt. Please be very careful before accepting the word of an admitted liar, but do so if, after careful consideration, you are satisfied that you should.

It is for you how you go about your deliberations, but you may care to begin with some general consideration of whether you simply don't trust [W] enough to rely on him for anything.

If you were to come to that conclusion, I think you would acquit on all counts. However, if you decided that you were satisfied that he told the truth, at least about some things, then you would start going through the counts one by one, to see whether you were satisfied in relation to each element or requirement of each count. In that process you might find yourself satisfied of one, all, or none; it is entirely for you. Proof of one count is not proof of any other count."

60 Later in his directions, the learned trial Judge referred to the effect of delay:

"I have warned you to be very careful before accepting [W's] word when he has admitted that he sometimes lies, even on oath.

There is another aspect, and that is that the events happened - if they happened - a long time ago, broadly from mid 1992 to mid 1993. You have heard that investigations began when someone gave the police the photos, P2. Police tracked down who was the victim. They tracked down who took them and arrested [the appellant]. Charges were laid.

[W] was interviewed and gave at least a part of a statement. He then declined to complete it. He admits that he did try to locate [the appellant] through the Kitchens. [The appellant] says that [W] came to his house and tried to extort money with threats. He says [W] smashed the phone and hit him with a broomstick. [The appellant], through his lawyer, complained of this to the police, who made at least some preliminary investigations. Presumably because of [W's] lack of cooperation at that time, the charges against [the appellant] were dropped. A little later, claiming that he believed everything was over, and not wishing to stir up more trouble, [the appellant] consented to no further action being taken against [W].

We don't know the rights and wrongs of that allegation. If it is true, it certainly reflects no credit on [W], and would give you further cause to be hesitant about accepting his evidence.

Believing everything was over, it would be understandable if [the appellant] then did no more to document or otherwise prove his innocence. There may, for example, have been evidence from other people which might have supported a claim that he was somewhere else at some relevant time. As the years pass the possibility of finding such people, or of such people remembering anything, recedes. [The appellant]'s own memory must be worse than it was then. Quite apart from finding witnesses who might support his own case, he would have been informed better of the case against him far earlier, and might have been able to find evidence that would contradict aspects of what [W] said, if things had been done years ago.

Only in 1997 did the case revive. You may feel that if you see any defects in what [the appellant] says, at least some of them may be caused by the passage of time.

Much the same can be said about [W's] evidence, but the difference is that [the appellant] does not have to prove his case, the prosecution does, and it has to rely on [W].

We are not told that [W] made any contemporaneous complaints about what was going on. Does his delay in telling anybody anything about it have any implications for you? Would you have expected him to say something about it? In some cases of an unwanted attack you would expect an instant complaint from the victim. Here, [W] told us he actually quite liked what was going on at the time. He may not have wanted to tell anyone and risk ending it. He was, apparently, a willing participant. He may have been ashamed of it. He may well have had no-one in whom he had sufficient confidence to reveal his story.

It appears he only began to reveal it when police approached him. At that stage he appeared, at best, very ill at ease. That might relate to the pain of telling a true story; it might relate to the embarrassment of what he thought of himself for having been a willing participant. Maybe he still didn't want to end it. Equally, that discomfiture could be that of a person telling a pack of lies and under strain to keep it up.

His declining to return to finish his statement for about another five years could result either from an unwillingness to embarrass himself further. If true, the allegations would be likely to be pretty disturbing. Or because they were not true.

His decision to go on in 1997 could, as he says, be because by then he was strong enough to do so. But there might be other reasons. You will consider whether his delay was merely an opportunity to concoct or to refine an untrue story. Has he simply stewed over it for so long that it is the repetition in his mind that he now recalls, rather than the original event?

Delay is a matter to consider in relation to the general credibility of a witness. It cannot prove or disprove a particular charge. It is a matter for you, and I am sure you will think about it, but for me I do not find the key to accepting or rejecting his evidence in these delays. They do cause me to be more cautious, if only because of fading memories."

61 A verdict which is unreasonable, unsafe or unsatisfactory constitutes a miscarriage of justice requiring the verdict to be set aside. This Court must make its own independent assessment of the evidence. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, four Justices of the High Court observed that the Court is required to ask itself "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" (p 493). Their Honours said (p 494):

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

62 The test enunciated in M was confirmed by the majority of High Court in Jones v The Queen (1997) 191 CLR 439 at 452.

63 In my opinion, the issues raised by counsel for the appellant do not establish, either individually or in their cumulative effect, that the verdicts were unsafe or unsatisfactory. Counsel for the appellant did not suggest otherwise. However, counsel relied upon those matters considered in conjunction with the different verdicts.

64 The issue of inconsistent verdicts was discussed by the High Court in MacKenzie v The Queen (1996) 190 CLR 348. In a joint judgment, Gaudron, Gummow and Kirby JJ, with whom Dawson and Toohey JJ agreed on this issue, said (pp 365-368):

The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory. In civil trials, the problem of inconsistency or incompatibility has often arisen where special verdicts are taken on questions, resulting in the argument that the respective answers cannot logically stand together.

Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.

On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.

From a review of the cases, a number of general propositions can be stated:

3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone [Unreported, 13 December 1954, per Devlin J] is often cited as expressing the test:

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. 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. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case."

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case."

65 In my opinion, the different verdicts do not represent an affront to logic and commonsense. Nor do they suggest a compromise of the performance of the jury's duty or suggest confusion or misunderstanding on the part of the jury. In themselves, the different verdicts do not suggest that an injustice may have occurred. On more than one occasion the learned trial Judge told the jury that they must consider each count separately. The evidence of W concerning the first occasion which gave rise to the convictions on counts 1 to 4 was strongly supported by the 24 photographs. In addition, as I have mentioned, the appellant's evidence concerning the taking of those photographs and whether he had a prurient interest in doing so lacked credibility. Once the jury was satisfied that the appellant was sexually attracted to W and had a prurient interest in taking photographs of W adopting sexual poses, it is not surprising that the jury also convicted the appellant on count 7. I will return to the use of the photographs as the directions given by the learned trial Judge concerning that use were the subject of an application to add an additional ground of appeal.

66 As to the second occasion which resulted in the acquittals on counts 5 and 6, the doubt entertained by the jury as to whether the Crown had proved those counts is readily explicable. The Crown opened its case on the basis that the second occasion occurred after the June or July incident involving the 24 photographs. The particulars on the Information, a copy of which was provided to the jury, alleged that the offences charged in counts 5 and 6 occurred in about October, 1992. In examination, however, W said he thought that the occasion giving rise to the charges in counts 5 and 6 occurred a few months before the incident involving the 24 photographs. That evidence was confirmed during cross-examination when, contrary to the particulars on the Information, W agreed that the second occasion involving counts 5 and 6 could not have occurred in October, 1992. Importantly, the jury was not told that the date was not critical to proof of counts 5 and 6. The learned trial Judge did not tell the jury that, notwithstanding the evidence that the second occasion occurred earlier than October 1992, verdicts of guilty should be returned if the elements of the offences were proved. In my opinion, the jury is likely to have taken the view that the appellant was entitled to an acquittal because the Crown had not proved the date as alleged in the Information. As Prior J observed in R v Templeton (Unreported SA Court of Criminal Appeal Judgment No. S6038 delivered 20 February 1997), it is to be expected that, when given copies of the Information and having particulars before them, juries will, in a conscientious fashion, pay close attention to whether those particulars are proven. In addition, a doubt may have been created in the mind of the jury as to the occurrence of the events because W was uncertain and had given conflicting versions as to when he met H and as to when the second occasion occurred.

67 Counsel for the appellant did not suggest that the different verdicts in themselves justified interference by this Court in accordance with the principles enunciated in MacKenzie. He argued that, the jury having had a doubt about the evidence of the appellant with respect to the second occasion, such a doubt considered in conjunction with the other matters to which I have referred demonstrated that the verdicts were unsafe or unsatisfactory.

68 In recent years, courts of criminal appeal have regularly been required to address the difficult issue as to whether different verdicts give cause for concern that an injustice may have occurred. It is a problem that not infrequently arises in sexual assault trials, particularly where the prosecution relies upon the evidence of the complainant alone and that evidence is denied on oath by the accused. The High Court had occasion to consider the significance of different verdicts in a matter involving sexual assaults in Jones v R (1997) 191 CLR 439. The appellant was charged with three acts of sexual intercourse with a female child. He was convicted on the first and third counts, but acquitted on the second count. The majority of the court concluded that as the jury had a reasonable doubt about the truth of the complainant's evidence with respect to one count, it was not open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the remaining counts.

69 In R v RAT [2000] NSWCCA 77; (2000) 111 A Crim R 360, different verdicts in a sexual assault trial resulted in the majority of the Court of Criminal Appeal concluding that the verdicts were unsafe and unsatisfactory. After referring to Jones and a number of New South Wales authorities that have dealt with the impact of different verdicts upon the issue as to whether verdicts of guilty were unsafe or unsatisfactory, Dunford J with whom Barr J agreed held that in view of the different verdicts, and notwithstanding the fact that the evidence as transcribed carried conviction and did not contain discrepancies or inconsistencies as were apparent in M, in accordance with Jones the convictions of guilty had to be regarded as unreasonable. His Honour continued (p 371):

"If I am correct in my understanding of the effect of Jones, then I believe consideration needs to be given to the directions regularly given to juries in such trials. Juries are constantly told that they should consider each count in the indictment separately and also that they may accept part of a witness' evidence and not accept other parts of the evidence of that same witness. But Jones appears to establish a qualification to these directions to the effect that in sexual cases, where the only direct evidence of the commission of the offences is that of the complainant, if they are for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that she (or he) is telling the truth in relation to any other count; and therefore in such cases (that is, where there is no independent evidence of the commission of the offences) if they find an accused not guilty on one count, they must also find him not guilty on all counts. They should also be warned specifically that if they return different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside."

70 For the reasons that follow, I respectfully disagree with the observations of Dunford J both as to the principle established in Jones and the required content of directions to a jury.

71 In R v ARD [2000] NSWCCA 443, a decision delivered on 30 October 2000, a differently constituted Court of Criminal Appeal in New South Wales appears to have qualified the observations of Dunford J. All three members of the Court agreed that Jones does not require a direction in the form proposed by Dunford J. They also agreed that it was inappropriate to warn juries of the possible consequences on appeal of different verdicts (see Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171 at 175). However, their Honours do not appear to have been in complete agreement as to the suggested direction to the jury that, where the only evidence of the commission of the offence is that of the complainant, if the accused is found not guilty on one count the jury "must" also find the accused not guilty on all other counts.

72 Spigelman CJ said that the Court in RAT was not laying down a general rule that it is not open to a jury to acquit on one charge and convict on another whenever the only direct evidence of the commission of the offence is that of the complainant. His Honour said:

"7. The Court was indicating that where the evidence of a witness in one respect is not accepted on a beyond reasonable doubt standard, there must be a question whether the other evidence by that witness should be accepted on the same standard. This is and remains a jury question and nothing the High Court said in Jones suggests otherwise.

8. As with many aspects of the process of weighing evidence, a judge may be able to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. The proposition that a reasonable doubt about one aspect of a person's evidence may, or in some cases should, affect the assessment of the reliability of that person's other evidence, is in this category.

9. In some cases it will be appropriate for a trial judge to indicate to a jury that there is nothing to distinguish the evidence of a complainant on one charge from his or her evidence on another charge."

73 I agree with his Honour's remarks. However, later in his judgment Spigelman CJ said:

"10. I do not understand Dunford J to have been proposing a direction which is mandatory in any sense. Rather, I understand his Honour to have been suggesting a course of prudence, indicated by the outcome in Jones itself, which involved a recurring situation in sexual assault cases where the only direct evidence is that of the complainant. I agree with Dunford J that it will often be prudent, and sometimes necessary, to assist the jury in this way."

74 If Spigelman CJ was leaving open the possibility that in the circumstances contemplated where the evidence of the complainant stands alone it may be appropriate to direct a jury that if the accused is acquitted on one count, the jury must also find the accused not guilty on any other counts, I respectfully disagree. In my opinion, provided there is evidence which is capable in law of supporting a verdict of guilty, such a direction is never appropriate.

75 It follows that I disagree with the view expressed by Newman J in ARD that, in the circumstances contemplated, the direction proposed by Dunford J "would seem to be unexceptional".

76 In ARD Adams J does not appear to have accepted that, in the circumstances contemplated, the jury should be told that they "must" find the accused not guilty on all counts. Rather, his Honour expressed the view that in some cases a decision by a jury that a witness is lying or even of doubtful veracity might so affect the evidence of the witness as to render necessary "a strong direction concerning the consequences of an adverse finding as to credibility". I agree.

77 In my opinion, the High Court in Jones did not determine that in sexual cases, where the prosecution relies upon the unsupported evidence of the complainant, it is not open to the jury to convict on one count but acquit on another. In Jones, the majority applied the principle in M to the particular facts in that case. Those facts were summarised by Brennan CJ as follows (p 444):

"The appellant was a gymnasium instructor who conducted a gymnastic academy at Wentworth Falls. The indictment charged him with three acts of sexual intercourse with a female child whom he was instructing at the academy. She was aged eleven during the periods mentioned in the first two counts and twelve during the period mentioned in the third count. The trial took place in February 1996, five years after the period mentioned in the first count. The evidence of the child as to the occasions when the alleged acts occurred and the nature of the relationship between the child and her mother on the one hand and the family of the appellant on the other appears in other judgments. So far as the evidence shows, the child made no allegation to any person against the appellant until more than four years had elapsed from the first alleged act of intercourse. A feature of the child's allegations is that the acts of intercourse to which she deposed took place when there was nobody present but herself and the appellant. The first two acts allegedly occurred in the gymnasium after training sessions, the third in the appellant's house. On week-night training sessions the appellant was accompanied to the gymnasium by his wife, son and daughter. He also had an assistant, Lucia Darvall, who attended the gymnasium with him on Saturday mornings.

The jury acquitted on the second count, but convicted on the first and third counts. Having regard to the convictions on counts 1 and 3, the only possible explanation of the acquittal on the second count was the existence of at least a reasonable doubt in the mind of the jury engendered by the evidence of the appellant's wife, son and daughter. They gave evidence showing that they were invariably present during the week-night training sessions and travelled home with the appellant afterwards. The week-night training sessions were the occasions on one of which the act of intercourse alleged in the second count related. But Lucia Darvall also gave evidence relating to the Saturday morning training sessions in February 1991. These were the occasions to one of which the act of intercourse alleged in the second count related. Lucia Darvall's evidence, apparently cogent, was that she did not leave the gymnasium before the appellant on any of these occasions and that the appellant invariably drove her home afterwards."

78 During cross-examination Lucia Darvall acknowledged the possibility that she had gone home by train on a Saturday in February 1991. It was her uncertainty that appeared to be the only ground on which the verdict of guilty on the first count could be reconciled with the acquittal of the appellant on the second count. The jury was not given an adequate warning about the difficulty of establishing the defence case after a lapse of four years, particularly in the context of Lucia Darvall's memory as to whether she had travelled by train at the relevant time. The child had not complained until two and a half years after the alleged third act of intercourse and the delay was unexplained. Cross-examination revealed the child was mistaken as to the days of the week on which the first two incidents took place and her account was inconsistent with an earlier statement made to the police. Cross-examination also established that the child had sent cards to the appellant after the occurrence of the three incidents that were the subject of the charges. In addition, the child had stayed the night at the appellant's house some months after the last offence was alleged to have occurred. As the majority observed (p 455):

"Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof."

79 A combination of factors existed in Jones which, in conjunction with the different verdicts, created a doubt that led the majority to the view that the verdicts were unsafe and unsatisfactory. In my opinion, their Honours were not purporting to lay down a rule of law or practice as suggested in RAT which would have the effect of placing in a special category for these purposes cases of sexual assault in which the evidence of a complainant stands alone. The directions suggested in RAT would have the effect of creating such a special category because the directions would convey to juries the clear but unjustified message that the evidence of a complainant in sexual cases is to be treated differently from the evidence of other witnesses. Any attempt to create such a special category directly or by the application of the principles associated with unsafe or unsatisfactory verdicts should be firmly resisted. Legislative reforms in this country have directed criminal courts to cease treating cases of sexual assault as falling within a special category for the purposes of assessing the reliability of the evidence given by complainants. Those reforms should not be undermined by the special application of the principles in M to cases of sexual assault. As Kirby J pointed out in his dissenting judgment in Jones, juries play a particularly important role in cases involving sexual offences and the appellate court "is bound in law to recognise and respect the advantages of the jury in this regard" (p 467).

80 In my opinion, the directions suggested in RAT would add an unnecessary and undesirable complication to the directions. Such directions will also have the effect of usurping the function of the jury. As King CJ pointed out in R v Prasad (1979) 23 SASR 161 at 162:

"It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law."

81 The decision in Prasad was approved by the High Court in Doney v The Queen (1990) 171 CLR 206. In a joint judgment, the Court held that if there is evidence capable in law of supporting a verdict of guilty, the matter must be left to the jury for its decision.

82 For these reasons, assuming the circumstances contemplated in RAT, and assuming that there is evidence capable in law of supporting a verdict of guilty, in my opinion it is never appropriate to instruct a jury that if they find an accused not guilty on one count, they must also find the accused not guilty on all other counts. Juries should be warned that if they are not prepared to accept the evidence of a complainant (or of any other witness) with respect to a particular matter or count, their doubt in that regard should be taken into account in determining whether they are prepared to accept that person's evidence on other matters or counts. I agree with Adams J that in some cases the circumstances might require a strong direction concerning the consequences of an adverse finding as to the credibility of a complainant or any other witness.

83 As I have already indicated, in my opinion the different verdicts are readily explicable. Having considered the different verdicts and the various matters to which our attention has been drawn, and after a review of all the evidence, I am satisfied that no injustice has been caused and that it was open to the jury to find the appellant guilty on counts 1-4 and 7.

84 During the hearing of the appeal, counsel sought leave to add a further ground of appeal against conviction. That ground complained that the learned trial Judge erred in giving the following direction to the jury:

"If you decide that they [the 24 photographs] do prove that guilty passion then they may be seen as some support for [W's] evidence about each of the incidents charged. They do not prove those allegations, but they can be put in the scales as part of the case."

85 The impugned passage was not the only direction that his Honour gave. Earlier in his directions, the learned trial Judge commented that the jury "may think" that the nature of the poses and angles from which the photographs were taken would satisfy the jury that the photographs could only have been taken to gratify a prurient interest. His Honour then dealt with the use of the photos.

"I remind you that each count is separate. Proof of one does not lead to proof of another. To me, although it is for you, the photos prove some of the events of the first photo session. However, the fact that those photos were taken is no help in deciding whether photos were taken on a later occasion as alleged in count 7. For this, you have nothing but [W's] word for it. It is entirely for you whether you are satisfied of that. However, if you accept that photos were taken of that sort, and that [W] was induced by [the appellant] to expose himself for that purpose, in the second photo session, you would still have to be satisfied that [the appellant] did that to satisfy a prurient interest.

If you were satisfied that he had a prurient interest in relation to count 2, the first photo session, you could put it into the scales in deciding whether he had a prurient interest in relation to count 7. It would not be proof by itself, a person might have a prurient interest on one occasion but not on another. But proof of a prurient interest on one occasion certainly makes that a possible explanation for another occasion. That, of course, is only if you are satisfied of the occurrence of the later occasion. For that you have nothing but [W's] word."

86 After dealing with the charges of indecent assault found in counts 4 and 5 and emphasising the extent to which the Crown case relied upon the evidence of W, his Honour said:

"On count 1, while the photos established penetration with an object, only [W's] evidence can establish whether [the appellant] put it there. On count 2, only [W's] can establish whether [the appellant] induced him to expose his body. Counts 3, 4, 5, 6 and 7 are wholly denied by [the appellant], and the prosecution is entirely reliant on the evidence of [W].

It must follow that your assessment of [W's] evidence is critical. It is almost entirely unsupported by other evidence. It is denied in many respects by [the appellant]."

87 Later in his summing up, the learned trial Judge returned to the question of photos:

"I return to the photos. [The appellant] admits that he took them. You will examine them for yourself. You might - and it is entirely [up] to you - you might decide that they are evidence of [the appellant] having a sexual interest, what lawyers like to call a guilty passion, for [W]. Note that it is only relevant to the question of a passion for [W]. If all it showed was that [the appellant] was a dirty old man it would be irrelevant. It is the possible link with [W] which is the point.

For reasons I have already discussed they cannot, alone, prove any of the counts. They can prove certain aspects of counts 1 and 2.

If you decide that they do prove that guilty passion, then they may be seen as some support for [W's] evidence about each of the incidents charged. They do not prove those allegations, but they can be put in the scales as part of the case." (my emphasis)

88 Counsel for the appellant accepted that if the jury was satisfied that the appellant possessed a prurient interest in taking the photographs on the first occasion, the existence of that interest was relevant to the issue of prurient interest on count 7 (the third occasion). However, counsel contended that the existence of a prurient interest in or a sexual attraction to W was inadmissible with respect to the other counts. On that basis he argued that it was an error to direct that if, by reason of the photographs, the jury was satisfied of the existence of "guilty passion", the photographs could then be seen as providing "some support" for W's evidence in connection with each incident and could be "put into the scales" as part of the case.

89 The photographs provided strong evidence that the appellant had a sexual interest in W. They were also highly probative of the relationship between the appellant and W. They provided strong support for the evidence of W that a sexual relationship existed between the appellant and W. The relevance of the sexual interest and sexual relationship was concisely and accurately explained by Hunt CJ at CL, with whom Finlay and Levine JJ agreed, in R v Beserick (1993) 30 NSWLR 510. In the context of a challenge to the admissibility of evidence of sexual activity between the complainant and the accused other than that which was the subject of the charge, his Honour said (p 515):

"The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The "guilty passion" of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 376 (Dixon J): Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 602, 609, 610-611, 618). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R v Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B v The Queen (at 610): see also (at 602-603; 605)."

90 Beserick was cited with approval by the South Australian Court of Criminal Appeal in R v Nieterink (1999) 76 SASR 56. As Doyle CJ explained, evidence of uncharged acts can have several potential uses and is frequently not tendered as "propensity evidence" to which the exclusionary rule applies (pp 64-66). The photographs were not tendered as propensity evidence and the exclusionary rule does not apply. Even if the evidence was properly regarded as propensity evidence to which the exclusionary rule applies, in my opinion the evidence was so highly probative that it should have been admitted with respect to the remaining counts on the Information.

91 The jury was plainly told that, as to the occurrence of the third occasion which was the subject of count 7, they had "nothing but [W's] word". They were then told that if the photographs proved guilty passion they may be seen as "some support" for W's evidence. Against the background of other directions as to the use of evidence concerning uncharged sexual activities, about which no complaint is made, in my opinion the directions were unduly favourable to the appellant. If full directions had been given, such directions would have served to emphasise the highly probative force of the photographic evidence. My view in this regard is fortified by the fact that experienced counsel who represented the appellant at the trial did not complain or raise any issue about the content of these or any other directions. In my opinion leave to amend the grounds of appeal to complain about the direction to which I have referred should be refused.

92 The appellant also complained about a direction given by the learned trial Judge concerning the anger of the prosecutor during her submissions. The particular remarks appeared in the following passage:

"As I said to you at the beginning of the case, I think it will probably be useful to you if you do your best to keep your emotions to one side as much as possible. Ms Kelly was, quite properly, angry in her submissions to you about what she said [the appellant] has done. If he did that, perhaps we would all feel angry about it. But the point is that you are there to determine whether or not it is proved that he did do that, not whether you have certain views about that conduct. So, to that extent, try to concentrate on whether each of the specific matters that the prosecution has to prove has been proved, rather than looking at it in the context of whether you think this is the right sort of thing for a man to be doing." (my emphasis)

93 The learned trial Judge should not have made the remark. It had the potential to convey the impression that the learned trial Judge approved of the anger shown by the prosecutor by reason of the conduct of the appellant. However, it is clear from the remarks in their entirety that the learned trial Judge was indicating that if the appellant had behaved as alleged by the Crown his conduct would have given good cause for anger. Importantly, his Honour plainly directed the jury to put aside any emotions such as anger in considering whether the Crown had proved the specific matters required in order to establish guilt. In my opinion, the remarks did not give rise to a miscarriage of justice.

94 On the hearing of the appeal, counsel for the appellant sought to introduce an additional ground of appeal which complained that passages in the transcript of the appellant's evidence in the prior trial should not have been admitted. The first group of passages concerned questions asked by the previous trial Judge which counsel urged disclosed that the Judge held a view adverse to the appellant and which were undue interventions in that trial. I do not agree. The questioning was appropriate and the previous trial Judge did not exceed his proper role. There was no basis upon which the impugned passages should have been excluded.

95 The second passage involved evidence given by the appellant at the previous trial concerning an occasion when W stayed overnight at the appellant's home. The evidence was introduced in the previous trial by the appellant. W had said there was an occasion when the appellant asked if W had pubic hair and asked to see it. It was the appellant's case that he had no need to ask about pubic hair. He said that when W stayed overnight, W had taken a shower and the appellant saw W naked. He observed that W had pubic hair. The passage about which complaint is now made occurred during examination about that overnight occasion:

"Q. You might recall yesterday, when I put that proposition to him, he suggested that when he woke up, you were masturbating him. Do you remember that evidence.

A. Nothing happened. He woke up, I gave him some breakfast and a drink and he went to school."

96 In the trial under consideration, W was not asked about the overnight incident. As mentioned, the only evidence given by W of sexual assaults other than those charged was of a very general nature to the effect that anal penetration, fellatio, masturbation and other sexual activities occurred on numerous occasions. The particular occasions were not identified and no details were given. In my opinion, the evidence from the previous trial concerning the masturbation added very little to the general evidence that had already been given of uncharged acts occurring on other occasions. The learned trial Judge gave appropriate directions concerning the use of evidence of uncharged acts and there is no complaint about the content of those directions.

97 I am satisfied that the reading of this small passage of transcript was of such little consequence that no miscarriage of justice has occurred. In addition, it appears that counsel for the appellant was not concerned about the reading of the impugned passage. Prior to the reading of the transcript, when the prosecutor asked that the transcript be read, the learned trial Judge specifically asked whether the reading was by consent. Counsel for the appellant responded in the affirmative.

98 In my opinion, the proposed grounds concerning the transcript of previous evidence lack substance and leave to amend the grounds of appeal should be refused.

99 Having reviewed the evidence in detail and all the matters raised by the appellant individually and in their cumulative effect, I am of the view that it was open to the jury to convict the appellant of counts 1-4 and count 7 and that no miscarriage has occurred. I would dismiss the appeal against conviction.

100 The learned trial Judge imposed a single sentence of six years imprisonment and fixed a non-parole period of two and a half years. The maximum penalty for each offence of unlawful sexual intercourse was seven years imprisonment. For each offence of inducing a child to expose his body, the maximum was two years imprisonment and for indecent assault the maximum was eight years imprisonment.

101 The learned trial Judge indicated that but for the principle of totality he would have imposed a total sentence of approximately ten years. His Honour said that allowing for some degree of concurrence, the first occasion would have led to a sentence exceeding eight years on the basis of five years on count 1, 20 months on count 2, four years on count 3 and 18 months on count 4. As to the third occasion resulting in the conviction on count 7, his Honour regarded that as a "separate incident" that would have justified a further 20 months of imprisonment cumulative upon the sentences for the first occasion.

102 Having reached the figure of approximately 10 years, the learned trial Judge correctly addressed the principle of totality, particularly in the context of the fact that the appellant was nearly 80 years of age. It was in those circumstances that he arrived at the single sentence of six years in respect of all offences. In my opinion, notwithstanding the appellant's age, the sentence of six years was not manifestly excessive. It was well within the range of the sentencing discretion. Further, in my opinion the learned trial Judge imposed a shorter than usual non-parole period which properly reflected leniency on the basis of the appellant's age.

103 Counsel for the appellant argued that the learned trial Judge erred in treating the third occasion as a "separate incident" that would have justified imposing a sentence cumulative upon the sentences arising out of the first occasion. I do not agree. An offender who engages in a course of conduct over a period of time cannot be heard to complain that similar conduct on different occasions does not justify the imposition of cumulative sentences. In my opinion, there is no substance in this point.

104 On the hearing of the appeal, the appellant sought to introduce additional grounds in connection with sentence. First that insufficient weight was given to the appellant's age in fixing the non-parole period and in declining to suspend the sentence. Secondly that insufficient weight was given to delay in prosecuting the matter when fixing penalty.

105 The learned trial Judge specifically mentioned that the appellant would turn 80 in a few weeks and that his health was not particularly good. When he considered the issue of totality and in reducing the otherwise appropriate sentence of about ten years to six years, his Honour specifically stated that he took into account the appellant's age. As to the non-parole period, his Honour said (p 354):

"Were he younger I would impose a longer period. There is authority for the view that for a person who, either through illness or age, may be seen to be nearing the end of his allotted life span, a shorter than usual sentence may be appropriate. At [the appellant's] age, prison will be hard. I fix a nonparole period of two and a half years.

I have considered whether I could suspend the sentence, but decline to do so."

106 In my opinion, the complaint is without any basis. The learned trial Judge specifically took into account the appellant's age on the question of both the head sentence and the non-parole period. The express adjustments to the head sentence and the length of the non-parole period demonstrate that his Honour had due regard to the appellant's age and moderated both periods for that reason. Immediately after referring to the appellant's age his Honour declined to suspend the sentence. There is no basis for an inference that he gave insufficient weight to the appellant's age in declining to suspend the sentence.

107 The learned trial Judge did not mention the issue of delay. During submissions, counsel for the appellant referred to the delay. The appellant was 73 years of age when the offences were committed and nearly 80 years of age at the time sentence was imposed. The delay from 1993 when the police first became involved was substantial. However, there was no suggestion in the submissions that the appellant had felt that this matter was "hanging over his head".

108 There is a further aspect of the delay which was not mentioned before the learned trial Judge. It appears that the appellant completed his statement to the police in July 1997, but it was not until April 1998 that his statement was signed. The Information was laid in the Magistrates Court on 6 April, 1998. The delay from July 1997 to April 1998 was not explained and no reference was made to it in the context of sentencing. In view of the delay from 1993 to 1997 which occurred through no fault of the appellant, the continuing delay to April 1998 was most undesirable.

109 Bearing in mind the circumstances in which the two periods of delay occurred, and particularly in view of the age of the appellant, in my opinion allowance should have been made in mitigation of penalty by reason of the delay (cf David v Marcelline, Unreported, Duggan J delivered 10 May 1991, No. 2850 and R v Schwabegger [1998] 4 VR 649). It would be surprising if the learned trial Judge did not take the delay into account, but it is difficult for this Court to determine whether he did so in the absence of any reference to the issue in the course of the sentencing remarks.

110 There is a further factor that requires consideration. Section 58A(1) of the Criminal Law Consolidation Act provides for a maximum penalty of two years imprisonment for a first offence and a maximum of three years for any "subsequent offence". The learned trial Judge regarded count 7 as a second offence attracting the higher maximum:

"[The maximum penalty] for each count of inducing a child to expose his body, is two years. The second incident may well be regarded as a subsequent offence attracting three years. The section refers to "offence", rather than to "conviction".

111 The learned trial Judge was in error in regarding count 7 as a "subsequent offence" attracting the higher penalty pursuant to s 58A. Although a literal reading of the section would support the approach of the learned trial Judge, the relevant principle was recently confirmed by the Full Court in Police v Nowak [2000]76 SASR 551. The Court was concerned with a provision in the Road Traffic Act which provided for an increased penalty in respect of a second or subsequent offence. After acknowledging that the section could be read as providing for an increased penalty for a subsequent offence even though the offender had not been convicted of the first offence at the time the second offence was committed, Doyle CJ said (p 552):

"However, there is another approach to this provision that has been applied in this Court. In Ryszawa v Samuels [1969] SASR 158 Hogarth J had to consider the meaning of a similar provision, and a similar submission as to its meaning. He said (at 159-160):

"While a literal reading of the section would seem to justify this approach, it has been long established in other jurisdictions that a person cannot be convicted as for a second offence unless that offence was committed after the conviction for the earlier offence against the same law. See, for example, Christie v Bricknell [1895] VicLawRp 9; (1895) 21 V.L.R. 71; O'Connor v. Bini [1908] ArgusLawRp 104; (1908) V.L.R. 567; Farrington v. Thomson [1959] VicRp 49; (1959) V.R. 286; O'Hara v. Harrington [1962] TASStRp 19; (1962) Tas. S.R. 165; and Joyce v. Smith (1962) Tas. S.R. (N.C.) 11. These decisions stem from a principle laid down by Coke which has developed into a general principle in the interpretation of statutes that where the legislature imposes an increased penalty for a 'second offence', that expression bears the technical meaning of 'an offence committed after conviction of a first offence', unless there is some indication in the particular Act under review which raises an inference to the contrary."

112 The Full Court approved of the approach taken by Hogarth J in Ryszawa v Samuels. The same reasoning applies with respect to s 58A. A subsequent offence will only expose the offender to the higher maximum penalty if it is committed after the offender is convicted of the first offence.

113 The learned trial Judge indicated that he would have imposed a sentence of 20 months for the first offence of inducing a child to expose his body and the same sentence for the second of those offences found in count 7. It appears unlikely, therefore, that his Honour started from a higher sentence with respect to count 7 by reason of his mistaken belief that the increased maximum penalty applied. However, the error was a significant error in his Honour's reasoning process (cf R v Jarrett [2000] NSWCCA 334). In my opinion, therefore, particularly in view of the matters to which I have referred concerning the relevance of delay, this Court should consider the sentence afresh without the usual constraints associated with interfering with the exercise of a sentencing discretion.

114 The appellant committed a number of serious offences against a vulnerable young person whom he had befriended. He abused his position of trust and power. Although he expressed regret for his actions in taking the photographs, the appellant cannot claim the benefit of contrition for his offending. Similarly, the appellant is unable to call in aid the benefit of a plea of guilty. While the precise impact of the crimes cannot be determined, as the learned trial Judge correctly observed, W put the situation fairly in his victim impact statement when he wrote:

"I don't know what type of person I would have been if this hadn't occurred, but now I will never get the chance to find out. [The appellant] took away my chance to develop normally, and I only get one chance to do that."

115 The appellant is now 80 years of age and his health is not particularly good. In 1974 he was convicted of two apparently minor indecent assaults. He served in the United Kingdom Air Force during the war and saw active service in Malta. Other than allowance for the appellant's age and the delay, little can be said by way of mitigation.

116 In all the circumstances, in my opinion the sentence of six years fixed by the learned trial Judge was appropriate. As to the non-parole period, Gray J observed in R v Esposito [2000] SASC 182 that while age may operate to mitigate a sentence, including a non-parole period, it cannot be used to justify the imposition of an "unacceptably inappropriate sentence". The non-parole period of two and a half years fixed by the learned trial Judge was considerably shorter than the non-parole period that would usually be appropriate for offending of the type committed by the appellant, particularly in the absence of a plea of guilty or contrition. In my opinion, making full allowance for the delay and the appellant's age, a non-parole period of two and a half years is the minimum period which could be fixed consistently with the principles that govern the fixing of non-parole periods.

117 The issue of suspension of sentence will always give cause for anxious consideration when the offender is at an age that approaches the end of normal life expectancy. Imprisonment in such circumstances is likely to be particularly onerous and the possibility exists that the offender will die in gaol. However, other factors such as the gravity of the offending and the element of general deterrence cannot be ignored. In all the circumstances, I have reached the view that it is not appropriate to suspend the sentence.