R v RAT

Court of Criminal Appeal (NSW)|1999-12-07|Before: Dunford J, Hulme J, Barr J

CITATION : R v RAT [2000] NSWCCA 77 FILE NUMBER(S) : CCA 60241/99 HEARING DATE(S) : 7 December 1999 JUDGMENT DATE : 24 March 2000

PARTIES : RAT (Appellant) Regina (Respondent) JUDGMENT OF : Dunford J at 1; Hulme J at 48; Barr J at 57

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0194 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

DUNFORD J HULME J BARR J Friday 24 March 2000 R v RAT JUDGMENT 1 DUNFORD J. This is an appeal by the appellant against his conviction on two counts of indecent assault contrary to s 76 Crimes Act 1900 as it stood at the relevant time, and one count of carnal knowledge contrary to the former s 71. The appellant was arraigned on six counts, the two indecent assault counts and one carnal knowledge count were alleged to have been committed between 9 October and 31 December 1977 and there were three further counts of carnal knowledge allegedly committed between the following dates: 7 June and 31 December 1979 (count 4); 1 January and 21 December 1980 (count 5); 9 October and 21 December 1980 (count 6). At the close of the Crown case, the trial Judge, (His Honour Judge Armitage QC) directed the jury to return a verdict of not guilty on the 5th count and the jury subsequently found the appellant guilty on the first three counts and not guilty on counts 4 and 6. 2 The complainant was born on 10 October 1967. The appellant was her stepfather who came to live with the complainant and her mother when the complainant was 3 or 4 years of age. In 1973 her mother gave birth to the complainant's half-sister, C. The appellant was C's natural father. 3 The complainant gave evidence that one morning when she was aged about 10 years and living at an address in Kingsford, whilst she was readying herself for school and after her mother had gone to work, the appellant kissed her on the lips then placed her on a black and orange lounge in the lounge room, laid her on her back and then lay on top of her and pushed himself against her whilst they were both fully clothed. He told her not to tell anyone, it would be "their little secret" (first count). 4 She said that one or two days later when she was again readying herself for school he sat her on the edge of the bed, fondled and kissed her about the neck, laid her on the bed, separated her legs, lowered his pants, pulled her underpants to one side and attempted to insert his penis into her vagina. He again told her not to tell anyone and said "no-one will understand, if you tell your Mum she'll leave" (second count). 5 A few days later, she said, the appellant called her into the bedroom where he laid her on the bed, moved her underpants to one side and began touching her and ultimately placed his hand over her mouth and forced his penis inside her vagina, withdrawing after about five minutes and ejaculating on the bed. He again told her not to say anything, that her mother would not understand and that she would leave (third count). She said that neither her mother nor her half-sister were present in the premises on either of these occasions. 6 About Easter 1979, the complainant, her mother and half-sister went to Malta for some months where they stayed with the mother's family, and one day she was talking to a cousin, JA, when a discussion started as to whether she had ever kissed a boy and ultimately she told her cousin that the appellant was doing things that he should not do, "he's putting his thing inside me". This evidence of "complaint" was corroborated by the cousin JA who gave evidence in the Crown case. 7 After their return to Australia in 1979, the family moved to an address in Eastlakes and the complainant said that on a Saturday morning in 1979, after the appellant had taken her mother to work, he entered her bedroom which she shared with her half-sister and in which the half-sister was sleeping at the time, told her to get up then removed a "dressing gown cord" that was hanging behind the bathroom door, closed both the bathroom door and the door to the bedroom occupied by the half-sister and tied the handles of each door with the length of cord. He then told the complainant to go into the other bedroom, closed the door to this other bedroom and placed a sewing machine against it, told the complainant to remove her clothes, which she did, they got into bed where the appellant had vaginal intercourse, withdrawing and then ejaculating on the bed sheet. Whilst this was going on the half-sister was heard trying to open the bedroom door and calling out for the complainant to open the door (fourth count). 8 The complainant also said that on another occasion following her return from Malta, the appellant approached her between the lounge and the coffee table in the unit at Eastlakes, kissed her and laid her on the floor, lifted her legs and inserted his penis into her vagina, and when he withdrew he ejaculated on the floor. She said she did not know the whereabouts of her mother when this occurred (fifth count). 9 In her evidence-in-chief she was asked to clarify when this incident occurred relative to that in count 4 and she said this incident occurred before the incident involving the dressing gown cord, which was contrary to what she had said in her statement. At the close of the Crown case the Crown Prosecutor sought leave to amend count 5 in the indictment by enlarging the particulars to allege commission of the offence between 9 October 1979 and 16 July 1981 and his Honour granted leave to make the amendment conditional on the Crown recalling the complainant to permit further cross-examination, but the complainant did not appear for further cross-examination, so his Honour revoked leave to amend the indictment, and directed the jury to return a verdict of not guilty on this count. 10 Towards the end of 1980, the appellant travelled overseas. The complainant said that shortly prior to his departure he was preparing to spray paint his car in the garage forming part of the apartment block at Eastlakes, and that while he was masking the windows she was sitting in the car when the appellant climbed in and started kissing her, removed her pants and "started to have sex" with her by inserting his penis into her vagina. The complainant's mother and a cousin, Sandra, tried to enter the garage at this time and the complainant heard her mother ask for the door to be opened, whereupon the appellant quickly lifted himself and told the complainant to dress (sixth count). 11 Whilst the appellant was overseas the complainant played truant from school for approximately two months during which time she met another young man, FG, but following the appellant's return an argument developed between him and the complainant about her not attending school, during which the appellant slapped the complainant's face and threw an ash tray at her. Later that evening the complainant left the Eastlakes premises and went to FG's home, he later drove her back to Eastlakes and suggested she go inside, but she told FG that her father "was having sex with me and stuff like that" so she did not return home and later moved into an apartment with FG and enrolled at another school under a false name. 12 Shortly afterwards police located the complainant and FG and both were taken to Kings Cross Police Station where the complainant spoke with a female police officer and later with a social worker, Ms Voight. The complainant could not recall whether she told Ms Voight of her father's conduct, but Ms Voight gave evidence that she did, although her notes could not be located, and because of the lapse of time, no record of what had happened or been said at Kings Cross Police Station could be located. The complainant was placed in temporary foster care but after a time she and FG drove to Melbourne where they settled and lived for 3 to 4 years pursuing a personal and sexual relationship in the mean time. They subsequently returned to Sydney but after a year or two their relationship ceased. 13 The complainant also gave evidence that she was subjected to various forms of general ongoing abuse by the appellant whilst she was living at home including being forced to eat all that was placed on her plate at meal times including at times her vomit, having her hand placed on a hot plate for stealing coins, being struck with electrical cords and belts, being made to take cold showers in winter, being hit with a belt whilst in the shower and having her cuticles pushed back into her fingers causing pain, and sometimes bleeding. She said she did not complain about the appellant's sexual abuse of her prior to her journey to Malta because she was fearful of the consequences, nor did she tell any of her school friends about what had been occurring to her. She also gave evidence that from 1979 onwards (i.e. count 4) until she left home the appellant had sexual intercourse with her at least once or twice a week. 14 FG was granted a certificate pursuant to the Evidence Act 1995 s 128 and gave evidence of the conversation he had with the complainant the night she left home and of their subsequent life together, whilst the cousin, Sandra, gave evidence of an occasion close to the time the complainant left home, when she slept overnight at the appellant's home in the complainant's bedroom and during the night she saw the appellant walk in and lay next to the complainant under the blanket. The complainant said "no" or "stop it", and after the appellant left the room she could see a tear in the complainant's eye. She also gave evidence that she had seen the appellant slap the complainant, force her to strip, place her in a cold bath one winter's night and force her to eat her regurgitated food. 15 The appellant gave evidence denying each of the offences with which he was charged. He denied that the family arrangements were such that at the relevant times he was ever at home alone with the complainant in the mornings before she went to school. He denied ever having supervised the complainant or her half-sister in the shower. He said he never owned a bathrobe or dressing gown and there was none hanging up in the bathroom at any time. In relation to count 6 he said that the garage associated with the units at Eastlakes had a wire mesh fence through which the contents of the adjoining garage were visible, that he never spray painted cars in that garage and it was never his practice to lock the garage door from the inside as the door lacked an internal locking mechanism and the door was always secured by an external padlock. He denied ever having placed the complainant's hand on a hot plate, forcing her to take cold showers, forcing her to eat her vomit or pushing her cuticles back into her fingers. He said he could not recall any occasion on which Sandra slept in his home. 16 The complainant's mother also denied that the complainant was ever left at home alone with the appellant before school prior to the trip to Malta, and said that in a telephone conversation in 1987 her daughter told her that she had been young and stupid and that she and FG had made up the story about her father sexually assaulting her so that if they got caught by the police FG would not get into trouble. She said that she never heard the complainant say anything about having her hand forced on the hotplate by the appellant, nor did she ever see the complainant regurgitate her food and the appellant force her to eat her vomit. She said she recalled an instance when Sandra stayed overnight in the complainant's room at a time when the appellant was in South America. She did see the appellant smack the children using a belt, but she disapproved of this form of reprimand. She said she owned a bath robe that she sometimes hung on the back of the bathroom door at the Eastlakes unit, whilst the half-sister said she had no memory of ever being locked in her bedroom. 17 There was a considerable attack made by defence counsel on the credit of the complainant. She was cross-examined at length over two days, but although there was some cross-examination in relation to the circumstances surrounding counts 4 and 6 there was virtually no cross-examination concerning counts 1, 2 and 3 except a formal putting of the appellant's denial to the complainant in supposed compliance with the so called rule in Browne v Dunn (1894) 6 R 67. Most of the extensive cross-examination was directed to the complainant's credibility, and to the collateral issues of whether she had been forced to eat her own vomit, have cold showers, etc. 18 FG was also cross-examined as to his character, particularly his prior criminal convictions and his knowledge of the complainant's age when he was having a sexual relationship with her. It was put to him, but he denied, that he and the complainant fabricated the allegations against the appellant in the event that the police discovered their living arrangements and the complainant was forced to return home. 19 Although, on the complainant's evidence, Sandra was present with the mother outside the garage at the time of the events alleged in count 6, no evidence was led from her concerning that incident; and not surprisingly, she was not cross-examined about it. However, the jury did ask a question as to why she had not been asked about it and they were properly directed that they were entitled to infer from the failure of the Crown to ask any questions of her on that issue that her evidence would not have assisted the Crown case, but that they did not have to draw that inference, and that there is never any obligation upon an accused to ask any questions of a witness at all. They also asked whether there were any photos of the inside of the garages, and were correctly told that there were none in evidence (SU 82, 96-98 - the intervening pages were taken up with argument as to how those and other questions should be answered). 20 The grounds of appeal relied on by the appellant are that: 1. The verdicts are inconsistent; and 2. Having regard to the evidence, the verdicts of guilty are unreasonable and cannot be supported.

21 Although there is some relationship between the two grounds it is desirable to deal with them separately. The matter of inconsistent verdicts was recently considered by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 365 to 368, where the majority (Gaudron, Gummow and Kirby JJ) pointed out that regard must be had to the jury as the "constitutional" tribunal for resolving disputed factual questions and the court's reluctance to undermine jury verdicts or to infer from them that the jury, drawn from the community, have done otherwise than their duty. On the other hand where doubt is cast upon a verdict because logically it cannot stand together with another verdict, the appellate court must decide whether the conviction based upon the verdict which is impugned is unsafe and unsatisfactory (or to use the terminology now current whether such verdict cannot be supported and/or is unreasonable, having regard to the evidence: Fleming v The Queen [1998] HCA 68, 158 ALR 379, R v Giam [1999] NSWCCA 53). 22 In dealing with inconsistency alleged to arise from different verdicts on different counts in the same originating process the majority approved the test laid down by Devlin J in R v Stone (unreported - 13 December 1954), followed in R v Hunt [1968] 2 QB 433, and went on to say that if there was a proper way by which the verdicts could be reconciled, allowing the conclusion that the jury performed their functions as required, that conclusion will generally be accepted; and if there is some evidence to support the verdict(s) 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. Their Honours went on (at 367): "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 appellant 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 exercised by, juries,"

and they referred with approval to the remarks by King CJ in R v Kirkman (1987) 44 SASR 591 at 593. 23 Finally they referred to the cases where different verdicts represent an affront to logic and common sense which is unacceptable and strongly suggests a compromise by the jury or confusion or a misunderstanding of their function, and said that it is only where the inconsistency rises to the point that the appellate court considers that the intervention necessary to prevent a possible injustice that the relevant conviction(s) will be set aside. 24 In relation to the three counts on which the appellant was convicted, the evidence of the complainant was simple and straight-forward, she claimed the offences all took place over a short period of time in the house at Kingsford and on these counts her credibility received a degree of support from her cousin, JA's evidence of what she had said to him in Malta at about Easter 1979. Although she was cross-examined over two days, the cross-examination was directed almost entirely to issues of credit and to circumstances surrounding the allegations relating to the 4th, 5th and 6th counts. 25 On the other hand, in relation to counts 4 and 6, there was considerable cross-examination regarding the circumstances; in relation to count 4 whether there was in fact a bathrobe or dressing-gown on the back of the door and, if so, whether it had a waist cord or "belt" and the complainant's half sister, whom the complainant alleged was present in the bedroom and who called out, gave evidence denying that anything of that nature had occurred. 26 Furthermore in relation to count 6 (the alleged incident in the car in the garage) there was evidence not only from the appellant, but also from the complainant's mother (whom the complainant alleged was outside and disturbed them, which she denied) that the only latch or lock to the garage was on the outside of the door and that there was only a mesh wall between the appellant's and the adjoining garages. In relation to these latter counts there was evidence of complaint to FG and to Ms Voight but it was put to the former that he had a motive for lying in that he had at the relevant time been having sexual intercourse with the complainant who was then underage and he had been given an indemnity, while Ms Voight's evidence reads as rather vague; and although the "complaint" to her was in 1981 at Kings Cross Police Station, nothing was done about the matter until 1995 and nothing emerged during the trial explaining why no charges were laid against the appellant after the complainant was taken to Kings Cross Police Station in 1981. 27 The jury may not have been as comfortable with the evidence of FG and Ms Voight as they were with that of JA, they were apparently concerned that the complainant's cousin, Sandra, was not asked any questions in relation to the 6th count by either the Crown Prosecutor or Defence Counsel, and whether the wall between the appellant's garage and the adjoining one was only wire mesh was left unresolved. The jury, without necessarily doubting the complainant's evidence may have taken the view that it was simply not good enough for the Crown to seek a conviction whilst there were these apparent gaps in the evidence. 28 Moreover the complainant gave evidence that the appellant was having sexual intercourse with her two or three times a week at that stage, and the jury had been warned that they could not substitute another incident for those charged in the indictment and they had been directed to return a verdict of not guilty on count 5 because the evidence did not fit the dates charged in the indictment. 29 Taking all these factors into account, the different verdicts do not impress me as an affront to logic and common sense nor do they suggest compromise, confusion or misunderstanding on the part of the jury, but are explicable on the basis of the different issues and different evidence which were referable to the different charges. Because of the collateral issues which were raised relating to the 4th and 6th counts, and the other matters to which I have referred, the jury in following the judge's direction to consider separately the case presented in respect of each count may have felt less comfortable in respect of the 4th and 6th counts than they did in respect of counts 1 to 3, and accordingly felt constrained to give the appellant the benefit of the doubt and to return verdicts of not guilty in respect of the former. 30 Finally on this aspect, the trial had lasted a lot longer than anticipated, the jury had been in and out of court repeatedly whilst objections to evidence, questions of law and procedural matters had been argued in detail and they had listened to very lengthy cross-examination (mainly on issues of credit) and then addresses. They retired at 11.35 am on Tuesday 15 December 1998 (the 17th day of the trial) and returned with their verdicts at 4.25 pm. It may be that, having worked through the first three counts and being unanimously satisfied on them beyond reasonable doubt, and having in mind that there were a number of competing issues to resolve in relation to the latter two remaining counts, they decided that, rather than have to come back again the following day (with all the inconvenience that would involve to their employment and personal lives) that justice would be sufficiently served by returning verdicts of guilty on the three counts on which they were already agreed, returning what might be called 'merciful verdicts' on the two remaining counts. 31 In support of the other ground of appeal, that having regard to the evidence, the verdicts of guilty on counts 4 and 6 are unreasonable and/or cannot be supported, the appellant relied heavily on the judgments of the High Court in Jones v The Queen (1997) 191 CLR 439 and the submission was to the effect that as the only direct evidence of the commission of any of the offences was that of the complainant which was contradicted on oath by the appellant, the verdicts of not guilty on counts 4 and 6 meant that the jury was not satisfied beyond reasonable doubt that her evidence was truthful and reliable in respect of those counts (otherwise they would have convicted), therefore it was not open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that her evidence was truthful and reliable in respect of counts 1, 2 and 3; and accordingly they were bound to acquit on those counts. 32 Stripped to its bare essentials the submission appears to amount to this: that whenever in a sexual assault case with multiple counts involving a single complainant and a single accused, where the only direct evidence of the commission of the offences is that of the complainant, then if the jury acquits on any one of the charges, they are bound to acquit on all the other charges. 33 In Jones the appellant was charged with 3 counts of sexual assault each alleging penile penetration, committed against the same complainant who was aged 11 and 12 years at the time of the alleged offences, but did not make any complaint until more than 4 years after the first alleged incident. The jury acquitted on the 2nd count and convicted on the other two counts, but the High Court upheld the appellant's appeal and directed verdicts of acquittal be entered in relation to the two counts on which he had been convicted. 34 Brennan CJ at 446 referred to the delay between the commission of the offences and the complaint and the failure of the trial judge to give a warning concerning the difficulties which such delay could pose of the appellant, particularly in relation to the 1st count where a witness called in the defence case felt constrained to admit the possibility that her evidence might possibly be wrong on a material point, and after considering the possible effect of such lack of direction in relation to the 1st count, the acquittal on the 2nd count, the delay in complaint and the apparent friendliness the complainant exhibited to the appellant and his wife after the alleged intercourse, his Honour said: "The absence of an adequate direction, the acquittal on the second count, the delay in the prosecution and the evidence of the relationship of the child with the appellant and his wife showed that the verdict of guilty on the first and third counts are unsafe and unsatisfactory. Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction which ought to have been given were verdicts of acquittal."

35 The majority (Gaudron, McHugh and Gummow JJ) referred to the evidence, both for the Crown and the Defence, in some detail and at 453 said that: "Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of events which were said to give rise to that count. (They discussed possible reasons for the acquittal on count 2 and continued.) Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count . . . There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."

Finally at 455 their Honours concluded: "Once the jury found that the evidence of the complainant 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." 36 Jones' case has been considered by this Court in a number of subsequent cases. In R v Wells (CCA 17 June 1988) there were three counts some years apart and the jury convicted on one, acquitted on another and were unable to agree on the third. The Crown case on all counts depended on the evidence of the complainant. Simpson J (with whom Newman and Studdert JJ agreed) rejected a submission that the guilty verdict was unsafe and unsatisfactory on the principles set out in M v The Queen (1994) 181 CLR 487, but in quashing the conviction, held that the matter came within Jones, the principle of which she expressed (at p 13) as being that where there are different verdicts in such a case, it is only open to a jury to be satisfied beyond reasonable doubt of the guilt of the accused in relation to one count if there exists something in "the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the (count on which he was acquitted)". 37 In R v James [1999] NSWCCA 191 the appellant had been charged with five counts of indecent assault. The jury had convicted on three of them, acquitted on one and been unable to agree on the other. The three counts on which the jury had convicted related to incidents alleged to have occurred when there were no other persons present, whereas in respect of the count on which he was acquitted the complainant said that it occurred in a disused building when they were inspecting a property with other family members from whom they became separated, whilst there was evidence, apparently reliable, that at the time there was no building of any kind on the property. In relation to the count on which the jury were unable to agree, the complainant's evidence was that the appellant had called out a reference to her night dress although she was at the time wearing day clothes. The appellant had given sworn evidence denying all offences. 38 The Court (Simpson and Bell JJ, Beazley JA dissenting) allowed the appeal. Simpson J, with whom Bell J agreed, said (at [63]) that in Jones the acquittal on one count was fatal to the Crown case on the two charges which resulted in conviction because it was only explicable by doubts the jury must have held about the complainant's credibility, and if they entertained doubts about her credibility on one count, they must have had equal doubts on the other counts. Her Honour could see no distinction between Jones and the instant case. She concluded that where there was any positive material to contradict, or create a doubt about, the complainant's claims, the jury doubted her credibility and then axiomatically they must (or ought) to have doubted her credibility generally (at [64]). 39 Beazley JA, who dissented, agreed (at [10]) that the complainant was not believed on her oath on the count in respect of which the appellant was acquitted, and this was a matter which affected her credit, but pointed out that the jury had the benefit of seeing and hearing both the appellant and complainant and clearly believed the complainant on the counts in respect of which they returned guilty verdicts; and she considered that a logical and reasonable explanation of the differences in the verdicts was that the jury obeyed, as they were bound to do, the direction that each charge had to be considered on its own and that they had to be satisfied beyond reasonable doubt of the guilt of the accused before being able to come to a guilty verdict. She also (at [11]) considered the jury's inability to agree on the other count, meant that one or more jurors were not satisfied that the incident happened, or happened as alleged, and the jury must have again applied the direction that each count had to be considered separately. Her Honour then considered Jones and concluded there were a number of factual features in the instant case which distinguished it from Jones and that the verdicts were not inconsistent in the sense that the guilty verdicts were unsafe and unsatisfactory. 40 In R v Meola [1999] NSWCCA 388 there were three counts of sexual offences with the same complainant and the appellant had been convicted on one and acquitted on the other two. The case was described by Sully J, with whom Hulme and Sperling JJ agreed, as "a classic example of the word against word kind of trial of this particular type" and the acquittal of the appellant on counts 2 and 3 necessarily reflected a view of the jury that it was not prepared to accept the complainant's evidence as establishing beyond reasonable doubt either of those charges, and accordingly it could not have been any stronger in respect of count 1. 41 In R v Whitmore [1999] NSWCCA 247 there were three counts all alleged to have been committed over the same holiday period, and the appellant was convicted of the 1st and 3rd counts and acquitted of the 2nd. In respect of the 2nd count the complainant said that the appellant committed a similar offence (indecent assault) on his own daughter at the same time (with his other hand) and in respect of the 3rd count that the daughter was outside the room whilst the offence was being committed (after the girls had left the bath together), and that she called out whereupon the appellant left the room. The appellant denied all offences and called his daughter who denied the happening of the events referred to in count 2 and could not recall any circumstances consistent with the events alleged in count 3. 42 The appeal was allowed on other grounds and a new trial ordered, but in considering the ground that the convictions were inconsistent with the acquittal in reliance on Jones, Greg James J, with whom other members of the Court agreed, (at [43]) did not consider the credibility of the complainant was so tainted that there should be acquittals on the two remaining counts. 43 I have already referred, at paras [24] to [27] above, to a number of differences between the evidence relating to the first three counts on the one hand and the 4th and 6th counts on the other and a number of possible explanations can be proffered for the different verdicts. The jury had been warned (a number of times) to consider the evidence in relation to each count separately, and that they had to be satisfied beyond reasonable doubt before convicting on any count. They had the advantage referred to in M v The Queen (1994) 181 CLR 487 of seeing and hearing the witnesses, an opportunity we do not have, but which, with the jury, the trial judge had and in his Remarks on Sentence he said (at p 5): "My own view of [the complainant's] evidence is that she was truthful from beginning to end. The events of which she spoke happened many years ago, and it is not surprising that she was unable to be precise as to some matters of detail. Further, she is a lady of rather volatile disposition, not unusual in persons of her background, and the manner in which, and the speed at which, she gave her evidence, accompanied as it was by certain mannerisms, may, in the eyes of some, have affected her credibility. In my eyes, it had no such effect. She was subjected to a lengthy and testing cross examination from which she emerged, in my view, unscathed."

But it is worth noting that immediately before that he also said: "My view as to the jury's reasoning in finding the prisoner guilty of the first three charges, but not guilty of counts 4 and 6, is that it accepted the substance of [the complainant's] evidence, but acquitted on counts 4 and 6, because it was persuaded that the surrounding circumstances, to which I have referred, gave rise to a reasonable doubt."

44 The fact remains that all counts depended on the evidence of the complainant being accepted as true beyond reasonable doubt and on the only two counts where her evidence could be set against other apparently or potentially reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof in the eyes of the jury. There is nothing in her evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to the first three counts where it could not be tested than it was in relation to the other counts where it could be, and was, tested. On the two counts where on the complainant's evidence, corroboration was available, such corroboration was not forthcoming. The very matters which justify a finding that the verdicts are not inconsistent in the sense of being a compromise are matters which call into question the complainant's credibility in respect of the counts on which the appellant was acquitted. 45 In those circumstances, notwithstanding the fact that her evidence as transcribed carries conviction, that it does not, in my opinion, contain discrepancies or inconsistencies such as were apparent in M v The Queen and the trial judge who like the jury had the opportunity of seeing the complainant and other witnesses was satisfied she was telling the truth, I consider that in accordance with Jones, the convictions on counts 1 to 3 must be regarded as unreasonable and cannot be supported, and must be set aside and judgments of acquittal entered. 46 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 (i.e. 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. 47 In my view the appeals should be upheld the convictions and sentences quashed and judgments of acquittal entered.

48 HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Dunford J. There is nothing in his Honour's account of the evidence in the case or in his reasons for concluding that the first ground of appeal is not made out with which I would disagree. However, I respectfully differ from his Honour's conclusion in respect of the second ground. In my view the appeal should be dismissed. 49 An aspect of the remarks of the majority of the High Court in Jones v R (1997) 191 CLR 439 at 453 quoted by Dunford J which was critical to the decision in that case is the statement "There is nothing in the complainant's evidence or the surrounding circumstance which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." In this case there is a difference in the surrounding circumstances of sufficient significance to account for the difference in the jury's verdicts. 50 The credibility of the complainant, so far as the counts on which the jury convicted, was supported by her cousin's evidence as to conversations between them in Malta at about Easter 1979 to the effect that, using the complainant's words, the Appellant was "doing things that he shouldn't do to me, he's putting his thing inside me" and in the words of the complainant's cousin, that the complainant said she had "done it before" with "Dad". 51 The complainant's evidence and credibility so far as the other counts were concerned did not have this support. Of course there was evidence of other complaints but it does not follow that because the jury may have been disposed to believe the complainant's cousin and the complainant when her credibility was supported by her cousin's evidence, they were bound to believe her in other respects and also the other witnesses who gave evidence on the topic of complaint. Furthermore, not only were any complaints concerning the events the subject of counts 4 to 6 made later, but they were made at a time when there were grounds to think the complainant's relationship with the Appellant had deteriorated further and the complainant may have had greater incentive to lie. In so far as complaint was made to Mrs Voight or any one other than FG, it occurred after the complainant had been located living in an apartment with FG and enrolled at another school under a false name and at a time when she might well have felt it desirable to divert attention from, or seek to excuse, the improper - because she was under 16 - relationship she had been having with FG. 52 FG had his own problems so far as credibility is concerned and it was certainly suggested that he and the complainant had put their heads together to tell a false story. The complainant's activities with FG after Easter 1979, may also have inclined the jury to have doubts on what she said concerning the Appellant's activities the subject of counts 4 and 6. 53 Decisions in court cases, be the tribunal of fact judge or jury, are often finally balanced. Whether the standard of proof be the civil or criminal one, very little may be sufficient in a particular case or in relation to an individual count to tip the scales. The evidence of the complaint to the complainant's cousin may well have provided that "very little" in the case of the first three counts. 54 Of course there may have been other reasons for the different verdicts. As Dunford J has said, the jury may have delivered merciful verdicts in the case of the fourth and sixth counts thinking, at 4.25 pm on 17th day of the trial, that three convictions were sufficient. But be that as it may, there was something, viz. the strengthening of the complainant's credibility in relation to the first three counts, which is capable of accounting for the differing verdicts of a jury instructed, and properly instructed, to consider the evidence in relation to each count separately. 55 I have said enough to explain why I am of the view that the appeal should be dismissed. However, it is appropriate that I say something about Dunford J's suggestion that the directions to juries in some sexual cases may need supplementing. I agree with his Honour that in some cases, a direction as contemplated by his Honour may be appropriate. However, it seems to me that before such a direction is required, not only would the complainant's evidence have to be the only direct evidence of the commission of the offences but there would have to be nothing else in the evidence bearing on her credibility or in the evidence of surrounding circumstances which leant support for one charge rather than another. 56 The remarks of the High Court in Jones and the decision in this case and some of the others to which Dunford J has referred would seem to provide an incentive for the Crown to minimise the number of counts in any one indictment.

57 BARR J: I confine my remarks to the second ground of appeal. I agree, for the reasons given by Dunford J, that the appeal should be upheld, the convictions and sentences quashed and verdicts of acquittal entered.

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