1 THE COURT: The appellant was convicted, following trial in the District Court at Newcastle of two counts of sexual intercourse with SP, a girl then under the age of 16 years, without her consent, knowing she was not consenting thereto (S 61D(1) Crimes Act 1900). He was sentenced to concurrent terms of twelve months penal servitude, and to additional terms of 4 months penal servitude, in relation to the two offences.
2 He appealed against the convictions upon the basis that the verdicts were unsafe and unsatisfactory. Properly formulated, his case was that the verdicts should be set aside on the ground that they were unreasonable, or could not be supported, having regard to the evidence, and that in lieu a verdict of acquittal should be entered.
3 The appeal came on for hearing on 14 April 1999. The Court having reached the conclusion that it should be allowed, and being concerned at the delays in the listing of the appeal, attributable to problems experienced in the preparation and release of the transcript, announced its conclusion and made the necessary orders that day, for reasons that would be later published. Those reasons are now published.
4 The test to be applied in a case such as the present is well recognised. It requires this Court to undertake an independent examination of the nature and quality of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused: Morris (1987) 163 CLR 454 at 472/3 and Chidiac (1991) 171 CLR 432 at 442/3.
5 It is not enough that there was evidence sufficient to entitle a jury to convict, because a verdict may be unsafe or unsatisfactory even when there is a sufficiency of evidence for the purpose: Chidiac at 443 and at 445. If the Court concludes that notwithstanding the existence of evidence of that kind the jury ought nevertheless to have entertained a reasonable doubt then the ground is made out: M (1994) 181 CLR 487 at 493-5 and Jones (1997) 191 CLR 439.
6 In undertaking this exercise it is appropriate for the Court to respect the advantage that the jury, which is the body entrusted with the primary responsibility of determining guilt or innocence, had in seeing and hearing the evidence, (Chidiac at 443-4, 453 and 462) and M at 493, where that is capable of resolving any doubt experienced by the Court. Otherwise, as was said in M at 494:
"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 will be one 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."
The Crown Case
7 The complainant gave evidence that the incidents charged occurred on the same day, at the home of the appellant, at Stanford Merthyr, in late 1982. These premises were situated near the home of her grandparents with whom she was living. Her parents had divorced and her mother was living in Queensland. She dated the incident by reference to the circumstance that it occurred while she was in kindergarten at Stanford Merthyr, towards the end of the year in which her brother was born (2 February 1982), and after her mother had left to go to Queensland (six months after his birth). She also dated it by her recollection that in the following year she began 1st class at Stanford Merthyr school, and met another girl, RS, who lived a few doors down from the appellant. That girl, she said, she knew for two years before moving to Queensland, in 1984. She recalled that she had been petrified when walking past the appellant's home to this girl's house to play.
8 She said that she was five years old when the offences occurred. She was friendly with the appellant's daughter, P, who was in the same class as her. As a result she often visited the appellant's home to play.
9 The appellant had three children - a son aged about 8 years, P who was the same age as the complainant and another daughter who was about three.
10 The complainant said that one afternoon while she was visiting her friend, they and another girl, LG were sitting in the lounge room watching TV. The appellant, she said, entered the room, grabbed her by the wrists, and dragged her down to the floor. He took hold of her wrists with one hand and with the other hand rubbed her genital area and removed her underpants. He tried to separate her legs. She screamed and kicked continually. He inserted his finger in her vagina. She said that this was painful and the incident lasted less than half a minute. She yelled at him repeatedly to stop. He repeatedly told her to "shut up".
11 She said that, contemporaneously with this occurrence, the appellant's eight year old son, who had come into the lounge room with him, behaved in the same manner as he had, with her friend (his sister) P. She was not sure of the whereabouts of the other girl LG, nor of the appellant's wife, whom she had earlier seen in the kitchen. We interpolate that when the complainant first spoke to police she said that it was LG who was the victim of the assault by the appellant's son. However, after reflection she realised that she had been mistaken and that it was his sister who was assaulted. She corrected this detail, and a diagram that she had drawn of the positions in which the girls had been sitting on the lounge, a week after first speaking to police.
12 The incident in the lounge room gave rise to the first count. It was followed, the complainant said, by the appellant dragging her to her feet by her wrists, and then down the hall to the bedroom. There he sat her on a double or queen size bed. He pulled her legs apart and put his head between them. She felt his tongue over and then inside her vagina. She tried to get up but was held down. He removed his clothing and pulled her hand toward his erect penis demonstrating that he wanted her to masturbate him. She kept pulling her hand away. The appellant, she said, raised his voice and told her that she had to do what he wanted. He dragged her off the bed onto the floor , and with his arm dangling over the side placed his finger in her vagina. This alleged conduct gave rise to the second count.
13 The appellant, she said, told her that she should not tell anyone what happened because he knew where she lived. She got up and ran from the room out the front door. She went directly home. She did not say anything to her grandmother. She said that, after this, she did not return to the appellant's home or play with his daughter, although she may have spoken to her at school. She could not recall what happened to the underpants that the appellant had removed, nor could she recall whether she had suffered any bruising or swelling to her wrists, any carpet burns to her body, or any bleeding or pain after the incidents.
14 In October 1995, the complainant became engaged. While playing with her fiancee she reacted badly when he held her by the wrists. He questioned her at length as to the reason for this. In the course of this discussion she disclosed the matters mentioned above. She did not make any complaint to police until February 1996, following further discussions with her fiancee and with a "friend" about the matter.
15 In the course of her evidence, the complainant was positive that she had been at the Stanford Merthyr Infant School between 1982 and 1984 and that there was no period of absence from the school while she went to Queensland. The school records, however, disclose that she was enrolled on 4 February 1982 and on 15 September 1982 transferred to a school in Queensland. She returned to Stanford Merthyr on 22 November 1982, before leaving again for Queensland on 16 December 1982. She came back to Stanford Merthyr school on 15 March 1983, and remained there until 13 December 1984.
16 The complainant said that the school records were incorrect, as were the records for her friend RS, which showed that she had not enrolled at the school until 1984, a year after that suggested by the complainant.
17 The complainant gave evidence of opening the front door by using the door handle. There was no deadlock that she recalled. She agreed that there were errors in the markings she had placed on a plan of the loungeroom, particularly concerning the relationship of the hallway to that room and the existence of walls between these areas of the house.
18 She denied that the appellant's children had swum in her grandparents pool after the incidents.
The defence case
19 When interviewed by police, the appellant denied the allegations. He gave sworn evidence at the trial, denying the events alleged, both so far as they related to himself and to his son. He gave evidence to the effect that the doors to the front of the house were of a security type. The front door had a dead lock and the screen door was a security door. Each was kept closed. A key was left in the deadlock which was about 4 feet above the floor, and the security door had a barrel lock that was kept engaged.
20 He said that his children swam in the pool at the complainant's home after the date of the alleged incident, ie in 1984, when P had learned to swim. They were not allowed to do so until they had learned to swim. That did not occur until the end of 1983 or the beginning of 1984. A swim certificate of proficiency that P obtained, issued in 1984, was tendered as was another certificate obtained the following year. He denied being aware of any animosity between himself and the appellant or her family. He had never engaged in playful conduct with the complainant, nor did he ever have any physical contact with her.
21 The appellant's wife gave evidence that the complainant attended at their house until the girls left infant school. She denied any incident of the kind alleged, and corroborated the evidence of the appellant, in relation to the time at which the children learned to swim.
22 PG denied ever being in the presence of the complainant when she was sexually assaulted by the appellant. She also denied that she had herself been sexually assaulted by her brother in the presence of the complainant and her father. She said that she attended the complainant's home, and that the complainant attended her home, during 1983 and 1984.
23 The appellant's son similarly denied the events alleged by the complainant, as did LG, who was called in the prosecution case.
24 The appellant's wife and his two children agreed that they had discussed the case with him and were aware of the contents of his ERISP. They denied however covering up for him.
25 The matter came on for hearing as a retrial, the jury at an earlier trial having failed to agree on a verdict.