R v Wong

This was an appeal against conviction on one charge of non-consensual intercourse under s 61J(1) of the Crimes Act 1900 (NSW). The complainant was a 19 year old woman with a serious intellectual disability. The appellant had been charged with two counts under s 61J(1) of the Crimes Act , but the complainant changed her evidence during cross-examination and the trial judge took one charge away from the jury. Counsel for the appellant contended that as the two alleged incidents were intertwined, and having regard to the high level of the complainant's intellectual disability and the change in evidence sufficient to cause the withdrawal of the first count, the conviction on the second count was unsafe and unsatisfactory.

Per Beazley JA (Wood CJ at CL and O'Keefe J agreeing): despite the first count being taken from the jury, it was not "unreasonable or illogical" for the jury to accept the evidence of the complainant and find the appellant guilty on second count.

1 BEAZLEY JA: The appellant appeals against his conviction for an offence under s 61J(1) of the Crimes Act 1900 (NSW) of having non-consensual sexual intercourse with LD on the ground that the jury should have had a reasonable doubt as to his guilt, having regard to the principles in R v Jones (1997) 191 CLR 439, M v The Queen (1994) 181 CLR 487 and R v RAT [2000] NSWCCA 77. 2 The appellant was indicted on two charges under s 61J(1), both offences alleged to have taken place on 12 December 1998, the victim in each case being LD, a 19 year old woman with a serious intellectual disability. The first charge related to an allegation that the appellant fondled and penetrated LD's vagina with his tongue; the second that he inserted a house key in LD's vagina. 3 LD was a resident in a residential home operated by the Department of Community Services for intellectually disabled people. She was described in diagnostic terms as moderately disabled, that diagnosis being a comparison made with levels of intellectual disability and not in comparison with the general population. Dr Hayes, Head of the School of Behavioural Sciences in the Department of Medicine at Sydney University explained that this meant that LD was "quite significantly disabled" and functioned intellectually within the bottom 0.1 percent of the general population. Dr Hayes described LD's communication skills as being equivalent to a pre-schooler's of an age of about 4 years and 4 months and her daily living skills and socialisation skills as being equivalent to those of a child of just over 5 and little under 6 respectively. She pointed out, however, that functional age equivalents were only a rough guide and that LD had more life experience than a pre-schooler and "would have acquired a different vocabulary". 4 Dr Hayes was of the opinion that LD's account or recount of matters would not be particularly vulnerable to suggestibility and that "[i]t would take quite a lot of repetition to make her suggestible". 5 In response to the trial judge's questioning as to whether LD would understand that, when giving evidence in the court "she is under an obligation that she has got to tell the truth", Dr Hayes responded: "I didn't ask her that directly but I think she would understand that much. I think she would understand a promise to tell the truth." 6 The appellant had visited the home on 12 December 1998 and was alone with LD for a period. In circumstances to which I shall refer shortly, LD made an immediate complaint to the residential care worker at the home, Carole Sarhadian, that the appellant had touched her. Police were called to the home and interviewed LD and the appellant. The appellant denied any wrongdoing. The police took possession of a gold coloured house key from the appellant. DNA testing was conducted on the key with negative results. 7 The complainant's evidence and cross-examination was brief. Because of the basis upon which the verdict is challenged, I will set out the relevant portions of her evidence. In her evidence in chief she said: "Q I am going to ask you some questions about something that happened last year? A Yeah, okay, yeah. … Q Did you see [the appellant] that day? A Yes I did. Q Where did you see [the appellant]? A In a small room, went out the back. … Q Besides [the appellant] was there anybody in that room? A Nobody, just me. … Q Did something happen in that room? A Yeah - the key - the key. Q Can you tell us how that happened? A Touched me with a key. Q Where did he touch you? A Down below. Q Now, when you say 'down below' what do you mean by that? A Just - where do wees. Q Can you tell the Court how he touched you with the key? A The pointy bit. Q Where did the pointy bit touch you? A Down there. HIS HONOUR: I think she is indicating a point on her body - you can't see it. … Q Beside touching you with the key, can you remember anything else that happened that day? A Touched me in his hand. Q I am sorry I didn't catch that? A Touched me with his - licking me. With his tongue. Q And whereabouts was his tongue touching your body? A Down below. Licked me down below with his tongue. Q Touched you and licked you down below with his tongue? A Yeah. … Q Did you want him to touch you down below with his tongue? A No I didn't I told him no. He wouldn't listen to me. Q Did you want him to touch you with the key in the way you told us about? A No. I said no I don't want him. … Q When this stopped - when it stopped happening what did you do? A I run away. … Q Did you see anybody? A Yeah. I told somebody. Q Who was that? A Carole - I told Carole. … Q Do you remember what you said to Carole? A I told Carole that he touched me." 8 Her cross-examination was in the following terms: "Q You say that [the appellant] touched you with a key? A Yes. … Q And that was - was that near - sorry - where - what did he do with the key? A Pricked me, stick right in. Q So he stuck it right in? A Yep. Q Did you see the key in his hand? A Yeah in his hand - in his jacket. Q He had it in his jacket did he? A Yeah. … Q [The appellant] didn't touch you with a key did he? A Yes he did, with a key. Q He didn't put a key into your vagina, did he? A Yeah he did. Q And he didn't touch you with his hand? A No, just a key. Q And you - he didn't lick you with his tongue, did he? A No, just a key." 9 The Crown at this point was granted leave to ask further questions in chief and to show LD the key which the police had taken from the appellant on the day of the incident. Counsel for the Crown asked LD: "Q Have you seen that key before? A Yeah. Q When did you see the key before? A In the room I saw it. In the TV room. Q Do you know whose key that is? A Could be [the appellant's]." 10 Her cross-examination then continued: Q Do you remember what colour the key was? A It was a gold one. Q The same colour as the one you have just been shown? A Yeah. … Q When he put the key - when he stuck it in to you - ? … Q … did it go a long way? A Long way, yeah." 11 As is apparent from the cross-examination, LD resiled from her evidence that he had touched her with his hand and had licked her. However, she maintained her position in relation to the key and resisted in direct and unequivocal terms questions to the effect that there was no such incident. 12 Carole Sarhadian was the residential care assistant to whom LD said she spoke shortly after the alleged incident. She has worked with people with disabilities for 25 years and knew LD well. She said that on 12 December 1998 she saw LD and the appellant come from the back of the recreation room and that LD "seemed to be a little bit uncomfortable, a little bit agitated, knowing Lisa in the past you tend to pick up these things". Mrs Sarhadian said she asked LD: "what was the matter and she didn't answer. She still had the - like her hands - and her eyes going up, and I said, 'Did he touch you' and she said 'Yes' and I said 'Where' and she indicated her groin - her vagina. I never said anything else after that. All I said was, 'You are not in trouble'. 13 Mrs Sarhadian immediately reported the matter to the manager. 14 Under cross-examination, Mrs Sarhadian readily conceded that LD did not volunteer in the first instance that the appellant had touched her, but had responded to her question. However, she explained that she had asked the question in circumstances where: "it just looked something happened out of the ordinary. I mean he could have kissed her. He could have done anything. I don't know. That wasn't for me to judge, but I know Lisa was a little bit upset, more so than normal, therefore I wanted to find out why." 15 She was cross-examined further about having asked the question "did he touch you?": "Q … if you suggest an answer - or a question that has an answer, in the affirmative as a yes that sometimes a child or someone equally disabled will give an answer to satisfy the questioner? A Knowing Lisa, if he didn't touch her she would say nothing. She is not one to say yes over nothing. She would say no or something like that or she would tell me to mind my own business - or she would tell me off. She would, yeah. 16 Having regard to the attack made on Mrs Sarhadian's question and the possibility of it having contaminated LD's response, it is instructive to return to the evidence of Dr Hayes on the issue of suggestibility. Dr Hayes did not consider that a question such as "did he touch you" was suggestive. Rather, she categorised it as a direct question which sought a response from the person being questioned. She identified a suggestive question as being, for example, "I think he touched you, didn't he?", as such a question implied a particular answer. This is not the occasion to investigate what is appropriate questioning of young children or intellectually disabled persons. What is relevant here is the circumstances in which the question was asked and Dr Hayes' evidence as to whether LD was vulnerable to suggestibility. As to the first of these two matters, Mrs Sarhadian said she asked the question in circumstances where, in her professional opinion as a carer and with particular knowledge of LD, she perceived something had happened. She then asked LD a simple question to which LD responded in the affirmative. There was no repetition. As to the second, Dr Hayes said of LD: "… she is not completely a sponge. She can give her version of events and she is able to resist some form of suggestion, so it would have to be repetitive … She is quite capable of contradicting me …" 17 No evidence was called to contradict this evidence. 18 Shortly after LD gave her evidence the appellant's counsel indicated that at the end of the Crown case he would have an application to make. His Honour at that point informed counsel that having regard to the change in LD's evidence in relation to the first count, he would take that count away from the jury. His Honour did so. There was no application to take the second count away from the jury. 19 The appellant did not give evidence at his trial.

The Appeal 20 The appellant appeals against his conviction on the second count. The point made is short, namely, that given the change in LD's evidence at trial (which was sufficient for the trial judge to withdraw that count from the jury) the fact that the two alleged incidents were intertwined and given the level of LD's intellectual disability, there was a real doubt as to whether the conviction of the appellant on the second count was safe or just: R v Jones; M v The Queen; R v RAT. No complaint is made about any part of the trial judge's summing up. 21 In R v Jones the High Court dealt with the consequences which flowed from inconsistent verdicts in the case of a number of counts of sexual assault on a minor. In his judgment, Brennan CJ referred (at 442) to the basic principle upon which the appellate court's function is predicated, namely that it is the jury which is "the constitutional arbiter of guilt". He continued: "An equation between a reasonable doubt entertained by a court of criminal appeal and a doubt which ought to have been entertained by a reasonable jury is valid only if the capacity for evaluating the cogency of a witness's evidence and the worldly wisdom of a court of criminal appeal are no less than the collective endowments of a jury." 22 His Honour referred to his own earlier statement in M v The Queen at 502 that: "[F]or both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict."

His Honour identified the "true test" to be applied as that stated by Dawson J in Chidiac v R (1991) 171 CLR 432 at 451: "If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory." 23 However, Brennan CJ considered that: "[s]ometimes an inconsistency in verdicts on the counts in an indictment or a conviction where the inculpatory evidence has been demonstrated to be unreliable may show a verdict to be unsafe and unsatisfactory. But these are relatively rare cases." 24 Gaudron, McHugh and Gummow JJ said at 453-4: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. 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. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count. It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. 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. Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence. In sexual offence cases, recent complaint, or its absence, is a factor which is ordinarily of limited assistance. This Court has held that a complaint 'does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts'. Barwick CJ said in Kilby v The Queen that a complainant's delay in making a complaint in a sexual offence case has 'no probative value as to any fact in contest, but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence'. Promptness or delay in complaint is itself relevant only to the credibility of the complainant ." (emphasis added) 25 Their Honours concluded at 455: "In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. 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 means that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof ." (emphasis added). 26 In M, the majority (Mason CJ, Deane, Dawson and Toohey JJ) said at 493 that the test for an unsafe or unsatisfactory verdict was whether the Court thought that upon the whole of the evidence "it was open to the jury" to be satisfied that the accused was guilty. The majority continued at 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 has 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 the verdict based upon that evidence." 27 R v Jones is a particular application of the principles stated in M v The Queen, namely in the case of inconsistent verdicts. Jones involved five counts of sexual assault. The High Court had previously dealt with the question of inconsistent verdicts in R v McKenzie (1996) 190 CLR 348, a case of charges of making a false statement on oath (s 327(1) Crimes Act) and perjury (s 328 Crimes Act). Gaudron, Gummow and Kirby JJ considered that six general propositions could be discerned from the case law when considering whether verdicts were inconsistent. Relevantly to the matter here, they stated (at 366) that when there were factual inconsistencies arising upon different counts "the test is one of logic and reasonableness". They continued at 367: "Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted." 28 The Crown submitted that this case is distinguishable from Jones. First, it was submitted that in Jones the jury, by its inconsistent verdicts, had made findings inferentially adverse to the complainant's credit. This was not a case of inconsistent verdicts. Then, in Jones there had been a delay of four years in making the complaint and a lack of corroborative evidence, whereas here there was immediate complaint (of the type to which I have already referred) and Mrs Sarhadian's evidence which lent support to LD's allegation. 29 The distinction between this case and Jones is that here the jury was not given the opportunity to determine whether the first count had been proved beyond a reasonable doubt. No complaint was made on the appeal that his Honour erred in withdrawing the first count. He was correct to do so. The question which thus remained for the jury was whether it was satisfied beyond a reasonable doubt as to the guilt of the appellant on the second count. Relevant to their determination was their assessment of LD's credibility and reliability. The jury must have believed LD to have found the appellant guilty on the second count. However, the distinction between this case and Jones does not take this case outside the principles stated in Jones as such. The very reason the first count was taken from the jury was because LD in effect, withdrew the complaint in cross-examination. There was, therefore, a real issue as to LD's credibility including her reliability. Questions of credibility were central to the reasoning in Jones. However, as Brennan CJ recognised in Jones, although a jury's verdict is not sacrosanct, it stands with singular respect in our system of law and an appellate court will interfere only if it is established that the jury could not have reasonably come to the conclusion it did as to the accused's guilt: R v Stone (unreported, Devlin J, 13 December 1954, cited with approval in R v McKenzie at 366). 30 The essential question on the appeal then, is whether the change in LD's evidence which led to the verdict by direction on the first count, and a guilty verdict on the second, demonstrates that the guilty verdict was unsafe and unsatisfactory. 31 The Crown's second and third points of distinction are of some assistance in determining this question. This is not a case, as Jones was, of delay in complaint or there being an absence of corroboration. LD's demeanour almost immediately after the alleged incident was sufficient to cause one of her carers to react with a concern that "something had happened" and on questioning, LD made an immediate complaint. 32 Her complaint in respect of the key has been consistent since she made it. Her evidence throughout her examination and cross-examination in relation to the incident with the key was also consistent and direct. She was able to describe the incident and her lack of consent. She was able to identify the key as a gold key. When shown the key taken from the appellant on the day of the incident she said "could be [the appellant's]". 33 The second count having been left to the jury (and there being no application for a verdict by direction) it was then a question for the jury to determine whether they were satisfied beyond reasonable doubt of the guilt of the respondent. In this case that involved them either accepting or rejecting LD's evidence, in circumstances where LD's credit was challenged. The jury, by their verdict, accepted her evidence. This Court can now only interfere if the discrepancy in LD's evidence on the first count so tainted her evidence that the jury's acceptance of it must have been unreasonable or illogical. In my view, that has not been established. LD's change of evidence on the first count is explicable by the sequence in which the questions were asked. In the course of cross-examination, counsel for the appellant was asking her questions about the key. Then, without her attention being drawn to the fact that she was about to be or was being asked questions about a different incident, she was asked about touching and licking. Counsel for the appellant then immediately reverted to the key incident, again without drawing LD's attention to the fact that he was doing so. 34 The cross examination is to be contrasted with the manner in which the questions were asked in the course of LD's evidence in chief, where the Crown moved from one incident to the other by a concise question "before touching you with the key, can you remember anything else that happened that day". That distinction was not made during cross-examination. Given her mental age, LD could have reasonably but mistakenly believed that the questions being asked at that time all related to the key incident. 35 The view which I have reached is reinforced (although not determined) by the fact that there was no application to take the second count from the jury. Logically, if LD's evidence was such that the jury must have had a reasonable doubt about it, the count should have been withdrawn from the jury. The appellant did not make that application and did not suggest that his Honour should have so acted. That being the case, notwithstanding the credit issue raised by the first count having been taken from the jury, I am of the opinion that "the jury performed their functions as required" and this is not a case where the appellate court must have a doubt about the verdict. Accordingly, there is no basis for finding that the verdict is unsafe or unjust. 36 I would dismiss the appeal. 37 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Beazley JA. I agree with her reasons and the orders she proposes. 38 O'KEEFE J: I agree that the appeal should be dismissed for the reasons stated by Beazley JA. ***************

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