Regina v A R D

60192/99 SPIGELMAN CJ NEWMAN J ADAMS J

1 SPIGELMAN CJ: The background facts, the grounds of appeal and the submissions made to this Court appear in the judgment of Newman J which I have read in draft.

Ground 1 2 For the reasons given by Newman J, Ground 1 should be dismissed.

Ground 2a 3 This ground is based on the failure of the trial judge to give the direction to which Dunford J referred in R v RAT [2000] NSWCCA 77. The relevant passage of Dunford J's reasons is fully set out in the judgment of Newman J. I agree with both Newman J and Adams J that nothing in the High Court judgment of Jones v The Queen (1997) 191 CLR 439 requires a direction in this form. Nor do I understand Dunford J to suggest that a direction is necessarily required. A direction of the character to which his Honour refers may be appropriate, save insofar as his Honour suggests that the jury should be informed of the possible consequences on appeal of a finding of a particular character. (See Lucas v The Queen (1969-70) 120 CLR 171 at 175). 4 The parts of the joint judgment of Gaudron, McHugh and Gummow JJ in Jones upon which Dunford J based his observations included the following: "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 was said to give rise to that 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. … It is difficult then to see how it was open to the jury to be convinced beyond 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." (453) 5 Their Honour's returned to this issue in their concluding remarks: "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. As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect to the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory." (455) 6 Of particular significance for present purposes is the sentence in the second of the two passages which I have quoted to the effect that the evidence of the complainant "failed to carry sufficient conviction to reach the standard of proof", but that it did so only in the circumstance that "her evidence could be set against other reliable evidence". In this passage their Honours directed attention to the other evidence in the particular case. 7 Their Honours were not, in my opinion, laying down a general rule that it is not open to a jury to acquit of one charge and convict of another whenever, to use Dunford J's formulations, "the only direct evidence of the commission of the offence is that of the complainant" or "where there is no independent evidence of the commission of the offences". 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 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 change. However, other relevant evidence or, indeed, the absence of evidence, will also be material in assessing the evidence of a complainant. Such evidence may be "indirect" but nevertheless sufficiently pertinent with respect to a particular charge so as to create a reasonable doubt in the minds of the jury with respect, to the evidence of the complainant in a specific respect, without impinging upon the general assessment of the complainant's truthfulness or reliability. 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. 11 In Jones Gaudron, McHugh and Gummow JJ were not intending to lay down a specific rule for inconsistency of verdicts in sexual assault cases which was different to the approach which Gaudron, Gummow and Kirby JJ had adumbrated in MacKenzie v The Queen (1996) 190 CLR 348 esp at 365-369. 12 Submissions to similar effect to those in the present case were considered by this Court in R v Robinson [2000] NSWCCA 59, handed down one week after RAT. In that case Fitzgerald JA said: "[8] In his judgment, par [60], Barr J has summarised the material directions to the jury in the following terms: 'The jury were directed that they should consider each count separately. They were told that they might accept part of what the witness said and reject part. They were told that witnesses might be mistaken or might lie in some respects but not in others. They were told to scrutinise the evidence of the complainant with great care because the Crown depended on his evidence alone. They were told that when assessing the reliability of a witness they were entitled to take account of the demeanour of the witness and the impression made by that witness upon them.' [9] Directions to that affect are, of course, common. However, they are not always sufficient. The circumstances might be such that the jury should also be instructed that if they hold a reasonable doubt concerning the reliability of a complainant's evidence on one or more counts, whether by reference to the complainant's demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts. This was such a case." 13 His Honour went on to refer to the joint judgment of Gaudron, McHugh and Gummow JJ in Jones. I agree with Fitzgerald JA that there are cases in which a direction of this character is appropriate. It is not, the case that such a direction is required in every case where there is no direct independent evidence of the commission of an offence. (See also R v Crisologo (1997) 99 ACrimR 178 at 184 per Simpson J; R v Steenson [2000] NSWCCA 143 at [15]-[16] per Simpson J). 14 If a judge has made an express direction of this kind, an appellate Court will be more confident that the jury has taken into account their own reluctance, for whatever reason, to accept a complainant's evidence on one charge, with respect to his or her general credit, and applied that assessment to each other charge. That does not, however, mean that the failure to give such a direction is of itself an error of law. The issue falls to be assessed, as in Jones itself, together with other aspects of the case, in determining whether the conviction was unsafe and unsatisfactory, to use the terminology employed in Jones, before the High Court emphasised the desirability of employing the terminology of s6 of the Criminal Appeal Act in Fleming v The Queen (1999) 197 CLR 250. (See R v Giam [1999] NSWCCA 53 at [31]-[44]). This is the subject of Ground 2. Ground 2a is not made out as a separate ground of appeal, for the further reasons which appear in my consideration of Ground 2.

Ground 2 15 In my opinion, Ground 2 should be dismissed. 16 The jury were given careful instructions that they had to treat each count separately. At the commencement of his summing-up the trial judge said at pp1-2: "… The Crown brings the charge and the Crown has to prove it in each of the cases - 21 separate trials which must be tried as if you were 21 separate juries. You must consider each case absolutely independently without being influenced by whatever verdict you come to in any of the others and there is no need for all the verdicts to be the same in any way. Subject to matters of commonsense each verdict must be decided entirely on the facts that relate to that case. … … but the essential guiding principle about each of these cases is that each case must be decided in its own compartment." 17 Subsequently the trial judge qualified his statement to consider each case within its own compartment, by noting that the assessment of credibility of a witness could be made "by his or her overall impression during the case" (p15). Consistently with this ruling his Honour directed the jury at p3: "… all 12 of you must agree what the verdict ought to be in each individual case and having decided on one case you would then move on to consider the next case." 18 In terms of the approach to assessing the credibility of witnesses, relevantly that of the complainant, his Honour directed the jury in the following terms: "The verdict which you return will be one which simply means that in any given case, if it were to be a verdict of not guilty, and I am only using this as an example, would mean that you do not find the Crown case proved. It would not mean in that case that you are making any positive finding that the complainant, the woman who had brought the charge is lying. Even though she is really the only Crown witness, even in that circumstance any verdict of not guilty does not mean that there would be any repercussions such as a charge of perjury or anything of that nature. You may rest assure that your verdict if it were a verdict of not guilty, would certainly mean that you have not found the Crown case proved beyond reasonable doubt and nothing more would flow from that." (pp4-5). 19 His Honour also went on to caution the jury from acting on the uncorroborated evidence of each complainant in the following terms: "… in each of the cases here, each of the first 20 cases at least, the Crown case depends entirely on the evidence of one witness, that is the young woman as she then was, the woman as she now is, who is making the complaint. You may act on her word alone but you must exercise considerable caution before doing so. In any case in which the Crown case depends on the evidence of only one witness, you must scrutinise the Crown case with particular care." 20 These directions were not, relevantly, the subject of any complaint. The nature of these directions were such as to require the jury to carefully differentiate the evidence with respect to each individual case. Where the jury's verdict involves acquittals and convictions and it is possible to identify a proper basis of differentiation, then the differing verdicts is a manifestation of the jury attending properly to its function, rather than a manifestation of inconsistency of a character which would justify intervention on appeal. 21 Of central significance in all six of the relevant counts - 11, 12, 13, 14, 15 and 16 - was the evidence of RD Junior. Despite the significance of her credit on all counts it does not follow that a failure to convict on some of the counts represented a rejection in a general sense of the reliability of R D Junior as a witness. (c/f Jones supra at 453 and 455 as quoted above). 22 Each count had to be treated separately. When an individual is recalling prior events - particularly after many years - it is open to a jury to accept that person's evidence as being more accurate with respect to some incidents than others. It is, in my opinion, wrong to suggest that a failure to find that the Crown has established a particular charge beyond reasonable doubt, necessarily impugns the reliability of that witness with respect to other matters. This is particularly the case where, as here, the jury were specifically directed to treat the complainant's evidence with caution and to scrutinise her evidence with particular care. Such caution and care is required to be shown with respect to each charge separately. Differentiation by a jury between separate charges should not be seen as a relevant inconsistency where there is a rational basis for such differentiation unless, as in Jones, there is some basis for concluding that the jury may not have taken into account the fact that they held a reasonable doubt about the witnesses evidence or one count when assessing his or her reliability on other counts. 23 Counts 11 and 14 were, in my opinion, distinguishable from each of the four counts with respect to which a conviction was recorded by reason of the significance in the factual matrix of Counts 11 and 14 of RD Senior. In the case of both Counts 11 and 14 the jury would have expected corroboration for RD Senior and it was not forthcoming. 24 The jury can have been in no doubt that RD Senior was a witness hostile to the Appellant. Not only was she the principal witness with respect to Count 21, she gave significant corroborative detail, contradicting the case sought to be made by the accused, with respect to other charges. These included:

(i) Evidence that the Defendant had shorts called "stubbies" which did have a zipper, which contradicted the Appellant's position with respect to Counts 2, 3, 4 and 5.

(ii) Confirmation that his truck had a bed in the back and that RD Senior and the Appellant had had sex in that bed, which contradicted the Appellant's position with respect to Count 17.

(iii) Confirmation that RD Junior helped the Appellant to construct fences, which was relevant to Counts 17 and 18. 25 The evidence of RD Junior with respect to Count 11 was that it occurred during a period where RD Senior was ill or convalescing. RD Junior gave evidence to the following effect: "Q … was there a time when your Aunty got you to feed the birds for her? A Yes she did yes." 26 The evidence of RD Senior at the trial contradicted the evidence on this material circumstantial fact given by RD Junior. In her evidence in chief RD Senior said: "Q When you are away who looked after the birds, do you know? A Well my sons as far as I know." 27 During cross examination RD Senior directly contradicted the evidence of the complainant: "Q When you had this misfortune to be sick following your father's passing away you left it to your two sons to look after your budgerigars and other birds. A I assumed they were. Q You didn't make any arrangement with anybody to go and look after the birds? A No sir. Q Just hoped they'd do it? A I assumed they would they were old enough." 28 In view of this direct contradiction between RD Junior and RD Senior with respect to the circumstances of Count 11, there was in my opinion a relevant basis for differentiation upon which the jury could distinguish Count 11 from other counts. That differentiation was based on the surrounding circumstances of the specific incident. It was not of a kind which damaged the credibility of RD Junior on all counts. 29 Counts 12, 13 and 14 occurred on the same weekend. Counts 12 and 13 related to incidents on the Saturday night at the property. Count 14 involved an incident on the Sunday. The evidence in chief of RD Junior was that she had been driven to the property by RD Senior: "Q Do you recall on one occasion you went out there with your Aunt? A Yes. Q Did you stay the weekend" A Yes I did. Q Did Robin pick you up from your house and drive you out there with her son Gary? A Yes." 30 Although RD Junior gave evidence that she shared a room with Gary, there was no evidence that RD Senior was there for the whole of the weekend. RD Junior did not assert in her evidence in chief that RD Senior was there on the Saturday night when the offences in Counts 12 and 13 occurred. This is of some significance when differentiating these two counts from Count 14, because RD Junior's evidence about the aftermath of this incident did involve RD Senior, when she and the Appellant returned from the area of the dam to the house. It was RD Senior's evidence that during the relevant time, when the house on the property was under construction, she herself did not stay the night at the property. She said that she went up there on weekends but left in the afternoon: "Q While the house was being built did you visit it from time to time at Warombi? A I went out there on weekends. Q You didn't want to live in a caravan during the week? A No. Q Would it be true to say that you were there most weekends until the time you left. A Yeah of an afternoon yeah. Q Of an afternoon? A Afternoon I'd leave. Q I'm sorry? A Afternoon I'd leave in the afternoon. Q You'd leave where? A The farm to go home. Q What afternoon would you leave? A Sunday. Q But on weekends until Sunday afternoons you'd be at the farm? A Well I go home." 31 There may be some ambiguity at the end of this passage as to whether or not she stayed on Saturday afternoons. This was clarified on the next page in the following passage: "Q You'd be there on the weekend? A I didn't stay, I'd go back to Mum's and come back. Q So you were there during the day? A Yes. Q Then you'd go back then you'd come back the next day? A Yes." 32 It was open to the jury to find that there was doubt as to whether RD Senior was present on the Saturday night when the offences in Counts 12 and 13 occurred. The jury may well have permissibly reasoned that there was nothing in the failure of RD Senior to give evidence about that occasion which could lead them to doubt the accuracy of the recollection of RD Junior with respect to those matters. 33 The position is otherwise with respect to Count 14. In that respect RD Junior in her evidence in chief directly implicated RD Senior in the immediate aftermath of that incident. 34 R D Junior's evidence was: "Q When you got up got on the bike and back to the house you went Saturday night? A I was crying at first. Allan got onto the bike and I got onto the bike. As he was riding it up he stopped, I jumped off and ran straight over to my Aunty and asked her if she could take me home. Q She said she would? A Yes. Q Were you still crying? A A little bit. Q A little bit? A Yes. Q Didn't she ask you why? A No she didn't, no." 35 Notwithstanding RD Senior's preparedness to give evidence confirming the surrounding detail of the offences of which RD Junior gave evidence involving other counts, RD Senior gave no evidence with respect to Count 14, in a context where RD Junior's recollection pointedly involved her in the immediate aftermath of the offence when RD Junior said she was still crying and asked to be taken home. Not only did RD Senior not recollect any such incident she did not appear to have any memory that RD Junior or TD had ever been present at the farm in the following, equivocal, passage of evidence: "Q Did you see any of the girls at the farm when you were out there? A No sir. Q Never? A No … Q So the other two younger girls you didn't see at all? A No. Q At any stage? A Well they might have now and then. Q Not that you took any notice? A No take no notice." 36 In my opinion there was a rational basis for the differentiation which the jury apparently drew. It was a basis which did not necessarily lead the jury to doubt the general credibility of RD Junior. It was a manifestation of the jury treating her evidence with the caution, and subjecting it to the careful scrutiny, which they were expressly directed to do. I do not find any reason to doubt that a jury which approached its task in this careful way, would have taken into account the fact that RD Junior's evidence on Counts 11 and 14 did not satisfy them, when assessing her general credit on the other counts. The analysis in Jones discussed in relation to Ground 2a does not apply in this case.

Ground 3 37 With regard to the additional evidence of DG, it does appear that if that evidence had been given at the trial, the defence could have made submissions with respect to certain aspects of the reliability of the evidence of LC about Count 20, the sole count involving her. 38 LC was the grand-daughter of DG. Her evidence was that the incident in Count 20 had occurred at her grandmother's house where RD Senior and her son G were then living. She identified the period as being at the commencement of 1988, a time when DG was away on holidays. DG's evidence was that she did take a holiday during the early part of 1988 but that RD Senior and her son G did not move in until late 1988 and that she did not take any holiday while they lived with her. 39 In cases of this character, reliability with respect to collateral facts is a legitimate subject of cross-examination and will sometimes determine the attitude of a trier of fact to the credibility of the witness upon the central issue. Adams J identifies the absence of the grandmother on holidays as being a crucial part of the narrative of events. I do not agree. There was no suggestion that the grandmother being away on holidays was the only possible occasion on which LC could have been alone in the house with AD. It was, however, evidence which, if adduced at trial, may have assisted the defence by casting some doubt on the reliability of LC with respect to contextual detail. 40 I have, on balance, concluded that no miscarriage of justice occurred by reason of the failure to call DG at the trial. It appears from the evidence presented in this Court that a tactical decision had been made not to call DG. 41 Mr Meehan, AD's solicitor at the trial, gave evidence in this Court that: "By the commencement of the trial, the appellant felt that he could not trust any member of his family as he believed that they were all in the conspiracy with his brother E and his nieces." 42 Senior Counsel who appeared for AD at the trial, Mr M J Finnane QC, said in an affidavit in this Court: "… I have some recollection that Mr Meehan mentioned to me a suggestion from Mr D that we should speak to Mrs G. Mr Meehan spoke to Mrs G himself and told me and Mr Maiden of his conversation. What he told us convinced me that there was no point in having any further discussion with Mr G." 43 Mr Maiden was the junior counsel at the trial. In an affidavit filed in this Court he said: "I did become aware that DG did attend the court during the trial. I understand that Mr Meehan spoke to her and took instructions. There was a meeting between Mr Finnane, Mr Meehan and myself regarding Mrs G. It was decided that it was dangerous to call Mrs G and indeed she would not help the appellant." 44 In the light of this tactical decision not to call DG, a decision which has not been shown to be affected by any form of relevant error, there was no miscarriage of justice by the failure to adduce evidence from DG on one only of the twenty counts. Indeed to allow the appeal on this basis would be an indirect way of challenging the joinder of Count 20 to the other counts, the subject of Ground 1. This, as I will show below, was a carefully adopted strategy by the defence. 45 Even if I had come to the conclusion that a new trial was justified on Count 20, I would not have accepted the submission that such a decision should impinge on the convictions on the other counts. 46 The evidence of AD with respect to Count 20 was the barest of denials. The possibility that the rejection of such a denial may affect the jury's acceptance of the evidence of AD on other matters was inherent in the hearing of Count 20 together with the other counts. The decision to permit this course to occur was made by three senior counsel who successively represented AD. 47 The original counsel was Mr C Porter QC who, according to the affidavit of Mr Meehan, AD's solicitor throughout, considered the positive and negative aspects of hearing the charges together. According to the evidence of Mr Meehan: "The main positive reasons to run one trial were: · The appellant gave evidence once; · The appellant's evidence should then remain strong; · There was a risk if more than two trials run back to back; · Large number of charges could support the conspiracy theory? · The victims give evidence one and there is a better chance of making inroads into their evidence, than if they get better with being in the witness box often." 48 Mr Meehan said that Mr Milne QC confirmed this advice. Subsequently Mr Finnane QC who appeared at the trial also turned his mind to the issue and came to the same conclusion. 49 The tactical considerations set out in this evidence were, of course, balanced by risks, one of which would have been the impact of the acceptance of the evidence of any one witness upon the credibility of the accused. In these circumstances, I conclude that no miscarriage of justice occurred by reason of the merest of possibilities that the jury might have reasoned in the way suggested. 50 As I have indicated above, the trial judge gave the jury the firmest of directions about the need to assess each count separately. With respect to the two counts of which the jury acquitted the Appellant, they showed that they approached their task in this respect appropriately. 51 In my opinion the appeal should not be allowed by reason of the fresh evidence of DG or on the basis of the evidence adduced in this Court by RD Senior.

Ground 4 52 Newman J and Adams J come to opposite conclusions on the issue of duplicity. The issue turns on two distinct pieces of evidence which the Crown alleged AD sought RD Senior to give. The first was to deny that there was a bed in his truck. The second was that she had heard AD's brother E say that he would procure his daughter to make false charges. 53 It was the Appellant's submission that some members of the jury could have found that one of the statements was made and others could have found that the other of the statements was made and, accordingly, that there was no unanimity about the particular act. I do not read his Honour's instructions to the jury in this way. In my opinion, the matter was left to the jury on the basis that they had to find that both of the statements had been made by him. 54 His Honour's relevant directions were as follows: "The things which are contained in the statements said to be made by the accused, on which the Crown relies, are firstly he asked Mrs RD Senior to say that there was no bed in his truck … … Secondly, the Crown says he asked her to say that she sat around the table with E, that is his brother E, and that she was brought into the conversation with his two daughters and that they were 'going to have me charged with rape'." 55 The reference to the "things which are contained in the statements", and the introduction of the two matters by "firstly" and "secondly", do not suggest to the jury that either of these particular statements would do. In the manner in which the matter was left to the jury, it appears to me that the Crown undertook an unnecessary burden of establishing that both the relevant statements were made. 56 In any event, even if the Appellant's characterisation of the summing-up was appropriate, I would not intervene. Issues of duplicity depend on the precise nature of the offence and often involve questions of characterisation on which reasonable minds may differ. 57 The offence is created by s319 of the Crimes Act 1900 which states: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice is liable to imprisonment for 14 years." 58 Section 312 contains a definition: "312 A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law." 59 The issue turns on the level of generality at which the offence is stated. Is it sufficient for a jury to convict on the basis that it accepts that AD sought to convince RD Senior to give false evidence? Or is it necessary for the jury to agree on the particular evidence of a false character which AD sought to procure? 60 The offence created by s319 is committed when a person, intending to pervert the course of justice, induces another to give false evidence even in circumstances where the first person does not specify the nature of the false evidence to be given. This was the case, for example, in R v Andrews [1973] QB 422 where the person accused of the common law offence of incitement to pervert the course of justice said in response to the question, "What do you mean? What are you getting at?" only, "It is obvious isn't it? I'm in your hands." 61 Where, as here, the person accused of this particular offence provides some detail as to the nature of the false evidence, that is a matter of particulars. The offence is committed by reason of a single "act", namely, the inducement to provide false evidence, stated at that level of generality. The legal definition of the crime does not require the Crown to prove, as an essential ingredient of the offence, the specific nature of the false evidence. See generally R v Leivers and Ballinger (1998) 101 ACrimR 175 at 182-188. 62 Furthermore, as Newman J notes the present case has some similarities to R v Hamzy (1994) 74 ACrimR 341, where the Crown sought to establish a single count of supplying a large commercial quantity of heroin by a large number of witnesses who said the appellant had supplied him with various amounts of heroin over a twenty month period. (See also R v Te [1998] 3 VR 566 esp at 578). 63 In Hamzy, Hunt CJ at CL, with whom Abadee and Simpson JJ agreed, said at 348-349: "In my view, the Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity, but the trial court has power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Where objection is taken to the indictment, the trial judge should apply commonsense and decide what is fair in the circumstances DPP v Merriman [1973] AC 584-593. In R v Eades (1991) 57 ACrimR 152 at 156, the Victorian Full Court said that the question as to how to frame an indictment when more than one act is involved is ultimately one of fact and degree … It is nevertheless submitted by the appellant that the form of the indictment in the present case produced an unfairness to him, as the individual acts of supply proved in the present case could not fairly and properly be identified as part of the same criminal enterprise. I see no reason why the concept of one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue on fairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. …" 64 In the present case there is no relevant unfairness to the Appellant. The nature of the evidence was not such as to lead to any distinction between the two matters left to the jury as suggestions that AD made to RD Senior to give false evidence: first that there was no bed in the truck and secondly to say that his brother had told the three complainants to fabricate false allegations. 65 There was no basis for suggesting - nor was any propounded in the submissions to this Court - that any member of the jury could have rejected the making of one statement and accepted the making of the other. No doubt for that reason, no relevant re-direction was sought at trial. There is no basis, in my opinion, for a conclusion that the jury verdict lacked unanimity. 66 Analogous issues arose in R v Rowell [1978] 1 WLR 132 in which the defendant was charged with attempting to pervert the course of justice. The defendant had taken a number of different steps to support a false allegation of robbery. Omerod LJ said at 138: "… all the defendant's acts, his two false statements to the police accusing the man, described but not identified by name, of robbery, the placing of the toy pistol in the bus, and the arranging that it should be found by Cronin, are all part of a course of conduct, between the dates alleged, which had a tendency and, as the jury must have found, was intended to pervert the course of justice. That it did in fact cause a grave injustice to Timms who was wrongfully arrested and detained in custody for several days is beyond question. No question of duplicity in the indictment, therefore, arises." 67 In R v Morex Meat Australia Pty Ltd (1995) 78 ACrimR 269 the Queensland Court of Appeal was concerned with a charge of attempting to pervert the course of justice, contrary to s43 of the Crimes Act 1914 (Cth), of which charge eight separate acts were given as particulars. The Court referred to Rowell supra and their Honours, McPherson JA, Pincus JA and White J, concluded at 292: "We consider that the appellant Douk was properly charged in count 17 with, and convicted of, a single offence of attempting (or 'tending') to pervert the course of justice, of which the particulars of the relevant element of that offence consisted of the eight acts identified by the prosecution at the trial, and the proof of that tendency consisted of the evidence in support of any one or more of those eight acts which the jury were persuaded beyond reasonable doubt to accept." 68 The reasoning in Rowell and Morex Meat apply to an offence under s319 of the Crimes Act 1900. 69 In his summing-up to the jury the trial judge directed the jury at the appropriate level of generality. His Honour said: "The Crown has to prove three things. Firstly, that he offered her $10,000. Secondly, that this was in order for her to give false evidence about one or more of the first 19 charges in respect of which you had already decided that there is a verdict of guilty. And thirdly, that he intended thereby to pervert the course of justice." 70 I agree with Newman J that Ground 4 should be dismissed.

71 NEWMAN J: This is an appeal against the appellant's conviction on nineteen counts after a trial which commenced on 16 March 1999 in the District Court at Campbelltown. The appellant was indicted on twenty-one counts the jury finding him not guilty on counts eleven and fourteen of the indictment. 72 Twenty of the counts on the indictment involved allegations that the appellant had committed sexual offences against three girls, all of whom were related to him in varying degree. Two of the girls T and R were his nieces being children of his brother E. The third girl L was the niece of his former wife, RD. 73 In relation to the girl T the appellant was indicted on five counts of non-consensual sexual intercourse with a person under the age of sixteen years, one count (count eight) of attempted sexual intercourse and two counts of committing acts of indecency against her (counts six and seven). 74 The allegations relating to the girl R involved eight counts of non-consensual sexual intercourse with a person under the age of sixteen years, one count of indecent assault (count eleven) and one count of having non-consensual sexual intercourse with R while in company with his son S. Again, the allegation was that R was under the age of sixteen years at the time (count eighteen). 75 Count twenty on the indictment involved an allegation that the appellant had non-consensual sexual intercourse with L, again alleging that L was under the age of sixteen years at the time of the commission of the offence. 76 Count twenty-one on the indictment involved an allegation that the appellant offered his former wife, RD, money in order for her to give false evidence at court with the intention of perverting the course of justice. 77 As I have said, the jury found the appellant guilty of nineteen of the allegations contained in the indictment, finding him not guilty on counts eleven and fourteen, namely the count of committing an indecent assault upon R (count eleven) and count fourteen which involved an allegation that the appellant had had non-consensual sexual intercourse with R. 78 His Honour Judge Moore sentenced the appellant to a total term of ten years consisting of a minimum term of seven years six months and an additional term of two years six months. 79 The Crown case may be summarised as follows:

The complainant T gave evidence that she was born on 3 January 1972. She said that her parents were AD and ED. Her family had moved to a south western suburb of Sydney in 1985. She said that she had two brothers and two sisters. She said that her father had two brothers, the appellant and G. She said that when she was living in south western Sydney her home was about two minutes drive from the appellant. She said that the appellant used to come to her place "at least every day". She said that RD was the appellant's wife. She said that the appellant had three children, C, L, and G.

She recalled that in February 1985 shortly after she had moved to the south western suburb of Sydney the appellant came to her house. She said that she was in the lounge room with her sister R and she was still wearing school uniform at that time. At about 3.0 pm the appellant arrived in his truck and came to the house. He came in and sat on the lounge. She said that the appellant grabbed her from behind and pulled her down onto the ground and sat on top of her. She said that she asked him to stop it and she was screaming and he started spitting in her mouth to muffle her screaming. He then put his hand into her pants and groping inside her vagina. She said that R was trying to pull him off her.

She said that while R was trying to pull him off she noticed that the appellant had got R down on the ground. He was fondling with her breasts and then she saw his hands touching over her underwear, over her uniform and rubbing her vagina. Later she heard her father's truck pull up. The appellant got up and just walked out and sat at the kitchen table as if nothing had happened. She said that her mother was not at home when this incident occurred.

She recalled there was an incident which happened a few years after the one mentioned above. She said it was about 3.30 pm after school and she was still wearing her school uniform. The appellant came into the lounge room in the house and sat beside her. He put his hand on her leg and said to her "How you going baby" and asked her to go and put the kettle on. As she got up the appellant pulled her from behind. She remembered that she hit the floor with a hard bang. He jumped onto her chest and pulled his penis out of his pants. He tried to shove it in her mouth. After that he started moving down towards her stomach and pulled her underwear down to her ankles. She was yelling at him to stop it and to get off her but he continued and tried to put his penis inside her vagina.

She recalled that around Christmas 1986 when she was in the lounge room in her home with her sister R she said that the appellant came in the lounge room and put his penis out of his pants and pushed it into her mouth. After that he pulled out his wallet and he threw $5 at her and said, "That's for a job well done."

She recalled that around Christmas time on a Saturday in 1986 she remembered she went to the appellant's house and washed his truck and was paid $10. On the following day she said the appellant came to her house. She said that everybody was at home but they were outside, however she was in the lounge room watching television. She said that the appellant put his penis in her mouth. When the noise of the closing of the back door was heard, the appellant then walked out of the room as if nothing had happened. Before he left he gave her $5 and said "here's some money for you."

She recalled there was an occasion which occurred a few weeks before her brother G died on 7 July 1987 when the appellant came to her home. She said she and her sister R were there. He said "look girls look what I've got for you". She saw his hands were wrapped around his penis and he was stroking and pulling it. She gave him a filthy look and walked off.

She recalled three days after the above incident happened, she was again in the lounge room watching television. She said the appellant stood at the door and had his penis out of his pants rubbing it.

She recalled that an incident happened around the end of August which was a few months prior to the death of her brother M who died in a motor cycle accident on 17 October 1989. She said that she was in the outside toilet of the house and the appellant came in. He took his penis out and tried to put it into her mouth but it did not penetrate her mouth. She said that she punched him in the testicles. She pushed him out and she got out the door. She said she was seventeen years old at that time.

She said that she had told nobody what had happened to her over that five year period as she was ashamed of what happened. She thought that it was her fault.

In cross-examination she said that she went to the police in 1997 with R and it was being suggested by her parents. She saw Operation Paradox on television and it was the first time that she had talked about it. She did not see a doctor or social worker.

The complainant R gave evidence that she was born on 13 February 1975. She said that she was nine years old when she moved to a south western suburb of Sydney. She was in Year 3 at that time. She said that the appellant was a very strong man. She said that about a month after she moved the appellant came up to her home. She said that she was sharing the room with her younger sister K at that time. While she was sleeping in bed the appellant came to her room. He put his knee on her leg and held her down. He then took her underpants off. She was crying and the appellant told her to shut up or something would happen to her. He forced her legs apart and put his penis in her vagina. She was crying. He pulled his penis out of her vagina and ejaculated over her stomach.

She recalled that two months after that incident she was in the lounge room at home after school with her sister T. She was wearing her school uniform. Later the appellant came in his truck. He asked T to make a cup of coffee. When she got up the appellant grabbed hold of her arm and pushed her to the floor. She saw the appellant's his hands moving up T's legs and T was crying. She asked the appellant to get off. R then started hitting him and getting him off T. He then grabbed hold of her by her arm and pulled her to the floor. He got on top of her and pulled her underpants down. He then put his penis in her vagina.

Count 11 was an allegation involving an incident which R said happened when she was in her fifth grade at school in 1986 or 1987. She said that she had an aunt called RD who lived in Sydney and bred budgerigars. She remembered one day she went with the appellant in his four wheel drive to see the aunt. After feeding the budgies she asked the appellant "can I go home?" and he said "no, just a minute, won't be long". As she was walking to the door the appellant grabbed hold of her and pushed her to the floor. She said that the appellant was feeling her breasts over her T-shirt. She said "no, I don't want to do this". The jury found the appellant not guilty on this count.

Next she recalled the appellant had a farm on the edge of the Sydney urban area. She said that she went there when she was in Year 8 and that was in 1989. She was thirteen years old. She said he went there on a weekend with her aunt R. She said that her aunt picked her up from her house and drove her out there with her son G. She said that she was sharing a room with G. She slept at the bottom of the bunks. She went to bed at about 10 pm and that during the night, being a Saturday night, the appellant stood beside the bed. He woke her by pulling the sheet back. He then grabbed hold of her, walked her out into the lounge room. He pushed her to the floor and pulled her track pants off and her underpants came off and she said "stop". She said she was on her knees and he pulled his penis out, pushed her face towards his penis and made her suck his penis. He then pulled her head away and pushed her to the floor and put his penis into her vagina. After that he ejaculated onto her stomach. That was a Saturday night.

She said that on the following day she said the appellant asked her to get on the bike and she replied "no, I don't want to". He said, "just get on the bike" and she then got on to the bike. He stopped his bike in the shrub at the back of the dam. He pushed her onto the bushed and pulled his shorts down. She remembered she was thirteen and a half years old. The appellant rubbed his hand up and down his penis until it got erect and he then put his penis into her vagina. Later he ejaculated. Later he returned to the aunt's home and she drove R home. She remembered when she was still behind the dam before he got back on the bike, he said to her "don't say anything or something will happen to her". These allegations related to count 14 on which count the jury found the appellant not guilty.

She recalled that there was an occasion when her father was helping dig a dam. She said that she went out with her father and the appellant was also there. She said that when she was in the kitchen he asked her whether the kettle was boiled yet and she said "no". She said that he grabbed hold of her and then pulled his penis out and pushed her onto her knees and sucked his penis. He then grabbed hold of her and pushed her into his room and pushed her onto the mat and then put his penis into her vagina. After he had finished he said to her "if you say anything I'll do something to you or to your father".

She recalled there was an incident which happened around February 1990. She said that she was in Year 8. She recalled on a Friday night the appellant asked her father whether she could go out with him to mend the deer fences and dad said yes. He was in a Hino truck with the appellant. She said that there were two seats in it and there was a bed in the back behind the two seats. It was a mattress and like a quilt sort of thing over the mattress. She went to the back of the bed and he got up onto the seat on his knees. He got up in the back where she was and put his knees in between her legs and put his penis into her vagina. She said that she was screaming. He then ejaculated onto the mattress. She ran away and he told her to get back into the truck. She said "no" and he said "get back into the truck". She did. He started to drive back to his farm. Upon arrival she said that her sister R and brother G were in bed and she did not tell anyone what happened to her.

She recalled about three weeks after that incident had occurred she went out to the farm. She said that she was helping to put up deer fences. She said that her father, the appellant and his son S and a mater of the appellant were there. She said that it was in summer of 1990. Later her father went with a mate of the appellant to get some lunch. At that time there was only herself, the appellant and S. She said that the appellant grabbed hold of her and dragged her towards the house into G's room. The appellant pushed S onto her and she was yelling "no, I don't want to do this, no". He said to S "come on, join in". The appellant had ripped her clothes off and pulled his shorts and underpants off. S put his erect penis into her vagina. He got off and walked outside of the house and the appellant got on top of her and put his penis into her vagina. She said that while S was doing this the appellant was rubbing his hand up and down his penis. He said that she did not tell her father what had happened.

She recalled that in early 1991 before her sixteenth birthday the appellant came over to her house. She said that she was in the room by herself. The appellant came in and pushed her to the floor and pulled his underpants down. He pushed her legs apart and put his penis into her vagina.

As to count 20 the complainant L gave evidence that she was born on 13 August 1975. In 1987 she was living in the same south western suburb as the other complainants with her mother and stepfather. Her mother has a sister who is RD and married to the appellant. She recalled there was an occasion when she visited her grandmother's home and the appellant arrived in a tipper truck. This was in 1988. She was in the bathroom and he came in and undid her blouse, kissed her breast and she just stood there frozen. He put his hand up her skirt and rubbed her vagina with his hands and then put his fingers inside her vagina. She said that it was in early summer of 1988 and she was twelve at that time. She said that she had told her school friend, JC about this.

Count 21 relied upon the evidence of RD Snr. Her evidence was that at about 4.30 pm she had a telephone conversation with the appellant in which he said to her "I need to see you urgently tonight. I'm up for a number of counts of rape. Ernie got me into some rape trouble. He's setting you and G up to go against me". She said he told her that in case he went to gaol she won't get anything out of him by going against him.

On 1 December 1997 the appellant arrived at her home with his brother GD. He said "you know there was no bed in that truck" and said to her not to provide a statement to the police. He further said "I'll give you $10,000 to say that E is the cause of all this". They then went back to the truck. She reported the matter to the police. On 27 January 1998 after a listening device was placed on her telephone she rang the appellant. On 28 January 1998 she went to the appellant's farm fitted with another listening device. Tape recordings of these conversations were admitted into evidence.

AD, mother of the complainants T and R gave evidence that around September 1985 she started working in a glove factory. She said that her husband would get home mostly around 4 pm. She said that there were occasions when she returned home in the afternoon and she could see the appellant with T and R.

ED, father of the complainants T and R gave evidence that he often arrived home and his daughters were with the appellant. He said that R went with him every time he was the appellant's farm helping to put up the deer fences. He said R loved the farm. He said during the course of putting up the fence he had gone down to the shops more than once and said that he had looked at the truck belonging to the appellant and that it had a mattress type of bed.

Det Snr Const McQueen gave evidence that he had conducted a record of interview with the appellant and he denied that he had sexually assaulted T. He declined to answer further questions put to him by police regarding alleged sexual assault on the other complainants. He said that there were two legally taped conversations between RD and the appellant on 21 January 1998 and 28 January 1998 respectively. During the journey back to the police station the appellant said to him "this is all from my ex wife is it?" and he asked "what do you mean?" and the appellant replied, "she's been coming around telling me you're harassing her for a statement and demanding money. I've recorded the conversation with her". 80 The appellant gave evidence on his own behalf and was subjected to cross-examination. In chief and in cross-examination he maintained that he did not sexually assault any of the complainants. It was his contention that he had, at no time, visited the home of his brother when only the two girls, T and R, were present. 81 As far as count 21 was concerned not only did he deny that he attempted to bribe his ex-wife so that she would give false evidence but claimed that in fact she had attempted to extort money from him to tell the truth. 82 He also denied the presence of a mattress or bed in his truck which was said to be involved in the allegations raised by R in relation to count 16 of the indictment. 83 It should be noted that in cross-examination he in no way resiled from either his denials in relation to the sexual assaults or his allegations in relation to the conduct of his ex-wife RD and himself concerning count 21. 84 The appellant founded his appeal on a number of grounds. These were:

Ground 1: The evidence admitted in support of counts 20 and 21 in the indictment was not admissible on the other counts 1 - 19, and the appellant was unfairly prejudiced by the hearing of those two counts in the same indictment. 85 This ground also involved a submission that the failure of counsel at the trial to seek to severe counts 20 and 21 from the indictment constituted incompetence on counsel's behalf which led to a miscarriage of justice.

Ground 2: The verdicts are unsafe and unsatisfactory.

Ground 2A: The learned judge failed to direct the jury according to law on issues attending the credibility of the complainants R and T and the appellant was thereby deprived of a chance of acquittal open to him and a miscarriage of justice was occasioned.

Ground 3: Evidence led on the appeal by way of oral and affidavit evidence from the appellant and RD and affidavit evidence of DG would make the Crown case on count 21 unsustainable and so impugned the evidence given in relation to count 20 that a new trial would be required in relation to that latter count.

Ground 4: The evidence admitted in relation to count 21 rendered the count duplicitous and the verdict upon that count lacking manifest unanimity.

Ground 1: The evidence admitted in support of counts 20 and 21 in the indictment was not admissible on the other counts 1 - 19 and the appellant was unfairly prejudiced by the hearing of those two counts in the same indictment. 86 The nub of the submission made by counsel for the appellant in relation to counts 20 and 21 was that they should have been severed from the indictment. As no application had been made either before or at the trial that this be done it was in this regard that the question of the competence of counsel was raised. 87 It was not suggested by counsel for the appellant that the counts involving the sexual assaults on R and T should have been considered separately - indeed having regard to the factual allegations set out above, it is difficult to see how such an application could have succeeded. 88 However, it was put that as far as count 20 was concerned involving as it did a discrete allegation of a sexual assault in different circumstances from the sexual assaults allegedly carried out on T and R that the inclusion of count 20 was impermissibly prejudicial to the appellant. 89 It was put that the evidence relating to count 20 was not relationship evidence or tendency evidence. Reliance was placed upon what had fallen from Dowsett J in R v Waterreus [1998] QCA 90, 12 May 1998 when his Honour observed: "Where, as in BKS v The Queen (1997) 71 ALJR 1512 the evidence of misconduct with another witness, the risk of 'propensity reasoning' is greatly increased." 90 It should be said at once that his Honour gave directions which were not the subject of criticism which made it plain to the jury that they were to consider the allegations made by L separately from those made by T and R. 91 However, it was put that despite his Honour's directions the risk of unfairness remained particularly when the allegations relating to count 20 are examined in combination with other matters raised on the appeal which would lead the court to conclude that the presence of count 20 resulted in an unfair trial taking place. 92 The failure of counsel to seek severance of this count as with count 21, was the matter most strongly urged on the appellant's behalf. Accordingly I shall deal with this submission at the conclusion of my considerations relating to count 21. 93 Count 21 was in these terms: "Between 12 November 1997 and 29 January 1998, did offer RD money in order for her to give false evidence at court, intending to pervert the course of justice." 94 The evidence adduced by the Crown in relation to this count included as I have noted above, tape recordings of two conversations between the appellant and his ex-wife RD. While, again as I have noted, the appellant maintained in evidence that rather than it be the case that he had attempted to bribe RD to give false evidence on his behalf, the case was that RD attempted to extort money from him in order to tell the truth. 95 Again, as I have said, while the appellant did not resile from this position in cross-examination a fair reading of his cross-examination on this point indicates that his credibility was very severely impugned on this issue. 96 His Honour correctly directed the jury that the damage done to the appellant's credibility on this issue could be taken into account by the jury on the issue of his general credibility, that is, in relation to all counts. 97 Again, criticism was mounted of the conduct of counsel in not seeking severance of count 21 from the indictment. It was submitted that as the joinder of count 21 was improper because it so seriously and impermissibly prejudiced and embarrassed the appellant in the conduct of his case that not only should counsel have sought to have it severed but also failure to severe would inevitably result in an unfair trial taking place. 98 I am of the view that even if the allegation that the appellant had sought to bribe his ex-wife so that she would give false evidence was not the subject of a separate count in the indictment that it would have been permissible for the Crown to lead evidence of the attempted bribery as evidence of consciousness of guilty on the part of the appellant. 99 Ex facie, it was fairer for the Crown to encapsulate the allegation of bribery in a separate count than to leave it as evidence to be applied in general in the trial. 100 I say this because it is fairer to an accused that a jury consider this matter initially, separately, in order that they determine whether they accept the allegations beyond reasonable doubt than to leave the matter merely as evidence in general, albeit that if left in the latter fashion it would have been proper to direct the jury that before they used the material they must find, beyond reasonable doubt, that the events occurred. 101 In my view this point alone is sufficient to dispose of the argument that:-

(b) that counsel failed in his duty to seek such severance. 102 However, this does not dispose of the submission that counsel should have sought the severance of count 20. Affidavit evidence was obtained from senior and junior counsel who appeared at the trial relating to this point. Senior counsel appearing for the appellant at the trial was in fact the third senior counsel engaged in the matter. Both his predecessors had been of the view that it was better that all matters be dealt with in one trial rather than in a series of trials. Senior counsel who appeared at the trial was told of the views of his predecessors and agreed with them. 103 The reasoning behind that advice was:

1. That if the appellant was to give evidence it was better that he give evidence at one trial rather than at a number of trial where inconsistencies which may have occurred during the course of his various endeavours to give evidence could have been brought to bear in cross-examination by the Crown.

2. That in relation to the evidence of the three complainants it was thought that the possibility of inconsistencies being found in the testimonies given by each of the three could be used to good effect in the appellant's defence. 104 In my view these considerations were soundly based. There often is a tactical advantage for an accused to have counsel expose inconsistencies in the testimony of a number of complainants in the case of sexual assault. The decision made by his predecessors and adopted by senior counsel at the trial was far distant from the type of flagrant incompetence referred to by this Court in R v Birks (1990) 19 NSWLR 677 particularly 683 which would induce this Court to interfere. 105 I should add that in his affidavit the appellant complained of a lack of communication between counsel and himself both before and during his trial. This lack of communication, so deposed the appellant, led to his counsel not receiving proper instructions from him. This in turn led to a submission of the type of incompetence identified by this Court in Birks. 106 Both junior and senior counsel deposed as to their actions in the trial by way of affidavit. Neither was required for cross-examination. Their affidavits make it plain that there was appropriate communication both before and during the trial by way of conferences with the appellant and that appropriate instructions were obtained from him in order that his trial could be properly conducted. 107 In these circumstances, there being no challenge to the evidence of counsel I accept their evidence in preference to that given both by way of affidavit and orally by the appellant before this Court. 108 One specific matter raised relating to counsel's competency was an allegation made by the appellant that the three complainants had fabricated their evidence at the instigation of the appellant's brother E. 109 I should add that this matter also arises in relation to ground four of the appeal. It is true that no direct accusation of this type was put to the witnesses R and L, nor to E when he gave evidence - albeit that he conceded in cross-examination that after 1991 he and his brother had fallen out. It was however, put directly to T who flatly denied any such conspiracy. 110 It may be that having received a flat denial from T and in view of the matters raised by the Crown under count 21, senior counsel took the view that it was tactically unwise to pursue this line. However, whatever the reason was the absence of cross-examination on this line to R, L and T does not amount to the type of incompetence adverted to by this Court in Birks. 111 Accordingly, in relation to both counts 20 and 21 ground one cannot succeed and this separate allegation of incompetence must also fail.

Ground 2: Verdicts are unsafe and unsatisfactory. 112 Essentially this ground relied upon a submission that because those counts remain in the indictment the risk of impermissible evidence on all the counts by reason of the admission of the evidence on those two counts was so great as to cause injustice. 113 For the same reasons I have expressed in relation to the discreet matters raised in relation to counts 20 and 21, I am of the view that this ground must also fail.

Ground 2a: The learned judge failed to direct the jury according to law on issues attending the credibility of the complainants R and T and the appellant was, thereby, deprived of a chance of acquittal open to him and a miscarriage of justice was occasioned. 114 Reliance here was placed upon the failure of the trial judge to give a direction which was consistent with the observations made by Dunford J in R v R A T [2000] NSWCCA 77 24 March 2000. There his Honour, in dealing with what had fallen from the High Court in Jones v The Queen (1997) 191 CLR 439 observed as follows: "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 (ie 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." 115 No such direction was in fact given, nor was any sought. 116 In Jones the appellant had been indicted on three counts of sexual assault. He was convicted on the first and third counts but acquitted on the second. 117 The High Court observed there was nothing in the complainant's evidence or the surrounding circumstances which gave any ground for supposing her evidence was more reliable in relation to the first and third counts than it was in relation to the second count. 118 The majority in the High Court (Gaudron, McHugh and Gummow JJ) at 85 adopted the application of the test for determining whether a verdict is unsafe or unsatisfactory by the majority in the High Court in M's case. In M v The Queen (1994) 181 CLR 487 at 494 the majority has explained the test as follows: "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." 119 At 453 in Jones the court went on to hold as follows: "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." 120 Later, again at 453, they observed as follows: "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." 121 Here it may be seen from the narrative of facts above that in relation to the counts 11 and 14 that both involved her aunt RD. RD, while giving positive evidence against the appellant particularly in relation to counts 20 and 21, did not corroborate R in relation to her association with her on the dates involved in the two counts. 122 In my view the absence of such corroborative evidence could well have led a jury to the conclusion that in relation to those two counts they had a reasonable doubt. 123 In Jones the High Court, as I have indicated, were of the view that the evidence of the complainant there was of the same quality in relation to all three counts - hence the acquittal on the second count tainted the convictions on the first and third counts. 124 In other words here, the jury who must have accepted the evidence of RD in relation to other counts in the indictment, having taken into account the absence of corroborative evidence from her in relation to counts 11 and 14 were thus entitled to find that they had a reasonable doubt in relation to those counts. 125 In short, applying the principles adumbrated by the High Court in M, I do not conclude that the verdicts in relation to counts 11 and 14 were unsafe and unsatisfactory. It follows that the not guilty verdicts in relation to those counts do not taint the guilty verdicts in relation to the other charges. 126 I should add that the suggested direction proposed by Dunford J in sexual cases as far as it deals with the situation where the only direct evidence of the commission of the offences is that of the complainant, that if they are not satisfied that the complainant is telling the truth in relation to one count and thus they find the accused not guilty in relation to that count they should find him not guilty on all counts, would seem to be unexceptional in relation to such cases. I underscore that this direction would only be appropriate in cases where the only direct evidence of the commission of the offences is that of the complainant. 127 Here even if such a direction had been given, the absence of corroboration on counts 11 and 14 where the jury might well have expected to find it, is sufficient to explain how the jury may have entertained a reasonable doubt on these counts but yet were satisfied in relation to the other counts. 128 I do not agree with Dunford J's statement: "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." 129 I say this because it is not part of a jury's function to take into account the consequences of any verdict they reach with an exception which arises in the case of a finding of not guilty by reason of mental illness. See Mental Health Act 1990. 130 In Lucas v R (1969-70) 120 CLR 171 the High Court held that it is generally undesirable that references should be made to the possible consequences which may follow upon any verdict which a jury may properly return. There the court said at 175: "There is, in our opinion, no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is truly, so far as the jury are concerned, an extraneous matter. It is, in our opinion, generally undesirable that reference should be made to the possible consequences which may ensue upon any verdict which the jury may properly return."

Ground 3: Evidence led on the appeal by way of oral and affidavit evidence from the appellant and RD and affidavit evidence of DG would make the Crown case on count 21 unsustainable and so impugned the evidence given in relation to count 20 that a new trial would be required in relation to that latter count. 131 This, as I have said, consisted of affidavit and oral testimony given by RD and affidavit evidence of DG. 132 DG's evidence was confined to count 20 and in particular to her presence at a time when L was resident in her house. 133 RD's evidence as relied upon by the appellant was to the effect that she had perjured herself at the trial, that in fact the account given by the appellant at the trial was a correct one. 134 The approach to be taken by courts of criminal appeal to such evidence was dealt with by the Court of Criminal Appeal in England in R v Flower [1966] 1 QB 146. There, Widgery J (as he then was) at 149 said: "Having heard that evidence the court must next decide on the proper approach to it. When this court gives leave to call fresh evidence which appears at the time of the application for leave to be credible, it is still the duty of the court to consider and assess the reliability of that evidence when the witness appears and is cross-examined, and this is particularly true where evidence is called in rebuttal before this court. Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered." 135 I turn first to the evidence given by RD Snr. Not only did she claim as I have said, that certain of the evidence which she gave at the trial was untrue, but also that having read the depositions of the evidence given by T, R and L, she claimed that certain aspects of the evidence of T, R and L were untrue. 136 In particular, in relation to the complainant R, she claimed that R had "never stayed" at the appellant's farm while she was there. She developed in her affidavit that theme in relation to the incidents referred to in counts 12, 13, 14, 15 and 16 of the indictment. 137 As far as L was concerned she states that she did not move into DG's home until late 1998 and that L did not assist G in getting ready for school. 138 As far as T's evidence was concerned she stated that the appellant was in the country on a shooting trip for the whole of February 1985, matter going to counts 1, 2 and 3 of the indictment. 139 In oral evidence she was adamant that the appellant's truck did not have in it a bed and thus the allegations made by R which constituted count 17 of the indictment could not have occurred. 140 As I have already mentioned, tape recordings had been made of several conversations, one by telephone and one face to face, between RD and the appellant. 141 In cross examination statements made by RD Snr to the appellant and the appellant's responses as recorded particularly on the face to face meeting, which were inconsistent with certain of the evidence she had given on the appeal, were put to her. 142 For instance, the question of the presence or otherwise of a bed in the appellant's truck was squarely raised with her. As I have said she denied its existence before this Court. However, its existence was the subject of a lengthy exchange between herself and the appellant at what I have described as the face to face meeting which occurred on 27 January 1998. 143 Her explanation of the inconsistency between the two accounts in my view totally lacked credibility. The same comment is applicable to certain other matters which she raised in evidence before this Court as against what had passed in the recorded conversations to which I have made reference. 144 In short, I am of the view that her evidence totally lacked credibility. It follows that I regard her evidence as worthless. 145 Accordingly, the third possibility adverted to by Widgery J in Flowers case is, in my view, applicable and I would not order a new trial based upon the evidence she gave before this Court. 146 As far as DG deposed in her affidavit that RD Snr and G moved into her house in late 1988. Furthermore she said that to the best of her knowledge L, her grand daughter, had not assisted G in getting ready for school. She denied that she had gone on holiday at any time when RD Snr and G were residing with her. 147 While DG was not subject to cross examination on her affidavit, I am of the view that the weight of her evidence as disclosed in her affidavit is not sufficient to justify the ordering of a new trial. 148 It follows that I am of the view that the submissions based upon fresh evidence do not succeed.

Ground 4: The evidence admitted in relation to count 21 rendered the count duplicitous and the verdict upon that count lacking manifest unanimity. 149 I have set out the terms of count 21 above. The gravamen of that count is that the appellant did offer RD money in order for her to give false evidence. The false evidence which it was alleged that the appellant was seeking to have RD give, was twofold:-

1. that the appellant told her to say there was no bed in the truck (a matter I have adverted to above);

2. the appellant told RD to depose that E, his brother, had told the three complainants to fabricate false allegations against the appellant. 150 It was submitted that duplicity existed because these two matters of false evidence were left as alternatives. Thus it was submitted that part of the jury may have been satisfied, beyond reasonable doubt, as to one of the matters and another part of the jury satisfied as to the other matter raised. 151 Accordingly, so the submission continued, there should have been two separate counts alleging the crime of attempt to pervert the course of justice. 152 Reliance in this regard was placed upon what fell from the High Court of Australia in KBT v The Queen [1996-97] 191 CLR 417. That case involved allegations that the appellant had sexually misconducted himself with a child on a number of occasions in a number of different ways. 153 The complainant gave evidence of that sexual misconduct which the High Court described as falling within six broad categories. At 424 the majority of the court observed as follows: "As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others. And given the nature of the offence, which is established by proof of acts of a sexual nature on three occasions, there is no basis on which it can be concluded that the jury did accept all her evidence. Moreover, the evidence in the defence case differed according to the different categories of incident to which M deposed. So far as concerned the incidents which, according to M, occurred on the motorcycle and during fruit picking, the defence evidence consisted, in the main, of the appellant's denial that they occurred. However, in the case of incidents which, according to M, occurred of a morning in her bedroom, after morning tea, during afternoon rests and while watching television, the appellant's wife gave evidence which was to the effect that it was improbable, if not impossible, that those events occurred. Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open." 154 KBT was a case brought pursuant to s 229B(1) of the Criminal Code (Qld). Subsection 1 is in these terms: "Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years."

The offence was elaborated by sub-s (1A) which provided: "A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions." 155 The trial judge had instructed the jury that to convict the appellant of maintaining a sexual relationship contrary to subs 1 they "must be satisfied beyond a reasonable doubt that on at least three occasions within the time frame charged the [appellant had], for instance, unlawfully and indecently dealt with the child". 156 He had not however, instructed the jury that they had to be satisfied of the same three offences on the same three occasions. The Queensland Court of Criminal Appeal had held that he should have so directed. 157 In the High Court, counsel for the Crown conceded that the trial judge should have directed the jury that they are required to be satisfied as to the commission of the same three acts constituting offences of a sexual nature before they could convict the appellant of the offence charged. 158 Ultimately the High Court held that the Queensland Criminal Court of Appeal should not have applied the Queensland equivalent of the proviso contained in s 6 of the Criminal Appeal Act NSW. 159 Here, only one offence of attempt to pervert the course of justice is alleged. The fact that the evidence led in support of the count contained matters which could have been stated as separate offences does not make the single count charged, duplicitous. See R v Merriman, [1973] AC 584; R v Velardi, 24 May 1996, NSW Court of Criminal Appeal, unreported; R v Hamzy (1994) 74 A Crim R 341. 160 In Merriman, Lord Diplock at 607 said: "Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment." 161 In Hamzy, at 349 Hunt CJ at CL followed what had fallen from the House of Lords in Merriman. At 349 he said: "I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin. Even if the individual acts of supply had been divided up into different counts, each count relating to the acts of supply to a different Crown witness, there would have been no real justification for separate trials relating to each count. Again, a totally unreal picture would have been presented. And, as the defence was one of denial of any involvement in the supply of heroin, the evidence of similar facts may well have been admissible in any event to meet the attempted exculpatory explanations by the appellant for the presence of the difference Crown witnesses at his home." 162 In Walsh v Tattersall (1996) 188 CLR 77 a number of the High Court justices considered the question of what would constitute a duplicitous count. However, as Hunt CJ at CL subsequently observed in F (1996) 90 A Crim R, the absence of a clear ratio in Tattersall's case meant that the law in this State as he put it in Hamzy, remained. That is that the law as adumbrated in Merriman's case is to be taken as the law in New South Wales. 163 In R v Moussad, [1999] NSWCCA 337 Smart AJ reviewed the authorities in detail, concluding as follows: "Having regard to the practice in New South Wales as reflected in Hamzy and the cases there cited and the subsequent cases including F and the absence of a clear ratio in Walsh v Tattersall which can be applied in this case, this Court should continue to follow Hamzy and F where the Crown has framed and relied upon a single count alleging a criminal enterprise." 164 It should be noted that in KBT at 422 the court distinguished the offence created by s 229B(1) of the Queensland Code from offences involving a course of conduct such as trafficking of drugs or keeping a disorderly house. The court observed as follows: "In the case of each of these latter offences, the actus reus is the course of conduct which the offence describes." 165 In the same way I am of the view that KBT is not authority which renders a count framed as count 21 was and involving the factual allegations upon which the Crown relied, a duplicitous count. 166 Accordingly I am of the view that this ground also fails. 167 For the above reasons I am of the view that the appeal should be dismissed.

168 ADAMS J: I have had the advantage of reading the judgment in draft of Newman J in which the facts relevant to the appeal have been set out and, accordingly, I do not need to repeat them here. 169 So far as the joinder of count 20 in the indictment is concerned, I agree that the submission that its inclusion resulted in a miscarriage of justice should be rejected. I think it is clear that the addition of this count, which led to adducing of L's evidence (on the face of it, credible and convincing) in a trial where the appellant was defending himself from serious charges made by two other complainants as well, had the effect of ranging against him, as it were, the evidence of three, as distinct from two, witnesses. Where the trial, at the end, must have depended on the view taken by the jury about the credibility of the protagonists, it is difficult to conclude that, at least on that issue, the jury did not consider the evidence as a whole in the sense, if I may use a metaphor, that they placed the evidence of the complainants in a single pan on the scales and weighed it against the credibility which they might give to the evidence of the appellant in the other pan. 170 His Honour the learned trial Judge instructed the jury as follows - "...the Crown brings the charge and the Crown has to prove it in each of the cases - twenty one separate trials, which must be tried as if you were twenty-one separate juries. You must consider each case absolutely independently without being influenced by whatever verdict you come to in any of the others, there is no need for all the verdicts to be the same in any way. Subject to matters of common sense, each verdict must be decided entirely on the facts that relate to that case.

"There will be one way in which...some of the material in the final charge may relate to some of the earlier charges and that is entirely a matter for you and, again, I will be telling you only how you may use it and not what you should do about it, and I will come to that in some detail tomorrow. But the essential guiding principle about each of these cases is that each case must be decided in each own compartment." 171 His Honour's reference to "matters of common sense" (which was not explained) as qualifying the need to independently consider each count, was capable of inappropriate application, especially where common sense might suggest that it is less likely, in the circumstances here, that all three complainants were lying than that the appellant was lying. However, no objection was taken to this lack of clarity. The jury were also told - "In each of the first twenty trials that you have to decide, somebody is lying. In each of them, either the woman making the allegation or the accused is lying." 172 If I may say so, this must have been the case. His Honour characterised the testimony on each side in this way for the purpose of warning the jury that it should not proceed by considering which side it believed, pointing out that, even though the appellant had put an affirmative case and had given evidence, the principle remained that the Crown had to prove its case beyond reasonable doubt and, merely because the appellant had chosen to present a defence, the trial was not converted into a contest in which the issue was whether the Crown or the defence cases were more convincing: the jury must decide the case "on the basis alone, has the Crown proved its case beyond reasonable doubt". This, of course, is a conventional and, so far as it goes, an unobjectionable direction from the defence point of view. I am not sure, however, that a lay person would readily understand its import. It would have been helpful, I think, to point out to the jury that the crucial question in respect of each count, was whether it believed the complainant to be telling the truth beyond reasonable doubt, having regard to the sworn testimony of the accused and the criticisms of the Crown case made on his behalf, that if they believed that his evidence might reasonably possibly be true then they should acquit but, even if the jury found that it could not believe him, it could not convict unless persuaded beyond reasonable doubt by the evidence called by the prosecution that the accused was guilty. However, no redirection was sought as to either his Honour's characterisation of the evidence on each side or the instruction concerning the need to be satisfied that the prosecution had satisfied its onus of proof. 173 The learned trial Judge returned towards the end of his summing up to the necessity that the jury should consider separately each of the counts alleging sexual crimes - "In deciding then, whether the Crown has proved its case in each of those twenty cases you must rely on the direct evidence of the events in regard to those allegations and this is very important. I repeat what I said to you yesterday. Each case must be put in its own compartment and you must decide it just on the evidence in relation to that count. You are not entitled in any way to consider the evidence of any of the other counts in relation to the one you are considering at the time.

"I stress that you cannot, for example, say...even if you were to find a count - a verdict of guilty on one count because he has committed that matter, then he is a man [capable] of committing any one of the others and therefore you would convict him on one of the others. It is not an easy job to close your mind to the evidence of other matters but you must. And the Crown, as you will have observed, has not made any submission to you on the basis that if you were to find him guilty in relation to any other matter or even if you just thought there was so much evidence about a number of matters, that that therefore means that you should convict him on one matter. You are not entitled to do that as a matter of law.

"The only reason that we have got one jury here, rather than twenty juries, is for reasons of convenience in the giving of evidence. And that is the important reason why you must consider yourself as being a separate jury in each matter." 174 The jury were entitled, of course, to have regard to the issues of credibility raised in the evidence overall. In other words, and taking the case depending on the evidence of the witness L, if the jury found that they believed her testimony beyond reasonable doubt, it would follow that they must have rejected the appellant's evidence, and in the circumstances, that it was a lie. It seems to me that there is no reason why the jury could not use the finding that the appellant had lied on oath in respect of L for the purpose of assessing his credibility generally and, it follows, in relation to his sworn denials of misconduct so far as the other two complainants were concerned. On the other hand, the jury could not view its acceptance of L's allegations as tending to prove that the appellant had committed the alleged sexual misconduct in respect of the other complainants. The directions as to this latter matter were sufficient for the purposes of the trial and his Honour's omission to mention the former use which could be made of findings as to credibility favoured the appellant. 175 In the result, I think that the risk that the jury might not appreciate the necessity to obey the Judge's warning about separate trials was a real one. However, that does not mean that the trial miscarried. No objection was taken by very senior counsel to the indictment in its form as presented. In the absence of evidence to the contrary, I would have accepted that this had been done with due advertence to the dangers which such an indictment presented but in light of the potential for some countervailing advantage. For myself, I would be loath to endorse a practice of examining, in every case where a value judgment is made by defence counsel about what line should be taken in respect of one or other procedural or evidentiary issue, the matters counsel considered, simply because, in the result, the decision might have adversely impacted on the defence case. Merely because a judgment call, in the end, proved to have had a possibly or even probably adverse consequence, does not lead to the conclusion that a miscarriage of justice has been demonstrated. Moreover, in the circumstances here, it does not follow that because there was a risk that the jury might have disregarded or misunderstood the trial Judge's directions, this means that they actually did so. Even the extent of the risk will depend a great deal upon the atmosphere of the trial itself and the way in which the protagonists presented, a matter which is difficult for a Court of Criminal Appeal to assess from a transcript. This problem is exacerbated where, as here, counsels' addresses have not been transcribed. 176 As was pointed out in R v Birks (1990) 19 NSWLR 677 by Gleeson CJ (at 683) - "In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case...There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice." 177 The Chief Justice stated that the relevant principles may be summarised as follows (at 685) - "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. "2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. "3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 178 In my view, the inclusion of count 20 in the indictment, considered realistically, carried with it the potential risk that the jury might use the evidence of L inappropriately in respect of the other counts of the indictment. This risk, apparent from the outset, was diminished but not destroyed by the directions of the learned trial judge, of which neither correction nor amplification was sought on the appellant's behalf. However, I do not think that, in all the circumstances, the appellant has shown that the mere existence of the risk involved or caused a miscarriage of justice. The risk resulted from the exercise by counsel of his judgment on the appellant's behalf in a context where all decisions carried some risk of one kind or another and to a greater or lesser extent of an adverse consequence for the appellant. The mere fact that the appellant was convicted does not establish that counsel's judgment was wrong, still less so wrong as to render the verdict a miscarriage of justice. Accordingly, I agree with Newman J's conclusion that the submissions concerning the joinder of count 20 in the indictment should be rejected. 179 The appellant called additional evidence in this appeal material to the issues in the trial. 180 L, who was AR senior's niece, and hence the cousin of the other complainants, gave evidence of a sexual assault on her by the appellant which allegedly occurred when her aunt, her three sons and the appellant were living with AR senior's mother, DG, who, of course (and, I think, significantly), was L's grandmother. They lived directly across the road from L's house. The alleged assault occurred in early 1988 when, L said, she had commenced her first year at high school and L's grandmother (DG) was away on holidays. L said that she went to the house to look after one of her young cousins G, who was five, before going to school since, as she put it, her grandmother was away on holidays and her aunt and mother had gone to work. She said that she crossed the road to get G ready for school. The absence of the grandmother on holidays was, therefore, a crucial part of the narrative of events, since it was the reason for L's attendance at the house to get G ready for school, and which provided the occasion for the appellant, so she claimed, to assault her, as nobody else was in the house. Cross-examination, which was very brief, was confined to a suggestion that L had been encouraged to make a complaint to the police by her aunt and that it was an invention. 181 An affidavit sworn by DG was tendered in this Court. The Crown did not seek to cross-examine her. DG testified that, although she went on a short holiday in early 1988, which she was able to date because she was accompanied by a friend who died in March of that year, her daughter RD senior and G moved into her house in late 1988 and G was enrolled in a local school in January 1989. DG said that she did not go away on holiday at any time while her daughter and grandson moved into her house. 182 With respect, I consider that the approach explained by Widgery J (as he then was) in R v Flower [1966] 1 QB 146 at 149 to be a helpful one in the circumstances of this case. His Lordship said - "Having heard that evidence the court must next decide on the proper approach to it. When this court gives leave to call fresh evidence which appears at the time of the application for leave to be credible, it is still the duty of the court to consider and assess the reliability of that evidence when the witness appears and is cross-examined, and this is particularly true where evidence is called in rebuttal before this court. Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court, having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered." 183 The Crown prosecutor did not submit in this Court that GD's evidence was untruthful or insignificant. There is no inherent reason why it might be thought to be untrue. The question is whether it gives rise to such a doubt about the conviction as to require its quashing. 184 On the face of it, having regard to the evidence of L, not only as to when but how the occasion arose that she was sexually assaulted by the appellant, GD's evidence that no such occasion was possible gives rise, in my opinion, to a significant possibility that the jury, acting reasonably, would have acquitted the appellant of the charge involving L if this evidence had been before it in the trial: Gallagher v The Queen (1986) 160 CLR 392 at 402 per Mason and Deane JJ. Gibbs CJ said (160 CLR at 395) - "The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict." 185 Of course, "in judging of the weight of the fresh testimony, the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance": R v Craig (1933) 49 CLR 429 per Rich and Dixon JJ at 439. Here, the guilt of the appellant of the charge involving L depended largely upon the evidence of L, in respect of which the accused made sworn denials together with the inferences which may have been available from the taped conversation between the appellant and RD senior. 186 The appellant has not explained, in terms, why the evidence of DG was not called at trial. Certainly, he asserted that there was a conspiracy against him comprising RD senior and her children as well as his brother. The appellant said, in his affidavit tendered in the appeal, that he from time to time prior to the trial suggested that his solicitors should speak to DG who was, he said, at all times on relatively good terms with him. He said that they did not speak to her, explaining that, "She might bring you undone". This suggestion could, or at least should, not have been made unless his legal advisers were aware of what DG might say. The appellant was cross-examined about other aspects of his affidavit but not as to this matter. DG said in her affidavit that she had not been asked about the events in question until she spoke to the appellant's solicitor and counsel shortly before May 2000. Although she attended the appellant's trial, she did not hear L's evidence and was kept apart from other persons at the Court by a detective. 187 The appellant's solicitor at trial deposed that the appellant never suggested before the trial that DG might be a witness who could assist him and that he did speak to her "after the trial" when asked to do so by the appellant but "what she told me was of no assistance to the appellant". Junior counsel, however, deposed that he became aware that DG attended the court during the trial and understood that his instructing solicitor spoke to her and took instructions. He said that there was a meeting between counsel and the solicitor regarding DG, as a result of which it was decided that "it was dangerous to call [her] and indeed she would not help the appellant". In his affidavit, Mr Finnane QC, who led the defence at trial, said that Mr Meehan had spoken to DG and reported the conversation to him and his junior. Mr Finnane was convinced that there was no point in any further discussion. The difference between the solicitor and junior counsel as to when DG was interviewed has not been clarified. On the solicitor's account, it seems that it was too late to call her but, at all events, she was of no assistance. I think it very likely that the word "commenced" has accidentally been omitted from the solicitor's affidavit following the word "trial". This makes more sense of the solicitor's characterisation of the utility of DG's evidence. At all events, I consider the accounts of counsel to be the more reliable. As both counsel make clear, a tactical decision, based on good and proper reasons, was made not to call DG. The substance of these reasons was not sought to be elicited before us by the appellant, presumably because they would have damaged his case. This approach, no doubt tactically determined, makes it impossible for this Court to evaluate the cogency of the new evidence in a realistic way. 188 In Regina v Antal (unreported NSWCCA 12 February 1991) Newman J, with whom the other members of the Court agreed, said - "...in determining whether or not such [new] evidence was available to an appellant at the date of trial, a Court of Criminal Appeal will adopt a more flexible approach to the efforts of an appellant prior to his trial to obtain evidence than it would in a corresponding situation involving the civil law. However, this does not mean that the dictates of justice and, in particular, the desirability of the finality of legal proceedings, whether they be civil or criminal in nature, allows a person accused of a crime to do nothing in seeking evidence prior to his trial and then, in any event, on appeal, allow him to present fresh evidence as a ground for quashing his conviction. "...If the evidence sought to be adduced by an appellant was of a nature to persuade this Court that a miscarriage of justice had taken place because there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant of the charges if the new evidence had been before it in the trial...then I doubt that this Court would find that an appellant's desultory behaviour prevented him succeeding in his appeal. Be this as it may, I do not wish it to be thought that I am saying that all such conduct would be put to one side by this Court in considering an appeal based upon this ground." 189 Even though the evidence of DG was uncontroverted and it went to an important part of the Crown case against the appellant in respect of complainant L, I am not sufficiently persuaded of its cogency to be satisfied that a miscarriage occurred. This is not a case of the unavailability of evidence but of a deliberate decision not to call a witness. It is impossible for the appellant to demonstrate that the trial miscarried by the absence of evidence from DG where a deliberate and informed decision was made not to call her for reasons that the appellant has not sought to explain, except by adducing evidence that his legal advisers described the witness as "dangerous" and "of no assistance".

Accordingly this ground of appeal must fail. 190 The appellant also sought to rely in the appeal upon an affidavit of RD senior who was the appellant's wife although, sometime before the trial, they were divorced. In her affidavit RD senior says that some of the evidence which she gave at the trial was false. Each item of allegedly false evidence was briefly referred to and the way in which it was said to be false was set out. The first of these items is RD senior's evidence that the appellant wore a particular brand of shorts, "Stubbies", which did not have a zipper but he also owned shorts with zippers which he sometimes wore and which, she said, were also "Stubbies". She had also stated that he would sometimes wear underpants. This evidence supported that of the complainants RD and TD, who said that, on the occasions when the appellant assaulted them, he wore shorts with a zipper and underpants. The appellant swore that his shorts were "Stubbies" without zippers and he never wore underpants. RD senior said in her affidavit that the appellant never wore either underpants or shorts with a zipper. For reasons which it unnecessary to mention, I do not consider this evidence, even if true, to be more than of peripheral importance in the context of the issues in the trial considered as a whole. Secondly, RD senior said that she gave evidence that RD used to stay at the farm owned by the appellant at weekends. The substance of her evidence, however, was that the appellant moved out to the farm to live in a caravan whilst he built the house on the property and to which she moved sometime later. Although she said that she knew that the appellant's brother and his daughters (including RD) went out to visit the farm, it is clear that she was purporting to report what the appellant had told her, saying that she had never seen RD at the farm. Accordingly, the assertion in the affidavit that RD did not stay at the farm whilst RD senior was there adds nothing to the evidence in the case. 191 The third item of evidence to which RD senior adverted in her affidavit was her agreement, during examination in chief, to a leading question asking if the appellant said to her "I'll give you $10,000 to say that [the appellant's uncle] is the cause of all this". This question was part of a series of leading questions which were obviously put by agreement with the appellant's counsel, I assume, from RD senior's statement. It was the appellant's case that he did not make any such offer to RD senior. About two months after this alleged conversation, RD senior and the appellant had another conversation in which they discussed some of the issues in the impending trial, which was recorded on a device secreted on RD senior's person. 192 In her affidavit, RD senior said that her evidence that the appellant had offered $10,000 was untrue and that he never said that to her. Having regard to the transcript of the later conversation, I am satisfied that RD senior's affidavit is false in this respect. RD had alleged that one of the assaults upon her took place on a bed in the back of the appellant's truck behind the two front seats. She described the bed as consisting of a mattress with a quilt over it. In the appellant's interview with the police, tendered without objection, the appellant said that the area behind the front seats was only about a foot wide and contained a miscellany of various articles but no mattress. He also told the police that there was no room for sleeping in that part of the vehicle. A witness was called by the prosecution who purchased the vehicle from the appellant who said that behind the seats there was a small area which contained a board with a piece of foam mattress material on top of it, approximately two feet wide. In the trial, the appellant said that he had slept in that part of the truck although it was only two feet wide. He said that there was no permanent bed there, just a piece of foam that he put in if need be when he was working night shift. This matter was discussed in the tape recorded conversation during which the appellant asserted that there was no bed in the back of the truck and RD senior that there was and, indeed, that the two of them had sexual intercourse there on one occasion. During cross-examination in this Court, RD senior denied that the appellant had asked her to say that there was no bed in the truck and then suggested that there was some confusion between an actual bed and a mattress. She also denied that it was big enough to have sexual intercourse on although, in the taped conversation, she had asserted that she and the appellant had used it for that purpose. She said, however, that this assertion was something that she "just said", I take it because she was attempting to trap the appellant. The conversation contained the following exchange close to its commencement - "RD SENIOR Is that offer still available? APPELLANT Oh yeah. RD SENIOR How much was it again? APPELLANT How much do you want? RD SENIOR Well, how much can you offer? APPELLANT How much do you want? You know all I want you to do is tell the...truth. RD SENIOR Yeah, but is that offer, I will for that offer. APPELLANT How much? RD SENIOR Well you said $10,000, didn't you? APPELLANT Um um." 193 The explanation for this conversation in this Court was that she had asked him for $10,000, but that he had not offered it. I do not think that this explanation is credible, nor do I consider RD senior's explanation concerning the conversation about the bed is credible. At all events, at the end of her cross examination in the trial, RD senior agreed that at no stage did the appellant offer her any money. Having regard to these matters in particular and the way in which RD senior gave her evidence, I do not consider that it is sufficiently probative to call into question the propriety of any of the appellant's convictions. 194 So far as RD was concerned, RD senior took up particular parts of the former's evidence which described events at the farm. Consistently with her earlier statement, RD senior said that these events could not have occurred since RD never came to the farm or stayed whilst she was there. So far as one count is concerned, which allegedly occurred in early 1990, RD senior said she was at the farm during this time and that the allegation by RD that she yelled to the appellant that she did not want to have sexual intercourse and was screaming whilst it occurred for about ten or fifteen minutes, could not have happened without her hearing the screams, and she did not do so. As I have pointed out, however, RD senior had given evidence at the trial that the girls had not come to the farm whilst she was there, except "They might have now and then". I note that RD senior did not withdraw her evidence that the appellant had told her that the girls had come out to the farm. In my view, the evidence of RD senior about this matter has very little, if any, probative worth and certainly is insufficient, when considered with the other evidence in the trial, to raise a doubt about the propriety of the convictions so far as they concern assaults on RD. 195 The first three counts in the indictment concerned sexual assaults on TD which, on the evidence of the complainant, occurred "around February" in 1985. RD senior, in her affidavit, said that the appellant was elsewhere during February 1985. In the circumstances of this case, even if this evidence be true, I do not think that it is sufficiently significant to doubt the propriety of the convictions. 196 Of the twenty one counts in the indictment, eleven concerned RD. In respect of two of these, counts 11 and 14, the jury acquitted the appellant. 197 So far as count 11 of the indictment was concerned, the complainant said that in 1986, when she was in 5th grade at school, her aunt, RD senior, had asked her to feed some budgerigars for her when she went away from home for a week and that RD agreed to do so. On one afternoon during this time, the appellant called in to RD's parents' home and drove her to her aunt's house. When RD had finished feeding and watering the budgerigars, she walked into the lounge room and asked to go home. The appellant then grabbed her, pushed her to the floor and felt her breasts. RD said that she did not want to do this, got up and walked out. 198 RD senior said that when she was away from her home at about this time, it was for about six weeks and her sons looked after the birds "so far as I know". 199 Count 14 concerned an alleged assault at the farm. RD said that she and RD senior were at the chicken pen when the appellant came over on his four-wheel bike and insisted that RD get on it. He drove them to an area of scrub and had intercourse with her. They drove back to where RD senior was and RD asked her if she could take her home. She said that she still crying a little at this time. The effect of RD senior's evidence as to seeing RD at the farm amounted, in effect, to a denial that the occasion as described by RD occurred. 200 In the circumstances, I consider that the jury's acquittals are explicable by a view that the complainant's evidence was confused as to these occasions and they were therefore not satisfied that they occurred as charged in the indictment. 201 I think it unlikely that the jury considered that RD had fabricated these accounts. In respect of counts 11 and 14, it may be inferred that the jury found the evidence to be unreliable because of what they took to be the contradiction of RD senior although, for all we know, their doubts may have been excited by the way in which the complainant gave her evidence about these particular matters. Although RD's evidence was that the events giving rise to counts 12 and 13 occurred at the farm at night on a weekend when she was taken there by RD senior and when it seems almost inevitable that RD senior, if she was present in the house, would have heard her yells of protest, RD senior denied that she had ever taken RD to the farm and, in effect, that she had heard RD yelling but she also said that she returned home in the afternoon. The alleged assault giving rise to Count 14 occurred on the following day of the same weekend. 202 I think it likely that the jury accepted that there were a number of sexual assaults perpetrated on RD by the appellant but, where there was apparently credible evidence which showed that a closely connected fact asserted by her to be part of the sequence of events may not have occurred, it was not prepared to convict. That was sufficient to give rise to a reasonable doubt. So far as count 11 was concerned, the contradictory evidence was rather slight, which indicates, perhaps, that the jury's judgment was a somewhat finely balanced one. 203 So far as counts 12, 13, 15 and 16 are concerned, I cannot see in the evidence of RD any markers for reliability of a kind different to those which she said accompanied the events relied on to prove counts 11 and 14. However, the jury may well have been impressed by the way she gave evidence of these matters and thought there was no issue arising from RD senior's evidence that raised a reasonable doubt as to RD's reliability. 204 Count 9 involved the first assault by the appellant, count 10 both RD and TD, count 17 concerned the assault in the truck and count 19 the last assault by the appellant. The allegation founding Count 18 involved assaults by the appellant and his son Stephen. No mistake or confusion was possible. RD, however, said that she had cleaned herself in the bathroom which, implicitly, was in the house. The jury convicted despite the apparently truthful evidence of RD senior that the water had not been connected to the bathroom and all washing was done in a shed in the backyard. The jury may well have regarded this evidence as being only peripherally significant. 205 The question, of course, for the jury was not whether sexual assaults occurred or even that their number was, at least, not less than those charged but whether it was satisfied beyond reasonable doubt that each of the particular occasions charged did occur. The question arises whether any of the guilty verdicts which I have identified is so inconsistent with the verdicts of acquittal that those convictions should be quashed. In MacKenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ said (at 368) - "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 (R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983) at 15.212, requiring that the verdicts be 'so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion': R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153). 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 (R v Zundel (1987) 35 DLR (4d) 338 at 401-402, applying R v Mc Shannock (1980) 55 CCC (2d) 53 at 55-66; cf Mack v Elvy (1916) 16 SR (NSW) 313). 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 (R v Drury (1971) 56 Cr App R 104 at 105). It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'. 206 In my view, the verdicts of guilt on counts 12, 13, 15 and 16 are not so inconsistent with the verdicts of acquittal on counts 11 and 14 that they cannot be reasonably explained as the outcome of an appropriate consideration of the evidence. Accordingly, I would reject this ground of appeal. 207 Counsel for the appellant submitted that the jury should have been directed along the lines proposed by Dunford J in R v RAT [2000] NSWCCA 77, 24 March 2000, although no such direction was sought at the trial. It will often be the case that, acting reasonably, a jury which considers that a witness is or might be dishonest in respect of some of his or her evidence cannot be satisfied of his or her honesty in respect of any other part. Accordingly, if the case depends upon the jury accepting the witness' evidence as true beyond reasonable doubt in any particular respect, it might well be that a reasonable doubt about honesty as to any matter will mean that the jury should have a reasonable doubt about the crucial evidence. However, situations can vary widely and this will not always be the case. Much will depend on the nature of the jury's conclusion as to the witness' honesty: a doubt is one thing, a determination that the witness has lied is another. Accordingly, I do not think that a jury should be necessarily be instructed that a doubt about a witness' honesty as to part of his or her evidence must cast a doubt about their honesty as to the important part or parts. I do not consider, with every respect to Dunford J, that the evidence of a complainant in a sexual assault case should be treated any differently from that of any other witness whose evidence is essential to proof of the charge. There will, however, be some cases where a decision that a witness is lying or even of doubtful veracity might so affect their evidence as render necessary a strong direction concerning the consequences of an adverse finding as to credibility. Similar considerations affect the evaluation of the reliability of a witness' evidence. I cannot see anything in the judgments of their Honours in Jones v The Queen (1997) 191 CLR 439 which justifies a more rigid approach. Dunford J also suggested that juries should be warned that different verdicts where there is no material difference between the applicable evidence "are liable to be regarded as a compromise and the guilty verdicts set aside". Whilst I entirely agree that juries should, in appropriate cases, be warned in strong terms against compromise, I do not think, with respect, that the possible result of a potential appeal is an appropriate matter for the jury to consider. 208 Ground 4 of the grounds of appeal concerned count 21, which alleged that the appellant offered RD senior money "in order for her to give false evidence at court, intending to pervert the course of justice". This charge was brought pursuant to s 319 of the Crimes Act 1900, which is in the following terms - "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years" 209 Before moving to the appellant's contentions concerning this ground, I should mention part of the learned trial judge's introductory directions to the jury. His Honour said - "[The appellant's] account is that he was extremely worried facing a false charge and he did not even want them, as he said, to think that he had did it. It is a matter for you to assess the evidence, but I observe to you that it is frequently encountered in the Courts - and you will understand this I would think - that as a part of human nature, that persons who are falsely accused of a crime, will do everything they can to ensure that they are not convicted and sometimes they will even lie about it. It is not an attempt to pervert the course of justice if evidence of this nature is given to ensure that an innocent man is not convicted. That is if you accept - that is on what the accused puts to you." 210 Although there is some ambiguity, this passage seems to suggest that dishonest evidence given for the purpose of ensuring an innocent person is not convicted does not constitute the crime of attempting to pervert the course of justice. This is wrong. Any attempt to induce a witness to give false evidence on oath or refrain from speaking the truth will constitute the offence, as will any bribery of a witness, even for the purpose of inducing him or her to tell the truth: Meissner v The Queen (1995) 80 A Crim R 308, per Dawson J at 327. In this case, however, the prosecution alleged that the appellant attempted to induce RD senior to give false evidence as to two matters: firstly, that there was no bed in his truck; and, second, that she had been present at a conversation involving the complainants RD and TD and their father in which "they were going to have [the appellant, semble, falsely] charged with rape". 211 Having regard to the way in which the trial was conducted, by both prosecution and defence and the learned trial judge's charge to the jury, the jury were required to consider whether the appellant attempted by payment to induce the witness to say the things alleged and, if so, whether they were, to his knowledge, untrue. Even though the last of these elements was not vital to guilt, it is certainly the case that, if the jury were satisfied that he attempted to induce her to say one of the alleged untruths, then the offence was proved. In this Court, I should note, the Crown has not submitted that the burden of proving this element was unnecessary or that the directions to the jury in respect of this count unduly favoured the appellant. 212 It is submitted, on the appellant's behalf that the jury may not have been unanimous about which of the untruths was involved, so that some jurors may have been satisfied that the appellant attempted to get the witness to say there was no bed but doubtful about whether he also attempted to induce her to say (in effect) that RD, SD and their father were conspiring to falsely accuse him of rape but the rest of the jury were of the opposite view. It is also submitted that the count is duplicitous. 213 The section under which the appellant was charged provided that the crime comprised any act done or omission not done with the specified intent. Here, the alleged act comprised a bribe to give false evidence comprising two (or possibly one or other) lies. I consider that the count was, to this extent, duplicitous, for the reasons stated by Hunt CJ at CL in Hamzy (1994) 74 A Crim R 341 at 345 and Spigelman CJ in Regina v Giam [1999] NSWCCA 53, since the appellant could not plead guilty only to one act, does not know whether he has been convicted of one or more offences and the judge will not know whether he should sentence for one or other or both lies (and see Stanton v Abernathy (1990) 19 NSWLR 656 per Gleeson CJ at 662 and Stanton v Abernathy & anor ( No 2) (1991) 53 A Crim R 241, per Gleeson CJ at 242). It will not be every case, however, where duplicity will lead to a miscarriage. Here, I do not think that that the defence was, in any real sense, embarrassed by the allegation in a single count that the appellant sought to have RD senior tell two lies rather than one, nor do I think that there was any significant difference for sentencing purposes between the lies (as in Giam) or if both lies were told. However, I consider that it was essential to instruct the jury that they could not convict unless all jurors were satisfied as to one or other of the alleged statements that it was a lie and the appellant committed an act intended that it be said in evidence. In respect of each of the alleged statements there was a real issue as to what was meant although the appellant's evidence was somewhat unlikely. He said, in essence, that he had wanted RD senior to say that there was no bed in the truck in the sense that later models of the vehicle had a built-in bed. Whether this was a distinction without a difference rather depended, amongst other things, on what precise allegations had then been made by RD as to the bed. So far as witnessing the alleged conspiracy against him was concerned, the appellant said that RD senior had told him on an earlier occasion that the conversation had occurred. 214 The learned trial judge directed the jury as follows - "The Crown has to prove three things. Firstly that he offered her $10,000. Secondly, that that was in order for her to give false evidence about one or more of the first nineteen charges in respect of which you have already decided that there is a verdict of guilty. And thirdly, that he intended thereby to pervert the course of justice. ... The things which are contained in the statements said to be made by the accused, on which the Crown relies, are, firstly that he asked...[R D] senior to say that there was no bed in his truck... The Crown's case is that when he said there was no bed there, then that means that he was asking her to tell a lie about that. The accused's case [is] that even though those words appear there, he says he meant a real, permanent bed as used in later model trucks...If what he puts to you was what he really meant, then that is not an attempt to pervert the course of justice. ... Secondly, the Crown says that he asked her to say that she sat around a table with [E]...and that she was brought into the conversation with his two daughters, and that 'they were going to have me charged with rape'...His account...is that he heard from his wife [R D senior] that what I have just said was the case. 215 His Honour did not direct the jury that, if they had a doubt about either of these particulars, they must acquit. If the Crown case was, indeed, that proof of both particulars was essential to guilt, his Honour could not have failed to give a direction in precisely those terms and directed them to acquit if they had a doubt about either. The jury would, reasonably in my view, have been rather mystified at the point of such a direction, since attempting to persuade a witness to tell even one lie must constitute the offence. However, the learned trial judge identified each of the proposed lies and each of the accused's answers as separate matters. I consider that the jury must inevitably have concluded that proof beyond reasonable doubt of either allegation established guilt of the charge. 216 In KBT v The Queen (1997) 191 CLR 417, the prosecution had to establish that the appellant committed three of a number of alleged sexual assaults to prove his guilt on a charge of maintaining an unlawful relationship under a provision of the Criminal Code (Qld). The jury were not directed that they had to be satisfied of the same three offences on the same three occasions. Brennan CJ, Toohey, Gaudron and Gummow JJ (at 191 CLR 424) concluded (Kirby J agreeing, in substance) that, in the absence of any direction as to unanimity, it was impossible to say that the jurors must have been agreed as to the same alleged acts; indeed, had the jury been appropriately instructed, they may have found it impossible so to agree; with the consequence that the appellant was denied the chance of acquittal that was fairly open. With respect, I consider that this reasoning applies to the circumstances of the instant case and I am unable to discern any point of real distinction. In KBT only one offence was charged but the mere fact that it comprised three particular acts was incidental. Even if the offence was established by proof of one sexual act, precisely the same considerations as to unanimity would have been required. Here, the offence would have been established on proof that the appellant sought to induce RD senior to tell one lie or another, but the jury had to agree on the lie. In Morex Meat Australia Pty Limited and anor (1995) 78 A Crim R 269, the Queensland Court of Appeal said (at 292) - "We consider that the appellant...was properly charged in count 17 with, and convicted of, a single offence of attempting (or 'tending') to pervert the course of justice, of which the particulars of the relevant element of that offence consisted of the eight acts identified by the prosecution at the trial, and the proof of that tendency consisted of the evidence in support of any one or more of those acts which the jury were persuaded beyond reasonable doubt to accept ." (Emphasis added.) 217 Since conviction depended on proof of one or other alleged lie, I respectfully do not agree that unanimity on the ultimate conclusion overcomes the problem that there may not have been unanimity on the necessary basis for that conclusion. 218 As the evidence concerning the appellant's attempts to suborn RD senior was admissible at all events in the trial of the other counts in the indictment, the error I have identified does not affect the other convictions. 219 In my view, the appeal as to Count 21 should be allowed, the convictions quashed and a new trial ordered. Otherwise the appeal should be dismissed. **********

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