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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