59 ADAMS J : I have read the judgment in draft of Barr J, to which I am indebted.
60 I agree with his Honour that the verdict on the second count cannot stand. Having regard to his Honour's review of the facts in the case, it is not necessary for me to repeat them in my judgment. I wish, however, to refer to some particular matters.
61 As Barr J mentioned, the occasion relied on in respect of the third count in the indictment was the first time that the complainant was taken by the appellant to Wanda Beach. She was, she said, then in Year 7 at High School. She said that they went to Wanda Beach approximately four or five times and that the light blue vehicle in which the assaults took place had reclining or bucket seats. Although her evidence is somewhat confused about this, she eventually disclosed that trips in the car to Wanda Beach or to other beaches when assaults occurred, took place once a week (in the summer months) from the age of about 13 to 15, that is to say in 1977, 1978 and 1979. Aside from his denials, the appellant's evidence was that although he had a blue motor vehicle in 1977, it was a model without reclining or bucket seats and that he did not acquire a car with such seats until the end of May 1978. The complainant had said that these assaults in the car had occurred at first at the same time as those in the sacristy. However, over time, the latter assaults ceased. For the reasons expressed by Barr J, I agree that the most likely explanation for the jury's verdict on the third count was that they accepted that it was reasonably possible that the appellant did not have a car fitted with reclining or bucket seats until late March 1978. Even so, the mere statement of dates does not, to my mind, expose the real measure of the complainant's possible confusion. She appeared to be quite adamant that the offences occurred, in effect, in her first year of high school which, to my mind, would be a significant marker. For the complainant it was especially significant since the high school to which she was sent was not the high school of her choice and it is clear that she deeply resented being sent there. I am not unmindful that the effluxion of time since the offences with its consequent effects on memory together with the emotionally laden character of the incidents themselves, might well explain a significant degree of confusion. However, it is important not to overlook other possible explanations more adverse on the issue of credibility and to bear in mind that the onus of proof beyond reasonable doubt rests on the prosecution. Thus, even though the most likely explanation is mere confusion of dates, the question remains whether, together with all the other evidence, there was, in the end, a reasonable doubt about guilt in a substantive sense.
62 As I have said, I agree with Barr J's conclusion that the conviction on the second count should be quashed and a verdict of acquittal entered. I agree that it was, to use his Honour's language, not possible for the jury to exclude the reasonable possibility that the incident happened after 30 June 1976, that date being, with the agreement of the Crown, an element of the offence. As his Honour mentioned, the evidence does not explain why that date is significant. Nor is there an explanation as to why no amendment of the indictment was sought when, on the face of it, a proper basis for such an amendment was available. However, this does not mean that there was no good reason for the specification of the date in the count nor that there was no good reason for the prosecutor not to seek an amendment. I mention these things simply because it might otherwise be thought that allowing the appeal by reference to a date which is not usually regarded as an element requiring proof beyond reasonable doubt might be thought to be unduly technical. It would be quite wrong for this Court to speculate why the prosecutor took the course he did in the Court below, still more, to suppose that he did so inadvisedly.
63 Grounds of appeal 2 and 3 are in the following terms -
2. On the whole of the evidence, the jury should have had a reasonable doubt as to the guilt of the Appellant on the first and second counts on the indictment.
3. The quality of the evidence adduced in relation to the first and second counts on the indictment was insufficient to establish the offences charged in those counts beyond reasonable doubt.
There does not appear to me to be any material difference in these grounds.
64 So far as the provisions of s 6(1) of the Criminal Appeal Act 1912 are concerned, the question posed by these grounds of appeal is whether "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". Although, for the reasons stated in Fleming v The Queen [1998] HCA 68 (11 November 1998), the phrase "unsafe and unsatisfactory" which has hitherto been commonly used in this context is potentially confusing and should be abandoned, the test for determining whether a verdict is unreasonable or not supportable on the evidence, is nevertheless that articulated by the majority in M v The Queen (1994) 181 CLR 487: see Jones v The Queen (1997) 191 CLR 439 per Gaudron McHugh and Gummow JJ at 450 - 2. To use the language of s 6, the test to be applied to a verdict which is sought to be set aside as unreasonable or not supportable on the evidence, is whether the Court is of the view that upon the whole of the evidence it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. In M , the majority said (181 CLR at 493) -
In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
65 The application of the test was explained as follows (181 CLR at 494) -
In most cases, a doubt experienced by an appellate court will be 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.
66 In Jones, Gaudron, McHugh and Gummow JJ (191 CLR at 452) point out that the 'open to the jury' test is significantly different to that implied by asking whether the jury must have had a reasonable doubt or whether the evidence for the prosecution was so weak or flawed as to make it wrong for the jury to accept it. These latter tests were described by the majority in Jones as "much stricter" than the test formulated by the majority in M (191 CLR at 453).
67 It was submitted on behalf of the appellant in this court that the complainant's version of events was 'inherently improbable'. However, whilst an 'inherent improbability' might well be fatal to acceptance of any particular fact, I am of the view that the relevant test is not correctly so described. One of its more obvious problems is that the assessment of the evidence of a witness is almost never confined to its inherent probability but will involve in the overwhelming majority of cases a consideration of the whole of the evidence including, in a case of this kind, the evidence of the accused. After all, in this case, there was nothing which was inherently probable in that evidence either and, of course, if there was a reasonable possibility that it was true then acquittal must follow.
68 The jury was confronted with the evidence of the complainant which, although confused in some respects, was certainly capable of belief but was not supported in any way by other or objective evidence, together with the contradicting evidence of the appellant also reasonably capable of belief and also, in every material respect, uncorroborated. As it happened, however, the jury (on one view of the verdict of acquittal) considered that it was reasonably possibly true that the appellant did not possess a car with reclining or bucket seats until 1978 and thus that when the complainant asserted that sexual assaults had occurred in such a vehicle in 1977, they were not satisfied beyond reasonable doubt that this was so. It was argued by the Crown in this Court that, by contrast, the offence giving rise to the first count had occurred on one specific occasion and therefore was not subject to the weaknesses which may have affected the other counts. However, the particularity of this count is more apparent than real. The evidence of the complainant concerning the date of the offence contained in the first count is as follows -
Q. And was there an occasion when you were in the sacristy with the accused?
A. Yes.
Q. How did that come about, how did you come to go there?
A. He invited me to have a look at the ashes.
Q. What ashes?
A. Palm Sunday, the palms are burnt for Ash Wednesday and they put a charcoal cross and that's where they burnt the ashes.
Q. You have just demonstrated by using your thumb to mark a cross on your forehead. The ashes from the palms that are burnt are used?
A. Yes.
Q. Who does that?
A. The priest.
Q How old were you when you went into the sacristy with the accused?
A. Eleven. No, I was in sixth grade.
Q. In Year 6?
A. So I may have still been 11, yes.
Q. Because you had turned 11 in Year 6?
A. In Year 5.
Q. Now what happened in the sacristy?
A. I don't remember seeing the ashes. I remember standing in front of a mirror with my back to it. Can I have a break?
HIS HONOUR: Yes, you may step down if you wish. Is there someone here that you can speak to?
CROWN PROSECUTOR: Yes there is your Honour.
WITNESS STOOD DOWN
SHORT ADJOURNMENT
Q. Now on the - just in relation to what you were telling us about the sacristy, you told us that it was to see the ashes to be used after Palm Sunday?
A. Yes.
Q. I think you told us you were in year 6 at that time?
A. Yes.
Q. How did you come to go to the sacristy with the accused, how did that come about?
A. He was - he came out, I think he was in church, we were on the grounds, he said "Come and have a look at the ashes".
Q. What were you doing?
A. I was playing in the playground, I think I was riding my bike, or I could have been throwing a ball. But the playground was a playground.
Q. And when he made - or give that invitation, you followed him to - into the sacristy?
A. Yes.
Q. By what means did you enter that room?
A. The door, the back door.
Q. The external door?
A. Yes.
HIS HONOUR: Q. What time of day was is?
A. It was afternoon.
Q. A school day?
A. No, it was the weekend your Honour.
69 Later, when cross-examined, she said that she remembered the ashes were burnt and added "It was Ash Wednesday". She said, at a later stage, that the accused was burning the ashes in preparation for Ash Wednesday. The complainant was unable to say whether the jogging incident occurred before or after the sacristy incident saying "I can't go and - I can't - it's all one thing, it's just all - well, you know, obviously, it does.
Q. Are you now able to answer the question, which event occurred first?
A. Which event out of the sacristy and the jogging?
Q. Yes.
A. The jogging was always - I've always said the jogging occurred first.
70 The jury were directed that the sacristy incident occurred when the complainant was invited by the accused to view the ashes which were "ashes of palms burnt after Palm Sunday, which were used apparently on Ash Wednesday". As was pointed out in cross-examination of the complainant and is the fact, this could not have been accurate since Ash Wednesday occurs forty days before Easter Sunday whilst Palm Sunday occurs only the week before Easter Sunday. Furthermore, although his Honour directed the jury that of the incidents that allegedly occurred in the sacristy, that which was the subject of the charge was the first, the complainant did not in fact give that evidence, either explicitly or implicitly. To my mind, the reasons that led the jury to acquit on the third count, which depended (at least) on the reliability of the complainant's evidence as to the vehicle in which the assaults allegedly occurred, applied with almost equal force to the first count where conviction depended, according to the way in which the essential elements of the charge were put to the jury, upon whether it occurred after Palm Sunday 1976.
71 The complainant said that sexual assaults in the sacristy occurred once or twice a week for a number of years; she went jogging every day except when it was raining or she was ill and she said that on every one of those occasions sexual assaults occurred. Whilst this intensity of sexual activity is, of course, possible, to my mind it is improbable.
72 I accept that the evidence of the complainant, considered by itself, might well be accepted to be true, although it demonstrated the adverse elements to which Barr J referred and which I have briefly mentioned. Those elements are, however, quite capable of innocent explanation. On the other hand, the evidence of the appellant was also, considered by itself, capable of being believed.
73 In my opinion, it is wrong to approach the issue as to the reasonableness of the jury's verdict as though the accused had not given evidence. Such an omission may have significant forensic consequences: see Weissensteiner (1993) 178 CLR 217 and OGD (unreported NSWCCA 3 June 1997). It is correct that the jury were entitled to reject the defence case but, of course, it could not do so before weighing up the whole of the evidence, including what the accused's testimony. One possible approach to this question is to ask whether the accused's version of events is reasonably possible so that conviction depends upon determining beyond reasonable doubt that it is not reasonably possible.
74 In Moffa v The Queen (1977) 138 CLR 601, the Court was concerned with the 'defence' of provocation in connection with the charge of murder. However, the principle applied by the Court is apt in a case such as the present. Barwick CJ said (at 601) -
Of course, if a jury does not believe the account of the accused of the matters which are suggested to constitute provocation, it may be said that the Crown has satisfied the onus of establishing that the killing was unprovoked. But their function is not merely to weigh the accused's credit. If the accused's account is a reasonably possible account - and that is the first step they must take - they must in substance be satisfied beyond reasonable doubt that those events did not happen. Disbelief of the accused may not in all the circumstances compel that satisfaction to the requisite degree.
75 In Regina v Johnston (unreported NSWCCA 31 July 1998), the Chief Justice (with whom the other members of the Court agreed) said (at 16) -
Cases involving alleged sexual assault are only one example of criminal proceedings in which the conduct of a defence can be adversely affected by delay. There are however cases which are characterised by a direct conflict of word against word, between a complainant and an accused. It is often the case that there will be no independent verification of the basic allegations of whether a sexual act occurred at all, and if it is conceded that it did occur, whether it was a consensual act. In order to resolve a direct conflict of oral testimony, the contextual details of the alleged conduct will often prove to be of determinative significance. However, it is precisely such contextual details which may be lost by reason of delay.
76 After citing Longman (168 CLR at 90-91), his Honour commented (at 17) -
There are two features of the Longman warning which should be emphasised. First, the jury is to be told why it is "dangerous to convict" namely, the delay meant that the evidence of the complainant could not be "adequately tested". Second, the jury is to be told how they should go about their task because of the identified danger namely, "strutinize the evidence with great care".
77 In considering this question and, indeed, the level of appropriate acceptance of the complainant's evidence, the delay of some twenty years between the time of the alleged offences and their disclosure by the complainant was a very significant matter. In Longman v The Queen (1989) 168 CLR 79 at 91, Brennan, Dawson and Toohey JJ said -
But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them: see Reg v Spencer [1987] AC at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the circumstances attending on its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of it could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1989) 168 CLR 23 at 31-32, 42-44, 56-57, 71-72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
78 No such direction was given in this case by the learned trial Judge; indeed, none was sought. However, it seems to me that this Court, in evaluating the reasonableness of the jury's verdict, must bear in mind the significance of the effluxion of time on the nature of the cases presented, with the result that the prosecution case might appear to be stronger than it actually is and the defence case weaker than it now appears.
79 This argument is quite independent of that based upon the (frequently mistaken) supposition that delay in complaint indicates that the complaint is likely to be untrue. The argument that time may have robbed both the prosecution and the defence of corroborative material and thus can be ignored only has to be stated to demonstrate its error. Furthermore, the passing of time effects the manner and content of the evidence given by the protagonists. Of course, as has frequently been observed, offences such as that charged here are almost invariably performed in secret. However, the offences allegedly committed on Canterbury Oval and in the sacristy, not to speak of the school and the presbytery, were places to which other persons had access. Indeed, the jogging incident allegedly occurred when one Father Keller was relatively close by, whilst one of the most vividly recalled incidents in the music room of the school (of doubtful admissibility, as it seems to me) occurred whilst some people were outside the room, requiring it was said, the complainant and the appellant to remain in the room for a considerable time before they were able to escape undetected.
80 Whatever might have been the consequences had the failure to give a direction in accordance with the Longman been made the subject of this appeal, it is clear that this Court must take (as the jury should have taken) the considerable delay into account in evaluating not only the complainant's evidence but also that of the appellant. I mention also, but in the circumstances I do not think it necessary to do more, the warning in R v Murray (1987) 11 NSWLR 12 where the Crown case comprises in substance the evidence of one witness unsupported by any other evidentiary material. Again, no such direction was given and none was sought; but it seems to me that this warning is one to which we should give heed. In this respect, I am somewhat concerned with the way in which the learned trial Judge dealt with the issue of the complainant's evidence and the onus and standard of proof in his directions to the jury. This was not the subject of an application for redirection; nor was it the subject of submissions in this Court. I raise it because it such directions are given from time to time and create, as it seems to me, a serious risk that the jury will misunderstand their purport. His Honour said this -
You are the sole judges of the facts in the case. You decide the question of credibility - what evidence is to be believed, what evidence is not to be believed and there may be a situation of course where you would not know what to believe. And in that third position where you do not know what to believe, then the only possible verdict is one of not guilty. And it is only if you accept the evidence of the complainant Miss Heathwood and accept her evidence as being substantially true that you could find the accused guilty of any one or more of these charges.
Bear in mind that the burden of proving the case is upon the prosecution and remains there throughout the proceedings. That burden of proof does not ever shift to the accused person. He is not called upon or required to prove anything. It is for the prosecution to prove its case and if there is to be a finding of guilt, it must be on the basis that you are satisfied beyond reasonable doubt of the guilt of the accused on the basis that you are satisfied that each and every element of the charge has been proved beyond reasonable doubt.
81 I think that the language used by his Honour was capable of suggesting to the jury that 'proof beyond reasonable doubt' meant the same as 'substantially true'. It must be remembered that the jury is listening to a statement so that there is no opportunity for analysis of the written word and the distinction between evaluating the complainant's evidence on the one hand and the standard of proof of the elements of the offences charged on the other may not have been obvious. This would be especially so in a case where the whole of the case of the Crown rested upon the evidence of the complainant. I also consider that the phrase 'substantially true' is dangerously ambiguous. In the context of this case, the jury had to be satisfied that the complainant's account of the material events identified in the indictment was true beyond reasonable doubt. To my mind, the fact that his Honour did not identify the elements of the charge to which he referred significantly adds to the confusion which may have resulted from these directions.
82 I am left with a reasonable doubt about the guilt of the appellant on the first, and if it be material, on the second count. I do not consider that the jury's advantage in seeing and hearing the evidence is capable in the circumstances of this case of resolving this doubt. Accordingly, the conviction on these counts "cannot be supported having regard to the evidence" (vide s 6(1), Criminal Appeal Act 1912) and must be quashed. I also agree with Barr J's conclusion that the verdicts on the three counts cannot be reconciled.
83 I agree with the orders proposed by Barr J.
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