REGINA v COX

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3279 LOWER COURT JUDICIAL OFFICER : Ford DCJ

CK Maxwell QC (Crown) COUNSEL : P Byrne SC (Respondent/Appellant) SE O'Connor (Crown) SOLICITORS : Carroll & O'Dea (Respondent/Appellant) CATCHWORDS : Criminal Law - different verdicts unable to be explained by reference to the evidence - held inconsistent and therefore unreasonable. DECISION : Appeal against convictions allowed.; Convictions quashed.; Crown appeal does not arise.

IN THE COURT OF CRIMINAL APPEAL 60544/98 60727/98

Wednesday, 31 March 1999 REGINA v Kevin Nicholas COX JUDGMENT

1 ABADEE J: I agree with the orders proposed by Barr J for the reasons given.

IN THE COURT OF CRIMINAL APPEAL 60544/98 60727/98

Wednesday, 31 March 1999 REGINA v Kevin Nicholas COX JUDGMENT

2 BARR J: The appellant appeals against convictions entered in the District Court following his trial by a jury and the Crown appeals against the sentences imposed. The appellant was charged with three counts of what may be shortly described as indecent assault upon the complainant, Margaret Heathwood, who was at the time under the age of 16 years. The first count was alleged to have taken place between 1 January and 3 August 1976 at Caringbah, when the complainant was 11 years of age. The second was said to have taken place at Caringbah between 1 September 1975 and 30 June 1976 when the complainant was 11 years of age. The third was alleged to have taken place at Wanda Beach during 1977, when the complainant was 12 or 13 years old. 3 The complainant was born on 3 August 1964 and during the 1970s lived with her mother, father and sisters in Caringbah. She attended a Church school. Her mother and father were adherents to the Catholic faith. In October 1975, when the complainant was 11 years old, the appellant joined the parish as assistant to the parish priest, Father Keller. The appellant visited the school which the complainant attended and she saw him there as well as at church. He visited her home occasionally and took afternoon tea. He officiated at a baptism and at a marriage that took place in the family. He had not long before emerged from a long period of years in an enclosed order of monks. He was apparently a likeable man and the complainant developed an affection for him as well as the respect which was due. He developed an affection for her. 4 The appellant and the complainant got into the habit of jogging round Caringbah oval early each morning. The oval was close to the complainant's house. The Crown case was that the two would do sprints and rests and exercises and that the appellant would use the occasions of the exercises to hug the complainant. As he did so the appellant put his hands down inside her pants and touched her on the bottom and on the outside of the vagina under her underwear. 5 There was one occasion which the complainant could identify, because after the appellant had handled her in the manner I have summarised she saw Father Keller nearby, at the gates to the oval. That made her very embarrassed and made the occasion stick in her memory. The priest had apparently walked to the oval from the direction of the presbytery. They had a conversation that she remembered, about the priest's having trained an athlete at that same oval. 6 That occasion was made the basis of the second count in the indictment. 7 The Crown case was that early in 1976 the appellant began taking the complainant into the sacristy of the church and over a substantial period of time indecently assaulted her there on many occasions. The one which was made the subject of the first count took place on Ash Wednesday in 1976. The complainant remembered it because the appellant called her into the sacristy to look at the ashes he had prepared for ritual purposes. On that occasion he pulled down her pants, touched her on the breast and touched her on the outside of her vagina. He rubbed himself against her until he ejaculated. 8 The complainant began attending Endeavour High School in 1977 and the Crown asserted that during that calendar year the appellant took her in his car to Wanda Beach from time to time. Whilst they were in the car he put her hand on his penis and had her masturbate him. He fondled her on the breast and inserted his finger into her vagina. The first occasion on which those things happened was made the subject of the third count. 9 The complainant also said that the appellant indecently assaulted her in more or less similar ways at other places, including in his bedroom in the presbytery. 10 The jury convicted the appellant of the first two counts and acquitted him of the third. 11 Judge Ford of Queen's Counsel, the trial judge, sentenced the appellant on each count to imprisonment for two years to be served by way of periodic detention. Both sentences commenced on 11 November 1998. 12 The first ground of appeal is that the verdicts are unreasonable and cannot be supported having regard to the evidence, because the jury could not have entertained a reasonable doubt about the guilt of the appellant on the third and not at once entertain a reasonable doubt about his guilt on the other counts. Reliance was placed on Jones v The Queen (1997) 191 CLR 439. 13 The question for this Court is whether upon all the evidence the jury ought to have entertained a reasonable doubt as to the guilt of the appellant on the first two counts. M v The Queen (1984) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. 14 An appellate court should interfere only where there is no way properly to reconcile the verdicts said to be inconsistent. If there is some evidence to support the verdicts said to be inconsistent it is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury. Jones v The Queen at 456. 15 The appellant's submissions coupled what was said to be an inconsistency of verdicts with these features - 1 There was an unexplained delay of more than 20 years between the offences and the trial; 2 The offences were said to have occurred in circumstances in which other people might have noticed something, yet there was no independent evidence to support the complainant's evidence; and 3 No directions were given to the jury on the impact of delay. 16 It was submitted on behalf of the appellant that there was no way of reconciling the verdicts. The Crown submitted that there were a number of ways of doing so, but principally because the Crown bound itself at trial to prove that the events charged on any count occurred within the times set forth in the indictment. The third count was different from the others, because there was evidence which the jury might have used to raise a reasonable doubt whether, although the event occurred as the complainant said it did, it did not occur until after 1977. 17 The evidence of the complainant was that the appellant indecently assaulted her many times over a period of years. One of the considerations in framing the charges was no doubt the need to identify occasions which could, by reference to the evidence, be distinguished from every other occasion. S v The Queen (1989) 168 CLR 266. Accordingly, for the second count the Crown relied on the only occasion at the oval on which there had been a conversation with Father Keller, for the first count on the only occasion on which the appellant had called the complainant into the sacristy to look at the ashes and for the third count on the first time that the complainant was taken by the appellant to Wanda Beach. 18 Unless there is a reason to treat them differently, pleadings as to the time at or the times between which an alleged offence was committed are regarded only as particulars. Indictments which fail to state time or state it wrongly or imperfectly will not be held bad or insufficient unless time of the essence. Crimes Act s 360. If during a hearing it appears that an offence was committed at a time other than that pleaded, the court of trial has power to order the amendment of the indictment. Crimes Act s 365. However, this Court has no power to amend. R v Burns (1920) 20 SR (NSW) 351. 19 Proof of time may become essential for various reasons. For example, although it has not become contentious in this appeal, the Crown had to prove beyond reasonable doubt in the present case that any offence took place before the complainant's sixteenth birthday. That was a requirement of the statute creating the offences with which the appellant was charged. Sometimes the parties make time essential by the way they refine the issues during the conduct of a trial. 20 As this trial began it would not have been considered that the times particularised in the indictment were essential (there could have been no suggestion that anything relevant had happened after the complainant turned sixteen years of age), even though the parties knew that the complainant had already exhibited some uncertainty about the precise times at which events happened. 21 It became obvious during the examination and cross-examination of the complainant that she was uncertain as to the times at which things had happened, the state of affairs then existing and the order in which they had happened. The dates of two events, however, were certain. The complainant turned eleven years old on 3 August 1975 and the appellant did not arrive in the Caringbah parish until October 1975, when the complainant was eleven years old. 22 The complainant said that she accepted the appellant's invitation to go jogging with him. She had already met him and the invitation was extended to her one day at school. After that she went jogging with him every day for years and years, including 1977 and 1978, when she was in years 7 and 8 in high school. 23 She said that she began to have her periods in year 5, when Sister Maria was her teacher. It was at the end of the year. It was agreed that Sister Maria was the complainant's teacher in year 5, 1975, but not in the next year. 24 In cross-examination the complainant was reminded that she had told the Local Court at committal that she had got her periods around the middle of the year when she was ten or eleven. Her response was that she was sure that she started her periods during year 5. 25 She said that she started jogging with the appellant in year 5, towards the end of 1975, before she began her periods. She remembered his asking her whether she had started her periods. She knew that she had not done so because she did not understand his question. She agreed with the cross-examiner that it was "some months" after she met the appellant that she began jogging with him. She was then invited to agree that she did not begin jogging with him until 1976. These questions and answers followed - Q. But you've already agreed with me that it was some months after you first met him that you started jogging with him? A. Yes.

Q. You couldn't have met him until October 1975? A. Yes.

Q. So if it was some months after that that you started jogging with him, it must have been 1976? A. Why?

Q. Because October 1975 and then some months takes you into 1976, do you understand that? A. Yes.

Q. Do you accept that? A. Yes I accept that.

Q. So you started jogging with him after you had your first period didn't you? A. No. 26 The complainant was reminded about her statement she had made to the police on 9 May 1996. These questions and answers follow - Q. It says, "I remember one time we were running around the oval. One day he said to me, "Have you got your periods yet?". I didn't know what they were so I said, "No"". Right? A. Yes.

Q. "I was 10 years old at the time"? A. Yes.

Q. That means that that incident occurred before August 3 1975 doesn't it? A. No. that means that at the time I made this statement I was inaccurate.

Q. I see. So when do you say you started jogging with Father Cox? A. In year 5.

Q. You see you're now being very vague about the time when things happened, you're just saying generally in year 5 because you now know that he didn't arrive at Caringbah until October 1975. I suggest to you you've been caught out and you're changing your story? A. I'm trying to keep to my story as much as I can because it's the truth. 27 The cross-examination continued - Q. See you said in the statement to the police that you were ten years old at the time this conversation occurred between him and you didn't you? That's in paragraph 9 of the first statement?

Q. That's wrong isn't it, according to what you've said? A. Yes, it's wrong.

Q. And it then says after the statement, "I was ten years old at the time when this conversation occurred. A few weeks later I got my periods." Do you see that? A. Yes.

Q. You were ten years old up until August 1975, that's right isn't it? A. Yes, but I mean maybe I was saying I was ten years old in relation to being in year 5, I don't know. Maybe ten, eleven, year 5. I'm not very good with numbers which is probably why this is all.

Q. You didn't say anything in this statement about it happening in year 5. You just said you were ten years old at the time the conversation took place, that's right isn't it? A. Yes.

Q. And a few weeks after that conversation you said you got your periods? A. That's what it says.

Q. And it's wrong isn't it? A. It's inaccurate.

Q. You know that Father Cox was never even here when you were ten years old don't you? A. Well I know that now.

Q. So your statement made to the police is wrong isn't it? A. It's inaccurate.

Q. It's wrong? A. It's six months out.

Q. Can't you use the word "wrong"? A. Okay, wrong, wrong.

Q. And you've changed your story haven't you? A. No. 28 As I have observed, there was nothing to fix the second count in time by reference to its particular facts. If, as the complainant told the jury, her periods began at the end of 1975, it was not impossible for her to have jogged with the appellant before that event or for the subject of the second count to have occurred before her periods began. I have not lost sight of the fact that the complainant agreed that jogging had not begun until "some months" after she met the appellant, but the term "some months" is vague and could admit the commencement of jogging, followed after a few weeks by the commencement of periods, all by the end of 1975. The complainant did not concede that jogging had not commenced until 1976. 29 The complainant was reminded that she had told the Local Court that the events the subject of the second count had happened before her periods began. These questions and answers followed - Q. Miss Heathwood, you were asked in the magistrate's court, again by Miss Dennis, this question. "Did the incident that you told us about, the jogging when you were jogging with him", reference to Father Cox, "and you recalled a specific incident when Father Keller came up afterwards, did that happen before or after you already had your periods, if you can remember?". See that? A. Yes.

Q. Your answer was, "Before"? A. Yes.

Q. Your recollection now is that it was some months after, is that right? A. That answer was wrong.

Q. If that answer was wrong, can you give any explanation as to why it was wrong? A. I was possibly nervous, upset, not really a very - I can't really give you a very qualitative answer, a solid one. 30 The evidence on the first count, the sacristy incident, was that the complainant was in year 6 and may still have been eleven years old. The appellant invited her in to look at the ashes which had been prepared for use on Ash Wednesday. The complainant demonstrated for the jury the use of the thumb in the ritual of ashing. Although the appellant assaulted the complainant in the sacristy many times, this was the first occasion, and the only one of which she spoke in which there had been any mention of ashes. 31 The complainant was cross-examined about the incident but not about the timing of it. 32 The evidence about the third count was that the appellant took the complainant to Wanda Beach on a number of occasions, beginning in 1977 and continuing after the end of that year. The complainant was of the ages of thirteen to fifteen during that period of time. That might have permitted the assaults to have continued as long as 1979. The event relied on for the third charge was the first occasion on which such a thing had happened. The complainant said that the appellant took her in his light blue car and that the assault took place on the front seats of the car. They were individual, reclining seats. In cross-examination she confirmed that the seats reclined. It was suggested to her that the appellant's car had a bench seat at the front in 1977, and she said that she did not know. These questions and answers followed - Q. I suggest to you Miss Heathwood that you are wrong about Father Cox's Car. You have wrongly described it? A. Should I answer?

Q. Your description of the car that Father Cox had at this time I suggest to you is wrong, because he had a car which had a bench seat, not individual bucket seats? A. Okay, well I will have to acknowledge what you are saying. 33 Later on there were this question and answer - Q. I suggest to you that Father Cox didn't have a car that had bucket seats in it until May 1978, are you able to recall that? A. No. 34 The appellant gave evidence. He said that between 1975 and 1978 he had a Holden car with a bench seat in the front. In May or June 1978 he acquired a large Ford car which had bucket seats in the front that could be reclined. It was an ex-police car and the registration plate bore the letters JSA and numbers the appellant could not remember. 35 A letter from the Roads and Traffic Authority was tendered which showed that the appellant acquired a 1977 Ford sedan JSA-391 on 13 May 1978. Of course, the letter said nothing about the seats of the car. 36 His Honour summed up the case to the jury and made some reference to the arguments of counsel and the evidence. In doing so his Honour said this - All of these charges allege an assault and at the time of the assault the commission of an act of indecency. In respect of the first and second charges, the first one being the sacristy allegation and the second involving the jogging allegation at that time it is said in the charge that Margaret Heathwood was then eleven years of age and the dates which are expressed there are very important as you will appreciate. Important because there is some evidence to indicate Margaret Heathwood could very well be mistaken if the events did occur then nonetheless she was mistaken as to the occasions when they did occur, the times when they did occur, the dates when they did occur. And if she is mistaken about dates it may also indicate that she may not be accurate when she gives evidence as to the alleged act of indecency involved . (emphasis added). 37 At the end of the summing up defence counsel, relying upon that passage, asked for a further direction. Counsel said this - Your Honour it is just this question of dates. I haven't in the course of my address to the jury made a big point of it, I didn't intend to at least I should say, the jury may wonder what situation they are in if they believe for example that - just to use an example, the Wanda beach incident happened in early 1978 as it was suggested rather than in 1977, as I understand the way the case has been put the dates are an element, the date of which the alleged offence committed is an element of the offence, I would in the circumstances seek a direction which effectively informs the jury that if they are not satisfied beyond reasonable doubt that the incident in particular happened at the time alleged then they should acquit. I know your Honour in the course of your Honour's summing up did say that dates are very important, I am just reading from my inadequate notes but your Honour said dates are very important, if she is mistaken about the date then perhaps she is wrong about the fact that she was indecently assaulted. Your Honour the direction that I would ask is that if she is mistaken about the date and the jury were in fact to find that perhaps incidents of the kind alleged did occur but not in the time frame alleged in the indictment then they must still acquit because that's an element of each of the offences. It is important because of that s 78 (sic) problem in particular. 38 I think that the reference in the transcript to "that s 78 problem" contains a typographical error. Counsel must have been referring to the possibility of a finding that the event happened in 1978. 39 When invited to respond, the Crown prosecutor said that he did not have any difficulty with that request. 40 Accordingly, his Honour gave the jury the following additional direction - … the dates, the dates are important and you must when you consider each of these charges consider whether or not it has been established, and established beyond reasonable doubt that the alleged incident if it did occur occurred in the time span specified. 41 The existence of the problem adverted to by defence counsel in seeking the further direction arose out of the evidence of the purchase of the Ford car and related only to the third count. However, the request was not confined to that count. The evidence about the third count and the difficulty of distinguishing between the events of 1977 and 1978 were adverted to only as an example of the problem, not as the whole problem. 42 In the circumstances his Honour's further direction was a proper one, and the contrary has not been submitted in this Court. The result is that the Crown took upon itself to prove not only that the events had taken place but that each of them had taken place within strictly defined temporal limits. R v VHP Court of Criminal Appeal, 17 June 1997, unreported; R v Dossi (1918) 13 Cr App R 158. 43 In view of the evidence of the date of acquisition of the Ford car, assuming that it and not its predecessor had reclining seats, there is an obvious reason why the jury might have wished to acquit the accused of the third count. Such an acquittal on the temporal basis would be consistent with an acceptance of the honesty of the complainant and a reasonable doubt about her accuracy as to time. 44 Were the jury, then, obliged also to have a reasonable doubt about the times between which either of the other two events relied on took place? It is convenient to deal with the second count first. The period of time pleaded began on 1 September 1975. There was no reasonable possibility that any assault took place before that day because the appellant did not enter the parish until the following month. 45 However, because of the way the Crown limited its case, the jury had to be satisfied beyond reasonable doubt that the incident happened by 30 June 1976. I am unable, by reference to the evidence, to understand the significance of that date. 46 The complainant said various things which might have related to the date of the assault. She told the jury that she got her periods late in 1975 and that it happened after that. She conceded that she had told the magistrate that it happened before she got her periods. She was sure that it happened whilst she was in primary school. In her examination in chief she told the Crown prosecutor that it happened when she was eleven years old. She also said this - Q. Are you able to assist us with when it was that this incident occurred? A. I was in year 5. Now (sic) I was in Year 6. It wasn't the first time that we had been jogging.

Q. This was some time after the first time? A. It was still in primary school.

Q. You say it was Year 6. Are you able to identify any bench mark that can - against which you can identify this having occurred in Year 6? A. Well no not really. 47 The complainant conceded that she had told the police in her statement that it happened whilst she was in 5th grade. 48 These questions and answers also appear in the transcript - Q. Miss Heathwood, how long after you started jogging did the incident with Father Usher occur, I'm sorry, not Father Usher, Father Keller? A. A long time later, like, months. I was - I believe that I was in year 6 when that happened.

Q. You're sure about that? A. As sure as I can be in that I know that I was still at primary school.

Q. How old were you when it happened? A. Twelve, 11, 12. Because my birthday is in August, in the middle of the year.

Q. You say that that was some considerable time after you first met Father Cox do you? A. Yes.

Q. How long? A. I was in year 6. 49 The complainant was shown a copy of one of her statements to the police and these questions and answers followed - Q. That's a description of the general incident which you say involved Father Keller about which you've given evidence in this Court, is that right? A. Yes.

Q. You see the first two lines of the paragraph? A. Yes.

Q. You say the incident happened at the end of 1976, is that the truth? A. I don't know. I know that it happened in primary school and I believe that it happened a long time after the jogging, but.

Q. You know the purpose of the second statement was to clarify in particular times and dates when things occurred don't you? That was explained to you by the police wasn't it? A. Yes, but I was also told not to worry about exact dates because it happened such a long time ago.

Q. You were asked to clarify dates. You agree with that don't you? A. Well yes and clarify what happened.

Q. And you understood the seriousness - A. Very much so.

Q. -attaching to this document didn't you? A. Very much.

Q. And you understood obviously the importance of being as accurate as you possibly could? A. Always.

Q. And you said in that statement that the incident involving Father Keller happened at the end of 1976? A. Yes.

Q. When you were twelve years old, is that right? A. Yes. 50 I think that the jury were entitled to make proper allowance for the inability of the complainant to state precise dates, especially because of the distressed condition in which she found herself from time to time during the trial, but it seems to me from the evidence cited and summarised above that it was not possible for the jury to exclude the reasonable possibility that the incident happened after 30 June 1976. The complainant's evidence that the incident happened when she was eleven years old would make such a conclusion reasonably possible. If she was twelve years old, the offence must have been committed outside the range of dates permitted for a conviction. 51 I think, therefore, that the difference between the verdicts on counts three and two is not explained by the raising of pleaded times from a particular to an element of the charges. 52 The complainant said that the event the subject of the first count happened during 1976 and there was no suggestion that she had ever said that it happened in any other year. It happened on or close to Ash Wednesday, which fell in February of that year. It must have happened between the pleaded dates 1 January and 3 August 1976. On the temporal basis, there is no inconsistency between the verdicts on the third and the first counts. 53 That is not the end of the matter, however. That the jury convicted the appellant on the second count and acquitted him on the third when they should have acquitted him of both shows either that the verdicts were compromised or that the jury entertained a reasonable doubt on the third count for reasons which applied to that count but not to the other counts. 54 I have carefully considered the evidence on all counts, putting aside the uncertainties about times. The evidence on all counts was attended by common problems for the jury, namely - (a) The very age of the events, resulting in accounts by the two opposing witnesses which lacked precision and spontaneity; (b) The fact that there was sworn evidence from only two witnesses, both unsupported by objective evidence, giving opposing versions; (c) The fact that neither version was internally inconsistent or inherently improbable; (d) The fact that the criticism of the complainant's motives, namely an assertion that she had invented the story out of a grievance against the Church or in an attempt to recover monetary compensation, applied equally to all counts; (e) That the defence assertion that the complainant exaggerated (a matter which went to her honesty rather than her accuracy) applied equally to all counts; and (f) That the defence criticism of the Crown case, namely that there were alleged to have been many hundreds of similar events which might or ought to have come to the attention of members of the public but that no such person came forward, applied equally to all counts. 55 It seems to me that, apart from any evidence going to discrepancies about times, there was no evidentiary basis upon which the jury could properly have distinguished between the third count and the other counts. Their convicting the appellant of the second count shows that they did not dispose of their verdicts on the temporal basis. That being so, the verdicts are unreasonable because they are inconsistent, so the conviction on the first count must be set aside as well. 56 It is unnecessary to deal with the other grounds of appeal. 57 The appeal should be allowed and the convictions quashed. 58 The Crown appeal against the sentences imposed by his Honour does not arise.

IN THE COURT OF CRIMINAL APPEAL 60544/98 60727/98

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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