Regina v D.R.E [2004] NSWCCA 305 | Case summary

[5] The verdicts are unreasonable and cannot be supported by the evidence." 5 Prior to the hearing of the appeal the Crown lodged with the Court extensive written submissions. The written submissions did not concede in terms that the grounds of appeal 1, 2, 3 and 4 were well taken; but the written submissions were, in their essence, to that effect. Learned counsel who appeared for the Crown on the hearing of the appeal maintained the stance taken by the written submissions: that is to say, counsel stopped short of making a concession in terms as to the soundness of the grounds 1, 2, 3 and 4; but did not advance any argument of substance in opposition to those grounds. 6 I do not see any present point, in those circumstances, in now embarking upon an exhaustive canvass of each of those four grounds of appeal. It suffices to say that in my opinion each of the four grounds is well taken and ought to be upheld. What orders should then be made must depend upon the adjudication of ground 5 as to which the Crown joined issue with the appellant. 7 The complainant was a boy born on 25 March 1990. He was aged between 6 years and 9 years at the times of the alleged offences. His sister was some 4-1/2 years older, having been born on 27 September 1985. The natural mother of both children was a lady who had first met the appellant in June or July 1996 or thereabouts; who had entered upon a de facto relationship with the appellant; and who had eventually married the appellant in August 1997. By the time of the trial the appellant and the complainant's mother were no longer living together, having separated in mid-1999. 8 The Crown case at trial rested substantially upon the evidence of the complainant. The complainant, when he gave his evidence at trial, was aged 13 years. He gave a detailed description of the sexual, and associated, activities which were the subject of the various counts in the indictment. It was by any reckoning a lurid narrative. It is not necessary, I think, to canvass the detail of the behaviour described by the complainant in his evidence at trial. It is sufficient to understand that the behaviour described was singularly depraved, and was in its particular incidents both unusual, and unusually perverted. The complainant's version of events was corroborated, not entirely but not insignificantly, by the evidence of his sister. 9 The appellant gave evidence at trial. His evidence was brief, and amounted to a simple and comprehensive denial, not only of the particular events described by the complainant and the complainant's sister, but of any sexual activity at all between him and the complainant. 10 It is, obviously, plain that the jury was satisfied beyond reasonable doubt that the complainant's version was both honest and reliable; and that the complainant's version should be preferred to the denials of the appellant. 11 This Court is now called upon to form a view as to whether or not the verdicts returned by the jury are reasonably supportable by the whole of the evidence at trial. The principles of law by which this Court is to be guided as it goes about that task are not in doubt. They have been stated definitively by the High Court of Australia in M v The Queen (1994) 181 CLR 487. It has become conventional to state the principles in the terms employed in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ at 494, 495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 12 A careful reading of the principles as thus stated supports, in my opinion, the following propositions. 13 First, the M formulation is not intended to cut down the entrenched constitutional standing, in any criminal trial, of the jury as the sole and final arbiter of any disputed question of fact. Or to put the point in terms borrowed from appellate decisions about various aspects of the operation of the Criminal Appeal Act 1912 (NSW), the principles established by the decision in M should not be understood as entailing in any way the substitution of trial by Judges who have not seen and heard the witnesses for trial by a jury which has both seen and heard them. 14 Secondly, it is not without significance that the joint judgment in M twice uses the formula "ought to have experienced". As Hunt CJ at CL pointed out in R v McKnoulty (1994) 77 A Crim R 333 at 338, (Smart and Levine JJ concurring), that form of expression "emphasises the sense of obligation which was made clear in the test as it was originally stated" in various decisions of the High Court ante-dating the decision in M. The question is not whether the jury could have properly acquitted; or might reasonably have acquitted; or was entitled to acquit. The question is whether the jury ought to have entertained a reasonable doubt in the sense that the reasonable application of proper principle to the evidence given at trial really did not permit of any other conclusion by the jury than the conclusion that there was a reasonable doubt as to the guilt as charged of the particular accused. 15 Thirdly, and to quote again from Hunt CJ at CL: "It is also important to emphasise that the High Court in M has not stated that the mere existence of discrepancies or inconsistencies in the evidence is sufficient to lead to the verdict being held to be unsafe or unsatisfactory. If they exist, they must be of such a nature as to persuade this Court that there is 'a significant possibility that an innocent person has been convicted'." 16 Having read, in particular, the evidence given at trial by the complainant and by the appellant, I think that it cannot be gainsaid that the close and careful cross-examination of the complainant exposed a number of discrepancies and inconsistencies in his version of relevant events. As previously explained, however, this is not of itself sufficient warrant for this Court's substituting its own verdict and judgment of acquittal for the verdicts of guilty returned by the jury. There must be factored in to this Court's consideration of those discrepancies and inconsistencies an assessment of the extent to which the jury's advantage in seeing and hearing the complainant might explain how the jury returned its verdicts of guilty notwithstanding those demonstrated discrepancies and inconsistencies in the complainant's evidence. 17 That is, in my view, not at all an easy exercise in the present case. In the nature of things this Court has only the transcript of the evidence as an available basis upon which to make its assessment. When I read through the transcript of the complainant's evidence at trial, something that struck me very forcefully was the apparent composure of the complainant. The complainant gave evidence, not in the body of the Court, but by closed circuit television. The impression that I have from reading his evidence is that he was remarkably self-possessed. He had no difficulty in asking for a break when he felt that he needed one; or, indeed, in asking for an early lunch break. He queried with the trial Judge whether certain persons whom he could see on his monitor were persons who ought to be in the Court while he was giving his evidence. His answers to the cross-examiner, particularly in the closing stages of the cross-examination, were very spirited and self-confident for a 13 year old. My overall impression is that the fair assessment of the complainant and of his evidence at trial would depend in very significant degree upon the impression that one drew from actually seeing and hearing the complainant as he gave his evidence. In other words, it seems to me that this is a case in which the jury's willingness to accept and to act upon the complainant's evidence notwithstanding any demonstrated inconsistencies and discrepancies in that evidence is wholly explicable by reference to the jury's advantage in being able actually to see and to hear the complainant. 18 The appellant, when his turn came to give evidence, gave his evidence-in-chief in the form of answers to a series of simple, but leading, questions put by his own counsel. No objection was taken to the form of any one of those leading questions. As previously herein noted, the thrust of the appellant's version was completely clear and simple: it was a simple and comprehensive denial of any wrong-doing of any relevant kind at any time. The appellant was cross-examined, but not at anything like the length of the cross-examination of the complainant. A reading of the appellant's evidence at trial seems to me to indicate that the cross-examination did not shake in any substantial way the appellant's reiterated denials of any wrong-doing. There was a short passage in the cross-examination in which the appellant was tested about the proposition that he had had, at the very least, plenty of opportunity to do the things that were being alleged against him. The bare transcript suggests that the appellant attempted to side-step the thrust of the cross-examiner's questions until he was pinned down to a responsive answer to the proposition that had been put to him as to relevant opportunity. Once again, however, it seems to me to be wholly reasonable to suppose that the jury, in assessing this part of the appellant's evidence, must have been influenced, in the very nature of things, by the actual observations made of the appellant by the jury as he, the appellant, gave his evidence. 19 It is, of course, important not to lose sight of the corroboration that was afforded by the complainant's sister to significant aspects of the complainant's own narrative. Once again, it was a matter for the jury, which saw and heard the complainant's sister, to assess with that advantage whether or not her evidence was such as could be relied upon safely in reasoning to a conclusion on the ultimate question whether the Crown had proved beyond reasonable doubt the appellant's guilt as charged in the indictment. 20 I have not found it easy to apply to the given facts of the present case the analysis and assessment that are mandated by M. The sexual assaults, as described by the complainant, were, if not in a literal sense unique, at least quite unusual in their alleged physical incidents. The complainant was, at the times of the alleged sexual assaults, a child of very tender years, a circumstance which naturally calls for care and circumspection in making any assessment of the reliability of his version of relevant events. There are, on the one hand, several legitimate and not insignificant forensic flaws in the complainant's evidence; but there is, on the other hand, some not insignificant corroboration afforded by the evidence of the complainant's sister. I have no difficulty in accepting that the jury might very well have had a reasonable doubt overall, and might well have acquitted the appellant. I am, however, ultimately unpersuaded by the appellant that the jury ought to have had a reasonable doubt in the particular sense explained by Hunt CJ at CL. 21 For the whole of the foregoing reasons I would not uphold ground 5. I would favour, therefore, the making of the following orders:

Regina v D.R.E

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