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[1999] NSWCCA 335
Court of Criminal Appeal (NSW)
1999-10-27
Spigelman CJ, Dunford J, Adams J
Original judgment source is linked above.
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 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 Jones, Gaudron, McHugh and Gummow JJ point out (191 CLR at 452) 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 their Honours as "much stricter" than the test formulated by the majority in M (191 CLR at 453). 46 In considering the question posed by this ground of appeal, it is important to bear in mind the very substantial delay between the alleged offences and the commencement of proceedings. A great deal of attention has been given over the years to the possible significance of this factor in assessing the complainant's credibility, usually in the context of a failure to make timely complaint. In recent years, however, another aspect of this factor has come to the fore, namely the adverse effects on the conduct of a defence which might, and probably will, be occasioned by that delay. This consideration is not rendered any less important because, on the assumption that the offence was committed, the complainant's delay in reporting it was completely understandable and did not reflect adversely on his or her credibility. I hasten to add that in this case, the learned trial judge gave an appropriate direction concerning this matter, along the lines set out in Longman v The Queen (1989) 168 CLR 79 per Brennan, Dawson and Toohey JJ at 91. As Spigelman CJ said in R v Johnston (1998) 45 NSWLR 362 at 371, 375 the delay will have the consequence that the evidence of the complainant could not be adequately tested and accordingly the evidence must be scrutinised with great care. Having regard to the onus of proof in criminal cases, this may have the effect of limiting the mollifying qualifications which might otherwise overcome apparent shortcomings in the complainant's evidence whilst, on the other hand, increase tolerance for unsatisfactory features of an accused's evidence or apparent exiguity of his or her defence. In the former case, this is because it is important to be cautious about accepting the possibility that delay satisfactorily explains apparent weaknesses in the complainant's evidence in the sense that it renders those aspects less significant than they would otherwise be whilst, in the case of the accused, he (as will usually be the case in sexual charges) will be endeavouring to deal with events that took place a long time before in a context where if his account is reasonably possibly truthful, he should be acquitted. It is trite that if the complainant's account is only reasonably possibly true or, indeed, no more than highly likely to be true, the prosecution will fail (in the absence of other compelling evidence) because the Crown has not established guilt beyond reasonable doubt. 47 In a case such as the present, the prosecution had the additional difficulty that the Crown case comprised in substance the evidence of one witness unsupported by any other evidentiary material. The requirement that the evidence of such a witness "must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in" (R v Murray (1987) 11 NSWLR 12 per Lee J at 19) is an obvious rule of common sense of general application. I consider that both this and the caution that must be exercised arising from substantial delay are just as apt for this court to apply as they were for the jury. 48 Unlike many cases where sexual assaults are alleged, this case is not merely word against word. As is clear from the summary of the evidence outlined above, the preponderance of evidence in this case favoured the defence. One must, of course, be wary about applying what juries are often told to apply, namely their common sense and knowledge of the world, since sexual assaults on children will, I think, almost never be a matter to which common sense will have much application and it will also fall outside the worldly experience of most people. I do not discount the importance of observing the demeanour of witnesses but I think one must be sceptical about the inferences available from such observations when dealing with emotionally charged evidence and accounts concerning events that took place almost two decades previously. 49 In coming to the conclusion, as I do, that the jury in this case should have had a reasonable doubt about the guilt of the appellant on all charges, I have carefully considered the evidence as a whole. Some parts, however, are of more significance than others. If the evidence of the appellant's wife as to the conversation in which she alleged the complainant had attempted to blackmail her and her husband and the denials of the complainant in that regard is truthful, then a very serious doubt is raised in respect of the whole of the complainant's evidence. The complainant's mother, however, also gives additional detailed evidence which I have set out above contradicting that of the complainant in not insignificant respects. I do not see a sufficient basis for rejecting her evidence in favour of that of the complainant. Furthermore, the allegation that over a ten year period sexual assaults occurred in the complainant's bedroom which she shared with her younger sister continually during this time without the younger sister being aware of them to any degree at all strikes me as so unlikely as to raise serious questions about the reliability of the complainant's evidence concerning the assaults specified in the indictment. The complainant's evidence about whose bed was next to the door, an important element in her narration of the crucial events, should, I think, be regarded as somewhat doubtful in light of her sister's contradiction. Again, although it is no doubt possible that the cards addressed to the appellant and his wife by the complainant expressed faked affection, the more likely explanation (or, at the very least, a reasonably open one) is that they are genuine and hence inconsistent with the character of relationship between the complainant and the appellant to which the former deposed. 50 None of this is to say, of course, that what the complainant said is proved to be untrue. Rather the effect of these matters leads to the conclusion that the verdicts of jury, dependant as they are on proof of the appellant's guilt beyond reasonable doubt, were both unreasonable and could not be supported having regard to the evidence. 51 Pursuant to s 6(2) of the Criminal Appeal Act 1912, therefore, the appropriate order is that of acquittal, subject to other provisions of the Act, in particular s 8(1) giving the court a power to order a new trial when "having regard to all the circumstances", the miscarriage of justice identified can "be more adequately remedied" by such an order. The inter-relationship between these two provisions has been considered, eg in R v Johnston (1998) 45 NSWLR 362 esp at 380 and R v Giam (1999) NSW CCA 53 at [31]-[46]. As was said in M in the passage quoted above - "Even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person had been convicted…" 52 For the same reasons, the evidence is not "sufficiently cogent to justify a conviction": (Director of Public Prosecutions) Nauru v Fowler (1984) 154 CLR 627 at 630. Accordingly, the Court should not exercise its discretion to order a new trial under s 8(1). 53 It was for these reasons that I agreed with the Chief Justice and Dunford J on 1 July 1999 that the convictions must be quashed and verdicts of acquittal entered. **********
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REGINA
HINGST
New South Wales Court of Criminal Appeal CITATION : REGINA v HINGST [1999] NSWCCA 335 FILE NUMBER(S) : CCA 60047/99 HEARING DATE(S) : 01/07/99 JUDGMENT DATE : 27 October 1999
The complainant explained the apparently affectionate language used by her in the cards as inserted because otherwise "I would have been questioned and picked on and singled out as to why". No example of such an occasion was given. There were a number of cards which did not contain such expressions. There was no suggestion that any of the cards were bought for her. 32 The complainant's mother said that she was an in-patient at the hospital for an operation on her feet between 25 September and 6 October 1977. She said that she had arranged for her sister to come to their home to look after the children as the appellant was at work. One of the complainant's older sisters confirmed the complainant's evidence that there was no one looking after them at this time but a younger sister supported the defence case. Since she was not at school at the time and the appellant was in full-time employment, it seems unlikely that the children were left uncared for. The older sister thought, in fact, that the youngest was at school at the time, which seems to have been a mistake. 33 It was the defence case that the offences in the fourth and fifth counts of the indictment could not have occurred since the family was away camping at Hawks Nest and Mungo Brush in December and January of 1979-1980. The complainant said that Christmas Day was spent at home with her mother and stepfather. 34 The appellant said that whilst later the girls would usually spend Christmas Day with him and their mother and go to their father's place on Boxing Day, in the particular holidays 1979-1980 they went to Hawks Nest and then camped at Mungo Brush and did not return home. 35 Since it was a necessary implication of the Crown case that the appellant and the complainant's mother had conspired to invent contradictions of the complainant's evidence it is significant, I think, that the appellant admitted that, on a few occasions at the complainant's request, he washed her back whilst she was in the bath. In the circumstances of the case, this was a prejudicial admission. The appellant denied touching or playing with her breasts or finding a lump on her chest. He came to learn that the complainant did have a lump on her chest when it was pointed out to him by his wife. This was confirmed by her. Again, if the Crown case be right, the complainant's mother must have lied about this matter also. The lump was above the complainant's breast, not on it. The appellant said that between October 1984 until January or February 1986, the family moved to his mother's house. He said that his mother (who died before the commencement of proceedings) was senile and would wander around the house at night with a torch. Especially, at about midnight after she had had only an hour's sleep, she would wander around with a torch and come into the room and shine it on faces. He said that he wore pyjamas all his life and never walked around the house naked. It was agreed that the complainant was not at St Joseph's School at Toronto in 1977 and that her younger sister was not at school anywhere during that year. 36 The complainant's mother denied categorically that she was called in by her husband to see her daughter still in the bath on the occasion that the lump on her chest was discovered. She also confirmed that in the 1979-1980 holidays the family went to Hawks Nest and then to Mungo Brush. She said that they had gone about a week before Christmas in 1979 to Hawks Next and then they had to move on Boxing Day to Mungo Brush because the site was booked in the caravan park where they were staying at Hawks Nest. They then stayed there for a couple of weeks. A photograph at Mungo Brush was taken dated 26 December 1979 and tendered. She also denied the complainant's evidence that she at any time left midnight snacks for the appellant in the refrigerator from the evening meal and said she was never aware that he got out of bed either to eat or for any other reason. The complainant's mother said that she was a light sleeper. There were no baffles in the water bed which she shared with the appellant and it moved a lot when someone got out, so that she would wake up if her husband did so. She never saw the appellant walking naked around the house at night. Indeed, she said that he invariably wore pyjamas when he went to bed. She added that her daughter wore pyjamas when she was a young child and did not use a nightie until she was 12 or 13. She was emphatic that at the age of 7 or 8 the complainant wore pyjamas. The complainant's mother also said that she had bought little jars of vaseline for the complainant because she suffered from dry lips, although she was unsure whether she kept it in the bathroom or in her bedroom. 37 I have carefully examined the evidence of the appellant and his wife and, especially, the cross-examination. Leaving aside the question of demeanour, their evidence was not successfully challenged. Having regard to the nature of the allegations, the moderation of the level of contradiction was remarkable if the assumption be right that the appellant and his wife had concocted a story designed to exculpate him. 38 The defence also called evidence from a retired school teacher who knew the complainant's mother when the latter was working as a cleaner. They met in October 1981. Their two families became very friendly, going camping together on school holidays and long weekends and at other social occasions. They spent a lot of time together. She observed what she thought was a good relationship between the complainant and the appellant noting that she called him "Dad" often. There was, she thought, appropriate affection shown between them. She recalled that if they were going out or she was going with a friend, she would always kiss him on the cheek and say, "Goodbye, Dad". It never occurred to her that the complainant was uncomfortable in the appellant's company. On a couple of occasions, she said, in 1982, she and her husband stayed in the appellant's house in their bedroom. They slept in the waterbed and found that it was not possible to get out of it without disturbing the other person because it did not have a membrane in it. On the occasions that she and her husband were at the appellant's home for dinner, the complainant and her younger sister would come in and kiss them goodnight. Her recollection was that most of the time they had on what she called "baby doll pyjamas, which are the little bloomers and the little matching tops" and she remembered this because that was what her daughter and grandchildren used to wear. 39 The younger sister ("A") with whom the complainant shared a bedroom until 1986, when she was 14 was called by the defence. A said that throughout the time they shared a bedroom she never had any reason to believe that the appellant entered it to have any kind of sexual relations with the complainant. She never saw anything that suggested the appellant was having a sexual relationship with her sister. She thought the appellant and her sister "got along fine" and never heard the complainant express dislike of the appellant. She said that her sister and the appellant showed affection for each other, which she described as "just like we all did; just like you know, like a father and daughter would do, just like every day family thing". A gave evidence about the wandering habits of her grandmother, which confirmed that of the appellant. I have already mentioned A's evidence that, contrary to the complainant's evidence, she occupied the bed next to the door of their bedroom. 40 So far as the alleged offence comprising count 3 was concerned, the complainant's evidence was, as I have pointed out, that it occurred whilst her mother was in hospital for a foot operation and whilst the only carer at home was the appellant. The appellant, supported by his wife and A, said that his wife's sister, the complainant's aunt, had stayed at home since he was required to be at work between 6am and 6.30pm. 41 Neither the Crown nor the defence called the complainant's aunt to give evidence on this point. In retrospect, the evidence seems to have been given unwarranted emphasis by the parties. If it was mere presence in the house and, perhaps, the availability of another person to whom a complaint might have been made by the complainant, the aunt's evidence strikes me as being very much on the periphery. No explanation was forthcoming from either party as why the aunt was not called although each insisted that the other should have done so and sought to call in aid the so-called rule in Jones v Dunkel (1959) 101 CLR 298. As has been frequently said (following Buckland [1977] 2 NSWLR 452 at 459) in a criminal trial the making of a comment or indicating the available inference must be attended by a marked degree of caution, not only because the absence of a witness either for the Crown or for the accused might well be explicable upon grounds not readily capable of proof but, insofar as the accused's role in calling witnesses is concerned, it is important that nothing be suggested which qualifies the Crown's onus of proof. To my mind, the issue will only arise adversely to the accused where, at least, there is evidence from which it could properly be inferred more probably than not that the missing witness is indeed in the accused's camp. Evidence merely that the witness is a relative of the accused will rarely satisfy this requirement, still less, as in this case, where the witness is only related by marriage. Furthermore, the probability that the witness can give relevant evidence must, I think, also be established. In this case, the events in question occurred almost twenty years before the trial, a matter which of itself may well have caused the defence considerable prejudice. 42 I do not see any basis upon which it would have been appropriate or safe for the trial judge to have given a Jones v Dunkel direction adversely to the appellant. Whether such a direction should have been given adversely to the prosecution case was very much a matter for the discretion of the trial judge. It seems to me that there was a proper basis for his so doing but I do not think that his Honour's decision not to give the direction is demonstrated to be an error. On the other hand, it was quite inappropriate, in my view, for the Crown prosecutor to submit to the jury that any inference adverse to the accused could be drawn from the failure to call the aunt and I consider that the learned trial judge should have acceded to the defence application that the Crown be directed not to address the jury as he had intimated he would. In my view that the trial judge should have indicated to the Crown that there was no proper basis for the jury to draw any inference at all adverse to the accused for failing to call the complainant's aunt and, if the Crown nevertheless did so, should have directed the jury in emphatic terms that to draw any such inference would be wrong (Newland (1997) 98 A Crim R 455). 43 A third ground of appeal was stated in the notice of appeal but not pressed and it is unnecessary to make any reference to it. 44 The ground principally relied on is that "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": s 6(1) of the Criminal Appeal Act 1912. The relevant test to be applied to this ground 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 of the appellant's guilt. The test articulated by the majority in M v The Queen (1994) 184 CLR 487 is still applicable notwithstanding the abandonment of the phrase "unsafe and unsatisfactory" which had hitherto been commonly used in this context (Fleming v The Queen [1998] HCA 68, (1998) 73 ALJR 1, 158 ALR 329, 103 A Crim R 121): see Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450-2. 45 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 these considerations."
(1959) 101 CLR 298
(1984) 154 CLR 627
(1987) 11 NSWLR 12
(1989) 168 CLR 79
(1994) 184 CLR 487
(1997) 191 CLR 439
(1998) 73 ALJR 1
(1998) 45 NSWLR 362