Regina v James

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0073 LOWER COURT JUDICIAL OFFICER : Ducker DCJ

COUNSEL : Appellant: B M Niven Respondent: P G Ingram SOLICITORS : R Gray CATCHWORDS : CRIMINAL LAW; Appeal againt conviction; Indecent assault; decision in R v Jones (1997) 191 CLR 439 applied; conviction unsafe and unsatisfactory; no departure from principle in R v Murphy (1985) 4 NSWLR 42 as to directions given by trial judge about character; convictions quashed. Rv Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 Rv Crisologo (1997) 99 A Crim R 178 R v Crofts (1996) 186 CLR 427 R v Durante [1972] 1 WLR 1612 R v Fleming [1998] HCA 68; (1999) 73 ALJR 1 R v Giam [1999] NSWCCA 53 CASES CITED: R v Hunt [1968] 2 QB 433 R v Jones (1997) 191 CLR 439 R v Kilby (1973) 129 CLR 460 R v Kirkman (1987) 44 SASR 591 R v MacKenzie (1996) 190 CLR 348 R v Murphy (1985) 4 NSWLR 42 R v Stone (unreported 13 December 1954) R v Wilkinson [1970] Crim LR 176 DECISION : By majority: appeal allowed; conviction quashed. Verdict of acquittal entered

IN THE COURT OF CRIMINAL APPEAL 60370/98

REGINA v Reginald Robert JAMES Judgment 1 BEAZLEY JA: I have had the advantage of reading the judgment of Simpson J in this matter. As her Honour has set out the facts it is not necessary to refer to them again. I agree with her Honour's reasons in relation to the trial judge's directions as to character. I wish however, to deal separately with the question of whether the verdict was unsafe and unsatisfactory because of inconsistency between the verdicts. 2 The High Court has dealt with this question on two occasions recently. In MacKenzie v The Queen (1996) 190 CLR 348, the appellant, a solicitor, had been charged with two counts of making a false statement on oath (s 327(1) of the Crimes Act) and in the alternative, with two counts of perjury (s 328) in relation to evidence he had given at the trial of a client. The jury convicted on both the s 327 charges, but acquitted on the perjury charges (the more serious charges). 3 A question arose on the appeal as to whether the verdicts were inconsistent, resulting in convictions which were unsafe and unsatisfactory. Gaudron, Gummow and Kirby JJ considered that six general propositions governing the question whether verdicts were inconsistent could be discerned from the authorities. I will attempt to summarise them but regard should be had to the propositions as fully explained at 366-368 of the judgment.

(i) There is a distinction between legal and factual inconsistency, the former usually being easier to resolve because "[o]n the face of the court's record there will be two verdicts which, in law, cannot stand together" (at 366).

(ii) Factual inconsistencies can be both as between different verdicts affecting the same accused (as in the present case) and different verdicts affecting co-accused.

(iii) Where the inconsistency arises upon different counts "the test is one of logic and reasonableness" (at 366).

(iv) Given the general respect given to juries and jury verdicts, an appellate court will generally be reluctant to find verdicts to be inconsistent and will not do so if they may properly be reconciled.

(v) If however, different verdicts "represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" , an appellate court will interfere "to prevent a possible injustice" (at 365).

(vi) The obligation to make good the submission that verdicts are inconsistent is upon the person making the submission. 4 Having regard to the issues raised on the appeal, the third, fourth and fifth propositions require further consideration. 5 In support of the third proposition their Honours referred to the statement of Devlin J in R v Stone (unreported, UK Court of Criminal Appeal, 13 December 1954): "[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

This statement has been approved in England in R v Hunt [1968] 2 QB 433 at 438, and R v Durante [1972] 1 WLR 1612 at 1617. R v Durante is a good example of where the test of logic and reasonableness was not met, resulting in the appellate court finding the verdicts to be inconsistent. The accused was charged with two separate offences committed some twenty minutes apart. The first offence was dishonestly handling a stolen cheque; the second was the offence of endeavouring to obtain money by virtue of a forged cheque with intent to defraud. The cheque in each case was the same cheque. The accused raised drunkenness as a defence. The jury returned a verdict of guilty on the first charge but acquitted on the second. 6 The question in issue on the appeal was whether the accused had the necessary criminal intent in respect of each crime, given that he had been drinking heavily prior to the commission of each offence. Edmund Davies LJ, giving the judgment of the Court, stated at 1616: "[i]f the jury acquitted on the second count because, having regard to the element of drink, they were not satisfied (as the judge correctly directed them they must be before they could convict) that the defendant was proved to have had the necessary intent, then they ought, one would have thought, to arrive at a similar conclusion regarding the first count, despite the remarkable nature of his evidence in relation to what happened in the taxi. He says that he was presented with this form by a man whom he had only met half-an-hour before, a cheque bearing the imprint of a limited company, and then filled it in himself. Mr Bunn's evidence is that he presents it and says it is for his week's wages. One would have thought upon that material that if the jury were going to convict at all they would say he had clearly handled a cheque which he knew to be a stolen cheque, and then, having proceeded to fill it in and telling the public-house owner that it was a cheque for his week's wages, he must also be guilty of attempting to obtain with intent to defraud money upon that cheque. But they did not do that. They convicted on the handling charge only. The verdicts accordingly are remarkably inconsistent." 7 In determining whether verdicts are logical and reasonable, the court is also required to ascertain whether the verdicts can be reconciled or explained in some way. That is the fourth proposition. Gaudron, Gummow and Kirby JJ provide a number of examples of how apparently inconsistent verdicts are explainable. Thus, if there is some evidence to support the inconsistent verdict, the appellate court is not to substitute is own view of the facts: see R v Wilkinson [1970] Crim LR 176. Another explanation for the verdicts may be that the appellate court considers: "… that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt."

R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40. 8 When one considers the combined operation of the third, fourth and fifth propositions in this case, the following emerges. There were five separate counts of indecent assault. The first, second and fifth counts all involved incidents when the complainant was, for a short period, alone with the appellant, either in the complainant's home (the second count) or premises of the appellant (including a caravan in relation to the first count). The appellant was found guilty on each count. 9 The fourth count resulted in an acquittal. On the complainant's version, that count involved an occasion when the appellant and complainant in company with other family members were inspecting a block of land which the appellant was contemplating purchasing. The complainant alleged there was a partly built home on the property. She was detailed in her evidence in this regard. The appellant gave evidence that whilst there had been a visit to the property, there was no building on it at the time. The appellant's evidence was supported by another witness, a building contractor, who had inspected the site with the appellant. 10 I agree with Simpson J at para 22, that "it must be assumed that the jury doubted the accuracy of the complainant's account, having regard to the positive evidence that that incident could not have occurred as she described". A number of possibilities of course present themselves as to the complainant's version. She may, for example, have made up the incident. Her recollection may have been seriously awry as to the condition of the property. There may have been some such incident which she confused or perhaps even merged different incidents. Whatever be the correct position, there is no doubt that the complainant was not believed on her oath in respect of the incident alleged. This, of course, is a matter which affects her credit. However, the jury had the benefit of seeing and hearing both the appellant and the complainant and clearly believed the complainant on the count in respect of which they returned a guilty verdict. A logical and reasonable explanation of the differences in the verdict is that the jury obeyed, as they were bound to do, the directive that each charge had to be considered on its own and that they had to be satisfied of the guilt of the accused beyond a reasonable doubt before being able to come to a guilty verdict. 11 The jury were not able to unanimously agree on a verdict on the third count. The complainant's version of that incident contained an oddity in that the complainant said that she was dressed in street clothes but that the appellant warned her not to tear her nightie. The complainant was adamant that her evidence on this was correct. However, the jury's failure to agree must mean that one or more members of the jury did not accept that the incident did occur as she described and therefore had a doubt as to whether the offence, as charged, had been committed. A question of credit thereby arose on this charge also. In this case, of course, there was no independent evidence contradicting the complainant's version, as there was in the case of the fourth count. The Crown submitted in respect of the third count that it was a merciful verdict, being another category of case where an appellate court will not interfere. I am not persuaded by that submission. It is difficult to understand how a jury not being able to agree on a verdict, but being able to convict on three and acquit on one, constitutes an exercise in mercy, unless it could be said that 'three was enough'. That is hardly logical, reasonable or acceptable. There is nothing in the jury's failure to agree which requires that such illogicality be attributed to the jury. In my opinion, the only possible explanation for the failure of the jury to agree is that one or more members were not satisfied beyond a reasonable doubt that the incident happened, or happened as alleged. The jury as a whole must be taken, therefore to have again applied the directive that each count had to be considered separately. Viewed in that way, I do not consider that the differing verdict "represent[s], on the public record, an affront to logic and commonsense which is unacceptable [or] strongly suggests a compromise of the performance of the jury's duty". 12 Notwithstanding that the likely explanation for the verdicts on the third and fourth counts is that the jury did consider each count according to the evidence presented in relation to it and that there was no affront to commonsense as I have described, the question arises whether the doubt as to the complainant's credit in respect of the third and fourth counts so infected her evidence generally that there should have been a reasonable doubt as to the guilt of the appellant on all counts. 13 The High Court in Jones v The Queen (1997) 191 CLR 439 has looked at the question of differing verdicts specifically in the context of sexual assaults where the complainant's credit has been found to be wanting. In Jones the accused was charged with three counts of sexual assault on a minor over about an eighteen month period. The appellant was the complainant's gym instructor. The complainant first complained four years after the first alleged assault. The trial was five years after the first alleged assault. The appellant was convicted of the first and third count but acquitted on the second. In relation to that count the appellant's wife and daughter gave evidence that they were invariably present during weeknight training sessions (the assaults allegedly took place after one of these sessions) and travelled home with him afterwards. The effect of this evidence was to negative the possibility of opportunity to commit the offence. There was also evidence from the appellant's assistant that there was no opportunity in respect of the first count because she was always present at the gym on Saturdays and the appellant always drove her home. However, she conceded in cross-examination that it was possible that she sometimes caught the train home. 14 Brennan CJ referred to the various categories of case where a verdict of guilty is unsafe and unsatisfactory. He said at 443-444: "[s]ometimes an inconsistency in verdicts on the counts in an indictment or a conviction where the inculpatory evidence has been demonstrated to be unreliable may show a verdict to be unsafe and unsatisfactory. But these are relatively rare cases. There are other categories of cases where a verdict of guilty is unsafe and unsatisfactory. These are cases where there has been some failure to apply the rules of law or procedure that are required to ensure a fair trial - for example, a failure to give the jury a warning where a warning ought to have been given, even if the giving of the warning was not generally mandatory. These are cases where there is a substantial risk that the jury may have been misled or misled themselves in some material respect. This appeal falls partly in one category and partly in the other." 15 His Honour concluded at 446: "[t]he absence of an adequate direction, the acquittal on the second count, the delay in the prosecution and the evidence of the relationship of the child with the appellant and his wife show that the verdicts of guilty on the first and third counts are unsafe and unsatisfactory. Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal. In those circumstances, it would not have been reasonably open to them to convict on the first and third counts. Therefore, it was necessary to allow the appeal." 16 Gaudron, McHugh and Gummow JJ pointed out that the complainant's evidence was uncorroborated, was from time to time inconsistent and that there had been considerable delay in complaint. In this context, their Honours dealt with the inconsistency between the verdicts of guilty and of acquittal, stating at 453: "[w]hatever the explanation may be, however, the jury's rejection of the complainant's account of the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count." 17 Having made this observation as to the complainant's credit, they continued: "[i]t is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than in relation to the second count." 18 Their Honour's concluded at 455: "[g]iven the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof." 19 Does this line of reasoning compel this Court to quash the convictions? In my opinion, there are a number of important distinctions between this case and Jones. In Jones the trial judge had failed to give any direction in relation to corroboration. No such failure is relied upon here. There was in fact no corroborative evidence in Jones and there had been internal inconsistencies in her evidence. There was also delay in reporting the alleged offences. 20 In the present case, there is delay and of a much greater period than in Jones. However, delay is a feature which is not unusual in cases of this sort. And, as the High Court has pointed out, "recent complaint, or its absence, is a factor which is ordinarily of limited assistance": Jones at 453; Crofts v R (1996) 186 CLR 427 at 444-445. In Kilby v R (1973) 129 CLR 460, Barwick CJ said at 472 that delay in complaint had "no probative value as to any fact in contest but, merely and exceptionally, constitut[ed] a buttress to the credit of the [complainant]". 21 Here, there was in fact evidence of complaint, albeit of a general nature and only to a school friend, at about the time of the offences. The school friend's recollection was hazy - but she did recollect the complainant telling her of sexual activity by the appellant. The complainant had also kept a diary at about the time of the offences in which she recorded incidents between the appellant and herself. The complainant's mother found the diary in about February 1978, and read it, as did the complainant's father. The mother gave evidence that in one entry contained the words "Reg has been fucking me". The father gave evidence that he had read a diary entry that said "Reg made her hold his penis". 22 The complainant's mother gave the diary to the pastor of the church to which the family belonged, shortly after she found it. Both the pastor and the pastor's wife gave evidence that this was so. There was, therefore, no doubt that the diary existed. Whilst the entries in the diary do not fall into the strict category of complaint, they were nonetheless a contemporaneous record which was consistent with the assaults occurring. No complaint was made, either at trial or on appeal, that the evidence as to the existence of the diary or that its entries were wrongly admitted. 23 There are other factors in this case which are important and which, in my opinion, must have had significance to the jury in assessing the credibility of the appellant and the complainant. The complainant, for example, freely admitted that she had been infatuated with the appellant. There was photographic evidence of affectionate familiarity between the appellant and the complainant at about the time of the alleged offences. There was evidence that the appellant said to police, when first questioned, "I hope she's got her dates right, we went around Australia in 1977". 24 In my opinion, this is not a case which is directly governed by the principle in Jones. It follows that I am of the opinion that the verdicts were not inconsistent in the sense that the guilty verdicts were unsafe or unsatisfactory. 25 I would dismiss the appeal.

IN THE COURT OF CRIMINAL APPEAL 60370/98

BEAZLEY JA SIMPSON J BELL J

26 SIMPSON J : On 18 May 1998 in the District Court at Lismore the appellant pleaded not guilty to an indictment containing five counts of indecent assault on a female under the age of sixteen. On 22 May, following a trial before Judge Ducker, the jury returned verdicts of guilty on the first, second and fifth charges and a verdict of not guilty on the fourth. The jury was unable to reach a unanimous verdict on the third count. The appellant appeals the convictions. Two grounds of appeal were advanced on his behalf. The first concerns the directions given by the trial judge relating to the evidence of character that he had adduced. The second was framed in terms of what used to be called "the unsafe and unsatisfactory ground", but is now more accurately pleaded as a miscarriage of justice: Fleming v R [1998] HCA 68; (1999) 73 ALJR 1; R v Giam [1999] NSWCCA 53. The essence of this ground of appeal is that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of the three charges on which he was convicted. 27 All offences were alleged to have been committed between 1 December 1977 and 30 April 1978 when the complainant was thirteen years of age and living with her parents and some of her six siblings in a northern NSW country town. The appellant was the husband of her oldest sister Diane. He was then twenty-nine years of age. At the end of 1977, having returned from a long trip, the appellant, his wife and their three young children were temporarily living in a caravan park near the complainant's home. 28 The complainant gave evidence of five distinct incidents which formed the basis of the charges. What follows is taken from her account. The first incident occurred, she said, in the caravan occupied by the appellant and his wife and children. While the complainant was visiting them the appellant pressed her against double bunks at one end of the caravan, kissed her, and pressed the whole of his body against her, fondled her breasts, and rubbed his hands over her vaginal area and buttocks, under her dress, but outside her underpants. His penis was erect. The incident lasted a few minutes. The appellant told the complainant that what had happened was "OK" and was normal, but that it was their secret and she should not tell anybody about it. This incident was the subject of the first count in the indictment, of which the appellant was convicted. 29 The complainant said that thereafter, whenever she encountered the appellant, there was always some form of physical and sexual contact between them. 30 The second incident of which the complainant gave evidence occurred, she said, in the bathroom of her parents' home. The appellant pressed her against a wall, kissed her and rubbed and fondled her body through her clothing. He was sexually aroused. This was the subject of the second count in the indictment, of which the appellant was also convicted. 31 The third incident the complainant described was said to have occurred a few weeks after Christmas when some members of the extended family, including the appellant and his wife, were on a mushrooming expedition. The group split into smaller groups or pairs, and the complainant found herself with the appellant. He pushed her against a pine tree and began kissing and fondling her breasts and body outside her clothing. He then told the complainant to lift her dress, while he knelt, pulled down her underpants, and, with his hands, penetrated her vagina, kissing and licking her vagina. 32 In order to return to the family group it was necessary to climb through a barbed wire fence. According to the complainant's account, the appellant held the barbed wire apart to enable her to climb through, and as he did so, he called out, warning the complainant not to catch her nightie on the wire. 33 This alleged incident gave rise to the third count in the indictment on which the jury was unable to reach a verdict. 34 The fourth count in the indictment was based upon an incident described by the complainant as having occurred at a nearby town. She could not be specific about the date, but said it was after the appellant and his wife had moved into a house and were contemplating purchasing a house on a larger acreage. The appellant with his wife and family, and the complainant and her younger sister went to look at the property. The complainant described a partly renovated house on the property in which she found herself with the appellant. He kissed her, fondled her breasts and rubbed her buttocks. This activity ceased when other members of the family approached. The complainant said that, during the trip home, she sat in the back seat of the car directly behind the appellant who was driving and from behind, through the gap between the driver's seat and the door, rubbed her hands up and down his side. The appellant was acquitted on this charge. 35 The final count related to an incident alleged to have occurred on an occasion when the complainant and (probably) her younger sister stayed overnight during a weekend with the appellant and his wife. The appellant's children had gone to bed, and the complainant, the appellant and his wife were watching television. The appellant made tea and toast for all three, which they consumed in the bedroom occupied by the appellant and his wife. The appellant's wife went to sleep, and the appellant took the complainant by the hand and led her out to the back of the house, sat on a stool, pulled the complainant in front of him, exposed his penis which was erect, moved her hands onto his penis and caused her to rub it. He asked her what she thought of it. He kissed her, pulled down her underpants, and pulled her towards him and pushed his still erect penis into her vagina. While this was happening he was telling the complainant to stand closer to him and he was shaking. Eventually the complainant pulled away from him. On this count the appellant was convicted. 36 The complainant also described another incident at her parents' home on Christmas Day 1977 when a family gathering was in progress. A photograph taken on the day depicts the appellant standing behind the complainant. She said that his arms were around her waist just under her breasts. This is not the subject of any charge, but was relied upon by the prosecution as evidence of the appellant's behaviour towards the complainant. 37 The complainant also gave evidence of another incident she said occurred in the appellant's family home. She said that, in the third bedroom, the appellant fondled, touched and kissed her, then told her to remain in the room for a few minutes after he left. The complainant claimed to have little recollection of the specific details except to recall that, when she left the room, her mother wanted to know what had happened in the room, and appeared angry. 38 This incident also was not the subject of any charge but was, presumably, led as evidence of the appellant's feelings for the complainant. 39 The complainant was generally a willing participant in the sexual activity. She said that she had felt special as a result of the appellant's attentions, and that he had chosen her and nobody else. It made her feel important. She said that although at times she was concerned that their activities might be discovered, the appellant assured her that what they were doing was normal, it was a game, that everybody did it, but that the game ended if the secret were disclosed. He told her that sexual education of younger siblings was part of the function or duty of a brother-in- law. In cross-examination the complainant agreed that she had been infatuated with the appellant. 40 The complainant gave evidence that, during the Christmas holidays of 1977 (the transcript reads 1997, but it is obvious that this was either a slip of the tongue or a transcription error), she had kept a diary. In it she recorded the incidents between herself and the appellant. She called the diary "Brother-in-laws have sex too". In February 1978 her mother found and read the diary and gave it to the pastor of the local church to which the family belonged. The existence of the diary was confirmed by the complainant's mother, her father, the pastor to whom it had been given, and his wife. The diary itself has been lost and was not in evidence and not all descriptions of it were consistent with one another. However, the complainant's mother said that, in one entry the words "Reg has been fucking me" appeared and her father said that, in another entry, the complainant had asserted that the appellant had been making her hold his penis. 41 There was some, but limited, evidence of complaint. The complainant said that she had, on more than one occasion, told a school friend "what happened between Reg and I". The friend gave evidence in the Crown case and said that the complainant had told her "that he took her down to the bush or the park or somewhere like that and did something to her." She was unable to be more specific. 42 So far as the evidence goes, this was the only complaint until 1996 when the complainant made a statement to police. At no time did she tell her mother or any other family member of what she said was happening. 43 The appellant gave evidence. He denied all allegations. Given the lapse of twenty-one years since the time the incidents were alleged to have occurred, it is hardly to be wondered that, in many respects, he confined himself to denying what the complainant had said. However, there were some specific matters to which he did direct attention. 44 One of these matters concerned the fourth incident alleged (which the complainant said took place when members of the family were inspecting the property the appellant and his wife were considering purchasing). The appellant said that the persons present were himself and his wife and children, the complainant and her parents, and her younger sister. He said the property was a block of land with no building of any sort on it. It will be remembered that the complainant's account of this incident was that it occurred in a partly renovated house on the property. 45 The complainant was cross-examined extensively about this alleged incident, and particularly about the house she described. She gave a detailed description of timber, loose floorboards and wall frames. Indeed, while under cross-examination, she drew a sketch plan of the building which became Ex 2. She was directly confronted with the proposition that the property inspected had no building on it, but was insistent that a partly renovated house had been on the land. 46 What the appellant said was supported by a witness, Robin Muldrock, with whom the appellant had worked as a building contractor. Mr Muldrock himself had contemplated purchasing the block of land adjacent to that in which the appellant was interested, and had inspected the blocks with the appellant. He said that neither block had any building on it at that time. 47 It is significant that it was this charge that resulted in an acquittal. It must be assumed that the jury doubted the accuracy of the complainant's account, having regard to the positive evidence that that incident could not have occurred as she described. 48 The other count to which particular attention must be turned is the third. This is the count on which the jury failed to agree. It was founded on the incident the complainant alleged occurred on the mushrooming expedition. Her description had a notable feature. That was her account of being helped through the barbed wire fence by the appellant, who, according to her, warned her to be careful not to tear her nightie. Of course, she was not wearing night clothes at the time. The complainant said that the appellant's obvious mistake embarrassed her. It was suggested in cross-examination that this detail was an embellishment she had added in order to make her story more credible, but she rejected the proposition. 49 The appellant also relied on evidence given by another sister of the complainant. She spoke of an occurrence in 1989 when the complainant telephoned her. The complainant was "very distressed, she was crying, very upset". The complainant was, on the account given by her sister, quite incoherent. She said the complainant referred to the diary and the confrontation (eleven years earlier) with her mother after she had discovered and read the diary, and told her sister that she (the complainant) at that time had then denied to her mother that the diary contained a truthful account of the relationship between herself and the appellant, and that she had fabricated it. The complainant then told her sister that she did not know what to do, she did not want the appellant to be hurt and "it's all my fault" although what was meant by this never emerged. To my mind this evidence was capable of advancing neither the case for the Crown nor the case for the defence. There was no explanation of how or why the subject of the diary had come up in 1989 - twelve years after the time when the complainant alleges these events took place, and seven years before she made her complaint to police. 50 There was some evidence that the appellant was a person of good character. He had no prior convictions and was generally considered to be a trusted family member although there was nothing additional to assist the jury in this respect. No attempt was made to establish a positive case of good character. 51 The defence case was essentially that the complainant, who admitted to her childhood infatuation with the appellant, had fantasised the various incidents she described. 52 The complainant was asked, in her evidence in chief, why she went to the police in 1996. Her answer was long and complex. She said that could not hold the secret any longer and that were many reasons for her decision to come forward. This was followed with a somewhat confused explanation on the state of her life at the time, and in the years preceding the time, when she went to the police. She said, in effect, that she had not earlier disclosed the events because of her desire to maintain family harmony, especially with her sister, the appellant's wife, and her mother, with whom she had had a strained relationship ever since the discovery of the diary. In the same context she went on to say that she and her husband had separated in 1993, at a time when she had two young children and was pregnant with her third. The separation had been very stressful to her. In her church, which had been an important part of her life, but which did not condone separation and divorce, she had been made to feel an outcast, dirty and a sinner. She felt she no longer had any reason to remain silent. By 1996 one of her daughters was about seven years of age and closely resembled the complainant, she had another daughter, and she was worried about their safety.

Character 53 The first ground of appeal concerns the direction his Honour gave in relation to the evidence of character. The only evidence in that regard was given by the police officer who acknowledged, in cross-examination, that the appellant had no prior convictions. This occurred in the closing stages of the Crown case. When the question was raised through the police officer, there was no attempt to establish a positive case of good character: such evidence as there was was confined to the concession of the police officer and inferences to be drawn incidentally from what emerged through the prosecution witnesses as to the appellant's role and position in the complainant's extended family. His Honour immediately gave a direction to the jury in the following terms: "The law says that where a person's good character has been raised and it just has been by the asking of that question, that is a matter which the jury must take into account, together with the other evidence on the issue as to whether or not the accused committed the offences or any of them and you are to take it into account in two ways. Firstly, the law says that it is less likely that a person of good character will commit a criminal offence than somebody who is not of good character. Secondly the law says that a person who is of good character is more likely to be truthful than a person who is not. You might think that that's just plain common sense anyway, but it is particularly important that you should realise that good character if you find it established and here it does not appear to be disputed, must be taken into account on the issue as to whether or not the accused committed the crime. It is not something to be put to one side and only used as a sort of make weight after you've considered all of the other evidence. It is evidence along with the other evidence on the question of whether or not the accused is guilty of these offences. It is for you to weigh up how much weight, in other words how much importance that evidence should have, compared and contrasted with the other evidence in the case. That's entirely a matter of fact for you to decide, but you must consider it. What you do with it is up to you, provided that you do consider it in the ways in which I've told you it must be considered." 54 This direction is unexceptionable. His Honour returned to the subject in the summing-up. The direction he then gave should be set out in full. He said: "Before I come to that, however, I remind you of the evidence adduced on behalf of the accused that he has no criminal convictions. Evidence was also given, not at any great length, almost casually by one or two of the witnesses, more particularly Mr Muldrock, which shows that he was regarded, during this time by other members of the family, as a trusted family member. The evidence showed that he has not had recorded against him any matters of a criminal nature, and thus certainly nothing of this nature. If, after considering the evidence in relation to any particular count, but only if, you are satisfied beyond reasonable doubt that the accused did commit the act relied upon as constituting that charge, then you would be entitled to take the fact that he did that act into consideration in respect of his claim to good character as to any counts you had yet to decide. You would be entitled to consider whether or not he was a person of good character at the time concerned in respect of any other charge. You must however be very careful to use such evidence in the correct way. That evidence can only be used to rebut, (as we lawyers say) to disprove, the claim of good character made by the accused. Evidence of alleged 'bad' character can never be used against an accused person, and you must be absolutely scrupulous not to do so. If, after having used evidence of an earlier offence when weighing up the question as to whether or not he was a person of good character at the time when any subsequent offence was allegedly committed, you come to the view that he was not of good character, then you put the matter of character completely to one side. You cannot use any evidence suggesting that he may not be of good character in any other way. This is a rather complex way of explaining it, I am sorry. What it really means is this: if, but only if, you are quite satisfied that he dealt indecently with this girl on an earlier occasion, then when you come to look at the other charges you would be entitled to say 'well he cannot be treated as a person of good character'. What you cannot do is say 'if he committed that other offence he must have done this too'. You will remember that I told you that where good character has been established, it must be taken into account, along with the other evidence, on the question of whether or not the accused is guilty of the charge; and that it is used in the two ways which have been described. The law says that a person who is of good character is more likely to be truthful than one who is not, and is less likely to commit a criminal offence than one who is not. It does not say that he cannot be untruthful, and it does not say that he cannot commit a criminal offence. It merely says that it is less likely. It is a matter for you to weigh up the evidence as to character. If you find that he is a person of good character, then give his good character such weight as you feel appropriate. If you find that he is not a person of good character then you just leave the matter of character completely to one side and proceed to decide the particular charge on the basis of the remaining evidence concerning that charge." 55 No criticism is made of the final paragraph of this direction. 56 Two specific complaints were made about the character directions as a whole. The first is that, except for the final paragraph, they were confusing and apt to mislead the jury. The second argument was that the directions were legally erroneous, in particular in that they were not in accordance with what are now the classic character directions outlined in R v Murphy (1985) 4 NSWLR 42. 57 The essence of the decision in Murphy, in respect to character, is: "While the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to the credibility of an accused in his denial of the charge, and hence on the unlikelihood of his guilt". (p 54). 58 There was, in the directions given by Ducker DCJ, no departure from that principle, and both limbs of the Murphy direction were, more than once, clearly stated. 59 It was not otherwise argued that the directions were incorrect. 60 In the circumstances, I do not accept that the directions were confusing or misleading. Given the relative paucity of the evidence of character, there was little his Honour could have added that would have made the position clearer. Had a positive case concerning the appellant's character, either before or after the times when the offences were alleged to have been committed, been advanced, different directions might have been appropriate. But this court is not called upon to decide hypothetical questions. 61 This is not, therefore, an appropriate case to consider the correct direction in trials of multiple counts in which character is raised. 62 The second ground of appeal, that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, is more fundamental. The ground depends entirely upon the differential verdicts, the jury doubts thus demonstrated in relation to the complainant's credibility, and the decision of the High Court in R v Jones (1997) 191 CLR 439. 63 In Jones the High Court had before it a case in which the appellant had been indicted on three counts of sexual intercourse with a child. The jury convicted on the first and third and acquitted on the second. The majority in the High Court (Brennan CJ in a separate judgment, Gaudron, McHugh and Gummow JJ in a joint judgment) held, in effect, that the acquittal was fatal to the Crown case on the two charges which resulted in conviction because it was only explicable by doubts the jury must have held about the complainant's credibility. If they entertained doubts about her credibility on one count, they must have had equal doubts about her credibility on the other counts. 64 I can see no relevant distinction between Jones and the present case. It is relatively simple to perceive why the jury had doubts about the complainant's account on the two charges which did not result in conviction; on the fourth count, because of the compelling evidence that there was no house on the land where the complainant alleged the offence had taken place, giving rise, obviously, to a doubt that events had occurred as she described; and on the third count because of the rather strange statement the complainant attributed to the appellant when, as she alleged, he helped her through the fence and told her to be careful not to tear her nightie. All that can be drawn from these is that, where there was any positive material to contradict, or create a doubt about, the complainant's claims, the jury doubted her credibility. As in Jones, if they had a doubt about her credibility on the fourth count (and some, at least obviously had doubts about her credibility on the third as well) then, axiomatically, they must (or ought) to have doubted her credibility generally. 65 Counsel for the Crown relied upon an earlier decision of the High Court concerning inconsistent verdicts: R v McKenzie (1996) 190 CLR 348, and in particular a passage in the joint judgment of Gaudron, Gummow and Kirby JJ at p 367: "Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context of both criminal and civil trials, reluctance to accept the submission that verdicts are inconsistent in the relevant sense. But, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: '[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of the judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by jury. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.' We agree with these practical and sensible remarks." [internal references omitted] 66 The key to reconciling the two High Court judgments lies in the opening words of the second sentence in the passage from McKenzie extracted above. An appellate court will not interfere with a verdict of guilty if there is a proper way of reconciling the different verdicts. In Jones the only reasonable explanation for the differing verdicts was doubt about the complainant's credibility. That does not provide a proper way of reconciling the verdicts. 67 Counsel for the Crown also relied upon my own earlier judgment in R v Crisologo (1997) 99 A Crim R 178 at 182 (with which Hunt CJ at CL and B M James J agreed), in which I considered possible explanations for apparently irreconcilable different verdicts. Apart from doubts about the credibility of the complainant, the possible explanations to which I alluded were "merciful verdicts", and compromise among divided jurors, such that none of the verdicts could be seen as truly unanimous. Neither of these possible explanations is reasonably applicable to the present case. Either merciful or compromise verdicts could be expected to have resulted in a combination of acquittals and convictions. The count on which the jury was unable to agree puts an end to any real possibility that either of these explanations might be called in aid by the prosecution to save the convictions. 68 In my opinion, the decision in Jones must be applied. The verdicts of guilty cannot stand. 69 I would allow the appeal and quash the convictions. Verdict of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL 60370/98

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