Regina v JJN

Court of Criminal Appeal (NSW)|2003-12-19|Before: Tobias JA, Howie J, Shaw J, Wood CJ

Background facts 23 The appellant resided at the home of his sister and her family, including the complainant, during the period of time mentioned in the indictment, that is, between 1 August 1998 and 12 January 1999.

The evidence 24 The complainant was the primary witness for the Crown. She was fourteen at the time of the trial. She testified that, at the material times, there were six people residing at the family home in Emu Plains. They were: herself; her mother, Zsuzsa; her two brothers, Andrew and Matthew; her uncle, the appellant; a friend of her brother, Jericho; and a family friend named George Christou. She said that she slept with her mother in her mother's bedroom. Her uncle also slept in that room on a separate bed. 25 Approximately three to four weeks after her uncle came to live in the family home he started to do 'sexual things'. She said: The first time it happened it was in my mum's bedroom…I was lying in bed around midnight, I think I'm not quite sure, and [J] was very drunk and my mum had a few to drink as well, and I was just lying down trying to get [to] sleep. It was pitch black and I felt a hand rubbing up my leg. I'm like, "what's that" and my mum - …I tried to wake my mum up and I said to mum - because I saw [J] kneeling next to the - just in front of the bedside table, and I said mum, "Can you please take [J] to bed. He is awake. Can you please put him to bed". I didn't tell my mum exactly what he was doing and then after that, he just kept doing it, and all she said was, "[J], can you just go to bed". Whenever my mum spoke, he moved his hand and he, you know, took it out from under the blankets. And when she was quiet, he started putting his hand up my leg again, and I'm like, "Mum please, can you put him to bed". And then mum got up - I'm pretty sure she got up and she took him to bed. (T23-24) 26 The complainant said that this touching was 'inside the thigh' and 'just below [her] vagina'. It took approximately 20 minutes and then the complainant fell asleep. This event was not the subject of any count on the indictment. 27 She said that this touching would occur often after that night, including: …in my mum's bedroom, …down the river, happened in the playground at Regatta Park, at the park down at Lennox, or Duke Oval where the cricket fielders are. (T25) 28 After the first incident that occurred in her mother's bedroom on the subsequent night, or the one following that night, the complainant said: …he was masturbating me, he made me masturbate him. (T26) 29 The complainant indicated that this meant him touching her vagina, or her touching his penis. This occurred in the appellant's bed in her mother's bedroom. The appellant invited the complainant to sit on his bed. She was wearing boxer shorts and a t-shirt if it was at night, or pants or shorts if it was during the day. The appellant was wearing underpants and a t-shirt. She could not recall if it was day or night. She said that the appellant touched her vagina and her clitoris. This event was the first count on the indictment for which the appellant was found not guilty. 30 The complainant said that she did not report the incident because: I thought, I didn't, I didn't think, I thought it was one time, I didn't think it would go on. (T28) 31 The next incident the plaintiff could remember was at the Regatta Park, near her home. She said: He asked if, in the plastic bubble at the playground, he asked if he could do 69 with me I did not know what that was at the time. And also he tried to sexually penetrate me and, you know, he put his fingers inside my and all that. (T29) 32 She said that 'I masturbated him and he masturbated me' (T37). The appellant put his hands down the complainant's pants 'and he put his fingers in me now and again' (T37). She said that she 'did it to him first' (T38). He undid the zipper of his jeans to expose the penis and she masturbated him until he ejaculated. These incidents were the subject of the fourth and fifth counts on the indictment for which the appellant was found not guilty. 33 The complainant said that after the first few incidents, the appellant said to her that: If I tell anybody he'd kill me and the people that you love and all that. (T40) 34 The complainant said that a further incident occurred whilst she and the appellant were sitting on a park bench near the 'Freeway Bridge' near her home. She said: When we were sitting on the park bench, because it was like a public walkway or where you walk your dogs or something, a lot of people walk past and John got me to masturbate him…He got his penis out and he grabbed my hand and pulled me closer, so that if anybody comes, I'm close to him, so they can't see as I was masturbating him. Whenever somebody would come, I would strop so it didn't look obvious and then heaps of people came so he goes, "There's too many people coming, so let's move down to the bush". So as we went down there. I was masturbating him and then he ejaculated and then he grabbed my hands and he tried to - sexually penetrated me. (T43) 35 The 'bush' was scrub near the banks of the River. At that location, the complainant said: …he grabbed my hands and he put them on my head and held my hands together in a cross shape and with one hand and then pulled my pants down to the ground and - well, not to the ground, pulled them down to my ankles, and we were lying down. Then he tried to - sexually penetrated me…he grabbed his penis and he put it inside me…in my vagina. (T44-45) 36 She said that she knew he had done this because it hurt. She told him to stop and he said, 'No, just one minute'. The complainant said this took about 5 - 10 minutes. The events on the park bench and the river bank were the subject of counts two and three respectively. 37 The appellant and complainant then went to the Lennox Shopping Centre, and then, Dukes Oval, across the road from the shopping centre. They sat down on a bench that was 'very open' which meant that '[f]rom every angle someone could see you'. The complainant said: I just sat down next to him and he grabbed my hand and then I just started masturbating him and then we got on our bikes and then went home. (T47) 38 On another day, again under the Freeway Bridge, the complainant said: It's like a little fishing spot where people go fishing and we went down there and he masturbated me. He put his fingers or finger inside me, I'm not quite sure. And I masturbated him. (T47) 39 These two events were not the subject of any count on the indictment. 40 The complainant was then asked about the 'very last occasion'. The complainant was lying on the appellant's bed wearing shorts and a T-shirt. Her mother was not present. She said: There were people on the property but not exactly in the house. (T49) 41 The complainant said that the appellant put his fingers inside her vagina, rubbing her clitoris. The appellant was wearing underwear and an 'Ice Cold Bitters' T-shirt. During the incident, the complainant said, Mr Christou came into the room. The appellant put on shorts and went with the complainant downstairs until Mr Christou left, and then they both returned to the bedroom. Mr Christou appears to have returned to the bedroom and the complainant then left to be with her mother. These events were the subject of the seventh and eighth count on the indictment. 42 At some point later, the complainant told her mother about the events involving her uncle. The complainant and her mother then saw police and the complainant was investigated by a doctor at the Westmead Children's Hospital. Those medical examinations did not reveal any internal physical trauma to the complainant's vagina. 43 The complainant said that soon after she told her mother, the appellant rang her from hospital and asked her if she had 'told anyone' and she told the appellant 'no'. The complainant's mother took her to see her uncle in the hospital. He asked the complainant if she had 'told people' and she repeated that she had not. 44 In cross examination, the complainant agreed that she had thought the events that had occurred, did so after February, but on later conversation with her mother, assumed that it was more likely to be after August. She said: Q. You see, it was your memory, wasn't it, that all these things happened to you after your birthday [in February], is that right? A. It was my memory but I can't remember the date. (T78) 45 However, in her first statement to the police, the complainant had indicated that the assaults began after February. The complainant indicated that she did not have a good memory of these incidents because she had 'gotten on with [her] life'. She remembered only a 'few things' about these incidents. 46 In relation to the incident at the bench near the river, the complainant repeated that the appellant made her masturbate him. She said: He grabbed my hand and he pulled his penis out of his pants, put his T-shirt over it so to anybody walking past they couldn't see it, and then did the movement with his hand at the same time as with mine. (T87) 47 She said that he only pulled his T-shirt over her hand when people walked past and that he would let go of her hand and she would pull away from him. In cross examination she said that the appellant did not ejaculate at the bench near the river. They then moved 'metres' towards the riverbank. She then masturbated the appellant and he ejaculated. He then wiped the complainant's hand and himself with the complainant's T-shirt. Minutes later, the appellant held down the complainant's hands and attempted to penetrate her with his penis. He did this for approximately five minutes. 48 The complainant was asked whether she had mentioned Dukes Park in her statements to the police made in August 1999. She said: Q. Are you telling the jury now that you have a memory of having put in one of those two statements….Duke Park? A. I don't have a memory, but something happened there, so it had to be in one of the statements. (T97) 49 The complainant later conceded that she had not mentioned Dukes Park in her first statements to the police. When asked about her memory of Dukes Park, the complainant said: I remember bits of it…I remember us sitting at the park bench. I remembered what happened down the river…(T115) 50 The complainant also recalled that Duke Oval could also be known as Lennox Park or the 'Cricket field'. 51 Similarly, with regards to the incident in the plastic bubbles at the Regatta Park, the complainant agreed that she had not mentioned the bubbles in her first statements to the police made in August 1999: Q. And yet you didn't say anything about those that plastic bubble at all in either on the 9th August or 10th august 1999 did you? A. I didn't say plastic bubbles, I said Regatta Park. (T106) 52 The complainant later conceded that she had no real memory of that day but she could remember what had occurred in the bubbles. In her first statement to the police the complainant had said that she and the appellant had been sitting on the ground and that he had tried to penetrate her. She said: Q. That's the area of your second statement where you refer to Regatta Park, right? A. Yes. Q. You say nothing about plastic bubbles, correct? A. Yes. Q, You say that in fact you were sitting on the ground and that you were pushed to the ground, correct? A. Yes. Q. And you say that in fact your uncle put his penis between your legs, isn't that right? A. Yes. Q. You haven't told the jury that today have you? A. Because I didn't remember. Q. You haven't told the jury anything about his penis going between your legs at Regatta Park, have you today? A. I didn't remember. Q. As far as Regatta Park is concerned, you don't really have any memory of that incident at all today do you? A. I remember when he asked me in the bubbles…I remember when he asked me in the bubbles about wanting to do a sixty-niner. (T113) 53 In his closing address to the jury, counsel for the appellant at trial put to the jury that the complainant's version of the Regatta Park incident was inconsistent with what was said to police in her first statements. He also noted that police had taken two different sets of photographs of Regatta Park, the first on 24 September 1999 and the second on 20 March 2001. Only the second photos related to the plastic bubbles. He put it to the jury that the second photos were required because the complainant had told police that Dukes Oval was the 'only park'. 54 The complainant said that she could only remember going to Regatta Park the one time with the appellant. She could not remember him trying to penetrate her with his penis on that day. The complainant could remember that the appellant had wiped himself on her T-shirt during the Dukes Park incident, but could not remember what occurred in the Regatta Park. 55 In re-examination the complainant said: Q. Was there any reason for not saying to the police officer "In the yellow bubble" or rather "Regatta Park"? A. Because I used to call it Regatta Park. If you take the dog for a walk you don't say "To the yellow bubble", I say "I am going to take them to Regatta Park". (T154) 56 The complainant agreed that she had not mentioned the first incident in her mother's bed in either statement. It was also put to her that she had not mentioned that incident at either trial. The complainant could not remember 'anything' she said at the first trial of the appellant. It was put to her that there were some discrepancies in her account of that first incident in her mother's bedroom between the first trial (in which she said that the appellant invited her to his bed) and the relevant trial (in which she stated that he appeared next to her while she was in her mother's bed). 57 There was no evidence given in relation to count six, which was the basis for the trial judge to direct the jury to enter a verdict of acquittal on that count.

Summary 58 The appellant's grounds of appeal are interrelated. The inconsistency asserted is that the verdicts of acquittal cannot be reconciled with the verdicts of guilty. That would be an appropriate finding provided that the ground of 'unreasonableness' is made out with respect to the counts on which the appellant was convicted. That is, it would then be established that the verdicts of conviction are inconsistent with the verdicts of acquittal because a jury must have disbelieved or had doubts about the reliability of the recollection of the complainant and should not have convicted the appellant on any count. 59 The complainant's evidence was clear regarding some matters though it was, at other times, more uncertain and vague. That is, this was not a case in which the complainant's recollection and reliability was completely shaken. She was clear about certain incidents though unclear on others. 60 M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2003) 77 ALJR 139 provide authority for the proposition that a court of criminal appeal must overturn a conviction if the court has a view of the evidence that means that a jury should not have convicted an appellant. The majority in M said (at 494): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 61 There was a clear difficulty in the recollection of the complainant regarding the incident that occurred in her mother's bed (otherwise described as the 'first incident'). Aspects of that event were detailed in her evidence at trial that had never arisen in either of the two previous trials or in her statements to police. 62 There was, however, a clear recollection of what occurred at Dukes Park even though the appellant asserts that aspects of this incident were not mentioned in her statements to police. Counsel for the appellant at trial put to the jury two issues regarding this incident: (a) the mention of the incident starting on the bench at the oval, and the later incident of the appellant wiping himself on her T-shirt, had not been mentioned to police in the complainant's statements; and (b) the ' biological impossibility ' of a man post-ejaculation attempting penile penetration of a young girl. 63 The second submission was repeated in this Court. It was submitted that this would have been 'improbable'. The difficulty with this submission is that a jury of twelve people, properly directed by a trial judge, found it proved beyond reasonable doubt. Though the appellant asserts that it is unlikely that a person would sexually assault a young girl in an open park with people in the vicinity, again, a jury found this proved beyond reasonable doubt. Some weight must be given to that finding. In MFA v The Queen (2002) 193 ALR 184, Gleeson CJ, Hayne and Callinan JJ said (at [34]): The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that the complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.

64 The jury were warned that they should look at the evidence of the complainant with some care before they relied upon her evidence to convict. The issues raised in this appeal as demonstrating the 'unreasonableness' of the jury convicting the appellant were put to the jury as reasons not to convict the appellant on the word of the complainant. Nevertheless, the jury did convict the appellant on the Dukes Oval counts, and the incidents in the mother's bedroom on 12 January 1999. The complainant's version of events of that 'last time' (that is, the incidents involving the appearance of Mr Christou in the mother's bedroom during the assault) was also mostly consistent throughout the three trials. 65 Counsel for the appellant conceded before this Court that the complainant's evidence was 'stronger' in relation to these counts and the Dukes Oval counts than those in which the appellant was acquitted. 66 However, it is troubling that while the complainant seemed to have a clear recollection of something occurring in the plastic bubbles at Regatta Park, the jury returned verdicts of not guilty to those counts (i.e. counts four and five). 67 This could indicate two things. Either the jury disbelieved the complainant, or had doubts about her reliability as a witness, or else the jury were not satisfied beyond reasonable doubt that the complainant's account of the incident at Regatta Park was correct, given the inconsistencies between what was said to the police, what was said in the first trial and what the complainant testified as having occurred in the relevant trial. 68 In M v The Queen (1994) 181 CLR 487 at 494 Mason CJ, Deane, Dawson, and Toohey JJ said: 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. 69 Despite the acquittal of the accused on some counts on the indictment, I am not satisfied that a reasonable jury should not have convicted the appellant on counts 2, 3, 7 and 8. I am satisfied that it was reasonably open to the jury to convict the appellant on those counts. 70 However, after the Court reserved judgment in this appeal, the Court notified the parties that it wished to have submissions upon two passages in the summing up concerned with the manner in which the jury should approach the evidence of the complainant. 71 After giving directions generally on the manner in which the jury were to consider the evidence of witnesses and the fact that the appellant did not give evidence in the trial, his Honour turned to consider the evidence of the complainant and said (my underlining):

In this case, a significant part of the evidence as to the actual offences themselves rests on the evidence of the complainant [ ]. The offences are denied by [the appellant]. You should therefore look at the evidence of the complainant with great care before coming to the conclusion as to what in fact occurred based on the evidence alone. This is a direction of law that I am required to give in cases like this, and is not an indication of any expression of how I see the evidence in any way whatsoever. I am required to give this direction of law. I am not expressing any opinion one way or the other on the evidence. But the complainant's reliability and credibility are matters for you, the jury to decide, looking at the whole circumstances of the case. Quite often in situations like this, it is not so much a question of whether someone is being truthful or honest, but more importantly, are they reliable as witnesses. Can we completely trust everything that they say as being correct, as a matter of fact, because I must say that generally speaking, it is very hard to determine whether someone is actually telling lies, and most people who come to court, or a large majority of people come to court to give evidence as witnesses are not lying. But whether they are reliable, whether they are credible, is another question .

It is a matter of commonsense, if one person gives a version of events that is denied by another, you, as the jury must be most careful, when examining that evidence, before being able to say that you are satisfied that what is alleged as a matter of fact by the witness, [the complainant], is in fact what happened. You have heard arguments addressed to you by [defence counsel] as to why you should not come to that conclusion. I will come to some of those in a moment. 72 At the end of the summing up and notwithstanding that his Honour had given a very full Longman warning, both parties asked his Honour to give a warning under s 165 about the age of the complainant at the time of the alleged offences. His Honour complied with the request and gave the jury a lengthy caution as to the possibility that the complainant's evidence might be unreliable by reason of her age at the time of the allegations, 10 years, and the delay between the alleged events giving rise to the charges and the giving of her evidence before the jury. During the course of this warning his Honour said (my underlining):

You have heard one reason why the evidence might be considered to be unreliable is the very, having regard to the very nature of how a number of these events have been changed in particular from time to time, from the time she made a statement to the time she gave evidence in one trial, the time she is giving evidence now. That is not saying that the complainant is being dishonest, but the question is, is her evidence reliable or is it unreliable, and the warning I give you is that because of all those things, it is evidence that you would have to treat with a great deal of caution before you could come to a conclusion beyond reasonable doubt that the accused has committed these offences. This was the last thing said by the trial judge to the jury before they retired to consider their verdicts. 73 After attention was drawn to these passages, the parties filed further written submissions. The appellant sought leave to add a further Ground of Appeal contending that his Honour erred in directing the jury that they had to be satisfied as to the reliability of the complainant rather than her truthfulness. The Crown submitted that leave should be refused, as there was no error in the passages quoted above. 74 It is clear that the principal issue before the jury was the credibility of the complainant. It could hardly have been otherwise. It was not the appellant's case that the complainant was truthful as to her allegations of sexual abuse by him upon her, but was simply mistaken as to her account of the particular incidents that gave rise to the charges before the court. Although the appellant did not give evidence, he had participated in an interview with investigating police during which he had denied any sexual contact with the complainant. Although the Crown has submitted that there was no 'full-blooded attack' on the complainant's credibility during the trial, there is no doubt that defence counsel was asserting that she was untruthful and using issues such as the inconsistency in her accounts and her unreliability generally as indicators that she was telling lies when making her allegations against the appellant. 75 The Crown has submitted that the jury would have been aware from the summing up as a whole that there were two issues before them: (i) was the complainant honest? (ii) if so, was she reliable? It was further submitted that this was the correct approach and the one that the jury should be assumed to have taken. 76 It is clear from those parts of the summing up where the trial judge gave what might be seen as formal directions about the onus and standard of proof, that the jury would have understood that, before they could have convicted the appellant of any offence, they had to be satisfied of both the honesty and accuracy of the complainant. But the vice in what his Honour said to the jury, in the first passage quoted above, was that they might have taken him to be indicating that the real issue for them to determine was the complainant's particular reliability in relation to the incidents giving rise to the charges rather than her general honesty in respect of her allegations of sexual abuse against the appellant. 77 There were three reasons given by his Honour in that passage to explain why the jury should concentrate on the reliability of the complainant rather than her honesty. These reasons did not relate to the particular complainant or her evidence but were in general terms. But that generality did not diminish what importance the jury might have given to his Honour's comments on the approach they should take to an assessment of the complainant's evidence. 78 The first reason given was that 'in situations like this it is not so much a question of whether someone is being truthful or honest, but more importantly, are they reliable as witnesses'. In the context of giving a Murray warning, the situation to which his Honour was referring was that the evidence in the Crown case rested to a significant part on the evidence of a complainant. But the fundamental issue in such a situation is whether the jury are satisfied beyond reasonable doubt that the complainant was truthful and accurate in her account of the appellant's sexual relationship with her. If the jury were not so satisfied, that is if they had a doubt about her honesty in that regard, the question of her reliability about particular incidents did not arise. In any event, unreliability can reach such a point that it might raise a doubt about the honesty of the witness. Whether the complainant was being honest was very much a question in this case and the trial judge should have said nothing that would suggest otherwise. The point to be brought home to the jury was that a finding beyond reasonable doubt that the complainant was truthful and accurate was not itself sufficient to prove each of the charges unless they were also satisfied beyond reasonable doubt that she was reliable in respect of all or any of them. 79 The next reason given by his Honour for the jury concentrating on reliability rather than truthfulness was that, generally speaking, 'it is very hard to determine whether someone is actually telling lies'. The jury might have taken this remark to suggest that, because it was difficult to determine whether any person, let alone the complainant, was an honest witness, they should pass over that issue and consider whether the person was reliable because this was an easier task to perform. But in truth, if his Honour were correct in his observation about the difficulty of the task in determining honesty, the appropriate advice to be given to the jury was not that they should simply ignore the issue. Rather his Honour should have caused the jury to understand that, despite the apparent difficulty in the task, they had to determine beyond reasonable doubt that the complainant was telling the truth before they could convict the appellant of any count on the indictment and, if they found the task too difficult, they had to acquit him. 80 The third reason is perhaps the most significant. His Honour informed the jury that 'most people who come to court, or a large majority of people who come to court to give evidence as witnesses are not lying'. The jury may well have accepted this statement as a reliable opinion arising from his Honour's experience as a judge and one that they could safely act upon. They could have taken it to mean that they could ignore the issue of the credibility of the witness because the statistical probability was that she was telling the truth in any event. Whatever might be the reliability of his Honour's observation about the general credibility of witnesses, there was no occasion for him to impart that information to the jury. The issue was whether the complainant as a particular witness was telling the truth, regardless of what might be said about witnesses in general. 81 It is significant that these statements were not simply comments made by the trial judge about the facts so that the jury would have appreciated that they could accept or reject them as they saw fit. They were given as guidance or advice to the jury as to how they might go about their task in determining whether to act upon the evidence of the complainant. They were said in the context of the jury being cautioned about looking at the evidence of the complainant 'with great care' and they followed directly after the jury had been told that his Honour had given the jury a direction of law as to the approach they should take to the evidence of the complainant. The statements carried with them the force of judicial experience. 82 The statement in the last quoted paragraph might not, if it had stood alone, been sufficient to have raised concern. But it emphasised to the jury once again that the issue was not the complainant's honesty but her reliability and it was said just before the jury retired. 83 No objection was raised at the trial to these passages and the Crown relies upon rule 4 of the Criminal Appeal Rules. But if objection had been taken, it is difficult to see what his Honour could have done to redress the situation. Nor was the point taken on appeal until the Court raised it. But in a case where the accused did not give evidence and the principal issue was whether the jury could be satisfied beyond reasonable doubt of the complainant's honesty and reliability in relation to her allegations, the passages had the effect of suggesting to the jury that they could find for the Crown on the issue of her credibility and simply decide the case on the reliability of her particular accounts of abuse. This was a serious misdirection and there has been a miscarriage of justice. 84 Leave should be granted to raise the new ground of appeal and to argue it. The ground has been made out. 85 The orders I propose are: (1) Appeal upheld; (2) Convictions and sentences be quashed; (3) Order that a new trial be held. *****

Last Modified: 12/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v JJN [2003] NSWCCA 402 HEARING DATE(S) : 03/10/03 JUDGMENT DATE : 19 December 2003

By direction 21 The appellant had pleaded not guilty to each charge and stood his trial before Judge Williams and a jury on 9 December 2002. This was the third trial for the appellant. The first trial was aborted after the jury had retired when one juror realised that he or she knew one of the witnesses. The second trial resulted in convictions on each count that were subsequently overturned by this Court: see R v N [2002] NSWCCA 281. 22 The grounds for appeal allege that the verdicts of guilty on counts 2, 3, 7 and 8 are inconsistent with the verdicts of not guilty on counts 1, 4, 5 and the direction in relation to count 6. It is also alleged that the verdicts of guilty were unreasonable and cannot be supported having regard to the whole of the evidence. There was a further ground of appeal raised after the hearing of the appeal. I will address the circumstances and outcome of that ground later in these reasons.

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