REGINA v. MRC [2004] NSWCCA 241

LOWER COURT District Court JURISDICTION : LOWER COURT DC 02/41/0196 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60419/03 DC 02/41/0196

HODGSON JA SHAW J SMART AJ

Tuesday 20 July 2004 REGINA V. MRC Judgment 1 HODGSON JA: On 25 March 2003, before his Honour Judge Knight, the appellant pleaded not guilty to three charges: (1) That he between 1 January 1983 and 18 November 1984 at Towamba in the State of New South Wales did assault SK and at the time of such assault did commit an act of indecency upon SK she being under the age of sixteen years. (2) That he between 1 January 1983 and 18 November 1984 at Towamba in the State of New South Wales did assault SK and at the time of such assault did commit an act of indecency upon SK she being under the age of sixteen years. (3) That he between 1 November 1984 and 19 November 1984 at Towamba in the State of New South Wales did assault SK thereby occasioning to her actual bodily harm. 2 On 3 April 2003, the jury returned a verdict of guilty on counts 1 and 3, and not guilty on count 2. 3 On 8 May 2003, the trial judge sentenced the appellant to imprisonment for a term of two years, but he suspended execution of this sentence conditionally on the appellant entering into a good behaviour bond for two years. 4 The appellant appeals from his conviction on count 1.

CIRCUMSTANCES 5 Before referring to the evidence for the Crown and the appellant, it is convenient to set out certain matters of background that are not the subject of substantial dispute. 6 The complainant was born on 8 March 1975. Her mother commenced to live with the appellant in 1980. Until January 1984, the complainant's mother had custody of the complainant and her brother T (born in 1976), with some access by their father. 7 The complainant's mother and the appellant had a child J born 8 August 1982, and another child W born 18 October 1984. 8 Between about August 1983 and about December 1983, the appellant and the complainant's mother built a house on a property at Log Farm Road, Towamba, which became known as "R & R Ranch". The family moved there in about mid-December 1983. 9 In January 1984, the complainant and T went for an access visit to their father, after which they were not returned to their mother. 10 In March 1984, interim orders were made by the Family Court, with the result that the complainant and T remained with their father, but spent at least some weekends and Wednesdays with their mother and the appellant at R & R Ranch. This continued until July 1984, when there was a court hearing, which returned the complainant and T to the custody of their mother. From July 1984, the complainant and T again were living at R & R Ranch. 11 In November 1984 (the month after the birth of the complainant's half-brother W), there was an incident when the appellant struck the complainant with a whip. This was the subject of count 3. The complainant complained about this incident to her father and to a GP, Dr.A; and she was interviewed about it by a DOCS officer on 23 November 1984. The appellant admitted this incident, and defended the charge substantially on the basis that it was lawful chastisement. 12 The complainant left the R & R Ranch in 1987. She did not complain to anyone about the indecent assaults until the year 2000. 13 The complainant gave the following evidence concerning the two alleged indecent assaults. 14 The first count related to an incident in the lounge room at R & R Ranch, when only the complainant, the appellant and J were in the house. According to the complainant, J was not quite one year old at the time. The complainant was wearing shorts and a t-shirt. 15 According to the complainant, the appellant said to her "Come here", and that he had something to show her again. He exposed his penis, grabbed her hand, and made her rub his penis until it achieved an erect state. He placed his hand on her shorts on the area of her vagina, and said "One day this will go there". 16 The complainant said that she did not tell her mother about this because, she said, her mother had not believed her on a previous occasion. The complainant said that, some months earlier, the appellant had shown her his penis; the complainant told her mother about this; and her mother then asked the appellant about it and the appellant denied the allegations. The complainant's mother apparently accepted this denial. This incident was apparently what was referred to by the word "again" used at the time of the lounge room incident. 17 Count 2 concerned an incident near what was said to be a water pump on the R & R Ranch property. According to the complainant, a couple of months after the lounge room incident, the appellant took her to an area near a water pump. He unzipped his pants, removed his penis and made her rub her hand up and down the penis. 18 The complainant said that she told no-one about either incident, because she was scared that the appellant would hurt her or someone in the family. 19 The appellant denied both incidents and also the alleged exposure of his penis on the earlier occasion. The complainant's mother denied that the complainant had ever complained to her about the appellant exposing his penis. The complainant's mother also said that there was never any occasion when she went anywhere and left J and the complainant at home with the appellant. 20 Both the appellant and the complainant's mother gave evidence that the appellant never went to the pump on the property with the complainant alone; and there was also evidence to the effect that the pump on the property was quite different from that described by the complainant, and that it could be seen from the house, contrary to the complainant's evidence. 21 After the jury had retired to consider its verdict, it raised the following question: In respect of charges (1) and (2) the wording of the indictment is that the offences were committed at Towamba. In evidence the Crown asserted the offences took place at very specific places. To arrive at a verdict, do the jury have to accept that the offences happened at the specific locations stated in evidence or may the jury consider the term Towamba as used in the indictment? 22 The trial judge answered the question, by saying inter alia: In order the convict the accused of the first one you would need to be satisfied that the offence occurred at that place, that is in the lounge room on the house on the R & R Ranch at Log Farm Road, Towamba. In relation to the second offence you would need to be satisfied that the offence occurred on the property, the R & R Ranch at Log Farm Road, Towamba outside, not in the house, and near where there was a pump on that property.

GROUND OF APPEAL 23 The appellant relies on a single ground: The verdict of guilty on the first count is unreasonable and cannot be reconciled with the verdict of not guilty on the second count.

SUBMISSIONS 24 Mr. Cook for the appellant submitted that the Crown case on counts 1 and 2 depended entirely on the evidence of the complainant, and that this evidence was so weak and unreliable that it was unreasonable for the jury to have convicted on either count. 25 He submitted further that the differing verdicts between the two counts could not reasonably be explained in terms of any distinction in the quality of the evidence, there being the same defects in each case. 26 An important weakness in relation to both counts, he submitted, concerned the complainant's evidence as to the time when they occurred. In a statement to the police, it was implicit that the episodes occurred in 1985 or 1986. However, in her evidence at the trial, she said they occurred between April and August 1983, before J's first birthday (8 August 1983), when she was in third class at school (this being 1983) and long before W was born (October 1984). However, there was very strong evidence that the family had not moved to the R & R Ranch until about mid-December 1983, that the house was not completed even then, and that the complainant was not at the house between a time in January 1984, when she went to her father for an access visit, and March 1984, when she began to spend weekends and Wednesdays at the house. Although it was possible to reconcile these matters by supposing that the incidents occurred in the period following March 1984, there was a very big difference between J being twelve months or less and being nearly two years old, and by 1984 the complainant would no longer have been in third class at school. Also, the events would not readily then have been described as occurring "long before" W's birth in October 1984. 27 Mr. Cook submitted that, another significant defect in the complainant's evidence was that, despite numerous opportunities, the complainant did not disclose any alleged indecent conduct by the appellant for a period of over seventeen years. She told her father about the whipping incident, and also told a GP, this being at a time when her parents were engaged in Family Law proceedings. Similarly, there was no reference to these matters when the complainant was interviewed by a social worker in 1984. 28 He submitted that there was powerful evidence that the complainant's evidence concerning the circumstances of the pump incident could not have been correct. The complainant gave evidence of the event occurring near an old rusty pump, of the order of about one metre high, near a creek, at a point where there was no visibility from the house. There was that kind of pump on her father's property, but there was strong evidence that the only pump on the R & R Ranch was a new pump, no more than about 40 centimetres high, near a dam and not near a creek, and fully visible from the house. In so far as it was suggested that this may discredit the complainant's evidence only as to the location of the assault, and not its occurrence, Mr. Cook pointed out that it was integral to the complainant's account of the assault that it occurred on the occasion of a trip to the pump. 29 In relation to the first count, he submitted, although there was no opportunity to falsify the complainant's description of the lounge room, it was significant that, in the only respect in which the complainant's account could be challenged by anyone apart from the appellant, the complainant's mother denied that the complainant had told her about a previous incident of exposure, which was presumably what was referred to by the word "again" mentioned in the complainant's account of the lounge room incident. 30 Mr. Cook submitted that this was not a case in which the evidence supporting the first count was materially different from that supporting the second count; and the evidence displayed discrepancies and inadequacies such as would cause this court to conclude that there is a significant possibility that the appellant has been wrongly convicted: see MFA v. The Queen (2002) 77 ALJR 139. 31 The Crown submitted that this was a jury decision, in a case where the jury had seen and heard the evidence of the complainant, the appellant, and the complainant's mother. The primary judge had given appropriate directions in relation to all the difficulties in the Crown case adverted to by the appellant's Counsel. The jury had nevertheless been satisfied beyond reasonable doubt of the guilt of the appellant on the first count. 32 The Crown submitted that the complainant gave a reasonable explanation for not complaining about the indecent assaults; and the complaint concerning the whipping incident was not made at the initiative of the complainant, but rather as a result of bruising observed by her father on a period of access. 33 As regards the time discrepancies, the Crown submitted that the incidents could have occurred in March 1984 and following months, and that errors as to the precise class in primary school in which the complainant then was, the precise age of J, and the precise time before the birth of W, could reasonably have been considered by the jury not to be errors substantially damaging to the credibility and reliability of the complainant's evidence. The time discrepancies were fairly put to the jury by the trial judge. 34 As regards alleged inconsistency, the Crown submitted that the question was whether there was a proper way by which the appellate court could reconcile the verdicts, consistently with the jury performing its functions as required: MacKenzie v. The Queen (1996) 190 CLR 348 at 366-7, Jones v. The Queen (1997) 191 CLR 439 at 453-5, R v. Markuleski (2001) 125 A Crim R 1 at [6], [8] and [102]. Particularly in the light of the jury's question, the verdict of not guilty on the second count might merely have reflected the jury's view that they were not satisfied beyond reasonable doubt that there was an indecent assault occurring near the pump on the R & R Ranch: see MFA at [34]; R v. Kirkman (1987) 44 SASR 591 at 593; R v. Nek NSWCCA 392 at [28] and [32]. The jury was properly directed as to the regard they might have in relation to doubts they had on the evidence in relation to one count, and how that could be applied in relation to their consideration of the other count.

DECISION 35 I accept that there are matters which could have caused the jury to have a reasonable doubt about the reliability of the complainant's evidence, in addition to the appellant's sworn denials: in particular, the failure to complain for over seventeen years; inconsistencies and inaccuracies in the timing of the events; probable errors in the description of the physical circumstances of count 2; contradiction by the complainant's mother concerning a complaint about an earlier incident of exposure; and non-acceptance of the complainant's evidence on count 2. 36 However, the complainant's explanation of her failure to complain was credible, and appropriate directions were given concerning it. 37 As regards the timing issues, it seems probable that the incidents, if they occurred, occurred in the period commencing March 1984 when the complainant returned to the R & R Ranch, at first for access weekends and Wednesdays and subsequently permanently. This does involve the evidence being mistaken as to the age of J at the time, and the precise class in primary school that the complainant was then in, but these errors are not in my opinion such as to make the complainant's evidence not believable. Again, appropriate directions were given by the primary judge. 38 As regards the probable errors concerning the description of the circumstances of the pump incident, these were not errors necessarily suggesting fabrication, or even unreliability of the complainant's evidence. They could be regarded as understandable errors concerning the precise circumstances of an incident, which in the view of the jury gave rise to a reasonable doubt whether there was an incident that fell appropriately within the terms of the charge. That this could well have been the jury's view is suggested by the terms of the question that they asked of the trial judge. 39 The jury's verdict on the second count does not show that jury accepted all of the evidence of the complainant's mother. On the contrary, the jury clearly rejected that evidence in relation to the question of whether the complainant was ever left in the house together with the appellant and J, as demonstrated by their finding of guilty on count 1. 40 For those reasons, in my opinion the appellant has not shown that there was unreasonableness or inconsistency such as to justify the setting aside of the jury verdict. As put by the Crown, the difficulties were fairly before the jury, the jury had the opportunity of seeing and hearing the evidence of the principal witnesses, and the decision was one which was open to the jury to make. 41 For those reasons, in my opinion the appeal should be dismissed. 42 SHAW J: I agree with the reasons of Hodgson JA. 43 SMART AJ: I agree with Hodgson JA. **********

Last Modified: 08/06/2004 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.