REGINA v. SAW [2001] NSWCCA 222

COUNSEL : Crown: L.M.B. Lamprati App: S.J. Odgers, SC. SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - appeal against conviction - seven counts - appellant acquitted on all but one - complainant's evidence on various of the counts on which acquittals occurred contradicted by independent evidence - finding of guilt on count where complainant and appellant only gave evidence - appellant denied complainant's account - effect of evidence relevant to complainant's evidence on other counts - conviction unreasonable. LEGISLATION CITED : Crimes Act 1900 Baskerville ([1916] 2 KB 698 CASES CITED: Jones (1997) 191 CLR 439 M (1994) 181 CLR 487 DECISION : Appeal allowed; acquittal entered.

No. 60351 of 2000 CORAM: DOWD, J. GREG JAMES, J. NEWMAN, AJ.

1 DOWD, J: The court is in a position to give judgment in this matter. Greg James, J. will give the first judgment. 2 GREG JAMES, J: The appellant appeals against his conviction and sentence following a trial in the District Court of New South Wales on one count, that he had sexual intercourse with AME, who was then aged 15 years and under his authority, an offence under s.66C(2) of the Crimes Act 1900 punishable by imprisonment for 10 years. 3 He was sentenced to imprisonment for three years with a non-parole period of two years and three months. At trial he had been charged with seven counts of sexual offences against the same complainant. He had been acquitted of five counts by the verdicts of the jury. 4 On count six, at the conclusion of the prosecution case, an acquittal was directed. That count together with counts five and seven involved asserted illegal sexual interference with that same person at the same place and during the same range of dates. All three of those counts are said to have related to the period between 27 September 1996 and 3 October 1996. 5 The events to which counts one and two were said to relate allegedly occurred on the night of a dinner at the complainant's school at a time at which she was said to be 12 years old. She testified that her father had, during a trip home heading north, digitally penetrated her with his finger whilst continuing to drive. She also asserted an act of cunnilingus during the journey when the car had stopped. 6 There was some independent evidence at the trial tending to contradict her assertion that her father had been with her on the journey and going to the place at which she asserted they had been going that night. Her father asserted from his recollection that he had driven her back to school and then had driven to a different place where he stayed with his girlfriend. 7 Counts three and four were asserted to have occurred also at the same place as counts five, six and seven but at a different time. It was asserted by the complainant that while she was sleeping on a sofa bed in the lounge room the appellant digitally penetrated her and engaged in cunnilingus; that she was seen to be with the appellant on the sofa bed by her grandfather and that at that time the appellant covered them up with the sheet as though he were sleeping; she referred to some short conversation occurring with the grandfather. 8 There was in that evidence some degree of confusion which the Crown has submitted today showed that she might have been confusing that occasion with the occasions to which counts five, six and seven referred. 9 In addition there was evidence, some of which was elicited in re-examination, of other events to which she referred other than those specifically charged in the indictment. 10 Counts five, six and seven were said to have involved the appellant and the complainant in a double bed watching a James Bond movie. There was some evidence that a James Bond movie had been screened at a time during this range of dates to which the charge of criminal activity was said to relate. 11 However, the complainant apparently made some diary reference to the Bond movie but ascribed it to a different day other than that on which the evidence disclosed it was screened. 12 She asserted that after the movie she woke to discover the appellant engaged in penile vaginal penetration and that he made reference to there being "a gate and it had to be broken". He did not manage fully to penetrate her. She asserted that he then later engaged in full anal penetration, that matter gave rise to count seven, which was amended at trial to reflect the complainant's evidence of full penetration rather than an attempted penetration, as had been reflected in the original form of the count. 13 In relation to count six it had been asserted that he had taken her into the bathroom and made her masturbate him. She, however, gave no evidence in relation to count six at the trial thus leading to the acquittal by direction to which I have already referred. 14 As to all of the charges laid in the indictment, the appellant denied the commission of any of the sexual behaviour alleged and further denied any involvement in the additional sexual activity that was also led in evidence. 15 It can be seen from that short recital of the subject matter of the trial that the evidence of the complainant was entirely crucial to all counts. 16 There was no early complaint in any specific terms tending to show a sound basis of credibility in respect of any of the particular offences charged. There was no corroboration in respect of count five in the sense referred to in the old law as referred to by the court in Regina v. Baskerville [1916] 2 KB 698. 17 There was, the Crown asserts, some supporting material. That material included the reference to the James Bond movie being supported by the evidence that such a move was shown and in addition it included medical evidence that the complainant, on examination, was seen to have what the Crown has here referred to as a damaged hymen. 18 There was evidence from Dr. Jean Edwards that upon her examination of the complainant approximately four months after the events alleged to support this group of counts, she observed healed partial transections of the hymen which went three-quarters of the way through it. Although she could not say when those transections occurred, she was of the opinion that the transections were caused by some form of penetration and that in her view, although that penetration could have been occasioned by fingers, it was more likely that those transections should be attributed to penetration by a penis. 19 Her evidence, however, in this latter regard proceeded on her acceptance of or the assumption of the truth of the history given by the complainant. In any event, that evidence, given the totality of the complainant's assertions, was not capable of being attributed to the particular events to which the complainant referred in count five, although it is plainly consistent with the account she gave. 20 Two grounds of appeal are asserted. The first ground of appeal asserts that the trial judge erred in failing to direct the jury regarding how they should proceed if not satisfied beyond reasonable doubt that the complainant was telling the truth in relation to one or more counts in the indictment. The second ground of appeal simply asserts that the guilty verdict on count five was unreasonable. 21 In relation to that second ground the basis on which it is said that the court should intervene is that asserted in the judgment of the majority in the High Court in Jones v. The Queen (1997) 191 CLR 439 dealing with the earlier decision of the High Court in M v. The Queen (1994) 181 CLR 487 and in particular as referred to in Jones (supra) at 450 to 452. 22 Applying the test in M (supra), the High Court in Jones (supra) in the judgments of Gaudron, McHugh and Gummow, JJ. referred to the passages in M (supra) at 493:- "In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 23 Also, the since often cited passage from M (supra) at 494:- "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the court is bound to act and to set aside a verdict based upon that evidence." 24 The court in Jones (supra) then turned to apply what had been said in M (supra) to the circumstance where there had been acquittals on some counts and convictions on others in the passage in Jones (supra) at 455. In the individual case they concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the counts of which the appellant had been convicted. 25 That examination was conducted in the context of ascertaining whether, there being evidence in the form of the complainant's evidence against the appellant's evidence, it could be said that the evidence of the complainant had sufficient credibility for the jury to convict, where, as here, the jury had acquitted where there was other evidence contrary to that of the complainant. Their Honour's remarked:- "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." 26 They concluded that such evidence affected the complainant's general credibility and thus credibility on all counts. Such a conclusion does not amount to a finding or opinion that a complainant lied. It does amount to a conclusion that the evidence of the complainant, on one count having been tested and found wanting as to a sufficiency to support beyond reasonable doubt a conviction, does not thereby remain sufficient on another count. 27 In that case, as in my view in this case, where there was evidence to the contrary in addition to the evidence of the accused denying the offence, the complainant's account was found wanting so far as to support beyond reasonable doubt a conclusion of the appellant's guilt. That inability to support a conclusion of guilty in those circumstances cannot be confined to counts on which there is other contrary evidence. 28 This is not a case which, in my view, calls for an over-sophisticated analysis or, on the other hand, a broad brush contention that the complainant lied. It is a case in which what we are concerned with is whether the jury's verdict is subject to the doubt the High Court referred to in M (supra) given the other evidence and the acquittals. 29 The complainant did not give evidence to support count six. The jury rejected the Crown's case on court seven. The Crown's case on count five could only have succeeded if the jury were satisfied beyond reasonable doubt of the credit of the complainant in relation to her accounts of what was said to have occurred during this very range of dates at this very same place. 30 When one has regard to the defence as having been a in-globo defence, that no such thing happened, I am left with a doubt on count five which is not explained for me by the evidence or the verdicts on the other counts, such as would enable me to conclude that the jury's advantage would lead to that doubt being dispelled. 31 I am of the view in those circumstances that in this case the appeal should succeed on ground two. It would follow that the appropriate order that should be made, were that ground to be upheld, that an acquittal should be entered rather than an order for a new trial. 32 In those circumstances I do not consider it necessary to say more about ground 1, except that directions were given, obviously to the intent of safe guarding the position of the accused, that were the jury of the view that the accused was guilty on one count, it should not allow that to influence them in their consideration of the other counts. No direction was given, although directions were given for separate consideration, as to the effect of the complainant's credibility were the jury to be of the view that they could not accept her credibility on some other of the counts. 33 I have had regard to that matter when reaching the view that I have taken in relation to count two. 34 I would propose that the appeal be allowed and an acquittal entered. 35 DOWD, J: I agree. 36 NEWMAN, AJ: I also agree. 37 DOWD, J: The orders of the court will be as proposed by Greg James, J. ********

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.