With regard to the second indictment, to a minimum term of two years imprisonment to commence on 30 May 2000 and to expire on 29 May 2002, with an additional term of one year to expire on 29 May 2003.
9 On 7 December 1999 the appellant appealed against each of the verdicts of guilty under the first indictment on the grounds that they were unsafe and unsatisfactory.
10 The appellant also alleged that "the plea of guilty entered was made under duress."
11 It was also alleged that "the sentences were too severe."
12 Amended grounds of defence were filed and the appeal was listed for hearing before this Court on 13 July 2000. Written submissions were filed on behalf of the appellant and the Crown. However, when it became clear that the conduct of counsel who appeared at the trial would be of issue in the trial, counsel withdrew and senior counsel was briefed to draft amended grounds of appeal. The hearing date was vacated and the matter re-listed for hearing on 3 October 2000. Senior counsel drafted some twenty three grounds of appeal.
13 When the matter came before the Court on 3 October 2000 all grounds of appeal were argued.
14 At the conclusion of the argument, however, the Court was of the firm opinion that the appellant was entitled to succeed, with regard to the first indictment, on the ground that the convictions on the first and fourth counts could not stand in the light of the acquittal on the fifth count, by reason of the principles enunciated by the High Court in Jones v The Queen (1997) 191 CLR 439.
15 Accordingly, the Court allowed the appeal and quashed the convictions on the first and fourth counts and directed verdicts of acquittal on each count.
16 With regard to the appeal against the conviction on the second indictment, the Court was also satisfied that the appeal should be allowed and the conviction quashed. The appellant was granted leave to withdraw his plea of guilty and the Court directed that there be a new trial.
17 The Court stated that it would deliver its reasons in due course and the following constitutes such reasons. They may be stated shortly.
18 In essence, the appellant's argument, based upon the Jones principle, was that implicit in the appellant's acquittal on the fifth count was a rejection of the complainant's account of events which were said to give rise to that count. The jury's rejection of the complainant's account on the fifth count, it was argued, necessarily diminished his overall credibility. Further, with regard to the first and fourth counts there was nothing in the complainant's evidence, or the surrounding circumstances, which provided any ground for supposing that his evidence was more reliable in relation to those counts than it was in relation to the fifth count.
19 Once the jury found that the evidence of the complainant lacked sufficient cogency to convict on the fifth count, the Crown case on the first and fourth counts wore a different complexion. For it meant that when the complainant's evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. Such an analysis relies, of course, upon views expressed by the majority of the High Court (Gaudron, McHugh and Gummow JJ) in Jones at 453-455.
20 Appeals in this Court in which the Jones principle was considered were collected in RAT [2000] NSWCCA 77, 24 March 2000.
21 Counsel for the appellant was able to elicit support for the appellant's argument on the Jones principle by reference to the fact that essentially the Crown case was confined to the evidence of the complainant, whose evidence was, in many respects, vague. In addition, there was considerable delay in the making of a complaint, and there was certain compelling objective evidence in the defence case of surrounding circumstances inconsistent with the evidence of the complainant.
22 Mr Dawe QC, who appeared before this Court for the Crown, (albeit not conceding that the appeal should be allowed), fairly conceded that there was no evidence to which he could point which gave any ground for supposing that the complainant's evidence in relation to the first and fourth counts was more reliable than it was in relation to the fifth count. Indeed, with commendable fairness, he suggested that the evidence in relation to the fourth count (on which the appellant was convicted) was less credible than the evidence on the fifth count (in respect of which the appellant was acquitted).
23 In light of the respective submissions and its own assessment of the evidence, the Court formed the view that the appellant's argument must be accepted and the convictions on the first and fourth counts were unsafe and unsatisfactory in the sense explained by the High Court in Jones. The necessary consequence of such a finding was that verdicts of acquittal be entered.
24 In these circumstances it is not necessary for the Court to deal with other grounds raised at the hearing of the appeal in relation to the first indictment.
25 With regard to the second indictment, there was unchallenged evidence presented to the Court which demonstrated that although the appellant had consistently maintained his innocence of the charge contained within that indictment, he had, nevertheless, pleaded guilty because of imprudent and inappropriate advice which had been tendered to him by his then legal representatives, immediately prior to the plea being entered.
26 Again, with commendable fairness, Mr Dawe QC (albeit not conceding that the appeal should be allowed) indicated that he did not wish to make any submissions contrary to the matters raised by the appellant in support of the appeal.
27 The relevant legal principle was enunciated by this Court in Davies (unreported, 16 December 1993), at p8, in the following terms:
"If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."