Swain v R

[2015] NSWCCA 176

Court of Criminal Appeal (NSW)|2015-06-19|Before: Hoeben CJ, Hulme J, Fagan J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2015-06-19

Before

Hoeben CJ, Hulme J, Fagan J

Catchwords

s 61M(2) Criminal Procedure Act 1986 - s 166 Cases Cited: M v R [1994] HCA 63
181 CLR 487 MFA v The Queen [2002] HCA 53
213 CLR 606 R v Anderson [2001] NSWCCA 115 SKA v The Queen [2011] HCA 13

Source

Original judgment source is linked above.

Catchwords

s 61M(2) Criminal Procedure Act 1986 - s 166 Cases Cited: M v R [1994] HCA 63181 CLR 487 MFA v The Queen [2002] HCA 53213 CLR 606 R v Anderson [2001] NSWCCA 115 SKA v The Queen [2011] HCA 13

Judgment (3 paragraphs)

[1]

Solicitors: McGrath Dicembre & Co - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/185058 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 8.4.2014 Before: Townsden DCJ File Number(s): 2012/185058

[2]

Judgment

HOEBEN CJ at CL: Offences and background The applicant stood trial at Parramatta District Court on 24 March 2014 on an indictment that contained six counts. All of the charges related to offences of a sexual nature alleged to have been committed by the applicant (aged 38 years) on the complainant JP when she was 14 and 15 years old. The complainant's family and the applicant's family lived in the same street and had been close family friends for a number of years. The complainant's father and the applicant worked together.

The counts brought against the applicant were as follows: Count 1 - Between 1 August 2011 and 30 September 2011 at Ruse in the State of New South Wales did assault the complainant, a person under the age of 16, namely 15 years, and at the time of such assault did commit an act of indecency on her in contravention of s 61M(2) of the Crimes Act 1900. Count 2 - Between 1 August 2011 and 30 September 2011 at Ruse in the State of New South Wales had sexual intercourse with the complainant without her consent, knowing she was not consenting in circumstances of aggravation, namely at the time of the offence the complainant was a person under the age of 16 years, namely 15 years in contravention of s 61J(1) of the Crimes Act 1900. Count 3 - Between 1 August 2011 and 30 September 2011 at Ruse in the State of New South Wales had sexual intercourse with the complainant without her consent knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence the complainant was a person under the age of 16 years, namely 15 years in contravention of s 61J(1) of the Crimes Act 1900. Count 4 - On or about 27 December 2011 at Ruse in the State of New South Wales had sexual intercourse with the complainant without her consent knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence the complainant was a person under the age of 16 years, namely 15 years in contravention of s 61J(1) of the Crimes Act 1900. Count 5 - On or about 27 December 2011 at Ruse in the State of New South Wales did assault the complainant, a person under the age of 16 years namely 15 years and at the time of such assault did commit an act of indecency on her in contravention of s 61M(2) of the Crimes Act 1900. Count 6 - On or about 27 December 2011 at Ruse in the State of New South Wales had sexual intercourse with the complainant without her consent knowing that she was not consenting in circumstances of aggravation namely that at the time of the offence, the complainant was a person under the age of 16 years namely 15 years in contravention of s 61J(1) of the Crimes Act 1900.

The applicant submitted that the jury must have had reservations concerning the complainant's credibility and that those reservations must logically have extended to her evidence on counts 1 - 3. The applicant submitted that by reference to the following factors it was clear that the Crown case was weaker in relation to the first incident when compared to the second. 1. There was a real issue as to whether he would have had time to commit the offences in counts 1 - 3 (the detail underlying that submission is set out in relation to Ground 3). The applicant submitted that on one view of the evidence, the timings were so tight as to make the occurrence of the offending most unlikely and on the other, the timings were such as to make the occurrence of the offending impossible. 2. The complainant said that he was wearing board shorts and a shirt whereas his mother in law gave evidence that he was wearing work clothes. For the complainant's evidence to be accepted, he must have returned home, showered, got changed and committed the offences before travelling to his mother in law's home to pick up his sick children. 3. The theory that he travelled to the complainant's home and quickly sexually assaulted her before picking up his sick children from his mother in law's home was inconsistent with the evidence from a number of people that he was a devoted father and family man. 4. He could not have known whether or not the complainant was home alone at the time of his entering her home, since the five phone calls which he made to her father went unanswered. 5. There was an inconsistency in the details of the shower incident in that the complainant added a recollection of kicking the applicant when she recounted the incident to her father in February 2012. 6. The complainant could not recall the date of the incident, despite speaking to a friend about it some days or a week later. 7. The actions of the complainant following the shower incident were inconsistent with it occurring in that she continued to attend his home on a regular basis and even decided to stay the night on Boxing Day, only a couple of months after the alleged incident. 8. The fact that the jury experienced a reasonable doubt concerning the complainant's evidence on counts 4 - 6 must be taken into account in assessing her reliability in relation to other counts.

The legal principles relating to whether verdicts were inconsistent are now relatively well settled. In MFA v The Queen [2002] HCA 53; 213 CLR 606 Gleeson CJ, Hayne and Callinan JJ said: "33 In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. … 34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. 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 a 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. 35 It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. …"

In oral submissions the applicant submitted that given the evidence as to timings, it was simply impossible that the shower incident could have occurred on the day and in the way asserted by the complainant. The applicant relied upon the following evidence to demonstrate that proposition: The complainant's evidence in her statement was that the assault occurred on a Tuesday at around 3.30 to 4.30pm (Q/A 65, Q/A 67) (T.170.45). It would have taken him approximately half an hour to drive from his place of work to his home at Ruse (which was opposite that of the complainant) (T.212.40). Exhibit F, the work log, showed him leaving his place of work at 4pm. He would have travelled the same route through Ruse in order to get to his mother in law's place where he was to pick up his children. The drive from his residence to his mother in law's residence would take approximately 12 minutes, i.e. the total time for him to drive from his place of work to his mother in law's house would be between 40 - 45 minutes (T.213.2) (T.235.11). The five phone calls to the complainant's father's phone were sent at the following times: 16.09.34, 16.10.25, 16.10.54, 16.14.59, 16.15.11 (exhibit E). It follows that those five phone calls must have been made before he picked up his children. His recollection was that he left work on 20 September 2011 at 4pm and that he would have driven directly to his mother in law's house to pick up his children. He particularly remembered that day because his older daughter was sick. He had no clear recollection of when he arrived at his mother in law's house but estimated it would have been somewhere between 4.35 and 4.45, depending on when he left work (T.244.40 - 245.10). There was a phone call between him and his wife at 16.46.41 which lasted over a minute during which he advised her that he was at home and that he had the kids with him (T.302.37, 309.45). The evidence from his mother in law was that he arrived to pick up the children between 4 and 4.30pm on 20 September 2011 (T.381.37). He was in his work clothes when he arrived at his mother in law's house to pick up his children (T.412.21, 413.40).

In W v R [2014] NSWCCA 110 Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed) said on the same issue: "151 It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks: "[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt." (Emphasis in the original, citations omitted). 152 However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [26] and [55]-[56])."

In relation to the applicant's wife, there was no doubt that the applicant telephoned her slightly after 4.46pm on 20 September 2011. Unfortunately, the phone records do not indicate his location at the time of that call. What is in issue is what he said when he made that call. His wife's evidence is: "Q. All right we will go further down the page to the very bottom entry. There's a phone call from Nathan to you at 16.46.41, that lasts for over a minute. What is your view of that phone? A. That Nathan's home, he's got the kids, what do you want out for tea, because he always prepared tea before I got home if he was home early." (T.302.34) "Q. Okay he was finished early, okay. Now you say that the call that was made at 16.46 so at 4.46 from Nathan to you was when he was already at home, is that right? A. That's what I presumed yes, he was at home and that he was home with the children and what did we want for tea. Q. Now you just presumed didn't you, you presumed that to be the case? A. Yeah he was home. Q. Can I just say, just to let you know his evidence is that he arrived at his mother-in-law's place that afternoon between 4.35 and 4.45 and he stayed there a short time before going home? A. I can't - Q. Assuming, that's his evidence, assuming that's the case, is it possible that in fact when he's rung you to ask what you want for dinner that he's actually rung you whilst he's still at your mother's place? A. No. Q. You don't? A. I don't know, I have no idea but I don't believe that. Q. You have no idea, that's the case, you can't discount it, in fact -- A. I can't say "yes" and I can't say "no". Q. So can I suggest to you what actually happened is that he just rang you to say what do you want for dinner, he didn't actually say "I'm home now" but you've just assumed because as a matter of practice he would often give you a call when he was at home, would you agree with that? A. Not always he'd give me a call, no. Q. But when he did, that often was when he had got home? A. Not often that he is always home early. Q. But you can't say can you that he in fact was home when he rang you? A. No I can only -- Q. You've assumed that? A. Yes, "I'm at home" when he says "I'm at home". Q. So your evidence is now he actually said he words "I'm at home"? A. I'm at home. Q. Are you sure about that? A. Positive. Q. So why did you say you presumed he was at home? A. It's just a word that I've come up with, I'm under a lot of pressure here, stress. Q. I suggest you didn't actually say he was at home, do you agree with that? A. No." (T.309.1 - T.310.2)

Swain v R

At a glance

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Catchwords

Judgment (3 paragraphs)

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Cases Cited (6)

Cited By (2)