Timbery v Regina

Timbery v Regina - [2007] NSWCCA 355 - NSWCCA 2007 case summary — Zoe

[103]

The appellant submitted that the directions on corroboration were not given as part of a warning but rather to bolster the complainant's evidence. The appellant relied heavily on R v Li (2003) 140 A Crim R 386. The trial judge had directed the jury that forensic evidence supporting evidence of intercourse amounted to corroboration, in circumstances where the issue in the case was consent. Dunford J (with whom Spigelman CJ and Hidden J agreed) stated at [65] "There are a number of problems about these directions. Firstly, by the time his Honour came to sum up, the issue in the trial was not whether penile intercourse had taken place, but whether the complainant had consented. On this issue, it was her word against his and it was therefore necessary for the jury to scrutinise her evidence with great care before arriving at a verdict of guilty, and a direction in accordance with that suggested in R v Murray (1987) 11 NSWLR 12 was necessary; see also R v V (1998) 100 A Crim R 488 at 497. His Honour indicated that it was not appropriate to give the direction because the complainant's evidence was "supported and corroborated" by the forensic evidence that showed penile intercourse had taken place; but as I say, that was no longer the issue, which was whether she had consented; and it was her evidence on this issue that needed to be scrutinised with great care. He did tell them that they had to be satisfied that her evidence was credible but then, instead of warning them that it was the only evidence on the issue of consent and that they therefore needed to scrutinise her evidence with great care, he went on to tell them that her evidence was corroborated because there was other evidence that penile intercourse had taken place. Secondly, there is no longer a requirement to give a direction in such cases that it is dangerous to convict in the absence of corroboration ( Evidence Act s 160) and in my view it is undesirable to talk in terms of "corroboration", but if the judge does introduce the subject in those terms, it is necessary that he or she give proper directions in relation to it: Conway v The Queen [2002] HCA 2, 209 CLR 203 at [62]. This was not done. His Honour should have drawn the jury's attention to those matters which could amount to corroboration, leaving it for them to decide whether they were satisfied that those matters did in fact corroborate the complainant's evidence: R v Zorad (1990) 19 NSWLR 91 at 103. Thirdly, having raised the subject of corroboration, his Honour did not express it in terms of a warning to the jury that it would be dangerous to convict on the uncorroborated evidence of the complainant, but expressed the view, in strong terms, that her evidence (on the issue of penile intercourse) was strongly corroborated in terms which lent support to the Crown case. His Honour's directions on assessing the credibility of the complainant and on corroboration therefore contained serious omissions and misdirections, and ground 5 was made out."
The appellant submitted that the directions in the present case suffered similar defects to those identified in Li.
The Crown accepted that the judge did not define corroboration in the way it has been in Baskerville (supra) and Donney v The Queen (1990) 171 CLR 207 at 211. However, the Crown submitted that the judge defined corroboration in a way that was adequate, that is as evidence which supports the Crown case and is independent of it.

[115]

A Longman direction, Longman v The Queen (1980) 168 CLR 79, was sought on behalf of the appellant in the presence of the jury. The judge stated in the presence of the jury that he did not think that the delay which had occurred warranted a Longman direction but for more abundant caution he would give one. He then gave this direction: "Members of the jury, you have heard counsel raise with me what he says was delay in making the sexual complaint until May of 2002, a period of less than 18 months since the last sexual assault alleged. Now there is a legal warning that juries are given where there has been delay. It is a matter for you whether there has been delay. It is a matter for you whether you consider there has been a delay and you have to take into account also the fact that the complainant spoke about the matter with both Ms Gray and Constable Hayes. But this is the warning. You may convict where there is delay, but it would be unsafe or dangerous to convict on the uncorroborated evidence of the complainant alone. Here of course it is for you to decide if there is corroboration. It would be dangerous or unsafe to convict on the uncorroborated evidence of the complainant alone, unless you scrutinise the evidence with great care. Consider the circumstances relevant to the evaluation of the evidence, pay heed to the warning, and if you do all of those things and you are satisfied about the truth and accuracy, then you can convict. Of course that warning does not apply if you think there is corroboration and in some matters I have told you there is not. You have got to decide whether you are satisfied ultimately of the truth and accuracy of the complainant's evidence after you scrutinize the evidence with great care and pay heed to this warning. If you do that and you are satisfied of the truth and accuracy you can convict. If you are not satisfied with the truth and accuracy, then you must not convict of course, and it would be unsafe and dangerous to do so."
The appellant submitted that the following defects emerged:

[125]

Do not be concerned about the amount of time it takes. Trials of this nature often take a number of days for a jury to reach a verdict but my direction to you is, please continue your deliberations and you ask what the next step is, ultimately to discharge you and have another trial on those matters, a matter which in a trial of four weeks would be just terrible. So I ask you to retire again and keep going." 115. The jury enquired whether they were able to have the transcripts and the judge replied "No". He offered to read to the jury any parts of the transcripts which they needed and to answer any questions. The jury retired to further consider its verdict at 12.25pm and continued until 4pm. They resumed on Tuesday 14 March 2006 at 10am and continued until about 2.30pm. Their verdicts were then taken. 116. The judge in his direction to the jury did not follow along the lines of that recommended in the joint judgment of four justices and agreed with by the fifth justice in Black v The Queen (1993) 179 CLR 44 at 51-52. The justices emphasised the importance of each member of the jury giving the issues that free deliberation to which both the accused and the Crown were entitled and not being subject to any risk of pressure. 117. The joint judgment said that the direction given to a jury if it appears that they are encountering difficulty in reaching a verdict "should state quite clearly that each juror has a duty to give a verdict according to the evidence." 118. Importantly, the recommended direction stated: "But if, after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence." 119. Words along those lines do not appear in the directions given in the present case. The terms of the recommended direction do not include words to this effect: "I urge you, I suppose I can say I plead with you, please go out and keep trying." 120. The judge was urging the jury to try and reach unanimity. The recommended direction is more measured. Nor does the recommended direction contain words along these lines: "The next step is ultimately to discharge you and have another trial on those matters, a matter which in a trial of four weeks would be just terrible." 121. The Crown stated that it would have been better if the judge had not used expressions such as "urge" or "plead" or "would be just terrible" but it submitted that these were balanced by his directions that they should not be concerned about the amount of time it takes. The Crown pointed out that in trials of this nature juries often take a number of days to reach a verdict and that the judge made it clear that if ultimately they could not agree they would be discharged.

[192]

The trial judge directed the jury on 9/3/06 at SU26. "As I told you earlier you must consider each count separately. You are not to conclude that because the accused is guilty of one matter, therefore he is guilty of another matter. But if you find the complainant is unreliable in her evidence on one count you may use that unreliability in assessing her evidence in any other count. You may use it. You do not have to use it, you may use it, always a matter for you."
The appellant contended that the judge erred when he said, "You may use that unreliability and that instead of the word "may" the word "must" should have been used. This submission was based on the judgment of Spigelman CJ in R v Markuleski [2001] 52 NSWLR 82 at [188] - [191]. In the last mentioned paragraph the Chief Justice stated: "The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
The Crown relied upon what Wood CJ said (at [261-2]): "261. I see no reason to confine the direction to reliability. It is equally, if not more, applicable in relation to credibility or truthfulness. Moreover I see no reason to do more than bring to the attention of the jury the circumstances that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for the to take into account when considering the evidence of the complainant or central witness upon the remaining counts. 262. This should, however, be kept in context, in that the jury should be reminded that it is but one of the circumstances that they can properly take into account, when evaluating the overall credibility and reliability of the complainant, as it impacts upon the remaining counts, including any other fact or circumstance which may provide an explanation for any question which may arise. It is, in my view, inappropriate for any direction, or comment, in this regard to become elevated, by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straight jacket for the jury."

[194]

Amended Appeal Ground 10 - The verdict of the jury in relation to Count 2 was unreasonable and cannot be supported having regard to the evidence. 205. Counsel for the appellant relied on the test formulated in MFA v The Queen (2002) 213 CLR 606 namely, "whether [the court) thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". See also Pavitt v R [2007 NSWCCA 88 (at [133] ff). 206. As to inconsistent verdicts reliance was placed on the judgment of Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348 (with which Dawson and Toohey JJ agreed on this aspect of the appeal). The joint judgment stated at 366-367 (citations omitted): "3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: 'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." 207. The appellant pointed out that apart from Count 2, on all the counts on which the appellant was convicted there was supporting evidence independent of the complainant and that on all the counts on which he was found not guilty there was no supporting evidence. Count 2 alleged sexual intercourse without consent. The intercourse allegedly occurred after she returned from the hospital, having been previously hit on the forehead with an iron bar. This was the incident and the only incident in which it was alleged that the offender placed a VO5 Mousse bottle in LB's vagina.

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