Vincent EGAN v R [2010] NSWCCA 235 | Case summary

1 McCLELLAN CJ at CL: I agree with Barr AJ. 2 HALL J: I agree with Barr AJ. 3 BARR AJ: The appellant, Vincent Martin Egan, appeals against his conviction of the offence of the assault with an act of indecency of a child under the age of 16 years. His conviction followed a trial by a jury of twelve in the District Court. There is no application for leave to appeal against the resulting sentence. 4 Two sisters lived with their father and their younger brother. I shall call the sisters C and P. C was 14 years old at the time of the events giving rise to the charge and P was 12 years old. Their father had to take their brother to hospital and the appellant, the sisters' maternal uncle, agreed to look after them while he was absent. Each of C and P had her own room in the house. Each of C and P complained that during her father's absence the appellant took her into her room, in the absence of her sister, and indecently assaulted her. The appellant stood trial on two charges, one brought on the complaint of C and the other on the complaint of P. The jury found the appellant guilty of the indecent assault of P but not guilty of the indecent assault of C. 5 Until the morning of the hearing of the appeal there were two grounds of appeal, namely - 1. By reason of the nature and quality of the evidence, the verdict of guilty is unsustainable; 2. By reason of the verdict of not guilty the verdict of guilty is unsustainable. 6 On the morning of the hearing Mr Averre, who appeared for the appellant, sought leave to amend the grounds of appeal. Leave was granted. The grounds are as follows - 1. The verdict of guilty is unreasonable and cannot be supported by reason of: (i) the nature and quality of the evidence; (ii) the verdict of not guilty in relation to the complainant CF. 2. The trial judge erred in failing to direct, or properly direct, the jury: (a) not to engage in tendency reasoning; (b) of the need to exercise caution before convicting because the Crown case largely depended upon them accepting the reliability of the evidence of a single witness. 7 There was early complaint and C and P were formally interviewed by investigating police officers. Each interview took place on 29 August 2007, nine days after the events giving rise to the charges. Each interview was audio and video recorded and written transcripts were made of what was said. The audio and video recordings were played to the jury, who saw each complainant by remote closed circuit television. 8 The evidence of C may be summarised as follows. The appellant asked to speak to her in private in her room. They entered her room. The appellant began to ask her if she knew about the birds and the bees and she said that she did. He asked her whether she knew what the schoolgirl fuck was. She said that she did not and did not wish to know. The appellant pushed her on to the bed and pulled off her pyjama pants and her underpants. He started playing with her pubic hair. He pulled the flaps of her vagina with finger and thumb. She tried to bang on the wall to gain attention but the appellant stopped her by seizing her hand. 9 When that was over the appellant went to see P and she and he were in P's room together for about 5 minutes. When P came out she was looking scared and her eyes were watery. Her whole body was shaking. 10 The appellant took C by the wrist and took her to her own room again. He closed the door and said "If you want to know about it and all, I'll be the first one". He spoke about becoming pregnant at a young age and taking her to the abortion room in a hospital. 11 The appellant then dragged P by the wrist into her room and again took C into her room. She thought that the appellant went to P's room two or three times. 12 C said that after the incident she left the house and went to the house of a neighbour. She told the neighbour that she felt uncomfortable around the appellant and was scared of him. 13 In her interview P said that after her father and brother left for the hospital the appellant took C into her room. When he came out he took her, P, into her room. He there touched her vagina. He rubbed her vagina with his finger on the inside of her clothing. As he did so he was talking about things like "the schoolgirl fuck". He stopped touching her when he received a text message. The incident lasted 5 or 10 minutes and she was upset and became teary. The appellant told her that she could go out of the bedroom, so she took a book and left the room. The appellant took C back into her room and after a while both she and C went into her room and the appellant watched them play the computer. Then their father came home. 14 P said that the appellant made her go into her room only once and that he made C go into her room "about two times". She said that she and C went to speak to the next-door neighbour, though only C went into the neighbour's house. P said that the first person she told was her father. That was on the following morning. Before she spoke to their father she told C what had happened to her, namely that the appellant had touched her vagina. She also told C what he was talking about. She said that C told her that the appellant had pulled out his penis and showed it to her and that he told her what they usually do in the schoolgirl fuck. She never saw the appellant dragging C by the wrists, nor did he drag her, P, by the wrists to her room. 15 There was a remarkable feature of C's interview. As I have said, it took place nine days after the event. Since then, P had told the neighbour that she was uncomfortable with and afraid of the appellant, she had told her father that the appellant had touched her on the vagina and she had told a police officer some details of the events. She must have known why the police wished to interview her in this formal manner. She was 14 years old and was working. After preliminary remarks in which C was reminded that this was to be a recorded interview and of the importance of telling the truth, there were these questions and answers - Q62. What have you come to talk to me about today, C? A. I don't know, I forgot. Man, I can't remember. I think it's about my uncle, I don't know. I forgot. Q63. About your uncle? A Yeah. Q64. Who's your uncle? A Vincent. Q65. Uncle Vincent? A. Mmm Mmm. Q66. What's his last name? A. Egan. Q67. O.K. And what do you want to tell me about him? A. I don't know anything. Q68. You don't know anything. Why do you think that you've come to talk to me about your Uncle Vincent Egan? A. Because what he done to my sister and me. Q69. What did he do to your sister and you? A. Man, where do I start? I don't know where to start. Q70. You don't know where to start? O.K. Well you said that because of what he done to my sister and me, what was the thing that he did? A. Well I can say a little. He like, how do I say it? I don't know how to say it. Q71. When did this thing happen? A. It happened only a few weeks ago. 16 After that, responding to non-leading questions, C gradually brought out the account I have summarised. 17 C was cross-examined on the passage I have extracted and it was suggested to her that she had given a false version of the events in the first place and had begun the interview in that tentative manner because she realised that she was stuck with her false version. 18 Other difficulties became apparent with the evidence of C. She and P disagreed in their versions of the number of times P had been taken into her room by the appellant. P said that it was once. C said that it was twice and in cross-examination she increased it to three times. She said that on one occasion, either the second or the third, the appellant had dragged P by the wrist. P denied that such a thing ever happened. 19 Part of C's account was that their father, when told about these events, began banging his head against the wall. P said nothing of such an event. The complainants' father gave evidence and denied that such a thing had happened. 20 By the time the evidence closed, these discrepancies between the account given by C and that of P were obvious. Counsel's closing addresses are instructive. The Crown said this in part - You do have, I concede, when we look at the other side of the ledger, a number of aspects of the evidence of both girls, both individually and interrelated, and particularly in relation to C, that would cause you some concern. I will go so far as to say that you may have formed a view, and again this is my opinion or my submission to you, it's something you can adopt or reject as you wish, but it might be that at the end of the day at the very least you find that you've taken the view that C is at the least prone to exaggeration and assuming that you choose to accept any of what she says as the truth, that you would nevertheless have to form the view that she is prone to some exaggeration because of the way in which her evidence intersects or doesn't intersect or is contradicted by her sister P. … She says that she saw P taken into her room, I think she said in her interview with the police, two or three times. I think it was clear by the end of cross-examination that she was asserting it had happened three times. I think I'm right in describing those as the first occasion when she walked in before the accused and the accused and she came out and she was teary-eyed and that's clearly the time that, according to P's evidence, she was assaulted. The second occasion was when she went in with a blanket around her and a third occasion she was taken in by the wrist and it is clear from P's evidence that she maintained she was only taken into her bedroom, that is P's bedroom, on one occasion by the accused. So there is a question mark over the reliability of C's evidence as to how many times she saw the accused take P into her bedroom. … Of greater importance I concede members of the jury, moving onto the next point, is this issue of C apparently telling P, according to P's evidence, "He actually pulled out his dick and showed it to me". Now in the context of the defence case which is that there has been concoction, that is something that P says C said the next morning, it's something that C disagrees she said and obviously disagrees happens. There are two possibilities members of the jury, one is that given that you must accept, whatever you accept from C you must accept that he did not pull his penis out and show her and say something to her about that. If she did say that to her sister it's obviously a lie. The other possibility is that P is confused and didn't hear her sister say that or has confused something her sister has said. That, in other words, doesn't necessarily have to be an act of dishonesty on P's part, but it would suggest an element of unreliability in her memory if she's recollected something along those lines from her sister. That her sister didn't tell her that, well it's something that she has falsely recollected that she was told by her sister. … I have already conceded that there is a general thread of exaggeration in C's evidence, there must be because of the evidence of her sister, the dragging of both girls, the grabbing of both their wrists is not something that is corroborated, it is supported by P in her evidence, she was adamant about that. The blanket I have already eluded to also was not something that she agreed played any role that night in her evidence, either on the couch or as she went into her bedroom. There is the aspect of C's evidence about the father banging his head against the kitchen cupboard, you will recall that (the father) disagreed that he had banged his head in that fashion against a cupboard in the kitchen and you will recall that P also said she didn't see her father do that in response to anything she was told. 21 Defence counsel, of course, invited the jury to disbelieve both complainants, but made particular criticism of C. He drew attention to what she had said in the early stages of the recorded interview. He invited the jury to recall the demeanour of C when giving those answers. He drew attention to what he invited the jury to conclude were other exaggerations or lies or points of difference between what C said and the other evidence in the case, including what P said. 22 The first ground of appeal asserts that the verdict of guilty on the complaint of P is unreasonable and cannot be supported by reason of the nature and quality of the evidence and the verdict of not guilty on the other count. 23 In this Court, counsel for the appellant, who was not trial counsel, drew attention to some of the concessions made by the Crown in his closing address to the jury. It was pointed out that neither complainant gave evidence of having seen the appellant do anything to the other, save for such things as they said happened outside their respective rooms. However, it was submitted that inconsistencies in their descriptions of what they must both have witnessed, if they happened, lent weight to the submissions that the conviction could not be supported. Attention was drawn to P's evidence that C had told her that the appellant had pulled out his penis, whereas C denied saying that he did so. 24 Other asserted inconsistencies were pointed to. Each complainant told the police on the day following the events that the appellant had ordered them to pull down their pants. In her later interview and in evidence, on the other hand, C claimed that the appellant ripped her pants off and P maintained that her pants remained on. 25 Appellate counsel drew attention to what was said to be a discrepancy between the evidence of C and that of her father about the details of the complaint on the following morning. Whereas P said that she was with her sister C and her brother talking about the previous night, which led to the complaint to the father, the father's evidence was that it was P and her younger brother who were having a conversation immediately before the disclosure and that C was in her room, not taking part in the conversation. Criticism was made of the father himself as unreliable in his timing of the events on the evening in question. 26 It was submitted that there was evidence of collusion, giving rise to a real risk of concoction. It was pointed out that P said that there had been a discussion between herself and C about the events. What was more indicative of collusion and concoction, it was submitted, was the similarity in the description of what the appellant did to each complainant in private. There was the pulling down of the pants, some reference to the need to take fish food to the neighbour and the use of the phrase " schoolgirl fuck". 27 Reference was made to Hoch v The Queen (1998) 165 CLR 292 and to the judgments of the High Court of Australia in M v The Queen [1994] HCA 63 and MFA v The Queen [2002] HCA 53; 213 CLR 606. 28 As to the verdict of not guilty on the complaint of C, it was submitted that it was not open to the jury, having rejected one complainant's account, then to accept the other beyond reasonable doubt. In view of the discrepancies and any inconsistencies to which attention had been drawn, it was submitted that the evidence of the complainants could not be separated. The events, said to have occurred separately, happened at the same time and place. Both complainants were witnesses to the surrounding events. That, it was submitted, was close to a situation where there is a single complainant and raised the question how, if one rejected the evidence of one complainant, one could not reject the evidence of the other. So the verdicts were unreasonable. 29 The submission that this case was close to one in which inconsistent verdicts resulted on the evidence of a single complainant needs to be approached with some care. The assertion made on appeal that, because of the verdict alone, the jury must be taken to have rejected C's evidence, puts the case rather too high, in my opinion. This jury was instructed, as juries are always instructed, that they had to be satisfied beyond reasonable doubt of each of the elements of the charge they were considering. In a practical way that meant, for these two counts, that the jury had to be satisfied beyond reasonable doubt of the evidence of C, at least in her description of the appellant's indecently touching her. A finding of not guilty on the count resting on the complaint of C, however, did not depend on any "rejection" of her evidence. The jury might merely have had a reasonable doubt about the reliability of the things she said. There was evidence in the case other than the individual complainant's evidence of what happened privately. There were the circumstances of what happened in the presence of both complainants and the appellant on the night in question. There was evidence of what happened in the presence of the father on the following morning when complaint was made. And there were other features of the evidence of C and P, particularly during their conversation with police officers, that were pointed to as being relevant to an assessment of their reliability. 30 Plainly, if accepted, the evidence of P was sufficient to prove the case against the appellant based on her complaint. It does not seem to me that any doubt the jury entertained about C had the quality contended for on appeal, namely that it had to produce an equal doubt about the reliability of the evidence of P. In this respect the features of C's formal interview, played to the jury, and what counsel respectively said to the jury about the details of C's evidence, were important. 31 In my opinion the concessions made by the Crown Prosecutor in his closing address were remarkable and, it seems, realistic. 32 Defence counsel, of course, agreed with what the Crown had said about the credibility of C. In view of the features of C's evidence to which I have drawn attention and the closing remarks of both counsel about such matters, the acquittal of the appellant on the count based on C's evidence is unsurprising. 33 The difficulty for defence counsel was to persuade the jury that doubts about the reliability of C should lead to doubts about the reliability of P. The arguments were all fully put to the jury and the jury saw and heard P. They considered her demeanour, as defence counsel invited them to do. In that respect this Court should acknowledge the advantage the jury had. There was no logical reason why, if her sister C were seen to exaggerate, P should also be seen to exaggerate. Her evidence seems to have hung together. That is not to say that it did not contain discrepancies, particularly when compared with others' memory of the details of events, but that does not to my mind lead to any conclusion that the jury were bound to entertain a reasonable doubt about her reliability. Only she gave evidence of what the appellant did to her in her room and it seems to me that the jury were entitled to accept that evidence. 34 This ground of appeal has not been made good. 35 The second ground of appeal complains that the trial judge erred in failing to direct or properly to direct the jury not to engage in tendency reasoning and of the need to exercise caution before convicting because the Crown case largely depended upon their accepting their reliability of the evidence of a single witness. 36 Notice of the appellant's intention to seek leave to amend the grounds of appeal so as to rely on this ground was given late in the afternoon of the day before the hearing of the appeal. The Crown was put to some trouble to respond, but was able to do so, and leave was granted so to amend the grounds of appeal. Neither of the directions now said to have been essential to a fair trial was requested by defence counsel, so leave is needed to rely on this ground of appeal. 37 Consideration of this ground of appeal to a large extent involves consideration of the attitude defence counsel took to the issues raised on the Crown case and to detailed proposals that were made by the trial judge and the Crown about the formulation of directions or warnings that the jury ought to be given on those issues. Counsel appearing for the appellant before this Court did not adduce evidence from defence counsel about such matters. No satisfactory explanation was offered. 38 It is convenient to deal together with the two aspects of this ground of appeal. Not long before the close of the Crown case his Honour raised with counsel the directions he was contemplating giving the jury. His Honour provided a typewritten draft of things he proposed to say. A long debate ensued. The transcript of what was said is too extensive to reproduce in this judgment. It is recorded in the transcript at AB 341-342 and AB 375-387. 39 His Honour's draft directions incorporated in unexceptionable form what has come to be known as the "Murray direction" and a direction to deal with each count separately. In R v Murray (1987) 11 NSWLR 12 the Court was concerned with a series of sexual counts all reliant on the evidence of a single complainant. The direction that the Common Law had formerly mandated, that the jury should be instructed that it was generally unsafe to convict on the uncorroborated evidence of a complainant, had been abolished by s 405C Crimes Act 1900 (NSW): see now s 164 Evidence Act 1995 (NSW). This Court held that defence counsel was not entitled to such a direction but Lee J, with whom Maxwell and Yeldham JJ agreed, went on to say that there may be circumstances where, in order to avoid a miscarriage of justice, the jury should be warned that the evidence of an uncorroborated witness should be scrutinized with great care. His Honour said this at 19 - Section 405 C (2) has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405 C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.

There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case. 40 In R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 this Court was again concerned with convictions resulting from evidence given by a single complainant. It was said that they were inconsistent. The Court held that in a word against word case, it is desirable to supplement the traditional direction to treat each count separately and that reference ought to be made to the effect on the assessment of the credibility of a complainant on one count if the jury finds itself unable to accept the complainant's evidence on any other count. 41 During the debate before the summing up His Honour and counsel discussed a substantial number of topics. Those relevant to this appeal were that the evidence relevant to each count came almost exclusively from the complainant concerned, that there were separate counts that needed separate consideration and how the jury should be directed about the existence in each count of supporting evidence from the other sister. Counsel were also concerned about the possibility of concoction by either complainant. The Crown offered a handwritten draft intended to amalgamate the directions that all agreed should be given. It modified the conventional "Murray direction". Defence counsel had copies of his Honour's typewritten draft and the Crown's handwritten draft. His Honour amended the typewritten draft in handwriting during the debate. At the conclusion of the debate the trial judge asked defence counsel whether he was happy with the Crown's draft in so far as it dealt with the "Murray direction". Defence counsel said that he was. 42 This Court has been furnished with copies of the trial judge's and the Crown's drafts. The former has been amended in handwriting to accord with the latter. The directions given in the summing up in due course corresponded with both. This is what his Honour told the jury. Now you will have been paying close attention to the evidence and you will be aware fully that, so far as the Crown case is concerned, there is only the account of each complainant as to what actually occurred inside each bedroom at the time of each alleged offence. You will be likewise be aware that each complainant gives some evidence which may be seen, if you accept it, as supporting the other. For example, in answer 99 in her interview P says she heard him say - asked him (as said) to go into the room because he needs to speak to her. Further, she gave evidence that she saw the accused take P into her room and saw her eyes were all watery when she emerged. The Defence case, as you know, is that the two complainants have concocted or made up their stories. The Defence points in particular to various discrepancies and divergences in their stories to show this. I warn you that because of the possibility of concoction you must scrutinise the evidence of both complainants very carefully. I also emphasise that there is no obligation on the accused to call witnesses to disprove the allegations. The Crown must prove all of the elements of each of the charges, and prove them beyond reasonable doubt. The Crown case depends on the evidence of the complainants in each case. It is therefore important that you carefully examine both of their versions and how they interrelate and treat them with caution in determining whether each of them has given a truthful and accurate account. In doing this you will remember their evidence and their demeanour. You must carefully consider all of the evidence separately in relation to each of the charges. 43 His Honour went on to deal with arguments Counsel had put and continued - As to the inconsistencies, counsel have addressed you on those and I do not propose to say a great deal about it. It is a matter which you are entitled to take into account when considering the complainants' evidence generally and in relation to the specific matters which make up the charges. If, after carefully considering the question of their reliability, you find that either of them has given you an essentially truthful version of events, you may rely on either of them in determining the question of whether the Crown has proved its case beyond reasonable doubt in relation to the charge concerning that complainant. If, on the other hand, you are not persuaded that either of them has given a reliable version of events, then you would not be satisfied of the guilt of the accused in relation to the charge concerning that complainant and he must be acquitted. 44 Of course, although P was the only witness to describe the events that took place in her room, it would not be correct to say that she lacked support. This was not simply a word against word case. There was the evidence of C about the appellant's taking P to her room and about what happened before and after that event. There was evidence of complaint by P. 45 It seems to me that the directions given by his Honour adequately brought to the attention of the jury the fact that in that count based on P's complaint, the evidence came principally from P herself, though there was evidence which, if accepted, could support her. Having informed the jury of that and of the submissions about and the possibility of concoction, his Honour directed the jury to scrutinise the evidence of P. His Honour went on to direct the jury carefully to compare the versions of C and P, to determine how they inter-related and to treat them with caution in determining whether each had given a truthful and accurate account. His Honour instructed the jury to consider the counts separately. 46 In my opinion no further direction was called for. It is not surprising that defence counsel agreed with what his Honour proposed to do. After the summing up counsel were asked whether they required any further direction. Defence counsel said that he did not. Leave should be refused to rely on this portion of the second ground of appeal. 47 The trial judge did not direct the jury not to engage in tendency reasoning and, notwithstanding the long debate about directions, was never asked to do so. No explanation was offered why defence counsel did not do so if such a direction were essential for a fair trial. Counsel for the appellant submitted that there were striking similarities between C's account of what happened in her room and P's account of what happened in hers, so much so that there was an unavoidable risk of tendency reasoning unless the jury were warned against it. When asked what the asserted tendency was, counsel simply said - That there's a tendency towards young girls and in relation to the actual offence itself, the striking similarity between the offences. 48 Counsel appeared to be saying that the striking similarity to which he had referred was that the complainants were both young girls. In my view acts of touching the vaginas of the two complainants could not be said to be strikingly similar. 49 It does not appear to have occurred to defence counsel that the fact that one complainant was a young girl made it more likely that the other young girl was telling the truth when she said that the appellant had assaulted her. That is not surprising. I would not regard such a circumstance, common to the two complaints, as attracting tendency reasoning. 50 The totality of the directions the jury had been given required them to be satisfied beyond reasonable doubt that that complainant was telling the truth about the events in her room before they could convict. It might have been risky for the trial judge to be asked to put into the minds of the jury the notion that the fact that one complainant was young might by some process of reasoning possibly be regarded as proving that an offence was committed on the other, even if the purpose in doing so was to forbid such reasoning. A direction which drew attention to such a process of reasoning might be seen as watering down the firm direction the jury had been given, to the effect that the only evidence of what took place in either complainant's room came from that complainant. 51 It seems to me that the notion of tendency reasoning was unlikely to enter the minds of the jury and that it was in the appellant's interest to maintain that position. 52 It seems likely that defence counsel was of the same mind and that his not asking for the direction was not the result of oversight. 53 I would add that it seems highly improbable that the jury in fact engaged in tendency reasoning. It was C's evidence that came under the strongest attack and about which the Crown made its concession. The differential verdicts show that P was the complainant in whom the jury had more confidence. Assuming for the sake of argument that the jury took into account P's evidence about the events which happened in her room, that was not enough, combined with the evidence they were entitled to take into account, to satisfy the jury beyond reasonable doubt that C was telling the truth about the events that happened in her room. 54 I would refuse leave to appeal on this second aspect of the second ground of appeal. 55 I would dismiss the appeal. **********

Vincent EGAN v R

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Judgment (14 paragraphs)

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Legislation Cited (2)

Cases Cited (6)