DGB v The Queen - [2009] NSWCCA 307

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DGB v R [2009] NSWCCA 307

FILE NUMBER(S):
2008/9393

HEARING DATE(S):
9 December 2009

JUDGMENT DATE:
22 December 2009

PARTIES:
DBG - Applicant
Regina - Respondent

JUDGMENT OF:
James J Hulme J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/9393

LOWER COURT JUDICIAL OFFICER:
Norrish DCJ

LOWER COURT DATE OF DECISION:
19/02/2009

COUNSEL:
S J Odgers SC - Applicant
M Cinque - Respondent

SOLICITORS:
Creaghe Lisle Solicitors - Applicant
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW — whether “Murray” direction in relation to counts where there was no supporting evidence was misleading in relation to count where there was supporting evidence

LEGISLATION CITED:
Crimes Act
Criminal Appeal Rules

CASES CITED:
R v Murray (1987) 11 NSWLR 12

TEXTS CITED:

DECISION:
Leave under r 4 refused.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/9393
JAMES J
RS HULME J
HIDDEN J
TUESDAY 22 DECEMBER 2009

DGB v R

Judgment

JAMES J: DGB appealed against his conviction on one charge of aggravated indecent assault, an offence under s 61M(1) of the Crimes Act, on his stepdaughter, who I will refer to as “the complainant”. The circumstances of aggravation under s 61M, as it then stood, were that the complainant was under the age of 16 years.
The charge on which the appellant was found guilty was the fourth count in an indictment presented at the appellant’s trial. The appellant stood trial on four charges of aggravated indecent assault and two charges of indecent assault, all allegedly committed against the complainant. Two of the charges were charges merely of indecent assault, because the date on which each of the offences had allegedly been committed could not be precisely fixed and might have been after the complainant had attained the age of 16 years.
The appellant was found not guilty by the jury on all of the other five charges in the indictment. The verdict of guilty on count four was capable of being explained on the basis that the charge in count four was the only charge on which there was some evidence independent of the complainant which could be regarded as supporting the complainant’s evidence.
Background
The indecent assault the subject of count four in the indictment was alleged by the Crown to have been committed on 16 January 2007 in the swimming pool at the home of the complainant’s friend AKR. The complainant was then 15 years old.
The appellant, the complainant and the complainant’s younger half brother, who was a child of her mother and the appellant, had gone to AKR’s home to use the swimming pool at the home. AKR was present at the home but her mother was at work. AKR herself did not get into the pool and remained inside the house.
According to answers AKR gave in an interview of her by police on 18 January 2007, she looked out through windows in the house and saw the appellant touching the complainant, while they were both in the swimming pool. In particular, she saw the appellant pull down the complainant’s bikini top and touch one of the complainant’s breasts with one of his hands and then pull up the complainant’s bikini top.
AKR got a video camera and videoed the appellant and the complainant. AKR asserted in the interview on 18 January 2007 that the video showed the appellant and the complainant “hugging really close”. According to a comment later made by a police officer during an interview of the complainant, “the shots don’t really show us that much”.
On 16 January 2007 AKR told her mother what she had seen and her mother contacted a police sexual assault unit. On 18 January 2007 the interview of AKR by the police, to which I have already referred, took place.
On 19January 2007 the complainant was interviewed by police. She said that she had gone on 16 January 2007 with the appellant to AKR’s home and had used the swimming pool. When the allegation was put to her that the appellant had assaulted her by pulling down her bikini top and fondling her breasts, she replied “he wouldn’t do that. That’s not true” and “that didn’t happen”.
No further action was taken by police at this stage.
In June 2007 the complainant came to AKR’s home and told AKR’s mother that the appellant had been touching her sexually. The complainant did not return to her home and remained at AKR’s home. AKR’s mother contacted the police and both the complainant and AKR were again interviewed by the police.
In her interview the complainant said that she had been indecently assaulted by the appellant on a number of occasions. As to the incident which became the subject of count four in the indictment, she said that, while she and the appellant were in the swimming pool on 16 January 2007, the appellant had undone and pulled off her bikini top but she was “not sure” whether the appellant had touched her on the breasts.
AKR’s interview of 12 July 2007 was mainly concerned with the circumstances in which, so far as AKR’s knowledge extended, the complainant had left her home and come to live with AKR and her family.
At the trial the complainant gave evidence that she had gone to AKR’s swimming pool on 16 January 2007 with the appellant and her younger brother. AKR’s mother was away at work and AKR was inside the house.
The complainant gave evidence that the appellant was wrestling with her in the pool and tried to pull the top of her swimming costume off. She said that the appellant grabbed one of her breasts with one of his hands. She was “pretty sure” it was her right breast. The complainant pushed the appellant away. At the time of the incident she was facing towards the appellant. She and the appellant had been “just mucking around, like trying to dunk each other”.
In cross-examination at the trial the complainant said that only her right breast had been exposed, no straps had been undone, both she and the appellant had been upright and had been facing each other and there had been only one incident in the pool when one of her breasts was exposed.
AKR gave evidence at the trial. Her evidence in chief consisted largely of the playing of recordings of her interviews by police on 18 January 2007 and 12 July 2007. According to AKR’s evidence, on 16 January 2007 the complainant had been floating on her back and the appellant had been treading water, when the appellant pulled down the top of the complainant’s costume and grabbed her left breast.
The appellant gave evidence at the trial denying any wrongdoing.
Having regard to the nature of the only ground of appeal against conviction, it is unnecessary to refer to the other alleged offences of which the appellant was found not guilty.
As to count four, there were some inconsistencies between the evidence the complainant gave at the trial and what she had said when she was interviewed by police on 7 June 2007. Her evidence at the trial was, of course, quite inconsistent with what she had said when interviewed by police on 19 January 2007. At the trial the complainant gave an explanation of what she had said when interviewed on 19 January 2007, that, before she was interviewed, the appellant had “warned me not to say anything, he would go to gaol, he would lose us kids, he wouldn’t have a job anywhere and he’d never see us again, making me feel guilty”.
There were also some inconsistencies between the complainant’s evidence and the accounts given by AKR in her interview on 18 January 2007 and her evidence at the trial.
However, in the present appeal there is no ground of appeal that the verdict of guilty on count four was unreasonable or could not be supported having regard to the evidence or that the verdict of guilty on count four was inconsistent with the verdicts of not guilty on the other counts in the indictment. In oral submissions senior counsel for the appellant expressly disavowed that he was contending or suggesting that the verdict of guilty on count four was unsafe or unreasonable.
The appeal
The only ground of appeal against conviction was:-
“The trial judge erred in respect of the directions to the jury on count four in relation to the proper approach to the evidence of the complainant.”
This ground of appeal was based on a part of the trial judge’s summing up in which the trial judge said:-
“With regard to the complainant…you must understand that in relation to counts 1 to 3, counts 5 and 6, she is the only witness asserting the commission of the offence as alleged in those particular charges.
Therefore, the evidence of (the complainant) must, in respect of those counts particularly, be scrutinised with great care and you would need to be satisfied beyond reasonable doubt of the reliability and truthfulness of that evidence before a conclusion could be arrived at that a verdict of guilty was appropriate for the particular charge you are considering.
In relation to count 4 of course there is the evidence of (AKR) which I will deal with when I deal with count 4, and that evidence is relied upon by the prosecution to support (the complainant’s) account. But in any event you will still need in the context of that supporting evidence to consider that evidence with great care, as you would all the evidence in the case.”
The kind of direction the trial judge gave the jury in relation to all the counts apart from count 4 is often referred to as a “Murray” direction (R v Murray (1987) 11 NSWLR 12).
It was submitted by counsel for the appellant that the direction I have quoted would have led the jury to believe that, in relation to count four, they did not need to be satisfied beyond reasonable doubt of the reliability and truthfulness of the complainant’s evidence before they could find the appellant guilty on that count.
Counsel for the appellant submitted, as appears to have clearly been the case, that at the trial it had never been suggested that AKR’s evidence, at its highest, was any more than evidence which might be capable of lending some support to the complainant’s evidence. It was submitted that on count four, as on the other counts, the appellant could not properly have been convicted, unless the jury was satisfied beyond reasonable doubt of the reliability and truthfulness of the complainant’s evidence. The inconsistencies which existed between the complainant’s evidence and AKR’s evidence underlined the need for the jury to be satisfied beyond reasonable doubt of the reliability and truthfulness of the complainant’s evidence.
It was conceded by counsel for the appellant that, elsewhere in the summing-up, the trial judge had given the jury extensive directions about the onus and standard of proof, which applied to count 4 as well as the other counts, but it was submitted that those directions had been insufficient to overcome the defects in the part of the summing-up which I have quoted. In particular, counsel for the appellant submitted that a question which the jury had asked during their retirement and the answer to that question which had been given by the trial judge had been limited to the counts on which there was no other evidence to support the complainant’s evidence.
It was conceded by counsel for the appellant that no objection had been taken to this part of the summing-up by counsel for the appellant at the trial but it was submitted that the error was so fundamental as to amount to a substantial miscarriage of justice and that it was proper case for the granting of leave under r 4 of the Criminal Appeal Rules.
Decision
I do not consider that, when regard is had to the whole of the summing-up, there is any merit in the ground of appeal.
Even in the part of the summing-up which was made the basis of the ground of appeal the trial judge told the jury that, in relation to count four, they would still need to consider “that evidence”, that is the evidence of the complainant, “with great care”.
Early in the summing-up the trial judge gave lengthy, impeccable directions on the onus and standard of proof, which applied to all of the counts in the indictment. With reference to count four, his Honour said:-
“If you are uncertain that the accused deliberately groped or grabbed, or touched the complainant on the breast in respect of the incident giving rise to count 4, then the Crown will have failed to prove beyond reasonable doubt that the accused had indecently assaulted the complainant.”
His Honour then immediately said:-
“It is vitally important that you clearly understand that the accused must be acquitted if his guilt has not been proved to your satisfaction beyond reasonable doubt.”
The trial judge devoted a large part of the summing-up to a review of the evidence on each of the counts. After making this review and giving some directions of law, the trial judge said:-
“Well ladies and gentlemen, that completes my directions of law and my attempt to deal with the evidence in the trial and relate it to some of the legal principles, or the legal principles.
In a criminal trial in relation to each charge you are considering, in this case the six charges in the indictment, a copy of which is available to you, there is only one ultimate issue, has the Crown proved the guilt of the accused in relation to that charge beyond reasonable doubt?
If the answer is “Yes”, then the appropriate verdict is guilty. If the answer is “No”, the verdict must be not guilty.
You are required in determining whether the accused be guilty or not guilty to be unanimous in your verdict. If you are unable to agree upon your verdicts in relation to a particular charge or charges, there are other directions of law I can give you but at this stage all I need say is that you must be unanimous in your verdict, be it guilty or not guilty.
You may individually rely upon different parts of the evidence, or place different emphasis upon parts in the evidence, however by whatever route you each arrive at your decision, if your final decision is guilty in relation to a particular count it must mean that you are satisfied beyond reasonable doubt of the truthfulness of the complainant’s evidence in relation to the particular count you are considering and if you return a verdict of not guilty you must be unanimous that you at least have a reasonable doubt in relation to his guilt in relation to that charge.”
In this part of the summing-up, which was very close to the conclusion of the summing-up, the trial judge told the jury that that on all of the six charges, that is on all charges including count four, the jury could not find the accused guilty unless they were satisfied beyond reasonable doubt of the truthfulness of the complainant’s evidence in relation to the particular count the jury were considering.
When this part of the summing-up was drawn to counsel’s attention, counsel for the appellant submitted that what the trial judge had said in this part of the summing-up would not have been sufficient to overcome what had been submitted was the defect in the earlier part of the summing-up, because in this latter part of the summing-up the trial judge had directed the jury that they had to be satisfied beyond reasonable doubt only of “the truthfulness” of the complainant’s evidence, whereas in the earlier part of the summing-up the trial judge had directed the jury that on counts other than count four they would have to be satisfied beyond reasonable doubt of both “the reliability” and “the truthfulness” of the complainant’s evidence.
I accept that in the earlier part of the summing-up the trial judge had referred to both “the reliability” and “the truthfulness” of the complainant’s evidence, I also accept that sometimes “the reliability” and “the truthfulness” of evidence are distinguished, “the truthfulness” of the evidence being restricted to whether the witness in giving the evidence was honestly endeavouring to tell the truth, without necessarily succeeding in doing so.
However, more commonly and more naturally “the truthfulness” of evidence refers to whether the evidence is in fact true and I am satisfied that this is the sense in which the jury would have understood the trial judge to be using the word in the latter part of the summing-up to which I have referred. If a jury is satisfied beyond reasonable doubt that evidence is true, then the jury can rely on it.
I consider that some light is thrown on the sense in which the jury would have understood the word “truthfulness” by the question which the jury asked during their retirement.
The question from the jury was:-
“If you believe that the complainant is truthful in their evidence and there is no other evidence to support this, can you make a judgment in favour of the complainant?”
The trial judge gave a fairly long answer to the question, including:-
“If the only evidence supporting a verdict of guilty in relation to a particular count is that of the complainant, then you must scrutinise that evidence with great care before you can be satisfied beyond reasonable doubt of the truthfulness of that evidence.”
I accept the submission by counsel for the appellant that the question was directed only to the counts on which there was no other evidence to support the complainant’s evidence and that the answer which the trial judge gave to the question was limited, quite properly, to the actual question the jury had asked. Accordingly, the answer which the trial judge gave did not apply to count four.
However, in my opinion, it is significant that the jury in their question used the word “truthful” and the trial judge in his answer used the word “truthfulness”, as referring to evidence which was in fact true, and not evidence which was merely honestly given but which might nevertheless be unreliable.
Counsel for the appellant at the trial who heard the trial judge deliver his summing-up did not seek any redirection from the trial judge. It can be inferred that counsel at the trial did not perceive any problem with the summing-up.
In my opinion, the appeal should be determined by refusing leave under r 4 in respect of the only ground of appeal sought to be relied on.
RS HULME J: I agree with James J.
HIDDEN J: I agree with James J.
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LAST UPDATED:
22 December 2009