Eld v Regina

Court of Criminal Appeal Supreme Court
New South Wales

Case Name:	ELD v Regina
Medium Neutral Citation:	[2005] NSWCCA 476
Hearing Date(s):	8 November 2005
Date of Decision:	2 December 2005
Before:	Sully J at 1; Hulme J at 98; Latham J at 118
Decision:	In the first trial orders are: that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be a new trial.; In the second trial orders are by majority, (Hulme J dissenting): that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be entered in lieu a directed verdict of acquittal on Count 3 in the relevant indictment.
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	The Queen v Carroll [2002] 213 CLR 635 Regina v Z [2002] 2 A.0 483 R v Degnan [2001] 1 NZLR 280 Garrett v The Queen [1997] 139 CLR 437 Pfennig v The Queen [1995] 182 CLR 461 Browne v Dunn (1893) 6 R 67 M y The Queen (1994) 181 CLR 487 R v Markuleski [2001] 52 NSWLR 82 M.F.A v The Queen [2002] 213 CLR 606 R v Vinh Le [2000] NSWCCA 49 R v Storey (1978) 140 CLR 364 Mackenzie v R (1996) 190 CLR 348 R v Kirkham (1987) 44 SASR 591
Category:	Principal judgment
Parties:	ELD Regina
Representation:	Counsel: W. Roser - Crown S. Odgers SC - Appellant Solicitors: S. Kavanagh - Crown Trisley Kilmurray Lawyers
File Number(s):	CCA 2005/1191; 2005/1205

Decision under appeal

Court or Tribunal:	District Court
Before:	English DCJ
File Number(s):	02/31/0411

JUDGMENT

SULLY J:
NON-PUBLICATION ORDER
The Court orders:
1.That in any reporting of this judgment or of the proceedings giving rise to it, the appellant and the complainants are to be referred to only by initials used in this judgment.
2.That nothing else be published that would identify the appellant or the complainants.
3.That the judgment not be published on the Court’s web site.

Introduction

The appellant Mr. D has stood trial on three separate occasions.
In November 2003 the appellant stood trial in the District Court upon an indictment containing two counts. Count 1 charged that between 1 January 2000 and 31 January 2000 the appellant had assaulted one ED., committing upon her at the time of such assault an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 10 years. Such an offence contravenes section 61M(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. Count 2 charged that on 29 January 2002 the appellant had assaulted ED, committing upon her at that time an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 16 years. Such an offence contravenes section 61M(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 7 years.
The trial took place between 3 and 13 November 2003. The jury returned a verdict of not guilty on each count.
In March 2004 the appellant stood trial in the District Court at East Maitland. He was so tried in two back-to-back trials, each of which was a jury trial over which her Honour Judge English presided.
The indictment which was presented in the first such trial charged that between 1 September 2001 and 31 December 2001 the appellant had assaulted one CW, committing upon her at that time an act of indecency, the offence being aggravated by the fact that CW, at the material time, had been aged less than 16 years. Section 61M(1) of the Crimes Act, previously noted herein, applied to this charge.
The trial commenced on 10 March 2004 and concluded on 15 March 2004 with the returning by the jury of a verdict of guilty. In November 2004 Judge English sentenced the appellant to imprisonment for a fixed term of 12 months commencing on 19 November 2004, the date of sentence and expiring on 18 November 2005.
The indictment which was presented in the second such trial contained three counts. Count 1 charged that between 9 July 1997 and 10 July 1999 the appellant had assaulted SAH, committing upon her at that time an act of indecency, she then being under the age of 10 years, namely 6 or 7 years of age. Section 61M(2) of the Crimes Act, previously noted herein, applied to this charge. Count 2 charged that the appellant, between 1 January 2001 and 1 March 2001 had assaulted SAH, committing upon her at that time an act of indecency, she then being aged less than 10 years, namely 9 years. Section 61M(2) of the Crimes Act, previously noted herein, applied to this charge. Count 3 charged that the appellant, between 1 January 2002 and 2 February 2002 had assaulted SAH, committing upon her at that time an act of indecency, she then being aged less than 16 years, namely 10 years. Section 61M(1) of the Crimes Act, previously noted herein, applied to this charge.
This trial commenced on 16 March 2004 and concluded on 18 March 2004. The jury found the appellant not guilty on Counts 1 and 2, but found him guilty on Count 3. On 19 November 2004 Judge English sentenced the appellant to imprisonment for 2 years commencing on 18 November 2004 and expiring on 17 November 2006, and set a non-parole period of 18 months to commence on 18 November 2004 and to expire on 17 May 2006.
The appellant challenges each of his convictions and applies for leave to appeal against each of his sentences.
In considering the various appeals and applications it will be convenient to speak of the first of the 2004 trials as "the first trial"; and the other of those trials as "the second trial".

Grounds of Appeal — First Trial

The grounds are:
"1. The trial Judge erred in admitting evidence that the appellant committed an indecent assault on (ED).
2. A miscarriage of justice was caused by the trial Judge misleading defence counsel as to whether the truth of (ED's) evidence would be an issue.
3. A miscarriage of justice was caused by defence counsel failing to adduce evidence bearing on the possibility of contamination of the allegations of (ED).
4. The trial Judge erred in the directions given to the jury regarding the evidence of (ED)."

Grounds of Appeal — The Second Trial

The grounds are:
"1. The trial Judge erred in failing to give proper directions to the jury regarding the issue of the complainant's alleged motive to lie.
2. The verdict in respect of Count 3 was unreasonable and inconsistent with the verdicts in respect of Counts I and 2."

The Appeal against Conviction in the First Trial

All of the notified grounds of appeal touch in some way or other upon the decision of the learned trial Judge to admit as part of the Crown case the evidence of ED, the complainant in the trial, previously noted herein, at which the appellant was acquitted.
An extensive hearing on the voir dire was conducted in order to test the admissibility of ED's evidence. On the third day of the trial Judge English gave judgment ex tempore and ruled that the evidence was both admissible and such as ought to be admitted. In the course of that judgment her Honour gave a convenient summary of the Crown's allegations respecting the appellant's alleged conduct towards the complainant CW. Her Honour said:
"The accused stands charged with one count of indecent assault on (CW) who was twelve at the time of the alleged indecent assault in the last quarter of 2001. She alleges that she went with the accused in his red four-wheel drive to the Stockton Beach. She was accompanied by her friend, (SAH) who was nine at the time. The complainant and (SAH) say that the accused permitted them to drive the four-wheel drive vehicle at Stockton Beach. They did so by sitting on his lap and steering the vehicle. In addition the complainant (CW) says that on an occasion she was permitted to steer the vehicle whilst sitting on pillows with the accused seated in the passenger seat beside her.
The complainant says that whilst she was driving, on an occasion when she was sitting on the accused's lap, he placed his hands down the top of her swimmers and touched her on the breasts. She asked him to stop the vehicle and to let (SAH) drive, and he complied with her request. She could recall him telling her that he was touching her for her own safety. She says on other occasions the accused put his arm around her stomach area as a means of preventing her from being injured if the vehicle was to stop suddenly."
Her Honour gave, similarly, the following summary of the evidence that the Crown was proposing to lead from ED:
"The evidence of (ED) was recorded by way of video whilst she was interviewed by a police officer, Glen Parsons, and that was that the accused owned two four-wheel drive vehicles, a red Mitsubishi and a white one. The white vehicle was an automatic and the red four-wheel drive a manual. She says on two occasions the accused touched her on the breast underneath her clothing. The first such occasion occurred on the Stockton Beach whilst she was allowed to practice driving along the beach and she was sitting on his lap. That incident occurred in January 2000.
When the accused put his hand on her breast, she stopped the car. Her parents were present on the beach. They returned to the vehicle and the accused stopped touching her inappropriately . She was asked whether he gave her any reason why he put his hand on her breast and she said 'He said he was holding onto my skin'. On that occasion they were driving the red four-wheel drive.
On the second occasion, on 29 January 2002, when the complainant (ED) accompanied the accused and his grand-children driving, she says that the other children were told to leave the vehicle, she and the accused went for a drive and she was sitting on the accused's lap. Once again he put his hand underneath her shirt and touched her on the breast. She says she said to him, 'Don't', but he did not say or do anything. He took his hand away when they got to the bend in the road and then she drove back by herself. He was sitting on the passenger's side of the vehicle. On this occasion they were driving the white four-wheel drive."
By far the greater part of her Honour's judgment is taken up by a consideration of the important question whether the whole of the evidence in the voir dire hearing raised as a reasonable possibility that the proposed evidence of ED had been concocted between her and CW; or between her and some other person(s), in particular ED's parents; or had been contaminated in any other way by reason of ED's interaction with CW or with any other person(s).
Judge English found that "… all of the witnesses called on the voir dire ... (were) ... credible", and accepted them as "… honest witnesses doing their best to tell the truth". In that connection it is relevant to note that the appellant neither gave nor called evidence on the voir dire.
I see no basis upon which this Court would be entitled to say that these findings of fact were not reasonably open to Judge English.
Once that point was reached, her Honour had to take into account two matters: one was the admissibility in principle, and the other was the actual admission at trial, of the evidence of ED.
The matter of principle can be posed in the form of this question: does the incontrovertibility of an acquittal of a person at his trial on a criminal charge entail that in a later trial of a different charge evidence is in principle inadmissible if it is evidence of the very conduct that was charged in the first trial at which there was an acquittal?
Her Honour did in fact consider this question and answered it in the negative. In my opinion she was correct to do so; and there is clear authority supporting that conclusion: The Queen v Carroll [2002] 213 CLR 635 per Gleeson CJ and Hayne J at 651(50); Reg v Z [2000] 2 A.0 483 per Lord Hope of Craighead at 487 B-C; per Lord Hutton at 490 G-H, where the questions actually certified for appeal to the House of Lords are stated, and 505A-B and 506E-G, where the stated questions are slightly amended and formally answered; and per Lord Hobhouse of Woodbrough at 508E-510E; R v Degnan [2001] 1 NZLR 280 per Tipping J, speaking for a five Judge Bench of the New Zealand Court of Appeal, at 292[37].
The paragraph last cited bears quotation because, with respect, it crystallises what I take to be the current law on the topic now being discussed:
"Evidence which otherwise qualifies for admission on similar fact principles is not rendered inadmissible at law by reason of the fact that a previous trial based on that evidence has resulted in an acquittal or a stay of proceedings. Such evidence is admissible, subject to the discretion of the Court to exclude it if its admission would be unfair to the accused, or would otherwise result in an abuse of process. To obtain such exclusion the accused must be able to point to some particular feature of the case which requires that outcome against the general admissibility of evidence of this kind."
As will appear later herein, the references in that quotation to a discretion to exclude the evidence need to be tempered in the New South Wales context by a regard to the particular requirements of sections 101(2) and 137 of the Evidence Act 1995 (NSW), but the general thrust of what is there said is, I apprehend, a reasonable overall summary of the current state of the relevant law.
Learned senior counsel for the appellant submits that the correct approach in principle is embodied in a particular passage of the judgment of Barwick CJ in Garrett v The Queen [1997] 139 CLR 437 at 445.
In Garrett a man was accused of having raped a particular prosecutrix in 1975. He was tried by jury and acquitted. He did not deny at his trial that the alleged intercourse had taken place. His defence was that it had been consensual.
He was subsequently brought to trial upon a charge of having raped the same prosecutrix in 1976. His stance was, once again, that the alleged intercourse had indeed occurred, but that it had been consensual.
At this second trial the Crown was permitted to lead over objection evidence of the prosecutrix that she had been raped in 1975 and that she had given evidence to that effect at the earlier trial. As Barwick CJ explains at 443-444:
"It is apparent from the evidence I have set out that the prosecutrix gave evidence in this trial that on the evening of 3^rd November 1975 the applicant had raped her: and that she had unmistakably indicated her unwillingness to consent to intercourse with him. She further said that she had herself given evidence at the earlier trial and said that she had not consented to the intercourse which admittedly took place that evening.
The Crown's justification for introducing this evidence, and the basis upon which the trial Judge admitted it, was that it went to show that relationships between the applicant and the prosecutrix, which earlier had been quite intimate, had so far ruptured that the prosecutrix had informed against the accused and given evidence against him on his trial for rape.
I can well understand the desire of the Crown to neutralise the obvious effect which the past intimate association of the prosecutrix and the applicant might have in the jury's mind when considering whether or not the prosecutrix had or had not consented to the intercourse which took place on the early morning of 3^rd July 1976. Further, I can well understand that evidence to show that their relationship had changed before July 1976 was both relevant and in the interests of the Crown desirable.
However, that purpose could have been served by establishing that the prosecutrix had in fact informed against the applicant and had given evidence for the Crown at his former trial and had done so willingly. But the Crown Prosecutor was apparently not content to confine her evidence to that extent (and I am not unmindful of his reason for this attitude) with the consequence that evidence was given of a former rape and, secondly, that the guilt of the accused of that rape was asserted notwithstanding his acquittal upon a trial therefor.
This is not a case in which evidence of similar acts would be admissible to negative accident or other likely defence by an accused or to establish systems. Nor could evidence of an earlier rape be admissible, at any rate in-chief, to negative the belief of the applicant in the consent of the prosecutrix to the intercourse on 3^rd July 1976. I am unable to accept the submission that the evidence of the earlier rape was justifiable as an indispensable element in the comprehension or understanding of the occurrence out of which the instant charge against the applicant has arisen. No resort to what is loosely called the background of that occurrence can, in my opinion, warrant the introduction of the evidence of an earlier rape and the evidence of the Crown. The case, in my view, stands as one in which evidence of the earlier and quite disparate rape has been allowed in the applicant's trial for the events of 2^nd and 3^rd July 1976."
It is against that background that Barwick CJ continues, in the passage upon which the present applicant particularly relies:
"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, as the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, it could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible."
It is submitted that the joint observations of Gleeson CJ and Hayne J in Carroll are obiter dicta. I do not agree. The observations define a considered distinction between the inadmissibility of evidence that calls into question a previous conviction; and evidence that does not have that objective, but has rather the more limited objective of using evidence previously found insufficient to support, standing alone, a conviction upon a particular charge, not in order to re-open that earlier matter, but in order to use the evidence as similar fact evidence supportive of a different Crown case upon a different and unrelated particular charge.
It is submitted that, in any event, Garrett is applicable to the relevant circumstances of the present matter. I do not agree. Barwick CJ seems to me to make it explicit that his Honour is not dealing with the case before him as being in any way a similar fact evidence case.
Her Honour having decided correctly that ED's evidence was admissible in principle, she had then to consider the very different, and in this particular case the very difficult, question whether the evidence should actually be admitted. This question had to be resolved in a way that satisfied various relevant requirements of the Evidence Act 1995 (NSW). Two in particular of those provisions, sections 101(2) and 137, were especially important. Those sections provided, and indeed provide, relevantly:
"101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant"
"137 In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

In R v Ellis [2003] NSWCCA 319 Spigelman CJ, speaking for a specially convened five-Judge Bench, said of section 101(2) that: "it calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment rather than to exercise a discretion". The same is to be said, in my opinion, about the application in any particular case of section 137.
The process of reasoning by means of which Judge English carried out the balancing exercises and made the consequential judgments, that were required of her Honour by sections 101(2) and 137, is exposed in the following passages of her Honour's judgment:
"I have examined the evidence carefully and I have given careful consideration to the arguments by both counsel. To allow the evidence of (ED) does not amount to a re-trial of the issues already ventilated for which this accused has been acquitted. The evidence of (ED) is admissible and I allow it. It is not being admitted to show that the accused was guilty of earlier offences on which he has been acquitted. It is admitted to enable the jury to determine the issue of guilt of the offence allegedly committed against (CW), given appropriate directions as to the use that can be made of that evidence.
In this case I find that the probative value of the coincidence evidence arises not merely from the related events, but also, and in particular, from the circumstances that two complainants independently give evidence of related events where it is improbable that they could have given accounts with such similarity unless both accounts had foundation in fact.
I find that the evidence is significantly probative as required by section 98.
In relation to whether the probative value is outweighed by any prejudicial effect or whether the danger of an unfair prejudice outweighs its probative value, I find there is no reasonable possibility that these two young girls could have come forward with stories with such similarity unless they had foundation in fact. I am satisfied that the evidence ought to be adduced and is strongly probative and has such cogency that the evidence satisfies the tests as set out in the Evidence Act and as referred to in Pfennig's case. Accordingly, I rule that the evidence is admissible and I allow the Crown to call (ED)."
This reasoning, and in particular the concluding paragraph of the above quotation, seems to me to conflate the quite distinct exercises in balancing and in judgment that are mandated by sections 101(2) and 137.
Section 137 required her Honour to balance any probative value of the proposed evidence of ED against any danger of unfair prejudice to the appellant. It is, I apprehend, clear enough that her Honour at least adverted to this statutory requirement. It is, in my opinion, wholly unclear whether her Honour perceived any, and if so what, danger of unfair prejudice; and it is equally unclear how her Honour, insofar as she did perceive any such danger, reasoned to a conclusion that the danger did not outweigh the probative value as assessed by her Honour. On this basis alone I would be satisfied that her Honour's judgment that ED's evidence ought to be admitted is significantly flawed.
Section 101(2) propounds a test that has some superficial similarities to the section 137 test, but the two tests are by no means identical.
Section 101(2) required her Honour to balance the probative value of the evidence as assessed by her, against any prejudicial effect that evidence might have against the appellant. As the Chief Justice explained in Ellis:
"The words 'substantially outweigh' in a statute cannot, in my opinion, be construed in the way in which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The 'no rational explanation' test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh."
In my opinion, Judge English, who clearly relied upon an unexplained view of what was entailed relevantly by the decision of the High Court of Australia in Pfennig v The Queen [1995] 182 CLR 461, fell into precisely the error identified in the foregoing citation from Ellis. That such is the case seems to me to be clear: first, from the striking disproportion between her Honour's constant references to her assessment of probative value, and the near total absence of any reasoned assessment of potential prejudice or of danger of unfair prejudice; and secondly, from the course of events in the aftermath of the handing down of her Honour's judgment.
As soon as the Crown Prosecutor announced his intention to call ED, counsel then appearing for the appellant, (not being senior counsel for the appellant in this Court), asked for the jury to be sent out and applied: "... that there should be some explanation to the jury at this point in time as to what use they can make of this evidence". After a short adjournment followed by a short discussion with both counsel, her Honour said this to the jury:
"Members of the jury, you are about to hear evidence from a Crown witness, (ED), that will be given by way of the video link because she is also a young person. There are some very important directions of law by which you must abide with the use which you can make of her evidence, and I will expand upon that more fully when I am summing up to you at the end of the trial. But I want you to bear this in mind now whilst you are listening to her evidence.
This accused faced trial and was acquitted of indecent assault of (ED), the Crown witness who is about to give evidence. Ordinarily it is not permissible to lead evidence of alleged misconduct by an accused person on any other occasion other than the occasion the subject of this charge. The accused is not being re-tried for the alleged offences committed upon (E). He stood that trial and he was found to be not guilty. In the present case, you can use the evidence which is about to be called for a very limited purpose only, and that is, that it is to assist you in your task of determining whether he is guilty of the offence for which he now faces trial.
So be very careful when you are listening to the evidence at this stage, and I will give you further directions and expand upon them when I am summing up to you at the end of the trial."
This instruction to the jury was in my respectful opinion wholly insufficient to deal with the two difficulties that the jury was inevitably going to face in considering ED's evidence. The inescapable fact is that ED's evidence had no probative value whatsoever save upon the premise that the jury found the evidence to be both honest and reliable; and to be therefore such evidence as could be relied upon safely in aid of a conviction in the then current trial. The further inescapable fact was that the jury at the earlier trial had not been prepared to accept and to act upon the evidence of ED. There are, so far as I can see, only three bases upon which that jury could have declined so to accept and to act upon the evidence of ED: first, that the jury thought that her evidence was dishonest, or at least suspect as to its honesty; secondly, that the jury thought that her evidence was honest but unreliable, or at least suspect as to its reliability; thirdly, that the jury thought that her evidence was both dishonest and unreliable, or at least suspect on both those counts.
None of these matters was so much as touched upon in the directions. The result was that the jury had no explanation of the absolute importance of their positively accepting ED's evidence before they acted upon it; and of the potential impact upon that judgment of the refusal of the earlier jury to accept and to act upon that evidence.
ED began, presently, her evidence in chief. There was played to the jury a video tape of an interview of ED by an investigating police officer. A diagram and map were then tendered, whereupon the appellant's counsel at trial asked her Honour "to give the jury a direction in accordance with section 192 as to the limited use they can make of this material". Her Honour asked what the application actually was; and counsel replied that he would address later, as he in fact did after a handful of further questions in chief had been asked. One of those question was this:
"Do you remember what the surface of the beach that you drove on was like?" [T 158]
That question drew an objection which touched off a lengthy debate which culminated in the Crown Prosecutor's withdrawing of the question after her Honour had said to him:
"I must confess I thought the evidence was to be limited to those matters that you indicated on the voir dire, that is, it was a vehicle, she was on the lap, the hand was under the clothing, the extra couple of matters I added that there was the driving whilst they were both not sitting on his lap and one other thing, I think. I didn't appreciated (sic) that you were going to embark on anything other than that interview."
There is further brief discussion during the course of which her Honour said that in her understanding: “... the preferred view is that they be given a full direction in the summing up as to the use they can use (sic, but read Make') of (ED's evidence)”.
The examination-in-chief was then closed and the following cross-examination took place:
"Q. (E) can you see me?
A. Yep
Q. (E), the jury in this trial have seen the interview that you had with Mr. Parsons and Mr. Sharpe at Cardiff and that was on 28 February 2000?
A. Yeah.
Q. And I think you said you saw it yesterday about nine o'clock in the morning?
A. Mm - hmm
Q. You have given evidence, is this correct …
A. Yep
Q. ... on two occasions at Newcastle, is that right?
A. Yes.
Q. And you've been asked some searching questions in cross-examination about what was said in the interview with Detective Parsons and Mr. Sharpe, is that right?
A. Yep.
Q. And your mum and dad, as far as you know, also gave evidence in Newcastle on two occasions, is that right?
A. Yes.
Q. At the District Court, is that right?
A. Yep. [T 161,162]
At the close of this cross-examination the Crown Prosecutor raised in the absence of the jury this point:
"It's just Browne v Dunn, your Honour. If my friend is going to be suggesting that this trial's evidence isn't true, he ought to suggest it to her, in my submission, your Honour."
This submission drew the following response from the appellant's then counsel:
“I don't need to. It's not in fairness to that witness at all. It's the accused who is on trial. It's in fairness to him. He's been acquitted. I don't need to controvert that decision. I don't care for whatever reason the Crown brings this evidence, as a matter of law it's admissible. To do so, to Browne v Dunn it, is to place then upon him an onus. I don't intend to do that. I don't intend to go beyond the decision of the jury, as to do so would place him in double jeopardy, precisely what it is that the principles of autrefois acquit were decided to bring some finality. If that be the case, we are not bringing to finality, we are bringing a live issue. I don't believe that's what the Court said. It's never been the case, your Honour. If I am wrong about that, then we will litigate that in another place. But I don't intend to Browne v Dunn her at all ...”.
The Crown Prosecutor retorted:
“Two Judges of the High Court, all the other Judges that we know about, and your Honour, and your Honour has ruled on this, this evidence is admissible. I know my friend disagrees and he keeps making threats about what he's going to do, but the fact of the matter is, it's a Court of law, your Honour has ruled that the evidence is admissible on the basis of authority and principle.
The Crown has put the evidence before the jury so that they can take that evidence into account to consider whether, having regard to the coincidence of two people giving such very similar accounts of occurrences at the hand of the accused, they are satisfied of his guilt in relation to the charge that is under consideration. They don't have to be satisfied beyond reasonable doubt of this child's evidence, but with respect, if my friend is going to — I just suggest that my friend is making it difficult for himself by not suggesting to the child, if that's — and I know it's his case — that this evidence isn't true. And she is entitled, in fairness, to have that proposition put to her so that the jury can hear a response. The rule in Browne v Dunn, as I understand it, has always been a rule of fairness so that if something is going to be said about a witness, they have the opportunity — or the tribunal of fact has the opportunity to at least see what the person says about it." [T 163]
Her Honour then took a brief adjournment, following which the appellant's then counsel put further Browne v Dunn (1893) 6 R 67 submissions. They culminated thus:
"I mean, are we dealing here with an issue which is circumstantial in its nature, but which would then require or make it incumbent upon an accused person to put a suggestion to the witness — 'I suggest to you that what you told the Court is a pack of lies', or whatever you like to call it 'is untrue, in that there was never any such touching of you alleged', is to invite from the witness an answer, 'Yes he did'. I don't expect her to say, 'Oh, well, I was wrong'. I don't expect her to say, 'Well, look, it was fairly decided by a jury'. Otherwise I am controverting, if I ask that question, the very sanctity of the jury verdict, because the jury verdict has come to a finality and said, 'We are not satisfied beyond reasonable doubt'. Indeed, to do so is to invite this jury here to take up the litigation again. That's the problem, as I foreshadow.
So I've thought about it long and hard whilst the tape was being played as to what procedure I'd follow, because I was wondering then, how are we going to deal with this? I mean, we are rolling on in a totally new area of law, unassisted by authority. That's why I'm being careful about it, your Honour. So if my comments now have assisted you, I trust they have; if they have not, then I'd ask your Honour, if you don't feel it's appropriate to give an extempore judgment now, which I would urge you not to hasten to, because of the time and also, it's been a long week, it might behove your Honour to take a break, send the jury away and re-litigate this matter on Monday if it be more sensible to do so. I wouldn't want to invite your Honour to --- ."
Her Honour is recorded as having said at once:
"I am persuaded that the course you have adopted … is the correct one." [T 165]
I cannot see what her Honour could possibly have been meaning to convey other than that she accepted the soundness in principle of counsel's explanation of the course that he had taken as to the framing of his cross-examination. I am strengthened in that view by the consideration that almost immediately after her Honour had spoken, the jury was dismissed until the next sitting day; and, on the next sitting day, the first order of business was the closing of the case for the Crown and the opening of the case for the accused.
Immediately upon the opening of the case for the accused the appellant's trial counsel asked in the presence of the jury for a Crown concession, which was at once made by the Crown Prosecutor, that the appellant "…was acquitted by a jury at the Newcastle District Court on 11 November 2003 in respect to the complaint evidence brought by (ED)"
The appellant then gave sworn evidence. His examination-in-chief did not raise any matter about ED. The appellant simply and clearly stated that he was not guilty of any misconduct as alleged against CW.
In cross-examination the Crown Prosecutor put to the appellant that he “ … similarly touched (ED) on the breast, under her clothing while she was sitting on your knee driving the red four-wheel drive”. Defence counsel at once objected, upon the basis that the effect of what the Crown Prosecutor was doing was “to invite the jury to re-visit the issue of whether or not he is guilty or otherwise of that offence …”. Judge English overruled the objection, observing that the jury would be told “ … in no uncertain terms that we are not re-visiting that offence, that this evidence is in and in for one reason only”.
The Crown Prosecutor thereupon put distinctly to the appellant, in effect, that the appellant had indecently assaulted ED in January 2000 and in January 2002. The appellant denied simply and clearly every such allegation. The cross-examination concluded very shortly thereafter. Reexamination was brief and did not touch upon any allegation concerning ED. The case for the appellant was thereupon closed.
In the absence of the jury, the appellant's trial counsel had this exchange with her Honour:
"[COUNSEL] Your Honour on the issues of directions to the jury, does your Honour need any assistance at all from counsel at the bar table as to competing or views as to what direction she should give the jury as to the use they can make of this material that they've heard from (ED)?
HER HONOUR:I thought I'd wait until after I'd heard the addresses before I embark upon that course.
[COUNSEL] If your Honour pleases. I don't intend to — well I certainly won't be saying anything about it, because it's a matter of law that is clear that I don't want to be at issue with your Honour's ultimate directions." [T 24 15/3/04]
In the course of the closing address of the Crown the jurors were told that Judge English would give them directions of law which they would need to keep carefully in mind; and the following submissions were put:
"At the time each of (ED) and (CW) were interviewed by the authorities, back in February 2002, neither had met the other. Neither had ever had any communication with the other. That being the case, the Crown says to you, the only explanation for the striking similarity between what they say happened to them when they were with the accused, is that they are both true. The Crown says it can't be a coincidence that two children, who only had one thing in common, an association with the accused, come forward with such a similar account of what happened to them at his hands. …
The Crown says to you that you would reject the possibility that two children who don't know each other, by coincidence come forward and tell similar lies about the same man. The Crown submits to you that in all the circumstances, you would be satisfied beyond reasonable doubt that what (CW) happened did in fact happen. The Crown submits to you that because of (ED's) evidence you'd reject the possibility that the accused's conduct was accidental. You'd reject the possibility of the idea that it was somehow necessary or an innocent and necessary part of what he was doing in the vehicle." [T 34 25/3/04]
The closing defence address contains two brief references to the evidence of ED. The first reference is at p.36, 15/3/04; and the second reference is at p.43 of the same day.
The first reference was:
"Your decision at the end of the day is a very, very important one. It must not be arrived at rashly. It must not be arrived at by way of prejudice, because he sits in the dock. It must not be arrived at because the Crown has brought the charge. It must not be arrived at because you have heard that he has faced a similar charge in relation to (ED). You are not here to try that case that occurred in respect to that girl. You have heard from my learned friend correctly and properly conceded that the accused was acquitted of the allegations in that case. You cannot replicate what occurred in that case in terms of a hearing and transport that here into your role determining the facts peculiar to this case, other than in a limited way that her Honour will direct you upon as a matter of law."
The second reference was:
"I come back to the aspect that you're really not being asked to re-try the case brought by (ED), you're not asked to do that at all. Her Honour will tell you how you can deal with that issue at law. I won't touch that aspect because it's not for me to give you any suggestions as to what you should do with that at law. Leave that to her Honour. But, ladies and gentlemen, you would be very careful, I would submit to you, before you act upon that material. But give it the consideration that the learned trial Judge will tell you.'^,

The relevant directions given to the jury by her Honour were:
"In addition to the evidence of (CW), (ED) was also called to give evidence. I remind you, of course, that the accused was acquitted, that is he was found not guilty when he faced trial for two counts of indecent assault upon (ED). You cannot look behind those earlier acquittals. The Crown has conceded that the accused was acquitted. He is not facing trial on those earlier charges before you. He has been found to be not guilty. However, the Crown was permitted to lead the evidence and it is to be used by you on a strictly limited basis, and I shall explain to you the use you may make of this evidence and the use you must not make of it.
First, before you consider the evidence of (ED) in support of the Crown case you must be satisfied, on the balance of probabilities, of the truth of what she said. The Crown bears the onus of proving, only on the balance of probabilities, that she is a witness of truth on this issue. I remind you, of course, that an earlier jury has acquitted the accused in respect of the allegations made by her. If you are not satisfied, on the balance of probabilities, that her evidence is true then you must entirely disregard the evidence that she was indecently assaulted by the accused. You must not use it any way in support of the Crown case that (CW) has given truthful evidence of the indecent assault charged if you are not satisfied of the truth of (ED's) evidence.
Secondly, if the Crown, on the balance of probabilities, satisfies you of the truthfulness of the evidence of (ED), that the accused indecently assaulted her, you must not treat her evidence as establishing an inference of guilt of the accused against (CW) by reasoning that he had a tendency or a propensity to commit offences of this kind. That is a false and irrational reason. The law does not allow the evidence of (ED) to be used in that way. The only way the Crown may legitimately use the evidence of (ED) is that she was indecently assaulted in such a way that it bears a striking similarity to the way in which the complainant (CW) was indecently assaulted; that they must, when judged by experience and common sense, both be telling the truth. It may be the two girls got their heads together and collaborated or it may be that this evidence arises out of shear coincidence. But the Crown says to you that it's impossible that the girls collaborated or it's impossible that it's a coincidence. How could these two girls come up with identical scenarios when there is no possibility that they got their heads together and collaborated. One lives at East Maitland, one lives at Nelson Bay. They did not know one another at the time that they made their statements in February 2002.
It is open to you to find beyond reasonable doubt that the indecent assaults have such close similarity and that there is a clear underlying unity between both accounts as to make coincidence an improbable explanation for what they say happened to them at the hands of the accused. Mere similarity of account which raises or deepens the submission that the accused committed the offence charged before you is not sufficient.
The Crown, of course, says that in the circumstances here the only rational explanation for what it says is a striking degree of similarity, if not an identical case of indecent assault, is that both these girls are telling the truth. In this way the Crown relies on the evidence of (ED) to support the evidence of (CW) that the offence charged was committed. Whether, in light of these directions as to the permissible use of the evidence of (ED) you are persuaded that the evidence supports the evidence of (C.) that she was indecently assaulted by the accused is entirely a matter for you." [T 13-15 of 15/3/04]
It will be observed that these directions nowhere bring clearly to the attention of the jury what I have described in paragraph 40 herein as inescapable facts. Further the repeated references to the civil standard of proof were, in my respectful opinion, inappropriate. It is unacceptably dangerous in any criminal trial to refer to the civil standard in a way apt to dilute whatever has been said correctly about the criminal standard as the measure of the onus of proof resting on the Crown; and in my view that unacceptable danger vitiates the quoted directions.
The whole of the foregoing canvass has brought me to these conclusions:
1.Judge English did not do with precision and clarity what sections 101(2) and 137 of the Evidence Act required her Honour to do as conditions precedent to the forming by her Honour of a soundly based judgment in favour of admitting ED's evidence. Ground 1 has been established.
2.The relevant directions given during the course of the summing up were inadequate to the particular requirements of the case. Ground 4 has been established.
3.It is not necessary to deal in any particular way with Grounds 2 and 3 beyond saying that in my opinion there was from first to last a substantial miscarriage of justice in the way in which the decision to admit ED's evidence was reached; in the confused and confusing way in which, thereafter, the evidence was handled by all concerned; and by inadequate directions to the jury upon the topic of that evidence.
As to the appeal against conviction and the concurrent sentence application respecting the first trial, the Court should, in my opinion order:
[1]       that the appeal against conviction be allowed;
[2]       that the appellant's conviction and sentence be quashed;
[3]       that there be a new trial.

The Appeal against Conviction in the Second Trial

Ground 1

The relevant facts are contained.
It was the appellant's case at trial that on the occasion on which the offence alleged in Count 3 allegedly occurred, the complainant, SAH, had used some strong swear-words; that the appellant had rebuked her for having done so in front of his grand-children who were then present; and that the appellant had told her that she would not be coming to the beach again.
These propositions were put to SAH in cross-examination and she denied them. The appellant, in his own sworn evidence, described the alleged incident. It is relevant to note in particular the following questions and answers:
"Q. To whom were the remarks mentioned, that is the words used by (SAH), to whom were they directed?
A. I don't really know. I was driving and I heard it and I was very close to their home.
Q. To whose home?
A. (SAH's) home, I'm sorry.
Q. Was the comment related to any particular person or someone by association?
A. Yeah it was her — Megson had had a blue with another fellow and she seen this other fellow walking past." [T 92 —1713/04]
Megson was SAH's mother's then husband.
In the course of his cross-examination, the appellant gave this evidence:
"Q. So far as you could tell she's told a lot of truth and she's filled in some lies. Is that right?
A. Yeah." [T 96]
And a little later,
"Q. And see I suggest to you that (SAH) never used those words, the swear words?
A. Oh yes she did let go.
Q. I suggest to that that's something you've made up to put her in a bad light?
A. No. No way." [T 100]
And, later still and in the concluding exchanges of the cross-examination:
"Q. So that's all she said?
A. Yeah that was enough in my book.
Q. So is there any conversation going on before this?
A. Not that I heard.
Q. Any ---
A. I know I was only very close to them but this was yelled out.
Q. Any conversation after that?
A. No, no.
Q. So the only words she said were 'fucking cunt'?
A. Yeah.
Q. And then the only thing you said after that was 'get out'?
A. My word, yes. I had my grandchildren with me and I don't put up with that sort of thing.
Q. Alright. And then what did you do?
A. After I told her to get out?
Q. Yes?
A. I went home, went home and washed the wagon and took my grandchildren home, which was next door and across the road.
Q. Okay. So you were offended by that language?
A. My word I am. I don't use it at home.
Q. You thought it was inappropriate?
A. My word.
Q. Especially in front of your grandchildren?
A. I reckon.
Q. Her mother regards you like a father figure?
A. Her mother?
Q. Regards you like a father figure?
A. I think she would, yes, yeah.
Q. But it wasn't appropriate to go in with her and report to the mother what she'd done?
A. No, out, finished.
Q. Well you may not know this, and if you don't please say so.
A. Alright.
Q. Why have you told us about that?
A. Why have I told you?
Q. Yes.
A. 'Cause it happened.
Q. And?
A. Why? Because it happened and then about two weeks after --
Q. Something else happened?
A. Well this thing that's going on now, yeah.
Q. But you don't suggest, do you, that you reported it to her mother and got her into trouble for it?
A. No.
Q. You don't suggest do you that you said 'right, that's it, you're never going to get in the car again'?
A. That's what I said to her, yes.
Q. Pardon?
A. I said to her 'get out, go'.
Q. Yes?
A. Yes.
Q. And she was ten?
A. Yeah I guess so.
Q. And what you said to her was 'get out' is that right?
A. That's right, yep." [T 106-108]
The Crown Prosecutor, upon the basis of the foregoing body of evidence, put some strong rhetorical submissions to the jury. The effect of the submissions was to invite the jury to disbelieve the appellant's version of the alleged swearing incident and to accept the version of the complainant. Part of that Crown submission was that: “Out of nowhere comes the words ‘fucking cunt’”. I do not believe that such a submission reflects fairly the evidence actually given by the appellant as noted above in the quotation from T 92, albeit that the present ground of appeal does not stand or fall upon that detail. In my opinion it is clear that the thrust of the Crown Prosecutor's argument was that were the jury to accept his submission, the appellant's credit must be diminished at least to some extent, and that the jury should, on that account, be the readier to accept the honesty and reliability overall of the complainant. The Crown Prosecutor concluded the relevant sections of his submissions by putting in terms: "The Crown submits to you that (SAH) was very obviously a witness of truth who you can accept to that high standard beyond reasonable doubt". (T 17, 18/3/04]
Defence counsel, towards the conclusion of his own submissions, touched upon the point, but very briefly and in a few bare lines of general submission.
The essence of the submission now advanced by the appellant is put as follows in paragraph 36 of the written submissions for the appellant:
"36. In the circumstances of the present case, the trial judge should at least have directed the jury that even if they rejected the motive to lie put forward by the defence, that did not mean that the complainant was necessarily telling the truth. It should have then been emphasised that the Crown must still satisfy them that the complainant was telling the truth. Further, the jury should have been directed that, even if they were satisfied that the accused was telling lies regarding the asserted swearing incident (as argued by the Crown) they must not follow a process of reasoning that just because he told that lie that that is evidence of guilt."
When her Honour came, in the course of her charge to the jury, to canvass the trial evidence on Count 3, she noted that the appellant had given sworn evidence denying outright any indecent touching of SAH. Her Honour reminded the jury that the appellant had been under no obligation whatsoever to give sworn evidence. Her Honour then said this:
"It is for the Crown to prove you of his guilt and to do so beyond reasonable doubt. He denies that he committed the alleged acts of indecent assault upon (SAH). He gives evidence of an occasion when he ordered (LH) from his vehicle because of his behaviour towards (SAH) and he gives evidence of the cessation of the relationship with (SAH) due to what he says was offensive language used by her in the presence of his grandchildren.
Whilst (LH) acknowledges that he was spoken to in a way that he understood that the accused was annoyed with him he disputes the occasion on which that incident occurred. (SAH) denies that she used the language attributed to her by the accused. She says the last occasion, when they went to the beach with the accused, was the occasion she gave evidence about in support of count three on the indictment It is a matter for you whether you consider those matters were significant to (SAH) and (LH) sufficient to cause them to fabricate the evidence against the accused as has been suggested by his counsel in his address to you." [SU 29]
Apart from these directions, her Honour had emphasised repeatedly and, with respect, clearly the paramount requirement of the law that the Crown prove beyond reasonable doubt each and every essential element in any individual charge being considered. It is not, I think, necessary to extract all of those directions in their detail. I have read them, and I believe that there is no reasonable basis for any proposition that the directions to the jury were insufficient in what they instructed the jury about the onus and standard of proof. I do not see that a fair reading of the summing up gives any cause to fear a miscarriage of the kind suggested by Wood CJ at CL in paras 50 through 63 of his Honour's judgment in R v Smith [2000] NSWCCA 468, an authority upon which the appellant's submissions on Ground 1 rely heavily.
Not quite so cut and dried is the different potential problem that the appellant submits is present in this case, namely an alleged insufficiency of proper directions on the alleged motive of the complainant to lie about the indecent touching that she was alleging against the appellant.
This topic, also, is the subject of extensive analysis by Wood CJ at CL in Smith (supra): see paras 80 through 118 of his Honour's judgment.
It is clear enough that: "the posing of a question in the course of a closing address, that is designed as an invitation to the jury to consider why the complainant would be making her evidence up, is both imprudent and inadvisable, that is where the question of motive has not been ventilated in the evidence": per Wood CJ at CL at para 93. That, of course, is not this case. Here, a motive to lie was assigned in terms by the appellant to the complainant. In such a case the principles are stated as follows by Wood CJ at CL:
"100. Notwithstanding, the rigours of the criminal law have held the line by reference to the foundational principle that it is for the Crown to prove its case beyond reasonable doubt, and not for the accused to prove his innocence. The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. in such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie.
101. As Hunt CJ at CL said in Uhrig at 16-17:
"A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by s 103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with s 106.
What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many cases such where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."
102. In the various decisions, where the prohibited question has resulted in a conviction being set aside, it has been left in a way giving the matter prominence as a "central theme or issue", see F at 15-16, Rodriguez at 541, 544 and 549. or endorsing its legitimacy or otherwise describing it as an "appropriate" or a "reasonable" or "proper' question to ponder: see E at 454 and 467; Rodriguez at 542; and Jovanovic at 538."
In the present case, I would not think that it could be contended reasonably that it would not have been "appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasis that the Crown must still satisfy them that the witness is telling the truth". The question is: was a substantial miscarriage of justice caused by the failure of the trial Judge to give such a direction?
An affirmative answer to that question should not be given lightly. Judge English was in a much better position than this Court is in now to assess the atmosphere and the forensic practicalities of the trial. It must be acknowledged that neither the Crown Prosecutor nor experienced defence counsel assisted her Honour by suggesting that there was authority supportive of the appropriateness in this case of a Uhrig warning. It is the consistent stance of the Court of Criminal Appeal that the failure of experienced counsel to seek at trial a particular direction affords a strong indication that no such direction was required: R v Its (2003) 139 A Crim R 340 per Ipp JA, (Buddin and Shaw JJ concurring), at paras 92 through 99.
It seems to me that to answer fairly the question now being considered, it is necessary to balance the following factors:
1.The rhetorical vividness of the Crown Prosecutor's submissions. There is no principle of which I am aware which prevents an advocate from attempting to laugh out of Court, so to speak, a proposition that has been advanced by opposing counsel, provided of course that the obvious proprieties are observed.
2.When such a course is taken by a Crown Prosecutor in a criminal trial with a jury, it seems to me to be clear that it is appropriate, at the very least, for the trial Judge to ensure by a suitable, simple direction that the jury is not so carried away by the sparkle of forensic flourish as to overlook the importance of remembering that, should the jury in fact laugh the particular defence proposition out of Court, it does not by any means follow, and especially not in a word-against-word case, that all questions concerning the credit of, respectively, the complainant on the one hand and the accused on the other are somehow instantaneously resolved in favour of the complainant.
3.Whether what would be thus inappropriate becomes in a particular case an imperative requirement must depend, as Wood CJ at CL points out in his Honour's para 102, upon the whole of the relevant context.
I have not found these factors easy to balance against, in particular, the Ita approach. For that reason alone I would grant the formal leave required by Rule 4 of the Criminal Appeal Rules. I have reached, however, the conclusion that the point ought not to be upheld. The summing up, read fairly as a whole, seems to me to have been very carefully crafted on the topic of the onus and standard of proof, and to have achieved by the time of its conclusion so clear and emphatic and so repeated an emphasis upon that topic as to warrant a view, strengthened in my opinion by the lack of any relevant application at trial, that the summing up, which effectively ignored the rhetoric of the Crown submission, sufficiently drew the sting of that submission.
I would not, therefore, uphold Ground 1.

Ground 2

The basic question to be decided is whether the appellant's conviction on Count 3 of the indictment is reasonably sustainable upon the basis of the whole of the relevant evidence led at trial upon that count. The relevant principles in that respect are those established by the High Court of Australia in M v The Queen (1994) 181 CLR 487. The principles thus established are well known, and it is not necessary to repeat their fine detail.
Whenever, as in the present particular case, it is contended that a particular conviction cannot be sustained reasonably upon the relevant evidence led at trial, and the true gravamen of the challenge is that the questioned verdict of guilty is inconsistent with cognate verdicts of not guilty, then certain additional matters need to be kept in mind. It is sufficient, for the present, to cite the following brief passage from the judgment of Spigelman CJ in R v Markuleski [2001] 52 NSWLR 82 at para 125.
"This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant's uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances."
Markulesid was a judgment of a specially convened five-Judge Bench of this Court, the members of the Court in addition to the Chief Justice being Wood CJ at CL, Grove and Simpson JJ and Carruthers A-JA. No member of the Court dissented from that part of the Chief Justice's reasoning which is expressed in the cited portion from paragraph 125 of his Honour's judgment.
In M.F.A v The Queen [2002] 213 CLR 606 a submission was put to the High Court of Australia that Markuleski had been wrongly decided. The Bench was constituted by Gleeson CJ with McHugh, Gummow, Kirby, Hayne and Callinan JJ. Gleeson CJ, Hayne and Callinan JJ, in a joint judgment, expressly rejected that submission. The other three Justices, also in a joint judgment, did no more than to remark in their footnote (68) that it was not necessary to decide the submission.
It is, I think, useful for present purposes to note the detail of paragraph 34 in the joint judgment of Gleeson CJ, Hayne and Callinan JJ:
"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 v The Queen (1996) 190 CLR 348)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 the 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 a interaction between this consideration and the two matters earlier discussed."
I take from the foregoing statements of principle the proposition that this Court should proceed in the present case with a proper circumspection before concluding that the jury verdict on Count 3 is, on a properly principled view, unsustainable on the evidence and that it should therefore be set aside. It does not seem to me to dilute in any way the substance of the stated proposition to add to the proposition the observations made in paragraph 86 of the joint judgment of McHugh, Gummow and Kirby JJ:
"Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and common sense' and suggest a compromise in the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission."
Judge English, in her Honour's charge to the jury, and no doubt bearing in mind some advice given in Markuleski, instructed the jury as follows:
"There is also a general warning that I am required to give you in respect of the complainant's evidence and that is this. If you hold a reasonable doubt concerning the reliability of her evidence on one or more counts, whether by reference to her demeanour or for any other reason, you must take that into account in assessing the reliability of her evidence in relation to the other counts on the Indictment.
As I have made clear to you, before you can convict the accused in respect of any count in the Indictment, you must be satisfied beyond reasonable doubt that the particular offence has been proved to have been committed." [SU 26]
During the cross-examination of the complainant the appellant's counsel at trial cross-examined in connection with the first of the three alleged incidents. The jury was then sent out while Her Honour considered certain legal argument, the detail of which is not now important. During the adjournment the jury sent to her Honour a note reading: "Could we find out off [the complainant] why did she keep going back in the 4 WD to the beach”?
After some very brief discussion between her Honour and both counsel as to ways in which the note might best be treated, counsel then appearing for the appellant said that he would himself put the jury question to the complainant at some appropriate point during the remainder of the cross-examination.
After the cross-examination had resumed, counsel cross-examined in connection with the second of the three alleged incidents, and in the course of that part of the cross-examination asked these questions and received these answers:
"Q. And at this stage in your life had you had any instructions from your school teachers as to the dangers of bad touching if I can use that word?
A. Yeah.
Q. What did you understand bad touching to be?
A. Was when you're uncomfortable and you didn't like what they were doing.
Q. Yes but what about if a person was touching you on your genital area, that would be bad touching, I think you've said that.
A. Yep
Q. You knew, is this correct, that it was bad touching --
A. Yeah.
Q. -- when you were nine going on ten?
A. Yep.
Q. Why did you keep going back to the beach with [ELD]?
A. Because I didn't like it but I didn't want, 'cause I kept going back because of my mum, she didn't make me or anything but I didn't want my mum to know, so I kept going back.
Q. You said you didn't want your mum to know, is that right?
A. Yeah.
Q. But you knew, from teachers at school, that's correct?
A. Yeah.
Q. That you could approach any of your teachers?
A. I know, I just didn't want, like, anyone to know, I was too scared.
Q. Just stop there. You knew that you could approach any of your teachers didn't you?
A. Yep.
Q. That right?
A. Yep.
Q. You knew that what he was doing was wrong, that right?
A. Yep.
Q. But you chose to take the view that you didn't want to tell your mum?
A. Yep.
Q. And you didn't want to tell your school teachers?
A. Yeah, because --
Q. That right?
A. --- they would tell my mum.
Q. They'd tell your mum. And you didn't want to tell Mego?
A. No.
Q. And you were good friends with Mego?
A. Yep." [T 49, 50 on 17/3/04]
Applying the whole of the foregoing statements of principle to the given facts of this particular case, the features of the case which strike me as being, in combination, determinative of the present appeal are these:
1.On each of the three relevant occasions the alleged offending conduct of the appellant was in substance the same. It is true that the alleged offending behaviour was not in every precise detail the same on each of the three occasions; but as I have said, there was a substantial similarity to each instance of the alleged offending behaviour.
2.In each case the evidence of the complainant herself was uncorroborated: that is to say, was unsupported by evidence independent of herself and being evidence which, if accepted, tended to strengthen the drawing from the whole of the evidence an ultimate inference reached beyond reasonable doubt that the appellant was guilty as charged.
3.In respect of the first in time of the three alleged incidents, there was some evidence of complaint. It came from the complainant's young brother. It is, I think, sufficient to say that when the two versions of the alleged complaint were set side by side, there were significant discrepancies between the versions.
4.In respect of the second in time of the three alleged incidents, there was no complaint evidence.
5.In respect of the last in time of the three alleged incidents, there was evidence from which it could reasonably have been inferred that at some time after the alleged occurrence the complainant had said something to her mother; and that whatever that "something" had been, it had led eventually to the setting in train of official police investigations, they leading in their turn to the prosecution of the appellant.
6.There was, however, no evidence at all of what exactly it was that the complainant had allegedly said to her mother. I do not see that as being a merely technical point. The whole justification for admitting complaint evidence at all, notwithstanding its obvious dangers as essentially self-serving evidence, is that it is evidence which, if accepted, provides some evidence of consistency as between matters complained of in appropriately close proximity to the alleged occurrence, and the matters complained of as part of the particular complainant's evidence at trial. In the present case, there was, so far as I can see from the trial transcript, no indication of any kind as to quite what behaviour it was about which the complainant first said anything to her mother. I cannot see how it can be correct to suppose that it affords, in the established legal sense, evidence of consistency of complaint for a complainant to say, in substance, no more than that she told her mother, or some other relevant person, that something had happened, without giving any detail of what it is that was then alleged to have happened. In other words, it seems to me that in the present particular case there was no real complaint evidence at all, supportive of what the complainant had to say otherwise in her evidence at trial descriptive of the alleged offending conduct that was the basis for Count 3 in the indictment.
It is clear from the question asked by the jury that the members of the jury were interested to know why the complainant had continued to go out with the appellant in the aftermath of the first of the three alleged incidents. It was, of course, open to the jury to accept the explanation given by the complainant: namely, that she had, in effect, no choice, because for her not to continue going out with the appellant would have caused questions to be asked, and that would have entailed in its turn her having complained about impropriety on the part of the appellant, something that she was at that time too frightened to contemplate. My difficulty is that I could well understand why a jury, accepting that explanation, would have thought it safer than it might otherwise have been to find the appellant guilty; but I cannot see quite so readily why the jury would have accepted the complainant's explanation for the absence of relevant complaint evidence, and then have acquitted the appellant on Count 1.
I could accept, similarly, that the jury, having seen and heard the complainant, might well have been prepared to take the view that the absence of any relevant complaint evidence in respect of the second count was capable of being explained away as in Count 1. It seems, however, odd to me to think that the jury would have accepted the complainant's evidence as essentially honest and reliable; would have accepted that there was an understandable explanation for the absence of consistent complaint evidence; but nevertheless would have acquitted the appellant.
In respect of Count 3, I cannot see how it would have been permissible for the jury to have reasoned that the complainant's evidence was uncorroborated and unassisted by sufficiently exact evidence of relevant complaint; but that it might nevertheless be accepted that the alleged incident did in fact occur simply because the complainant had not gone out again in the appellant's company after having finally decided to say whatever it was she did in fact say to her mother. I certainly do not think that it would have been permissible for the jury to have taken the view that the mere subsequent involvement of the police necessarily entailed that the offending incident had in fact occurred; or to have inferred that whatever it was the complainant had said about the detail of that alleged incident was consistent with her description of the incident during the course of her evidence at trial.
In the end, and after considering carefully the guiding principles to which I referred in the opening paragraphs of this section of the present judgment, I find myself with an invincible conviction that there is something wrong with the finding of guilt returned on Count 3. I cannot see any persuasive, let alone convincing, foundation in logic and common sense for an acquittal of the appellant on Counts 1 and 2, and a simultaneous conviction on Count 3.
In all of those circumstances it seems to me that the present case is one in which it would be proper to quash the appellant's conviction and sentence and to direct an acquittal.

Summary of Orders

For the whole of the foregoing reasons, I am of the opinion that the Court should make the following orders:
[1]       In connection with the first trial:
1.1      That the appeal against conviction be allowed;
1.2      That the appellant's conviction and sentence be quashed;
1.3      That there be a new trial.
[2]       In connection with the second trial:
2.1      That the appeal against conviction be allowed;
2.2      That the appellant's conviction and sentence be quashed;
2.3That there be entered in lieu a directed verdict of acquittal on Count 3 in the relevant indictment.
HULME J: In this matter, I have had the advantage of reading the reasons for judgment of Sully J .and I can accordingly be brief. I shall adopt his Honour's references to the First and Second Trials.

First Trial

I agree with the orders his Honour proposes in respect of the appeal
against the conviction resulting from this trial. However, I prefer to express my own reasons for that conclusion.
If the evidence of ED was admissible, its accuracy was a relevant issue and thus also relevant was the credibility and reliability of ED. Counsel chose not to canvass these matters fully in the cross-examination of ED and in other circumstances there would be much to be said for the view that Rule 4 of the Criminal Appeal Rules should preclude those acting for the Appellant in the appeal from raising that issue in this Court. However, as Sully J has concluded, and at a time when things could have been changed, the trial judge indicated her concurrence in the approach adopted by counsel at the trial. Then, in the extract from her summing-up which Sully J has quoted, her Honour raised for the jury's consideration the truth of what ED had said. That inconsistency of approach of her Honour was unfair and, of itself, created a miscarriage of justice.
Counsel for the Appellant at the trial did not seek any redirection in that regard but the matter was of such significance that it could not have been adequately dealt with at that stage of the trial. Hence, there is no adequate reason for the application of Rule 4 in relation to it.
This conclusion makes it unnecessary for me to embark on a consideration of the other matters to which Sully J has referred in arriving at his conclusion as to the disposition of the appeal from the first trial. However, there are a few matters to which I would refer.
I agree that her Honour's directions to the jury as to the way in which they could use the evidence of ED were inadequate. I do not, as does Sully J, find error in her Honour's mention of the balance of probabilities: The evidence of ED was but one of the factors the jury were asked to take into account as indicating guilt: It was not an essential link in the Crown's case and thus, if admissible, proof of it on the balance of probabilities was sufficient to justify the jury weighing it in the scales — see my discussion of this topic in R v Vinh Le [2000] NSWCCA 49 at 116.
If admissible the evidence of ED was of a nature as to require her Honour to explain how, and the limits of how, it could be used. Clearly, once ED's evidence was admitted, the evidence of both girls could be used to prove that the Appellant's touching of the complainant's breast was deliberate and not accidental, or was indecent and not innocent. However Her Honour seems not to have been conscious of the distinction in s98 between "events" on the one hand and "act" or "state of mind" on the other. The effect of what her Honour said seems to have been that the jury could use the evidence of indecent assaults on ED and the complainant to prove that, because of the improbability of the events occurring coincidentally, the Appellant committed the indecent assault on the complainant. That is to equate the "events" referred to in s98 with the different concept reflected in the section by the word "act".
Indeed, there is much to be said for the view that, so far as coincidence is concerned, the evidence of assaults on ED had no relevance to the charges of assault on the complainant except on issues such as accident of indecency.
I would also observe that, while acknowledging the authority of Sully J's references to The Queen v Carroll [2002] 213 CLR 635, Reg v Z [2002] 2 AC 483 and R v Degnan [2001] 1 NZLR 280, regard should also be had to the references by Gaudron and Gummow JJ at [92] and by McHugh J at [137] to R v Storey (1978) 140 CLR 364 and to the need for a jury to be directed that a previous acquittal cannot be challenged and the evidence must not be taken as proving guilt on the earlier charge. That is a stronger direction than occurred in this case. Such a direction would be calculated to weaken significantly the probative weight which could be given to ED's evidence and to the prospect that it would be admitted after the balancing exercises required pursuant to ss101(2) and 137 of the Evidence Act 1995 (NSW).

Second Trial

So far as this trial is concerned, I agree with Sully J that the first ground of
appeal fails.
However, I disagree with his Honour on the topic of the second ground and as to the result of the appeal. The appeal against conviction in this second trial should be dismissed.
I do not regard the Appellant's acquittal on counts 1 and 2 as requiring or justifying the conclusion that the guilty verdict on count 3 should be set aside. There was, within the context of a jury trial, sufficient difference in the evidence relating to, on the one hand, the first 2 counts and, on the other hand, the third.
Although the evidence did not reveal the details of what was said by the complainant to her mother when they spoke about the matter some 3 weeks after the events the subject of the third count, or indeed which of them initiated the discussion, it is clear that the Appellant's conduct was the subject of discussion at that time, that the complainant spoke to the police about it on 21 February 2002 in the course of a recorded interview and that it was common ground that, with the possible exception of one occasion, the complainant did not again join the Appellant in his car.
On the other hand the complainant agreed that, despite saying she objected to the Appellant touching her when it occurred and believed that his conduct was wrong, after the events the subject of the first and second counts she repeatedly accepted invitations to accompany him. As is apparent from the jury's note which asked, "Could we find out off (the complainant) why did she keep going back in the 4 WD to the beach?", the jury were clearly interested in the apparent inconsistency between her attitude as evidenced by her testimony and her conduct.
It must be accepted that the jury's acquittal of the Appellant on counts 1 and 2 is an indication that, either they were unwilling to accept to the requisite standard the complainant's evidence as to the occurrence of the offences the subject of those counts and the complainant's explanation as to why she continued to accompany the Appellant or, accepting that evidence, were unwilling to convict the Appellant on those counts. It must also be accepted that, if the latter is the explanation, the jury did not adhere to their oaths or affirmations to decide the case according to the evidence.
However the courts, including the High Court, have recognised that such occurrences are an inherent part of the jury system — see Markuleski (2001) 125 A Crim R 186 at 201-2 and Mackenzie v R (1996) 190 CLR 348 at 367-8 where Gaudron, Gummow and Kirby JJ agreed with the following observations of King CJ in R v Kirkham (1987) 44 SASR 591 at 593:-
"Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic and a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
When the acquittal of the Appellant is explicable on the bases of this understanding of the jury system and what, if I may say so, is a very sensible attention to the apparent inconsistency between the complainant's words and conduct, the difference in the verdicts does not, to adapt some further words of the majority in Mackenzie v R (at 368), "rise to the point that I consider that intervention is necessarily required to prevent a possible injustice".

Conclusion

So far as the appeal against the conviction resulting from First Trial is concerned, I agree with the orders Sully J proposes.
I would dismiss the appeal against the Appellant's conviction in the second trial.
As Sully J states, the Appellant has also sought leave to appeal against sentence. As I am in a minority on the topic of conviction, it becomes unnecessary for me to consider this.
LATHAM J: I agree with Sully J.

ADDENDUM

Order 3. of the non-publication orders is no longer applicable.
The medium neutral citation [2005] NSWCCA 413 has been replaced with [2005] NSWCCA 476 to provide a unique citation for the judgment.
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[2005] NSWCCA 476

2 December 2005