Herbert v The Queen - [2002] WASCA 362

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HERBERT -v- THE QUEEN [2002] WASCA 362

CORAM: MURRAY J
TEMPLEMAN J
SHEPPARD AUJ

HEARD: 18 OCTOBER 2002

DELIVERED : 23 DECEMBER 2002

FILE NO/S: CCA 20 of 2002

BETWEEN: ERIC JOHN HERBERT
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Six charges of sexual offences against two children - Evidence substantially restricted to that of one complainant and the accused - Jury convicted of three offences and acquitted of three - Whether verdicts inconsistent - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Ms H E Prince
Respondent: Mr D Dempster

Solicitors:

Applicant: Dwyer Durack
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53
R v Kirkman (1987) 44 SASR 591

Case(s) also cited:

R v Asplin [1999] WASCA 148
Spiteri v The Queen [2001] WASCA 82

MURRAY J: This application for leave to appeal against conviction arises out of circumstances completely described by Sheppard AUJ. Such a case is not unusual. It is readily understandable, of course, that a four or five‑year‑old child may not report sexual interference, particularly if it ceases after a time. Such cases are often only the subject of complaint years later, in this case over 10 years after the events in question. In those circumstances it is not surprising that, at trial, it is a case of the complainant's oath against that of the accused person who denies the truth of the allegations.
These then are classically cases which require that the jury be warned of the danger of conviction in the strongest terms, discussed by the High Court in Longman v The Queen (1989) 168 CLR 79. In this case, as Sheppard AUJ has observed, the trial Judge gave such a warning in terms of which the applicant makes no complaint. Such a warning effectively redresses the balance of fairness of the trial process and protects the accused person from injustice.
Particularly is that so when the Longman warning of the danger of conviction in reliance upon the uncorroborated testimony of the complainant is added to directions about the onus and burden of proof. Those directions necessarily instruct the jury that they must resolve the conflict of credibility by bearing in mind that they should only rely upon the complainant to the extent that they are satisfied that the account given by the witness is both truthful and accurate. It must then be an account which, in relation to any particular offence charged in the indictment, persuades the jury of the guilt of the accused person beyond reasonable doubt. In a case like this where the accused denies the truth and accuracy of the complainant's evidence in relation to each alleged offence, the jury may not be satisfied of guilt beyond reasonable doubt unless they consider that the evidence of the accused person is false. If his evidence may, the members of the jury think, be true, they must acquit.
However, even if they reject the accused as a witness of truth, they must still be satisfied of his guilt beyond reasonable doubt, relying solely upon the evidence of the complainant and bearing in mind the danger of conviction in these circumstances. All those directions were given by the trial Judge in this case.
Her Honour added the reminder that the jury were dealing with an indictment which charged six separate offences allegedly committed on five separate occasions. The jury was to treat the case as if six separate trials were being conducted at the one time and her Honour told the jury, in effect, that there was no reason in law or fact why the jury's verdicts should be the same, either guilty or not guilty, in respect of all counts in the indictment.
Her Honour added the direction that the jury were not bound to accept or reject the evidence given by a witness in its entirety. They might consider that the evidence of a witness was reliable and to be accepted in relation to some matter about which the witness spoke, whereas they were not so persuaded in respect of another part of the witness's evidence. Again, all of those directions were proper and necessary instructions to the jury and no complaint is made about the terms in which they were given.
The ground of the application argues that the convictions on counts 1, 4 and 5 are unsafe and unsatisfactory because of their inconsistency with the acquittals on counts 2, 3 and 6, which acquittals, it is submitted, show that the jury considered that the complainant's evidence, which was entirely uncorroborated, was unreliable. In particular, it is said that the verdict on count 3 was inconsistent with the verdict on count 4 because, on the evidence, those two counts "were inextricably linked in that they were said to have taken place simultaneously" with the result that the failure to be satisfied of guilt of count 3 beyond reasonable doubt must bring down the guilty verdict on count 4. Further, it is put that the not guilty verdict on count 6 must be regarded as relevantly inconsistent with all the guilty verdicts because the acquittal on count 6 must show that there was a reasonable doubt as to the truth, accuracy or reliability of the complainant's evidence generally, in that it was that incident of all of them which the complainant ought to have remembered accurately and about which he could not be mistaken.
There is a further point made about count 6 which refers to a question asked by the jury in respect of that count which, it is submitted, reveals that the jury had not understood the issues in the case. Count 6 was the charge of penile penetration of the anus of the child in question. After a lengthy retirement, the jury asked the question:
"Could we please have a ruling on the definition of sexual penetration in regards to charge number 6?"
It is clear that her Honour and counsel at trial were puzzled about the question because, of course, the issue in respect of count 6 was, as in the case of all the other charges, whether the child was accepted as a truthful and accurate witness and the accused's account by way of denial was rejected. In that event, it was thought that the child's evidence would establish the anal penetration.
However, prosecuting counsel thought that the jury might be concerned about the degree of penetration that had to be established. Her Honour suggested to counsel that she might put to the jury that penetration to any degree was sufficient in law, but, as it happened, the direction she gave was not in those terms. Her Honour said that:
"... charge number 6 is an allegation that on the relevant dates, the defendant sexually penetrated the complainant by inserting his penis into the anus of the complainant, as has been explained to you before. I will just remind you that the definition that was operating at the time and is relevant as far as charge number 6 on the indictment is concerned simply states that to sexually penetrate means to penetrate the vagina or anus of any person with any part of the body of another person. I can tell you that the sexual penetration in relation to that definition means any sexual penetration of the anus by any part of the body of another person and of course that would mean that any sexual penetration of a person's anus by another person's penis would be sexual penetration according to the definition in the Criminal Code." (my emphasis)
I have highlighted three parts of the direction because the jury might have understood them to mean that the penis of the applicant had to be entirely inserted into the anus of the child to establish guilt of the offence. Evidence was led from the female police officer who had been involved in the investigation of the offence that, although she had discussed the question of medical examination by Princess Margaret Hospital with the complainant in respect of the charge which became count 6 on the indictment, no such investigation was undertaken because those concerned in such processes at the hospital advised that it would be likely that there would be nothing by way of evidence revealed by an examination, given the long delay which had occurred.
The evidence given by the child is described by Sheppard AUJ. Certainly, the child said that the accused "put his penis into my bottom". He referred to the pain which caused him to cry and scream as the accused "was sliding his penis in and out, back and forth" of "my bottom".
One may speculate about the reason for the acquittal of this charge, but the question asked by the jury may be significant. Perhaps it was the case that they were concerned to see if the evidence persuaded them beyond reasonable doubt that the whole of the applicant's erect penis had gone into the anus of the child, who was then four; as he put it, nearly five. Perhaps, given the age of the child, the jury were not persuaded beyond reasonable doubt that there had been penetration at all. Perhaps they thought that the pain suffered by the child might have been caused by an unsuccessful attempt by the applicant to insert his penis and that the sensation felt by the child of the penis sliding in and out was its movement between the cheeks of the child's bottom. Certainly, the jury were not told that if they were not satisfied beyond reasonable doubt that penetration, as they conceived it to be, had occurred, it would be open to convict of an attempted sexual assault in the manner described.
In short, while I do not think that their question displays a misunderstanding of the issues to which this charge gave rise, it may have been that, in the end, the jury were left with a misunderstanding of the elements of the offence so far as it was reflected in the charge which was count 6 on the indictment. The acquittal of the applicant of this count is not, to my mind, only explicable by finding that the credibility and reliability of the child's evidence was so destroyed that there should have been acquittals on all counts in the indictment. Other explanations are potentially open, which are either not necessarily destructive of the capacity to rely upon the accuracy of the complainant's testimony generally or were destructive of his credibility only in respect of this charge.
I note in that regard that the allegation of anal penetration was not made in the first statement made by the complainant to the police, but was first made in his second statement made some 10 months later. In my opinion, the point is not a strong one because the allegation was not touched upon at all in the first statement and the complainant's explanation was that he omitted from the statement matters which, "were things I remembered but didn't know how to talk about it, or I couldn't remember bits". The complainant may have been understood to be saying that he was simply too embarrassed to mention the anal penetration when he first gave a statement to the police, but the inconsistency in giving his accounts may have concerned the jury so that they were unprepared simply to rely upon the complainant's uncorroborated testimony in this regard.
It does not seem to me to be the case that the acquittal of count 6 is necessarily destructive of the convictions of counts 1, 4 and 5 in the way discussed by the High Court in Jones v The Queen (1997) 191 CLR 439, and see also MFA v The Queen [2002] HCA 53; 14 November 2002 at [25] ‑ [26].
The contention that there is relevant inconsistency of verdict arising out of the acquittals of counts 2 and 3 is, to my mind, also unsustainable. Both counts related to offences allegedly committed against the other child, the brother who did not give evidence. Count 2 alleged an indecent dealing with that child by procuring him to lick milk from the applicant's penis. The child who gave evidence certainly said clearly enough that he saw his brother lick and suck the milk "from around and on his penis". He said the penis was erect, although he conceded in cross‑examination that he had told the police that he did not remember whether the applicant's penis was "soft or hard". The witness said that he could not remember what occurred when he spoke to the police, but he remembered now, giving his evidence.
Perhaps the jury, bearing in mind that the witness was here describing an offence committed against his brother, rather than something which happened to him, and bearing in mind the positive inconsistency in the way the incident had been described, were simply unprepared to accept the accuracy of the witness's recollection. They were obviously not persuaded beyond reasonable doubt that the incident occurred as alleged in count 2.
The other acquittal was of count 3, an offence allegedly committed by touching the bottom of his baby brother at the same time as the commission of the offence charged as count 4, the indecent dealing with the witness by procuring him to handle the applicant's penis. Counsel relied particularly upon these verdicts as being so inconsistent that the jury acquitting of count 3, ought to be taken necessarily as being unable to rely upon the complainant as a credible and accurate witness in respect of any of the incidents which were counts 1, 4 and 5, of which the applicant was convicted.
The complainant's evidence‑in‑chief was that he and his brother had been asleep in their room. They awoke and went in to what was described as the master bedroom to find the applicant there on the bed. He told the children to lie down next to him and they did so. The evidence contained no detail of how the three people involved were positioned with respect to each other, but the complainant's evidence was that the applicant, "told me to hold or grab his penis and then while I did that he put his hand down the inside of C's nappy and held his bottom". He said the applicant's penis was erect.

Again, there was some inconsistency in what the complainant said when giving evidence and what he had told the police. To them, he had said that the boys were in the lounge watching television before they went into the bedroom. The statement to the police also said that, initially, the applicant's penis was soft, although he now remembered that it was erect.
In this case, the jury do not appear to have been disturbed by that inconsistency and it may be that they thought that was a matter which did not disturb the accuracy of the complainant's consistent testimony that he was required to take hold of the applicant's penis. So far as the complainant described what was at the same time done to his brother, it seems to me to be clear that the jury were simply not satisfied beyond reasonable doubt of the accuracy of the child's observation. Maybe they thought what was happening to him would have been a distraction which prevented him seeing clearly what was happening to his brother. Perhaps the jury thought that the evidence given by the complainant to establish the applicant's guilt of count 3 was a genuine enough recollection, but they were not satisfied beyond reasonable doubt that the complainant actually saw what he thought he saw.
Again, the point of that consideration, as in respect of the complainant's evidence about count 2, is that those acquittals may be readily explained by a process of reasoning on the part of the jury which need not, if the jury were behaving reasonably and performing their task of fact finding properly, have been so destructive of the credit worthiness of the complainant as a witness as to require the intervention of this Court to quash the convictions on the ground that they are to be regarded as unsafe or unsatisfactory, in the sense that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of counts 1, 4 and 5. In no case, I think, has there been established such factual inconsistency between the verdicts as to require the convictions to be quashed: MacKenzie v The Queen (1996) 190 CLR 348 at 336 ‑ 368; MFA at [33] ‑ [36], [85] ‑ [86].
I would therefore dismiss the application for leave to appeal against conviction.
TEMPLEMAN J: I have had the advantage of reading in draft the judgments prepared by Murray J and Sheppard AUJ and the subsequent decision in MFA v The Queen [2002] HCA 53 in which the High Court revisited its earlier decision in Jones v The Queen (1997) 191 CLR 439.

In their joint judgment in MFA [supra], Gleeson CJ and Hayne and Callinan JJ reaffirmed that where the question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, that question must be answered by reference to the test set out by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen (1994) 181 CLR 487 at 493, in the following terms:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
Gleeson CJ, Hayne and Callinan JJ went on to say (in MFA at [34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of the verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.
…
In 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."
A little later in their judgment at par 36, their Honours noted that the test established by s 6(1) of the Criminal Appeal Act (NSW) is "unreasonableness, not inconsistency." That is the test here.
I agree with Murray J that the acquittal of the applicant on counts 2, 3 and 6, does not reflect unreasonableness in the guilty verdicts on counts 1, 4 and 5.
The jury were properly directed that the six charges were separate and that they had to be considered separately. The direction included the following:
"… you must approach [the charges] on an individual basis and focus on each individual charge. The fact that you find either for or against an accused person in relation to one charge would not necessarily mean that you would find the same in relation to another charge."

Although it is true that the separate consideration of each charge necessarily involved an assessment of the credibility of the complainant, as the High Court pointed out in MFA, an acquittal on some charges does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.
In the present case, counts 2 and 3 did not charge offences against the complainant, but against his infant brother. In my view, there is a potential for a generally truthful youth to give a less accurate account of his observations of the accused's actions in relation to his young brother, than in relation to himself. And this is particularly so, when, as here, the events happened some 10 years ago, when the complainant was only 4 or 5 years old.
In my view, the acquittal on counts 2 and 3 do not reflect inconsistency in the jury's verdict so much as a very careful approach which evidence of that kind required.
The acquittal on count 6 cannot, of course, be regarded in the same way because the offence charged was the insertion of the applicant's penis into the anus of the complainant. An offence of that kind, committed

against such a young child, is likely to have been so traumatic for the complainant so as to be imprinted indelibly on his memory.

However, the very seriousness of the offence was such that it called for the closest scrutiny of the complainant's evidence.
In relation to count 6, the complainant's evidence was, that the applicant had "put his penis into my bottom". It was not clear from the complainant's evidence precisely what, if any, degree of penetration had occurred: and that is not a matter about which the complainant could have made a direct observation.
Count 6 clearly gave the jury some difficulty. I agree with Murray J that the question asked by the jury may have been significant. It was:
"Could we please have a ruling on the definition of sexual penetration in regards to charge number 6?"
The learned trial Judge gave a proper direction to the jury in relation to this matter, and redirected the jury that:
"… any sexual penetration of a person's anus by another person's penis would be sexual penetration according to the definition in the Criminal Code."
I do not find it surprising, in the light of this direction and the rather equivocal nature of the complainant's evidence, that the jury acquitted on this charge. In my view, the acquittal reflects not so much inconsistency in the jury's verdicts, but, as was said in MFA, 'a cautious approach to the discharge of a heavy responsibility' in relation to a most serious allegation.
I emphasise that in reaching these conclusions, I have taken into account the fact that the learned trial Judge gave to the jury clear and appropriate directions, which have not been the subject of any criticism on behalf of the applicant.
In all the circumstances, I agree with Murray J that the application for leave to appeal against conviction should be dismissed.
SHEPPARD AUJ: In this matter the applicant applies for leave to appeal from his conviction in the District Court at Perth on 8 February 2002 on two counts of sexual penetration contrary to s 324E of the Criminal Code

and one count of indecent dealing contrary to s 189(1) and s 189(3) of that Code.

Originally, the form of the indictment containing the charges against the applicant was as follows:
"(1)On a date unknown between 31 December 1989 and 18 January 1991 at Girrawheen ERIC JOHN HERBERT sexually penetrated ... [J], a person under the age of 16 years, by introducing his penis into the mouth of ... [J].
(2)AND FURTHER THAT on a date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT procured ... [C], a child under the age of 13 years, to unlawfully and indecently deal with him, by procuring ... [C] to lick milk from the penis of ERIC JOHN HERBERT.
(3)AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT unlawfully and indecently assaulted ... [C], a person under the age of 16 years, by touching his buttocks.
(4)AND FURTHER THAT at the same time and at the same place as in Count 3 ERIC JOHN HERBERT procured ... [J], a child under the age of 13 years, to unlawfully and indecently deal with him, by procuring ... [J] to touch the penis of ERIC JOHN HERBERT.
(5)AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT sexually penetrated ... [J], a person under the age of 16 years, by introducing his penis into the mouth of ... [J].
(6)AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT sexually penetrated ... [J], a person under the age of 16 years, by inserting his penis into the anus of ... [J]."
Count 1 was based on a breach of s 324E of the Criminal Code, count 2 on s 189(1) and s 189(3) of the Code, count 3 on s 324C of the Code, count 4 on s 189(1) and s 189(3) of the Code, count 5 upon s 324E of the Code and count 6 on that section. During the course of the trial, each of the charges brought under s 324E of the Code was amended in order to add the words "without the consent of [J]". There was no objection to the amendment.
It may be observed that the sections of the Code referred to in the indictment are no longer in force. But they were in force at the time the offences were alleged to have occurred. Their repeal was at a later time than the periods in which the offences were alleged to have been committed.
Section 189(1) provided, so far as material, that, subject to subs (2), any person who unlawfully and indecently dealt with a person under the age of 16 years or who procured such a person to so deal with him or her or who permitted such a person to so deal with him or her was guilty of a crime and liable to imprisonment for four years. Section 189(2) was not relevant to the circumstances of this case, but s 189(3) provided that, if the child dealt with were under the age of 13 years, the offender was guilty of a crime and liable to imprisonment for seven years. Section 189(7) defined the term "deal with" so as to include doing any act which, if done without consent, would constitute an assault as defined in the Code. There was a time bar provided for in s 189(8), but it has no application to the circumstances of this case.
At the relevant time, s 324E provided that any person who sexually penetrated another person without the consent of that person and in circumstances of aggravation was guilty of a crime and liable to imprisonment for 20 years. Section 324C provided that any person who unlawfully and indecently assaulted another person in circumstances of aggravation was guilty of a misdemeanour and liable to imprisonment for six years.
The applicant was acquitted on one count of indecent dealing in relation to C (count 2 of the indictment), one count of indecent assault in relation to C (count 3 of the indictment) and one count of anal sexual penetration in relation to J (count 6 of the indictment). Of the counts upon which the applicant was convicted, two counts of oral sexual penetration were in relation to J and comprised count 1 and count 5 of the indictment. The remaining count (count 4) upon which he was convicted charged one count of indecent dealing in relation to J.
Some of the verdicts were unanimous and some by majority. Although counsel for the applicant sought to make some point about this, I do not, myself, perceive on what basis this could have any force. Majority verdicts are part of the law of this State and a majority verdict of guilty is just as much a verdict of guilty as a unanimous verdict.
Four of the six counts alleged that the conduct charged in the indictment was committed against J. The remaining two counts involved his brother, C.
J was born on 18 January 1986. In accordance with usual practice, he gave evidence by video on 17 December 2001, not long before his 16th birthday. The trial took place on 7 February 2002, but J was not present at the trial. The evidence he had given by video was shown to the jury in that way.
It is common ground that, at the time that the offences were alleged to have occurred, J was between the ages of four and five years. On his own evidence, J did not complain about any matter connected with the alleged offences until shortly before October 2000. A period of nine or 10 years elapsed before he made a complaint about the matter to anyone.
J's brother, C, was born on 31 March 1989. He was thus of the order of one to two years old at the time the alleged offences were committed. He was not called as a witness. That is understandable because it is most unlikely that he would have had any recollection of events in 1990 or 1991. The defence made no criticism of the Crown for not having called him.
Apart from the police officer who gave evidence about the obtaining of a statement from the applicant, no other evidence was called in the Crown case. The applicant himself gave evidence and had, at the request of the police, made a comprehensive statement relating to matters alleged against him. It appears to be common ground that neither in that statement nor in his evidence did he implicate himself in any of the crimes that were charged. There was one matter relied upon by the Crown prosecutor which I shall in due course mention. It was not a matter which of itself directly or indirectly implicated the applicant in any of the alleged crimes.
The ground of appeal upon which the applicant seeks leave is that the verdicts of guilty on counts 1, 4 and 5 are unsafe or unsatisfactory for a number of reasons, the principal one of which is the inconsistency of the verdicts on those counts with those which resulted in the acquittal of the applicant on the other charges. But in dealing with the submissions which are made, one needs to take into account a number of factors in relation to the overall circumstances of the case.
Before I come to those I need to refer briefly to the evidence of J. He referred to the fact that he was 15 years old at the time he gave evidence and that he had two brothers, C and another, who is younger than C and not the subject of any of the charges. The witness stopped living with his mother, Emma Nazzari, when he was about five, that is, after the offences were alleged to have been committed. When he lived with his mother, he lived at Westbrook Way in Girrawheen in a unit. One of his mother's boyfriends was the applicant. He lived there for about a year while J was there. C was also there. J said that he was scared of the applicant because "he'd do stuff like hit mum, [J], [C] and others". He said that sometimes he would hit for no reason at all and sometimes because "they'd done the wrong thing". He said that, "At times he got us to lick, suck his penis and hold it and things like that". He referred to an incident where he and his brother had just woken up after having a sleep. They went into the master bedroom. The applicant was lying there "with not much on or nothing at all on". The two boys lay down next to him. He got up. When he returned to the room, he had a paste of some sort on his penis and told J and C to lick it off. According to J, they did as he said. He said that the applicant's penis was erect. J said he was "fourish" at the time. He said C was about one.
It may be observed that there is apparently no charge in respect of the incident alleged in that evidence. J then referred to another occasion on which he had licked the applicant's penis. He was alone in the house with the applicant. The applicant came into J's room "to yell at me for someone or something and then just sat down on my bed and told me to suck his penis". He was asked about the detail of this. He said he had the penis between his lips. He said he was about the same age as he was when the other incident occurred, but added after saying "fourish", "Fourish, yeah, nearly 5". He described another incident of a similar kind which had happened in his mother's bedroom. Again he was alone with the applicant. He went into the applicant's room. The applicant pulled the sheet down to about his knees and told him to suck his penis. He complied in the same way as he had done before. The penis was said to be erect.
There was some discussion in the evidence about the nature of the paste that had been used and it emerged that it was either vegemite or peanut butter.

J was asked about other incidents. He said that he and his brother were sitting in the lounge watching a movie. His brother wanted a drink so the applicant went and got one for him and when he came back, he was not wearing any clothes. He sat down and poured some of the drink, apparently milk, around his penis. He gave the drink to his brother and after he had finished it, he said, "If you want more, lick that up, and [C] did". J said that he licked and sucked the drink from around and on the applicant's penis. Again he said he was fourish, going on five at the time.
J then described another incident relating to C. He said that they had got up from a sleep and went into the master bedroom to see who was there and what was happening. Only the applicant was present. He told them to lie down next to him and "then we did and he took down the sheets and told me to hold or grab his penis and then while I did that he put his hand down the inside of [C]'s nappy and held his bottom". Again the penis was said to be erect. Again he said that he was fourish, nearly five.
A further incident occurred when the applicant was said to be in J's room. J said that he came in and yelled at him "and then he just took me up and pulled down my pants and put me on my bed, on my hands and knees, and then pulled down my pants and put his penis into my bottom". He said that when this was happening, he was crying and screaming. He said that the applicant was asking him whilst he was engaged in this conduct, "Do you like that?" He said he was screaming because every time the applicant did what he claimed, it hurt. He said that he was sliding his penis in and out of his bottom, back and forth. Again he complained of pain. He did not know why the applicant eventually stopped. He said that he felt "just hurt" and he cried. He said that he was fourish, nearly five when this occurred.
J was asked whether he had spoken to his mother about the various matters which he had described. He said he had not because he was scared that she would not believe him.
J referred again to the fact that the applicant hit him and C from time to time, sometimes for a reason and sometimes for no reason. In addition, so he said, the applicant used to lock the two boys in their rooms. On other occasions he locked them outside and sometimes tied them to the clothesline, on some occasions "just so we were only just touching the ground with our feet". Their arms were up in the air.
The inference is, of course, that he went along peacefully with the various acts of which he complains because he was frightened of the applicant.

The case is one where there is no evidence of any complaint until 10 years, or thereabouts, after the alleged incidents and no corroboration of the only evidence which there is against the applicant. The witness was between four and five years of age at the time the alleged events occurred.
There was no complaint by counsel for the applicant concerning the terms of the summing up. The case was clearly one in which the trial Judge was required to give a direction pursuant to the decision of the High Court in Longman v The Queen (1989) 168 CLR 79. Although, strictly speaking, it is not necessary to refer to any part of the summing up because the summing up is not directly involved in any of the submissions which have been made on behalf of the applicant, it is helpful to refer to it, particularly that part of it which gives the Longman direction, because it helps to put the case in the setting in which it was at the trial and it shows the very clear and explicit warning which was given to the jury.
Her Honour (French DCJ) reminded the jury that the complainant, who was 15 at the time he gave his evidence, was talking about things that he claimed to have happened to him when he was between the ages of four and five which, as her Honour said, was not only a long time ago, but a time when he was very young. She said that that meant, of course, that there might be some difficulties in relation to a complainant being able to recall with any degree of accuracy what occurred or recall some of the details of what occurred, and, of course, it meant, amongst other things, that the kind of time sequence "we have is a very broad one". She continued:
"[This] does create a real difficulty for the defendant to such an extent that it is a rule of law that the jury in circumstances such as this must in fact be warned that you have to be very careful, that there could be a danger, a danger of convicting an accused person on the basis of the complainant's evidence alone when there is no other evidence or corroboration as in this case, when it occurred such a long time ago unless you are satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence, of the complainant's account and allegations, beyond a reasonable doubt.
The difficulty is that the defendant loses the opportunity of being able to challenge a lot of the allegations. For example, one of the things that happened, just one example, they lose the opportunity of being able to look at any medical evidence that might have been available if the matter had come to light at an earlier date, say, soon after the incident involving the anal

penetration had occurred. They lose the opportunity of being able to say, 'Well, hang on. If the complainant says this happened in such and such a month, that month I was away' or 'That month I never looked after the children in the afternoon or the evening' or something of that nature. They lose that opportunity so you wind up in a situation where a person in Mr Herbert's circumstances cannot say anything in detail other than these incidents did not occur.
You might recall he said things like, 'Well, I don't remember giving C any milk at that time,' in relation to the incident where it was said that milk was poured on his penis and he asked C to lick it off. He said he certainly wasn't in the habit of changing nappies or looking after the children in that kind of detailed way. He is not in a position - other than he agrees that he was living in the house, that the children were with him, that he would look after them in the sense of being the adult in the house when their mother was out, that they came into the bedroom that he was sharing with the children's mother from time to time. He denies going around the house naked in the way that has been described in some of these allegations, but other than that, he is in a position of simply denying it, but not able to be able to go to any sort of details in any kind of forensic way.
That is why the effluxion of time is particularly difficult. It is not just a matter of people's memories fading because of 10 years. It means that the defendant loses opportunities of being able to challenge the evidence in some way because the detail simply isn't there. For example, in terms of the time in which most of these incidents occurred, spanning a period of over a year, they lose the opportunity of being able to pinpoint things and saying, 'Well, that couldn't have happened that way because that was the week I was working' or 'I wasn't there during the day and they said this happened in the morning. I had gone to work by 6 o'clock,' things of that nature.
What that means, because of that, because of the fact that you only have the account of Jeremy Cheyne, because these incidents happened such a long time ago and it is 10 years ago, 10 years being a significant period of time, particularly taking into account that he is almost 16 and was between the ages of 4 and 5 when these incidents occurred …"

I next need to refer to the submissions of counsel for the applicant. These may be summarised as follows:
1.Counts 3 and 4 refer to one incident where the evidence of J was that he and C and the appellant were in the master bedroom. The applicant made him touch the applicant's penis which was or became erect and, at the same time, the applicant rubbed the infant, C, on the bottom under his nappy. The jury acquitted the applicant in relation to count 3 relating to C but convicted in relation to count 4 relating to J. Counsel emphasised that this was not a case of an allegation by the applicant that there was innocent touching of the infant's bottom during, for example, the changing of his nappy. He denied any touching of the infant's buttocks. Counsel for the applicant at the trial conceded that, if the jury found the touching of the buttocks occurred in the circumstances alleged by J, then the touching would be indecent.
2.The Crown case relied solely on the jury's view of whether the evidence of J should be accepted beyond reasonable doubt. To that extent, the Crown case on each count was indistinguishable. The case for the applicant was straight denial. Counsel said it was truly a case of conflicting testimony without more.
3.The verdicts could not be reconciled, nor was there any reasonableness to be found in the inconsistent verdicts in the circumstances of the case. There was no room for the view that the acquittals were an example of "merciful verdicts".
4.In the circumstances, the verdicts of guilty on counts 1, 4 and 5 of the indictment were unsafe and unsatisfactory by virtue of their inconsistency such as they came within the relatively rare circumstances where an appeal Court ought intervene.
In the course of her oral submissions, counsel for the applicant dealt with the two counts of sexual penetration by the introduction of the applicant's penis into the mouth of J (counts 1 and 5). She said that the jury had found these offences proved but had rejected the sixth count which was also a charge of sexual penetration, on this occasion, of the anus, but, as I understand the evidence, each of the counts of sexual penetration, counts 1, 5 and 6, charged offences alleged to have been committed on different days albeit, except in relation to count 1 in a different but overlapping period. In contrast, count 3 which charged indecent assault of C and count 4 which charged indecent dealing with J were alleged to have been committed contemporaneously.
At the heart of counsel's submissions is, in essence, a submission based upon the fact that the only evidence given in the case was given by J. Why, in these circumstances, should the jury find the applicant guilty on some counts and not on others. But the high point of counsel's case was based on the difficulty of understanding how the jury could have reached the conclusion that the applicant was guilty of the offence charged in count 4 and yet not guilty of the offence charged in count 3. The events were contemporaneous. At the same time as the applicant was requiring J to touch his penis, he, the applicant, was indecently touching C's buttocks.
In his submissions, counsel for the Crown sought to explain these perceived inconsistencies on the basis that it is human nature to remember more clearly actions and conduct which affect oneself more accurately than actions and conduct which affect other people. There may be some force in this, but then, one asks oneself why the jury acquitted the applicant of count 6 which charged sexual penetration of J's anus and, according to J's evidence, caused him great discomfort and pain not only during the act, but afterwards as well. I cannot help remarking that that is an event that one would hardly be likely to forget. And yet, on that charge, the applicant was acquitted.
Before I come to deal with these various matters, I need to refer to some authorities and to evidence given by the applicant upon the basis of which the Crown contended that the jury may have relied in reaching their conclusions.
In the course of her submissions counsel for the applicant referred to further decisions of the High Court. The first of these was M v The Queen (1994) 181 CLR 487. There Mason CJ, Deane, Dawson and Toohey JJ said (at 493):
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
Their Honours also said (at 494 ‑ 495):
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
In this case though, there is no submission that it was not open to the jury to convict on each count. What is raised by counsel is the question whether, bearing in mind the fact that the only incriminating evidence was given by the one witness, it was reasonably open to the jury to conclude that the applicant was guilty of some of the charges but not of others.
In MacKenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ discussed (at 365 ‑ 368) the test for determining whether a verdict was unsafe or unsatisfactory where there were inconsistent verdicts. Amongst other things, their Honours said (at 366 ‑ 367):
"3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (unreported, 13 December 1954, per Devlin J) is often cited as expressing the test (See, eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1 par 4 ‑ 457):
'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (see Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted (R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (Hayes v The Queen (1973) 47 ALJR 603 at 604 ‑ 605)."
The Judges referred (at 364 ‑ 365) to the decision of the Supreme Court of South Australia in R v Kirkman (1987) 44 SASR 591 where King CJ, who gave the judgment of the Court, said (at 593):
"[J]uries 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 with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
After referring to this judgment, Gaudron, Gummow and Kirby JJ said (at 365):
"5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'.
6.The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders …"
The four most relevant statements for this case would appear to be:
1.If there is a proper way by which the appellate court may reconcile the verdicts, the jury's conclusion will usually be accepted; see par 4 above.
2.It is only where the inconsistency rises to the point that the appellate court thinks that intervention is necessary to prevent possible injustice that the conviction will be set aside; see par 5 above.
3.There are no hard and fast rules. Each case must depend on its facts; also par 5.
4.The obligation to establish inconsistency rests upon the applicant; see par 6 above.
Counsel for the applicant also made reference to Jones v The Queen (1997) 191 CLR 439. There, the accused was charged with three acts of sexual intercourse with a female child. She was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the act, the subject of the first count. The complainant was aged 11 during the periods mentioned in the first two counts and 12 during the period mentioned in the third count. She made no allegation to any person against the accused until more than four years after the first alleged act. On the complainant's evidence, the acts of intercourse took place when there was nobody present but herself and the accused. The jury acquitted the accused on the second count, but found him guilty on the first and third counts. The majority of the Court (Brennan CJ and Gaudron, McHugh and Gummow JJ) held that the verdicts should be set aside on the basis that they were unsafe and unsatisfactory. In their joint judgment, Gaudron, McHugh and Gummow JJ adopted the test formulated in M v The Queen (supra) for an unsafe or unsatisfactory verdict as being whether the Court thought that, upon the whole of the evidence, it was "'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty". The Judges said that the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict was unsafe or unsatisfactory (see at 452).
Later, the Judges said (at 453) that, whatever the explanation might be, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion was that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Their Honours said that, having regard to the terms of the second count which alleged that the offence took place between 1 June 1991 and 30 August 1991, they did not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain their acquittal on that count. They also said that, if that were the reason the jury rejected the complainant's evidence, they would also have acquitted the accused on the first count. They continued (at 453):
"It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
They said there were two other factors which made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care. There were her delay in making the complaint and the lack of any corroborative evidence, in particular, the absence of any medical evidence.
After some further discussion, they continued (at 454 ‑ 455):
"Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person's right to defend him or herself. An innocent person's ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is 'a matter of considerable importance to the person accused', and has the effect of relegating the accused from giving an account of what actually happened to 'what must have happened' (our emphasis).
As a result of the long delay in this case, the appellant's opportunity to obtain evidence refuting the circumstances of each alleged offence was significantly reduced. The appellant's and the complainant's movements on the day of the alleged incident concerning the third count were material facts. Proof of them would have gone far to support one or other of the opposing cases. Similarly, whether or not the appellant and the complainant were ever left alone after Saturday classes was a critical fact concerning the first count. Evidence that the appellant was left alone with the complainant would have been highly damning. But if the complaint had been made promptly and the appellant was innocent as he claimed to be, he may have been able to obtain evidence that, on each Saturday in February 1991, he had left the classes in the company of others. The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater."
They concluded their judgment as follows (at 455):
"The convictions are unsafe and unsatisfactory
In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third counts than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory."
In a separate judgment, Brennan CJ reached the same conclusion but by a different path. He concentrated upon the absence of an adequate direction pursuant to the requirements of Longman. Here, the direction pursuant to Longman was, to say the least, adequate. But, although he relied on that matter, Brennan CJ concluded his judgment by saying (at 446):
"Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal. In those circumstances, it would not have been reasonably open to them to convict on the first and third counts. Therefore, it was necessary to allow the appeal."
That was the state of the authorities at the time when we reserved our decision but, on 14 November 2002, the High Court gave judgment in MFA v The Queen [2002] HCA 53. Two judgments were delivered, one by Gleeson CJ and Hayne and Callinan JJ, and the other by McHugh, Gummow and Kirby JJ. Both judgments reached the conclusion that the appeal should be dismissed, with the result that the convictions were upheld. In par 33 of the first mentioned judgment, reference is made to MacKenzie. Paragraphs 34 and 35 of the judgment are as follows:
"34.Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
35.It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski [R v Markuleski (2001) 52 NSWLR 82] that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence."

Inconsistency is dealt with in par 83 to par 91 of the second judgment. Paragraphs 84, 85 and 86 of that judgment are as follows:
"84.In support of this submission, the appellant invoked observations in the reasons of the majority of this Court in Jones. That was a case where an accused had been charged with three counts involving sexual offences alleged by a single complainant. The jury found the accused not guilty on the second count but guilty on the first and third counts. By majority, this Court set aside the convictions in respect of the first and third counts on the ground that those verdicts were unreasonable. It entered an acquittal. Kirby J dissented on the basis that the differences between the jury's verdicts were explicable upon rational grounds founded in the differentiation of the evidence relevant to the respective counts. He cited the reasons of this Court in its then recent decision in MacKenzie v The Queen. In that case, this Court had examined the authorities on suggested inconsistency between verdicts.
85.The principles in MacKenzie apply to the present case. This is not an instance of 'legal or technical inconsistency', whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where 'logic and reasonableness' necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this Court said in MacKenzie that 'if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.
86.Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and commonsense' 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."
Having read the relevant parts of the two judgments, I have reached the conclusion that their effect is to emphasise that the law remains as it was stated in MacKenzie and that Jones was a case upon its own facts. It did not lay down any new principle. The judgments in MFA are, with respect, also helpful in dealing with some of the considerations that need to be taken into account in attempting to resolve the question whether there is inconsistency in a given case. These include the possibility that the members of a jury may have reached their conclusion as the consequence of a compromise, the matter referred to by King CJ in Kirkman.
That concludes the account of the authorities. Before I reach conclusions, there is another matter to be dealt with.
Earlier, I referred to an aspect of the applicant's evidence upon which counsel for the Crown relied to suggest that the jury could have regarded what the applicant said as something which may have caused them to doubt his evidence. When the police informed the applicant that they wished to interview him, they told him that they wanted to see him in relation to "a sexual allegation". The applicant in his cross‑examination agreed that he was not at that stage told whether the allegation concerned a man, a woman, a child or a beast. He was informed of the broad nature of the allegation when the police officers picked him up to take him to the station for interview. I should make it clear that he went willingly with them. He did not object to going. He said that the police officers did not tell him about the sexual allegation until the day they picked him up from his wife's house. The cross‑examination proceeded as follows:
"And you first bring up the issue of children, that it might be a complaint in relation to some sexual abuse of children. Is that right?---Yeah.
You brought it up first. Do you agree with that?---Yes.
And you understood that - you saying to the police, "Well, you know, are you asking about sexual abuse in relation to children"?---No. All I said was, "I didn't touch any kids."
Right. Well, why did you think it might be about touching kids?---I didn't know what it was to do with. I just knew it was sexual."
Later, the cross‑examination proceeded as follows:
"... Policemen lob on your doorstep about 10 years after the event, tell you there is a sexual allegation and you think that it might be about children?---Could have been about anything, anyone, male or female.
But you have raised - - -?---Adult or child.
But, Mr Herbert, the first matter that you mention in relation to a sexual allegation was children?---It was the first think that popped into my head.
Why was that, if you had an absolutely clear conscience and hadn't done anything wrong, Mr Herbert?---I don't know. Do you want to ask my brain? I don't have control over what my brain thinks."
In the course of her summing up, the learned trial Judge referred to this evidence and continued:
"Does that mean - can you draw an inference that he is somehow implicated in relation to any of these matters or in relation to any kind of incidents of child abuse or is it simply, as he said, a spontaneous thing that he said at the time? Police have gone to his house. He has been picked up. He has been taken into a police station for questioning. He has been told the questioning is about a sexual offence. You might think that somebody in those circumstances would be panicking a bit, you know, "What is this?" and that given the publicity - there is so much nowadays - about paedophiles or about child sexual abuse, that that may be something - the first thing that would come into somebody's head in those circumstances.
That is an alternative inference and I suppose it is an effective one that was suggested by Mr Herbert yesterday. He said, "It's the first thing that came into my head and I don't know why I said it. It didn't mean that I thought that that's what it was about. It was the first thing I said." I think he might have also mentioned that he sort of said something about a woman as well, but that's the reason why he said it, so that is a competing inference. You could only draw an inference that is against or adverse to an accused person, if it was the only reasonable inference open to you. If you thought there were other reasonable inferences, then you wouldn't be entitled to draw that inference and to use that against Mr Herbert."
I come then to my conclusion. In order to reach it, I have gone back to the four statements in MacKenzie which I have earlier summarised. They raise, firstly, the question whether there is a proper way by which the Court may reconcile the verdicts and, secondly, that it will only be where inconsistency rises to the point that the Court considers, really concludes, that intervention is necessarily required to prevent possible injustice that the conviction will be set aside. I bear in mind also that there are no hard and fast rules and that each case must depend upon its facts; and that the applicant bears an onus to establish the matters he needs to rely on.
Since writing the original draft of this judgment, I have received copies of the judgments to be delivered by the other members of the Court. I have read them with due care and I have given the matter much thought. I acknowledge the force of what they say about the jury being given the usual direction that each charge had to be considered separately and that, in each case, they were entitled to convict or acquit as they saw fit. That direction was given in Jones; see the dissenting judgment of Kirby J at 469.
I also bear in mind, as the other judgments show, that it is possible to explain how the jury, without in any way being perverse, may have reached their conclusions. I have emphasised the word "may" in order to underline the fact that the exercise which has been undertaken is, of necessity, highly speculative. But, maybe, that is what MacKenzie requires. I recognise that there is also the possibility of compromise but again, any conclusion that this was the case must depend on speculation.
I have found the task of reaching a conclusion in this case extremely difficult. I confess that my mind has undergone a number of fluctuations. But there are two matters which have persuaded me to take a different view from those of my colleagues.
I think that the question of inconsistency arises starkly in relation to count 6, where, as previously remarked, the jury decided to acquit the accused of the charge of penetration of the anus of the complainant. The acquittal of the applicant of that charge means that the jury, for whatever reason, rejected the evidence of the complainant who was between four and five years old at the time of the alleged offence. Yet it is the offence of which he seems, in his evidence, at least to me, to speak more strongly and more feelingly than he does about any of the other matters. Understandably, it is a matter which, if it occurred, he would never be likely to forget.
Along with this matter must be considered the jury's decision to acquit the applicant on the third count but find him guilty on the fourth. The two offences happened, if they happened at all, at the same time. I bear in mind what counsel for the Crown has said, about it being human nature to remember more vividly or more accurately things which happen to us personally, more so than the things that happen to other people. But this was one transaction. It was, in effect, one incident or event in which, if the complainant's evidence were accepted, he was forced to lick the applicant's penis whilst, at the same time, the applicant placed his hand inside the brother's nappy. I am afraid that I have great difficulty in understanding how, in those circumstances, a properly directed jury could find a verdict of guilty of one of the charges and a verdict of not guilty on the other.
In reaching my conclusion, I have thought it correct to view the two matters on which I have relied, ie, the acquittal on the third count but the conviction on the fourth and the acquittal on the sixth count, cumulatively. It is the combined effect of what has been done which must be weighed in the balance. When this is done, it is my view, in the language used in MacKenzie, that inconsistencies here rise to the point that intervention is necessary to prevent possible injustice. By injustice, of course, is meant the real possibility that the trial has resulted in the conviction of an innocent man. And in this respect, it is, perhaps, appropriate to refer to the old adage that it is preferable that 10 guilty persons go free than that one innocent one go to prison.
It remains to mention the matter relied upon by counsel for the Crown in relation to the applicant having volunteered to the police the suggestion that the allegation against him might be related to some sort of sexual misconduct with children. That is a matter which would have infected the whole of his case, not just part of it. If the jury had concluded that it was something they should rely on, it would have been of equal force in relation to all six charges.
For the reasons I have given, I am of opinion that the convictions are unsafe and unsatisfactory and ought to be set aside.
I would, therefore, grant leave to appeal, allow the appeal and order that each of the convictions be quashed.