Jonathan James Aiken v The Queen

[2011] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jonathan James Aiken v R [2011] NSWCCA 18

Hearing dates:

4 February 2011

Decision date:

18 February 2011

Before:

McClellan CJ at CL at [1]
Adams J at [2]
Buddin J at [3]

Decision:

(a) The appeals against conviction in respect of counts 6 and 7 are dismissed.

(b) The appeal against conviction in respect of count 8 is allowed and the conviction is quashed.

(c) In substitution therefor a verdict of guilty in respect of the offence of indecent assault pursuant to s 61M(2) of the Crimes Act is entered.

(d) Leave to appeal against sentence is granted and the appeals against the sentences imposed in respect of counts 6 and 7 are allowed.

(e) The sentences imposed in respect of counts 6 and 7 are quashed.

(f) All three matters are remitted to the trial judge for sentence.

Catchwords:

CRIMINAL LAW - appeal against conviction - various offences of aggravated sexual intercourse and indecent assault - whether verdicts of guilty on some counts inconsistent with other verdicts of acquittal - whether evidence established that the appellant's conduct constituted "sexual intercourse"

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:

Louizos v R [2009] 194 A Crim R 223
M v R (1994) 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
R v Preval [1984] 3 NSWLR 647
R v Sloane (2001) 126 A Crim R 188
TK v R [2009] NSWCCA 151

Category:

Principal judgment

Parties:

Jonathan James Aiken (Appellant)
Regina (Respondent)

Representation:

G Farmer (Appellant)
G Willis (Appellant)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s):

2009/137300

 Decision under appeal 

Date of Decision:

2010-05-14 00:00:00

Before:

Quirk DCJ

File Number(s):

2009/137300

Judgment

1. McClellan CJ at CL : I agree with Buddin J.

1. Adams J : I agree with Buddin J.

Background

1. BUDDIN J: The appellant was arraigned upon an indictment containing 8 counts. Each count alleged an act of sexual misconduct on the part of the appellant towards the complainant, a 14 year old boy who lived near to the appellant with his parents. Each of the offences was alleged to have occurred during the same timeframe, namely between 1 December 2008 and 14 January 2009. Counts 1, 4 and 8 alleged offences of aggravated sexual assault without consent contrary to s 61J(1) of the Crimes Act 1900 . The circumstance of aggravation was that the complainant was under the age of 16. The remaining 5 counts alleged offences of indecent assault contrary to s 61M(1) of the Act. The appellant was convicted of counts 6 - 8 (being one count of aggravated sexual assault and two counts of indecent assault) but was acquitted in respect of the remaining matters, being counts 1 - 5. The alleged offences arose in respect of 3 separate incidents with counts 1 - 3 being referable to one such incident, (that was referred to during the course of the trial as "the fence incident"), counts 4 and 5 to a second incident (referred to as "the letterbox/J. in hospital incident") and counts 6 - 8 to a third separate incident (referred to as "the last incident"). In respect of each of counts 6 and 7, the appellant was sentenced to a fixed term of imprisonment of 9 months. In respect of count 8, he received a wholly concurrent sentence of 3 years imprisonment with a non-parole period of 18 months.

1. The applicant relies upon the following grounds of appeal:

1 The verdicts of the jury in relation to Counts 6, 7 and 8 are unreasonable and cannot be supported having regard to the whole of the facts and circumstances of this case and the verdicts of not guilty in relation to Counts 1, 2, 3, 4, and 5.

2 That the jury's verdicts in Counts 6, 7, and 8 constitute a miscarriage of justice arising from:

(a) the delay in complaint;

(b) the inconsistencies between the complaints made and the evidence at trial;

(c) the fact that the complaints were uncorroborated; and

(d) the inconsistent verdicts returned by the jury in relation to these counts.

3 Her Honour erred when directing the jury as to the meaning of "sexual intercourse" in relation to Count 8 in the indictment.

The evidence

1. The evidence led by the Crown at the appellant's trial was in a relatively short compass. Apart from the complainant, each of his parents gave evidence which was largely to the effect that he had made a complaint to them on 14 January 2009. A police officer gave evidence that she had arrested the appellant and that he had declined to be interviewed. In cross-examination she confirmed that he had no criminal convictions.

1. The complainant's evidence in chief consisted of two interviews which had been conducted with him on 15 January 2009 and 7 May 2009 respectively. In the first of those interviews the complainant said that the appellant had touched him "in the wrong areas" and that the last occasion on which he had done so was "about two weeks ago". He said that that incident had occurred in the computer room of the appellant's room. He said that it had taken place after the appellant had locked the door to the room and "put on an adult film" which featured a man and woman. The complainant described what had then happened. He said that the appellant had pulled down his (the complainant's) pants and rubbed his hand on the complainant's "private part" (this conduct constituted count 6 on the indictment). Although the complainant continued to refer to his "private part" he also referred to it as his penis. He said that the appellant had then pulled down his own pants and grabbed the complainant around the wrists following which he had then placed the complainant's hand on his own penis which he made the complainant then rub (count 7). The complainant said that he was sitting on a chair in the computer room at the time.

1. The complainant said that the appellant's act in rubbing his penis made it go hard causing "some whitey sort of thing" to come out of it. The appellant provided a blue cloth "for the ejaculation" which he placed under the complainant's penis. The appellant had then placed his mouth on the complainant's penis (count 8). The complainant said that he had not wanted to do these things. The complainant said that the incident had occurred just after his mother had returned to work on 9 January 2009. He also said that it had occurred at a time when his father was on holidays. He said that his father had started his holiday "two days ago".

1. The complainant said that this type of conduct had happened on more than one occasion. He estimated that it had occurred around 5 or 6 times. He said that the first time it had occurred was in the Christmas holidays when he was in between Years 7 and 8. (At the time of "the last incident" the complainant was about to go into Year 10). He could not recall what had happened but said that on that each occasion that such an incident had taken place, it had occurred in the computer room and that the same thing would happen. This evidence was led by the Crown as "context evidence". The complainant said that the appellant had told him at the outset not to say anything to his parents. He said that he had interpreted that as a threat and that it was the reason that he had kept quiet about what was happening. The complainant said that he had nonetheless frequently gone to the appellant's house after school. He said that he continued to do so because he was very fond of his four year old son, J., whom he used to look after. He also said that he needed company and that he hoped "it might go away". He said that it was only as he got older that he realised what was happening and thought that he had to stop it. In due course, on 14 January 2009, he told his mother what had been happening and she in turn told his father.

1. Towards the end of the interview the following exchange took place:

Q Yep. O.K. All right. All right. Just a few more questions for you. You know how you told me before that what happened with [the appellant] has happened five for six times. Is there any other times when you can remember about, like, when it might have been or what might have happened?

A No.

1. In his second record of interview the complainant said that he had "just remembered some things, I only remember two things that happened" but said that "I'm not sure about the dates or anything". He then gave details of an occasion when the appellant had invited him over to his place to help him fix his fence. He said that this was a different incident to the one about which he had told police on the earlier occasion. He said that after they had fixed the fence the appellant had invited him to come into the computer room and "play the Microsoft flight insulator". Thereafter the appellant had showed him "the dirty movie". It showed a man putting his penis into a woman's mouth or her vagina.

1. He said that the appellant had then proceeded to pull down his (the complainant's) pants and "put his mouth on my dick" (count 1). He had then taken hold of the complainant's hand to make him "stroke [the appellant's] dick" (count 2). He said that the appellant also "stroked" his "dick" (count 3). He said that he had ejaculated whereupon the appellant had produced a blue cloth. He said that the appellant desisted when he (the complainant) pushed him back. The complainant said that this incident occurred near "the end of the year like December..sort of, during the holidays". He was also asked "was this...the first time, the last time or something else, this one we're talking about now?" to which he replied "it was not the last time but it was not the first time as well, so it was in the middle, somewhere".

1. The complainant went on to describe another incident. On this occasion the complainant said that he had gone out to get his mail having seen the mailman arrive and place the mail in his letterbox. Whilst he was outside he said that he had seen the appellant who had told him that J. had gone to hospital with his mother. He said that this incident had occurred during the 2008 December holidays. The complainant said that the appellant had then invited him inside to play "the Microsoft flight simulator again" and had then showed him "a dirty film". The complainant said that the appellant had pulled down his pants. The appellant had then proceeded to perform fellatio upon him (count 4) following which he had forced the complainant to masturbate him (count 5). The following exchange then occurred:

Q This incident that you are telling me about now ..., was that, and there was another incident in December, was this one after that one in December or before?

A Not sure of the, like, the dates or ...

Q Yes. No, no but there was none, the one that you told me about ...

A Yeah.

Q ... before with the fence?

A Yeah.

Q Was that, was this time before that or after that time?

A I can't remember.

Q O.K.

A Sorry.

Q You just remember that J. was at ...

A Yeah he just ...

Q ... hospital?

A ... yeah.

Q O.K.

A I just remember that he ...

Q Sure.

A ... was at hospital.

Q O.K. O.K. And did both of these times that you talked to me about today happen in the December holidays?

A Yeah I think, they, the, the fence incident was in December but I'm not sure about the J. Incident...

Q O.K.

A ...one

Q Has does J. often go to hospital?

A Only when he got sick. (emphasis added)

1. The complainant was extensively cross-examined by counsel for the appellant. The first topic about which he was asked questions related to when the appellant had moved into his house. He said that he thought that it was 2007. When it was suggested to him that it was February 2003, he replied "That's a lie". When it was demonstrated to him that it was indeed February 2003, he replied that he "just got confused with the dates".

1. Shortly thereafter this exchange occurred:

Q Do you have a problem with dates?

A Yeah. I can't remember stuff. I have learning difficulty and memory attention.

1. He also said that he suffered from attention deficit disorder for which he was taking medication.

1. The complainant gave evidence that he was only requested by the appellant to assist him in fixing his fence on the one occasion. He agreed with the suggestion put to him in cross-examination that it had occurred in "around October 2008". However, a little later he said that it had occurred during the December holidays but was unable to say precisely when, or indeed whether, it had occurred before or after the trip to Melbourne.

1. Nor was he able to indicate the order in which the two incidents (giving rise to counts 1 - 5) occurred. His reply was "Yeah, it's kind of mixed up".

1. It was common ground between the parties that 28 December 2008 fell on a Sunday. It was also apparent from other evidence that that was the occasion otherwise described as the "letter box/J. in hospital incident". However the mailman did not make deliveries on Sundays. So far as when that incident occurred the complainant gave the following evidence:

Q I'm going to suggest this to you, that J. was in hospital from Christmas Day, 25 December. He came home on 28 December 2008 and the time before that he was in hospital was in July of 2008 and he wasn't in hospital from that December date, 25 to 28, again up until the time that you made your police interview on 15 January? That's the chronology I'm putting to you. So I'm asking you when was it that you say you went to [the appellant's] house, when you met near the mailbox and he said J. was in hospital with J's mother?

A I think this was the July .

Q So it wasn't very hot?

A It was pretty hot. (emphasis added)

1. The following day he gave the following further evidence on this topic:

Q Yesterday I asked you about when was the occasion that [the appellant] invited you to the house ...

A Yeah.

Q ... when J. and J's mother were absent and you suggested at one stage that it was in July, that it was a hot July day. Do you remember giving that evidence yesterday?

A Yeah, I do, but this - J. did fall sick pretty often and so I might have gotten a bit mixed up yesterday .

Q What about - yeah - five months out ?

A Maybe. I don't know .

Q There's five months between July during the seventh month and December being the twelfth.

A Yeah. (emphasis added)

1. The complainant agreed that he did not tell the police that the appellant had forced him to perform fellatio upon the appellant. Nor, he agreed, did he tell the police anything about the fact that the appellant had turned him around although he had told his parents about it.

1. In re-examination, the complainant gave the following evidence:

Q ...You understand that your evidence in this case involves some sexual assaults that happened on you after you'd been speaking to the accused at the letterbox of your house, during which he told you that his son was in hospital. Remember that part of the evidence?

A Yeah.

Q Now, can you please help us by clarifying: what time of the year did that happen?

A Around 2008 to 2009, but I'm not exactly sure what day of that. But I do remember him asking me that. That's all I know - remember.

Q During your cross-examination by Mr Paish you mentioned at one stage that there may have been a conversation like that between you and the accused that happened back in July 2008.

A Yeah. He did tell me that J. did go to hospital in July, but I didn't go to his house.

Q Now the sexual assaults that happened, according to you, after there was the episode of fixing the fence - you understand what I'm talking about?

A Yeah, the fence, yeah.

Q Right. When did that happen?

A I'm not exactly sure what date, but it was between 2008 - sometime around 2008, around that.

Q You gave evidence earlier in this trial, during the interviews and when you were being cross-examined, that it occurred sometime during your holidays from December to January.

A Yeah, sometime during that, yeah.

Q Now, again can you help us by clarifying the co-called last incident, that is the one that you told the police about first of all. When did the last incident happen?

A What are you, what do you want me to tell you about that?

Q Now, there's been a number of propositions put to you, and you've expressed in the past that you can't be exact about the date when the last series of incidents happened. But can you tell me now, using 14 January as the date when you told your mother about what had been happening, when before 14 January did the last incidents, or the last incident happen?

A I think the last incident - I did make a mistake for the two weeks for the two days, incident - I said two weeks instead of two days. So yeah, it was two days.

Q Two days before the 14 th ?

A Yes.

Q So Monday 12 of January, is that correct?

A Yeah.

1. The complainant's mother gave evidence that there was an occasion on which the appellant had asked her if she would permit the complainant to go and assist him "with the fence". She recalled that he had only been gone about 15-20 minutes. She confirmed that the family had gone to Melbourne for the period between Christmas Day and 27 December 2008. She said that at about 11.30 pm on 14 January 2009 the complainant had approached her in the kitchen of their home and told her that he needed to tell her something. She said that he had then said that the appellant had been "doing some really really bad things" to him. Pointing to his "private parts", the complainant said that the appellant had been "touching" him. He told her that it had been going on for a couple of years. He said that he had not previously told her because he was "really scared, ashamed and embarrassed". She said that the complainant told her that the appellant had shown him adult movies. He told her that thereafter the appellant had pulled down his pants and touched him on the penis. He told her that as a result he had got an erection and ejaculated which the appellant had wiped up with a blue cloth. She also said that it had taken a couple of days for the whole story to emerge. The following day the complainant had been taken to the police.

1. In cross-examination she conceded that the occasion on which the appellant had requested the complainant to assist him with the fence could have been in October 2008 and also that it was "definitely before" the trip to Melbourne. She agreed that the complainant had done work experience with the appellant on 6, 7, 13 and 14 January 2009 and that he had travelled in the appellant's car in order to get there. She also said that the complainant "was a bit hazy with the dates" but that he had said on an occasion, which appeared to be after she had returned to work on 6 January 2009, that the appellant had tried to turn him around and endeavoured to have anal intercourse with him. She said that, at some stage, he had also said that the appellant had tried to force the complainant to fellate the appellant. She agreed that on the night of 14 January 2009 the complainant had not told her that the appellant had fellated him. She said "that came later. A lot of things did not come out that night."

1. The complainant's father said that he had been asleep during the evening of 14 January 2009 when he had been awoken by his wife and the complainant. He said that the complainant had told him that he had been in the appellant's computer room where he had been shown an "adult movie" by him. He gave evidence that the complainant told him that the appellant had told him to take down his pants whereupon he had proceeded to place the complainant's hands upon the appellant's penis. He was told that the appellant had also forced the complainant to fellate him which caused the appellant to ejaculate. He said that he was told that the appellant had then turned the complainant around whereupon the complainant had run out of the room.

1. In cross-examination he agreed with the proposition that the occasion on which the appellant sought his wife's permission for assistance with erecting the fence was in "around October 2008". He agreed that the complainant had not told him on 14 January 2009 that the appellant had fellated him. That was something, he agreed, which the complainant had told him subsequently. The complainant also told him that the incidents had occurred on five or six occasions over a two year period but that "there were long gaps in between the incidents".

1. After the Crown case was completed, the trial judge acceded to a request from the appellant's then counsel for a "Prasad direction". The jury however indicated that it wished for the trial to continue. The appellant did not give, nor call, any evidence but records confirming that J. had been in hospital between Christmas Day and 28 December 2008 were tendered in his case.

The trial judge's directions

1. In light of the grounds upon which the appellant relies, it is convenient to refer to some of the salient parts of the trial judge's directions. Her Honour told the jury:

You must consider each charge separately and return a separate verdict of guilty or not guilty on each of the charges . It may not follow that because the accused is guilty or not guilty in respect of one charge, he is therefore guilty or not guilty in respect of another. You must consider each count or charge only by reference to the evidence which applies to it.

...

You must exercise caution before you may convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of a single witness, in this case, N. That being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account he has given to you, you cannot find the accused guilty. Before you can convict the accused you should examine the evidence of the complainant very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial . You may not convict unless you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt. You will therefore be concerned to assess, not only what he says but also his honesty and reliability as a witness.

...

As I have said, you must give separate consideration to each of the individual counts. As I have directed you to at the beginning of the trial, this means that you are entitled to bring in a verdict of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome .

If you were to find the accused not guilty on any one count, particularly if that were because you had doubts about the reliability of his evidence, you would have to consider how that conclusion affects your consideration of the remaining counts. That is, if you found that the evidence of the complainant was unreliable, for example, if it has been demonstrated to you, by cross-examination, that the "letterbox incident", or as it was described by Mr Paish, "the J. in hospital incident", if you were satisfied that that incident could not have happened in the way that the complainant described, because there was no mail on Sunday, and taking into account the range of available days upon which this could have happened, then, if you accept that that account was unreliable, and of course it is a matter for you, you then take that into account when looking at the other incidents and the counts that are related to those other incidents.

However, you should not regard the existence of multiple charges as an invitation to compromise. For example, if six of you were for a verdict of guilty and six of you believed the accused was not guilty of anything it would be wrong in these circumstances to compromise by convicting him of some but not all of the charges.

...

Even if you accept that N. is honest, somebody could be absolutely honest but at the same time be totally wrong for whatever reason.

To establish this offence the Crown must prove beyond reasonable doubt that at the time and place alleged, and again I stress that it has to be at the time and place alleged not at some indeterminate time in the past, the accused by his act assaulted the complainant . (emphasis added)

...

1. After a request from trial counsel, her Honour redirected the jury in the following terms:

What I will tell you now is that if you have a reasonable doubt on any one count or counts in any of the three separate incidents because you are not satisfied that N. is reliable on this incident, that is, on the letterbox, the fence or the last incident, you may take that doubt into account in considering if he is reliable on all the other matters you are considering, that is on the other counts referrable to the other two incidents.

The relevant legal principles

1. The principles to be applied are uncontroversial. In M v R (1994) 181 CLR 487, Mason CJ, Deane, Dawson & Toohey JJ, in a joint judgment formulated the test, which is to be applied in determining whether the verdict of a jury is to be set aside upon the basis that it was unreasonable, 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 and 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 had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations. (at 493)

1. In MFA v R [2002] HCA 53; 213 CLR 606 the High Court considered the application of that test in the context of a contention that the verdicts in a particular trial are inconsistent. Gleeson CJ, Hayne and Callinan JJ in their joint reasons said:

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.

It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski ( 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. (footnotes omitted) (at paras 34,35)

1. McHugh, Gummow and Kirby JJ in their joint reasons said:

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.

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 . (footnotes omitted) (emphasis added) (at paras 85-86)

1. In TK v R [2009] NSWCCA 151, McClellan CJ at CL observed:

The significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury's verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried. (at para 8)

Ground 1

1. Counsel for the appellant contended that the verdicts in relation to counts 6 - 8 are unreasonable primarily because of what is asserted to be an inconsistency between those verdicts and the verdicts returned in relation to counts 1 - 5. Putting the matter another way, it is submitted that in accordance with what was said by the High Court in MFA (supra) that there is no proper basis upon which the verdicts can be reconciled. In support of this submission, it was contended that "that there is no appreciable difference between the version of events given by the complainant in relation to each of the three incidents. ... Nor can it be said in relation to the specific allegations that the complainant revealed any uncertainty as to the matters of detail, that his account of those details revealed a faulty recollection or that his account of the first two incidents was not as reliable as his account of the third incident". Such discrepancies as existed in the complainant's account in relation to the first two incidents were not, it was contended, sufficient to enable the jury to return the verdicts which it did. The only inference available, so it was submitted, was that the jury "did not accept the complainant, to the requisite standard, that these incidents had occurred".

1. In support of these submissions, counsel relied upon what the trial judge had recorded in a certificate which her Honour had granted pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 . In it the trial judge said:

I have had the benefit of seeing and hearing the complainant in his video recorded interviews and in his (giving of) evidence by closed circuit television. For my part, I cannot appreciate a difference or clarity in the reliability of that evidence to explain the verdicts rendered.

1. In Louizos v R [2009] 194 A Crim R 223 this court indicated that a certificate should only be issued in an appropriate case. Howie J, with whom other members of the court agreed, said:

A certificate relieves the appellant of obtaining leave from this Court to argue a ground of appeal that raises a question of fact or of mixed fact and law. As a matter of practice this Court never enforces the requirement of seeking leave to argue a ground of appeal unless r 4 of the Criminal Appeal Rules applies .

In Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556, Basten JA, with whom other members of the Court agreed, stressed the significance of the issuing of a certificate, because in effect it interferes with this Court's jurisdiction to refuse leave. His Honour stated that such a course should only be adopted where the appropriateness of the appeal was not in doubt or where the judge feels that he or she has gained particular insight into the proceedings that may not be apparent to this Court. That was an application for leave under s 5F of the Criminal Appeal Act , but it seems to me that the same considerations apply in granting a certificate in respect of a conviction appeal. If a certificate is to be given in such cases as identified by Basten JA, it would be expected that the trial judge would indicate, either by reasons given in open court when granting the certificate or by a report to this Court, the reasons why the certificate was given.

...

The Judge also granted a certificate in respect of the unreasonable verdict ground. If the certificate was granted because the judge believed that the verdict was unreasonable, this Court would be assisted by the reasons for that opinion having regard to any insight or advantage that the trial judge might have gained and that might be lost to this Court when reviewing the evidence on the papers. However, without reasons little regard can be had to a bald expression of opinion by a trial judge that the verdict was unreasonable or against the weight of the evidence. If the granting of the certificate does not mean that the judge considered the verdict unreasonable, there is no purpose in it. (paras 20- 1,24)

1. Those observations appear to me to be apposite to the present case: see also R v Sloane (2001) 126 A Crim R 188. In any event, counsel for the appellant recognized that her Honour's opinion could not be determinative of the matter, notwithstanding whatever advantages she may have enjoyed as the trial judge.

1. Having carefully analysed the evidence, I am not persuaded that the appellant has demonstrated that the verdicts are irreconcilable.

1. The fact that the dates upon which the various incidents occurred was essential in proof of the charges was made clear by the Crown Prosecutor in his final address to the jury: He said

Let me add this important rider and applies to all the offences, and I forget to say it, you must find that the offences occurred between the dates as pleaded, between 1 December 08 and 14 January 2009. I f you think that perhaps he got the dates wrong and it happened some other time outside, before, a long time before, even, ladies and gentlemen, you still must return a verdict of not guilty, because the Crown has pleaded that those are the dates , it goes hand in glove with the way that, as I explained to you ar the beginning of the case, an accused person is entitled to know with as much precision as possible, the case that's been mounted against him or her. So the dates are important, and I remind you, as I'm sure Mr Paish will spend a good deal of time on this, if you suspect that these things happened to N., even if you strongly suspect they happened, that's not good enough, not even strong suspicion amounts to proof beyond a reasonable doubt of the elements of the offences . So let me make that plain to you, ladies and gentlemen, you must find that these things happened, the elements of each offence happened, and are proved to your satisfaction beyond reasonable doubt between the dates as pleaded . (emphasis added)

1. As I have indicated, the trial judge also directed the jury that it had to be satisfied that each of the incidents about which the complainant gave evidence occurred between the dates specified in the indictment, namely 1 December 2008 and 14 January 2009. So far as the "last incident" was concerned, it is true that the complainant gave conflicting evidence as to whether it had occurred 2 days or 2 weeks prior to his disclosure of the matter. Nevertheless, in re-examination as I have indicated, he confirmed that the correct position was that it had happened two days earlier and accordingly, the jury was entitled to accept that part of the complainant's evidence as to when the incident had occurred.

1. What is clear however is that, on either version, the incident had occurred well within the period specified in the indictment.

1. That part of the complainant's evidence stands in contrast with the evidence he gave about the two earlier events. In essence, the jury could well have determined, given the uncertain state of the evidence as to precisely when each of those incidents had occurred that it was reasonably possible that each of them had occurred prior to 1 December 2008. It may well then have simply acted in accordance with the directions of the trial judge and thus felt bound to acquit the appellant. Such a process of reasoning, which in my view the appellant has not shown to be an unreasonable approach, would not reflect upon the complainant's overall honesty. So far as "the fence incident" is concerned, the evidence of the complainant and both of his parents is that it could have occurred in October 2008, whereas "the letterbox/J. in hospital" incident may have occurred in July 2008 or at some other undefined time.

1. It was apparent from some of the evidence to which I have referred that the complainant's account as to the dates upon which, and the order in which, events occurred was revealed by counsel to have been inaccurate.

1. Moreover, as I indicated earlier, the complainant conceded, during the course of cross-examination, that he had "a problem with dates" and with "memory retention" as well as suffering from attention deficit disorder.

1. Furthermore, in my view, it is not without significance that the complainant only referred, during the course of the interview conducted on 15 January 2009, to "the last incident". Indeed, it was not until the second interview, which was conducted on 7 May 2009, that the complainant first revealed the details of the earlier two incidents.

1. In essence, the events which gave rise to counts 6 - 8 in the indictment were, on any view of the evidence, the most recent in a multiplicity of sexual encounters ranging over a two year period. They were, accordingly, the freshest in the complainant's memory and were, as I have said, the only matters to which he referred in his initial complaint. There was no controversy, assuming that the events actually occurred, that it was within the time-frame specified in the indictment. Moreover, being the last in a series of events meant that the complainant did not have to place it, unlike the other two incidents, in a sequence of similar events. Those factors gave the evidence in relation to those counts a quality which differentiated them from the balance of the counts on the indictment. It was therefore open, in my view, for the jury to find that it was a reasonable possibility that the two incidents giving rise to counts 1 - 5 did not occur during the relevant time-frame, but at some other time. I would accordingly reject this ground of appeal.

Ground 2

1. In respect of this ground of appeal the appellant has identified four features of the evidence which, it is submitted, require the verdicts to be set aside. I have already dealt at some length with particular (d) of this ground when considering Ground 1. So far as particular (a) is concerned, it was not ultimately contended, and nor could it be, that there was any delay in the complaint, at least in respect of "the last incident". If anything, the complainant's fairly prompt complaint in respect of it supported his credibility, even allowing for the differences between it and the version which he provided to police. On the other hand by way of contrast, there was several months delay before the complainant made the allegations which gave rise to counts 1 - 5 in the indictment. Other than that, it is true as particular (c) asserts, there was no direct corroboration of the complainant's evidence. Furthermore, as particular (b) indicates, and this was common ground at the trial, there were a number of inconsistencies in the complainant's evidence. However, neither that fact, nor the fact that the complainant's evidence was uncorroborated, is an uncommon feature of offences of this kind.

1. As I have just said, there were inconsistencies in the complainant's account. The Crown Prosecutor in his address to the jury acknowledged as much. I have already referred to the complainant's conflicting evidence as to whether the "last incident" occurred 2 days or 2 weeks before he first made complaint. He also seemed confused as to whether the appellant's wife was at home on the occasion of "the fence incident". There were also inconsistencies between what he told his parents and what he told the police. Each of the complainant's parents gave evidence that the complainant had told them on 14 January 2009 that the appellant had attempted to have anal intercourse with him whereas the complainant made no such allegation when interviewed by police. Nor, according to their evidence, did the complainant tell them on 14 January 2009 that the appellant had sucked his penis. Moreover, each of them gave evidence that on that evening the complainant told them that he had fellated the appellant whereas in his evidence the complainant said that the appellant had fellated him. It should be noted however that they each gave evidence that he had given them other details on subsequent occasions.

1. However those aspects of the complainant's evidence, as well as the other deficiencies which were revealed in his evidence, even in combination, do not in my view, warrant a conclusion that the verdicts in respect of counts 6 - 8 were unreasonable or otherwise give rise to a miscarriage of justice. I would reject this ground of appeal.

Ground 3

1. There was however another basis upon which the conviction in respect of count 8 was impugned. The evidence which was led in respect of that count emerged from the recorded interview which was conducted with the complainant by the police on 15 January 2009. It was in a narrow compass and was in the following terms:

Q No. All right. The next thing you told me is that other stuff happened. What other stuff happened?

A Um, he put his mouth on it.

Q OK. He's put his mouth, is this on the same, this is?

A On the same day.

Q OK. Put his mouth on what?

A On the private part?

Q On whose private part?

A Mine.

Q OK. And what was he doing with his mouth?

A I especially don't know.

Q OK. Was his mouth opened, closed or something else?

A Um, how do you mean like?

Q (continued)...was his mouth closed or open or something else?

A Open I think.

Q OK.

A Like he put it. I'm not sure.

Q And tell me more about what he was doing with his mouth?

A Um, I don't know how to say it, but yeah - That's all he was doing. - And then I jerked because them um yeah and that...

1. The trial judge directed the jury in the following terms:

Now the three incidents during that period are the "fence" incident when the accused asked for J.'s mother assistance, that's count 1. On that occasion it is alleged that, along with the indecent assaults, which I'll come back to, the accused placed his mouth on the penis of the complainant. I direct, as a matter of law, in respect of each of those counts 1, 4 and 8, that the placing of the mouth of a person on the penis of another is sexual intercourse at law. The Crown does not have to prove anything other in respect of the sexual intercourse element than that.

1. "Sexual intercourse" is defined in s61H(1)(b) of the Act to mean "sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person".

1. It is submitted that merely placing the mouth of a person on the penis of another falls short of what is comprehended by the definition of "sexual intercourse" in s 61H(1)(b) of the Act. In R v Preval [1984] 3 NSWLR 647 this Court held, in a respect of a provision couched in identical terms, that penetration of the lips is sufficient to constitute a penetration of the mouth for the purposes of the section. By way of contrast, there was no evidence of penetration of the appellant's lips in the present case. Indeed the evidence was left in a somewhat ambiguous and unsatisfactory state. In any event, it is apparent that no one at the trial turned their mind to this issue until after the appellant was convicted. Debate then ensued with the result being that the trial judge decided to include reference to the matter in the certificate which she issued. In the certificate, her Honour indicated that had she been requested to do so, she would have redirected the jury in accordance with s 61H(1)(b). Her Honour also expressed her view that the evidence did not satisfy the requirements of the section. Although the distinction which is drawn is a fine one, I am disposed to accept the appellant's submission. In my view, the evidence which was led in support of count 8 was insufficient to support the charge. Moreover, it is clear as her Honour candidly acknowledged, that she failed to properly instruct the jury as to the elements of the offence.

1. In my view the court should uphold this ground and quash the conviction in respect of count 8. The parties agreed that in the event that the court reached such a conclusion it was appropriate, in accordance with s7(2) of the Criminal Appeal Act 1912 , that a verdict of guilty of indecent assault should be substituted. It is apparent from what I have also said in considering Grounds 1 and 2 that it was open to the jury to accept the complainant's evidence that the incident occurred as he had described it. That being so, it is common ground that the alternative offence had been established.

1. In the ordinary course of events the court would, in those circumstances, proceed to re-sentence. Counsel for the appellant indicated that if the court was to reject Grounds 1 and 2 but uphold Ground 3, then he would seek leave to appeal against the sentences imposed in respect of counts 6 and 7. The Court was advised by the parties that the trial judge had indicated, in fairly unequivocal terms, that had the appellant stood for sentence in respect of counts 6 and 7 alone, then a sentence falling short of full-time imprisonment may have been appropriate. Her Honour had then said, so the court was informed, that given that the appellant had been convicted of the more serious offence to which count 8 gave rise, then nothing but a full-time custodial sentence for that offence could be countenanced. In those circumstances her Honour explained that it was inexpedient to do other than impose short concurrent sentences of fixed duration in respect of counts 6 and 7. In other words the sentences imposed in respect of counts 6 and 7 were, in a practical sense, constrained by the sentence which was imposed in respect of count 8. Given that context, the parties were also in agreement that it was appropriate that orders should be made to remit the entire sentencing proceedings to the trial judge. That would ensure, it was agreed, that appropriate consideration could be given to the sentences which should be now imposed in the light of the altered circumstances occasioned by the upholding, as I have proposed, of Ground 3.

1. I propose the following orders:

(a) The appeals against conviction in respect of counts 6 and 7 be dismissed.

(b) The appeal against conviction in respect of count 8 be allowed and the conviction quashed.

(c) In substitution therefor a verdict of guilty in respect of the offence of indecent assault pursuant to s 61M(2) of the Crimes Act be entered.

(d) Grant leave to appeal and allow the appeals against the sentences imposed in respect of counts 6 and 7.

(e) Quash the sentences imposed in respect of counts 6 and 7.

(f) Remit all three matters to the trial judge for sentence.

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Amendments

06 April 2011 - Text replaced in sentence commencing: "By way of contrast ..."

Amended paragraphs: 52

Decision last updated: 06 April 2011