Norris v R - [2007] NSWCCA 235

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: NORRIS v REGINA [2007] NSWCCA 235

FILE NUMBER(S):
No. 2007/236

HEARING DATE(S): Tuesday 10 April 2007

JUDGMENT DATE: 6 August 2007

PARTIES:
NORRIS, Stephen Maxwell
v REGINA

JUDGMENT OF: McClellan CJ at CL Howie J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3143

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 11 April 2006

COUNSEL:
Crown: J Girdham
App: P Hamill SC

SOLICITORS:
Crown: S Kavanagh
App: Michael Croke & Co

CATCHWORDS:
Criminal law - appeal against convictions - indictment containing multiple counts of sexual offences against one complainant - guilty verdicts on first two counts and acquittals on remaining two counts - unsafe and unsatisfactory verdict principles - unreasonable and insupportable verdicts - test for determining unreasonableness of jury's verdict - significance of acquittals when considering unreasonableness of guilty verdicts - prosecution relying on direct evidence of complainant - credibility of complainant - making or failing to make complaint going to credibility of complainant - delay - s.6(1), Criminal Appeal Act 1912

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
Hayes v The Queen (1973) 47 ALJR 603
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1997) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Morris v The Queen (1987) 163 CLR 454
Regina v Maddox (Queensland Court of Appeal, McPherson J)
Regina v Markuleski (2001) 52 NSWLR 82
Regina v R (1989) 18 NSWLR 74
Regina v Workman (2004) 60 NSWLR 471

DECISION:
Appeal upheld. The convictions on Counts 1 and 2 set aside.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 2007/236
McCLELLAN CJ at CL
HOWIE J
HALL J
MONDAY 6 AUGUST 2007

STEPHEN MAXWELL NORRIS v. REGINA

Judgment

McCLELLAN CJ at CL: I have had the benefit of reading the judgments of both Howie and Hall JJ in draft. I regret that I do not share their Honour’s view that the verdicts on the first two counts were unreasonable.
Section 6(1) of the Criminal Appeal Act 1912 NSW obliges this Court to set aside the verdict of a jury that is “unreasonable or cannot be supported”, having regard to the evidence “… or that on any other ground whatsoever there was a miscarriage of justice.”
Various decisions of the High Court and of this Court consider the problems which a court faces when applying this provision (see M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Markuleski (2001) 52 NSWLR 82). One of the difficulties is the significance to be accorded to the fact that a jury, which for present purposes must be assumed to be properly instructed, has returned a guilty verdict. That difficulty is emphasised when the jury has returned different verdicts in respect of offences allegedly committed by the same accused.
Spigelman CJ emphasised in Markuleski that it is not uncommon for juries in sexual assault charges where there is one complainant to convict on some counts and acquit on others. When this occurs the appeal court is required to apply the test of “logic and reasonableness” MacKenzie (at 366) to determine whether the verdict should be set aside. However, the fact that the jury may have acquitted on one, or more than one count where the Crown case depended on the evidence of the complainant does not mean that the jury concluded that she (complainants are mostly female) was untruthful or unreliable or that her credit is necessarily damaged MFA [35]. Where a Crown case depends significantly or, as it does in many cases, entirely on the evidence of a complainant considerable caution is required when considering an appeal which relies on s 6(1). The explanation for the jury’s verdicts may be found in the directions which the law requires to be given which lead to the jury, acting with the necessary caution, acquitting on some of the counts. The fact that the jury returns disparate verdicts will in many cases reflect the care and attention to detail which the jury members have brought to their task. Unless it can be concluded that in some way the jury has misunderstood the legal principles it was obliged to apply or, notwithstanding the jury’s consideration of the matter, there is a fundamental deficiency in the evidence advanced to support a conviction, it may be difficult to conclude that the jury’s decision making process has miscarried.
In MFA v The Queen the High Court looked at the test established by s 6(1) of the Criminal Appeal Act in a case which involved inconsistent verdicts with respect to allegations of sexual assaults. The joint judgment of Gleeson CJ, Hayne and Callinan JJ contains a number of statements of general principle and others of particular significance for this case.
Their Honours confirmed that where it is submitted that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence the test to be applied is that stated in the joint judgment in M where their Honours 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.”
In MFA their Honours also reviewed the approach which the appellate court should take when a jury returns verdicts of guilty and not guilty in relation to charges of sexual assault by an accused in respect of the same complainant. Confirming that the decision of this Court in R v Markuleski (2001) 52 NSWLR 82 was correctly decided their Honours referred to the principles discussed in MacKenzie v The Queen (1996) 190 CLR 345. Gleeson CJ, Hayne and Callinan JJ said: (at 617)
“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 (1987) 44 SASR 591 at, and referred to in later cases eg MacKenzie v The Queen (1996) 190 CLR 348 at 367-368: 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. “ (emphasis added)
Of particular significance is the fact that their Honours emphasised that verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or required the appellate courts to consider the reasonableness of the guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours point out that the test established in s 6(1) “is unreasonableness not inconsistency.” The consequence must be that although the fact that there are inconsistent verdicts is relevant, it is but one of the matters to be weighed when determining whether the convictions are unreasonable.
McHugh, Gummow and Kirby JJ also delivered a joint judgment in MFA. Their Honours accept the formulation of the appropriate test under s 6(1) to be that stated in M. Their Honours also consider the relevance of disparate verdicts and adopt the test identified in MacKenzie whether “logic and reasonableness” dictated a common approach to the several verdicts [85]. Recognising that juries may give effect to their own innate sense of fairness, justice, proportion and comparison (see R v Kirkman (1987) 44 SASR 591) their Honours said, confirming statements in MacKenzie, that if there “is a proper way by which the appellate courts may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.”
In Markuleski Spigelman CJ emphasised that there are many factors which may influence a jury in coming to a verdict. His Honour said: (at [79])
“Difficult issues arise when a reason for differentiating between the verdicts does exist but that reason relates to the credibility — whether in terms of veracity or reliability — of an uncorroborated complainant. The case law since Jones has frequently concluded that a jury was not obliged to have a reasonable doubt about the complainant's credibility in general, when it did not accept her (it usually is a "her") version of events to the criminal standard in some respect or respects. The distinction has been variously expressed:

‘accepted the complainant as truthful but has admitted the possibility of faulty recollection in some cases" R v J (at 540) referred to with approval in R v J (No 2) (at 628).
distinguish a case in which the jury "rejected as unreliable the substance of the complainant's evidence" from a case in which it was "cautious about some details" (R v Maddox (at [1] per McPherson JA)) and "doubts" about "details" (per Thomas JA at [21] and White J at [2]).
“still accept the basic story at less than the full alleged detail" (R v Russell).
"generally truthful, even if she might have been exaggerating in this part of her evidence" (R v ACK (at [53])).
whether the jury found the complainant's evidence "dishonest rather than unpersuasive in the circumstances" (R v C (at [47])).
"the jury did not disbelieve the complainant but they thought her evidence lacked the requisite particularity as to time, place or circumstance to justify conviction" (Duniam v The Queen).
In a number of other cases, courts of criminal appeal have concluded that in the circumstances of the case, an acquittal contrary to the complainant's evidence did not necessarily mean that the complainant's general credit was undermined (see eg, R v KET (at [29]); R v Hilsley (at [78]); R v Maddox (at [1]); R v R (at [28]); R v AT (at [81]); R v AG (at [38]); Williams v The Queen [2000] TASSC 182 (at [4]); R v McNamara).
It is usual in such cases to give a strong warning about the dangers of acting on the uncorroborated evidence of the complainant. Where the jury accepts and implements such a direction, it does not necessarily mean that the jury ought to have had a doubt about the complainant's credibility generally.
In a number of cases the presence or absence of corroboration has been accepted as a relevant point of differentiation. The jury convicted in cases where there was corroboration, but not otherwise (see, eg, King v The Queen (an appeal to the High Court was successful on other grounds — Bull v The Queen (2000) 201 CLR 443); R v Petterwood; R v Hilsley (at [60] and [78]); R v KCW [1999] NSWCCA 112 at [95]–[106]; R v ARD (at [23], [121]–[124] and [201]); R v PLV (at [21]–[34]).

It is important to remember that the task which the court is required to undertake is to determine whether the verdict of conviction is unreasonable “was it open to the jury to be satisfied beyond reasonable doubt?” Although apparently inconsistent verdicts may require careful analysis the endeavour which the appeal court is embarked upon is to determine whether the jury’s reasoning process has failed and is not logical. As Wood CJ at CL said in Markuleski where proof of criminality is required beyond reasonable doubt “the occurrence of different verdicts is entirely to be expected … .” His Honour points out that acquittal does not amount to a finding that the alleged event did not happen. The jury may well have been satisfied on the probabilities but stepped back from convicting when instructed that on each charge they must be satisfied beyond reasonable doubt [222].
In the present case the trial judge cautioned the jury about the care with which they were required to assess the complainant’s evidence. His Honour told the jury that he had “warnings to tell you about your approach to that.” His Honour said “in the circumstances of this case I think it is prudent to warn you, you must scrutinise the evidence of the complainant very carefully before you rely on it to a degree where you are satisfied beyond reasonable doubt.”
His Honour later said:
“I give you the warning because in the past there have been cases, not necessarily sexual assault cases but certainly including sexual assault cases, where the evidence of the criminal acts came from one source only, and the past experience of this Court is that on some occasions that evidence has subsequently been demonstrated as having been unreliable. Evidence can be unreliable because it is a deliberate lie. It can also be unreliable because it is not accurate.
Now you must be satisfied beyond reasonable doubt the complainant is honest and is also accurate. That is why the complainant’s age at the time of the offence and her age now are important factors in assessing her reliability. That is also why the passage of years since the alleged events occurred is a factor that you should take into account in assessing her accuracy. You should also, as I say, remember that the passage of years inhibits the defence in accurately identifying the specific time when the offences are alleged to have occurred and answering with precision the charges levelled. You will also need to remember that a dishonest or an inaccurate witness, and particularly an inaccurate witness, can be a convincing witness. Frequently there can be independent supporting evidence, that is evidence given independent of the complainant such as, for instance, a confession or stained clothing or a blood soaked towel or medical evidence which supports the complainant’s testimony.
In this case there is no independent evidence supporting the complainant’s evidence of the actual acts which constitute the criminal acts upon which the Crown relies. You may think that the telephone call of 7 September 2003 was an attempt to obtain independent evidence but nothing in that telephone call supports the Crown case.
Now there is some independent evidence supporting the complainant’s testimony in other areas generally such as the evidence of [LF] who said she saw the accused and her sister at the bedroom door facing towards the bedroom door overnight. You need to understand that that evidence is not evidence that supports the complainant’s evidence of the specific criminal acts that she alleges against the accused, and it will be a matter for you, but I do direct you, that if you accept it, it is evidence which is capable of being supporting evidence in this sense, that you might be able, and that again would be a matter for you, to infer the formulation by the accused of an intention to commit a criminal act of a sexual nature. But it does not go to the very criminal acts that the Crown relies upon.
The absence of independent supporting evidence is not the complainant’s fault. The complainant would say, ‘Well it is the circumstances of the offence, he took me to a room and I was alone with him and the passage of time means that I have lost the benefit of the wet towel and so on.’ Members of the jury the defence say, ‘The passage of time has also affected us in that we cannot say what we were doing at the relevant time.’ So the absence of independent supporting evidence is not the complainant’s fault, but the absence of independent supporting evidence makes your task in assessing her evidence, one that requires very careful scrutiny of her evidence before you can be satisfied beyond reasonable doubt of her account and of the essential elements of each offence.
A careful scrutiny of her evidence does not mean that if you reject her account on one charge you must reject her account on another. To convict the accused on any charge you will need to be satisfied beyond reasonable doubt that the complainant has not only been honest but also accurate in the details she gave to you concerning the essential elements.
I have just given you a warning that you should approach the complainant’s evidence with great caution and that the basis of that warning was that the experience of the Court is that it would be dangerous to convict the accused in respect of any charge on the unsupported evidence of the complainant.
I want to remind you now that with the complainant, as with all witnesses, you are the sole judges of the facts and of the witnesses. As such it will ultimately be a matter for you to determine bearing in mind the warning that I have just given you, whether you accept or reject, in whole or in part, the particular witness’ evidence. Notwithstanding that I have given you a warning, and even though you may come to a view that there is no independent material, in fact I direct you that there is no independent material which confirms or supports the evidence of the complainant, it is still open to you, bearing in mind the warning that I have given you, to accept the evidence of the complainant as proving the Crown case against him.
So if I can just encapsulate all that in quick summary. The complainant is the only witness who gives direct evidence of the criminal acts. There is no supporting evidence for her of the essential elements of the charges. The experience of the Court is it is dangerous to convict in such a situation. For all of the reasons that I gave you there are a number of warning signs. I have warned you that it is dangerous to convict bearing in mind all that material that I have just referred to. But at the end of the day if you bear in mind that warning, you are still entitled to accept and believe her evidence beyond reasonable doubt if you want to, rather, if you are satisfied that it is the proper approach. Now that completes all of the evidence (as said) that I want to say about assessing witnesses.”

There are some fundamental elements in those directions repeatedly emphasised by his Honour. They may be summarised in the following terms:

it would be dangerous to convict the appellant relying only on the unsupported evidence of the complainant;
the jury should approach the complainant’s evidence with great caution and very careful scrutiny;
the jury must be satisfied beyond reasonable doubt of the complainant’s account of the essential elements of each offence;
notwithstanding the judge’s warnings the jury is still entitled to accept her evidence beyond reasonable doubt.

Hall J has exhaustively considered the evidence in the present case. I need not repeat it. Consideration of the evidence, the course of the trial and the judge’s directions and the verdicts of the jury leads me to the conclusion that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the counts upon which he was convicted.
The complainant gave a lucid and consistent account of the events which allegedly comprised counts 1 and 2. Although the alleged assault and sexual intercourse were not the subject of corroborating evidence there was reliable evidence which provided considerable support for the complainant’s account of the relevant surrounding events. That evidence confirmed that the complainant had babysat at the appellant’s house. It also confirmed that at the time of the alleged offences the appellant’s wife was away and the person George Lager, who was identified by the complainant, had resided in the appellant’s house at the relevant time.
If the proceedings against the appellant had been confined to counts 1 and 2 there could be no question that the jury’s verdict would withstand a challenge which relied on s 6(1). The complainant gave cogent evidence providing consistent accounts of the events in detail. She gave evidence of various surrounding events, which were confirmed by evidence from others which was not shown to be unreliable. Furthermore, the jury were given a number of warnings including a warning about the dangers of convicting on the “unsupported” evidence of the complainant. Mindful of these warnings they took the trouble to obtain and consider the transcript of the complainant’s evidence.
The alleged events which comprise counts 3 and 4 occurred on a different occasion to counts 1 and 2. The charges were supported by evidence which could not raise factual inconsistencies with the evidence supporting the other charges.
It was submitted that the jury rejected the complainant’s evidence on counts 3 and 4 finding her allegations to be fanciful. It was said that the fantasy emerged from the fact that she visited the appellant’s home about a week after the initial assaults and does not appear to have resisted his advances in respect of the fourth assault.
With respect to those who have a different view I do not find anything particularly surprising about this evidence. The complainant said that at the time she was having difficulty communicating with her parents. This accounted for her lack of contemporaneous complaint and must have been accepted by the jury for convictions to be returned on counts 1 and 2. The appellant was a friend of her parents. In those circumstances although other children may have reacted differently, I have no difficulty in accepting that the complainant may have sought to conduct herself as if no problems had arisen. I do not believe the explanation for the verdicts of acquittal lies in the jury finding the circumstances of the alleged offences to be fanciful or inherently improbable.
Furthermore, I am not concerned that the complainant delayed many years after the event before finally complaining. Having been unable to communicate about the events at the time her explanation that she, as she got older, “I like to think myself as a survivor not the victim. So I just wanted to pretend it didn’t happen” is entirely believable. The delay in complaint was explained in a manner which the jury, acting rationally, could accept.
To my mind the explanation for the jury’s verdicts in relation to counts 3 and 4 is likely to be that they were unable to identify any evidence which supported the complainant on these counts. Having been told of the need to consider the evidence on each charge separately the jury were reminded of the need to be satisfied “beyond reasonable doubt that the complainant has not only been honest but also accurate in the details she gave.” They were then immediately told that “it would be dangerous to convict the accused in respect of any charge on the unsupported evidence of the complainant.”
In relation to the third count apart from the evidence of the complainant there was no other evidence which supported the complainant on any detail in her evidence relevant to the offence. Given his Honour’s directions as to the caution with which the jury must approach its task I see no reason to conclude that the acquittal on count 3 raised concerns with respect to the credibility of the complainant.
The evidence in relation to the fourth count comes from the complainant and her sister. The complainant said that she was at home with her sister when the appellant and George came around. They talked in the lounge room for a while when in the complainant’s words “somehow, I can’t remember here (sic) he got me to go out with him.”
She said that the appellant had a cigarette and “I was just out the back with him, then he pulled me towards him by the waist and started kissing me.”
She gave the following evidence:
“Q.         And what happened then?
A.He finished his cigarette and he just grabbed me by the hand and I thought he was taking me back, just back into the lounge room but instead of going off into the lounge room, he took me up the hallway.
Q.What happened. When you say up the hallway. Whereabouts did you go?
A.           To my bedroom.
Q.           What happened in your bedroom?
A.He then got a towel and placed it under me, removed my pants and just took his pants down to his ankles and had sex with me again.
Q.           When you say he placed the towel under you --
A.           Yes.
Q.When you say “he had sex with me” can you tell us how he had sex with you?
A.           He placed his penis in my vagina.
Q.           Do you remember what you were wearing on that day?
A.           No, no.
Q.Did you see, when you came back into the house, did you see Lyndell. This is when you came from the yard into the hallway?
A.           No.
Q.           What about George?
A.           No.
Q.How long did you remain in the bedroom, do you remember?
A.           About twenty minutes.
Q.           What happened then?
A.Then we walked out of the bedroom, he went into the bathroom, and I sat on the lounge.
Q.When he went into the bathroom did you go in there with him?
A.           No.
Q.           Do you know what he did in the bathroom?
A.I heard the tap running. I think he was washing the towel out.
Q.           You then went into the lounge, did you?
A.           Yes.”
The complainant’s sister also gave evidence. In relation to the fourth count. She confirmed that the appellant would often come to the family home to visit. She recalled an occasion when he visited with his friend George whilst her parents were out. She said that she recalled the complainant going outside and the complainant later joining him after being called to by the appellant. She then said that later:
“A.There’s a long hallway that separates the lounge room from the bedrooms. I heard the back door close and they walked up the hallway. The next time I seen [the complainant] they – [the complainant] and Steve they were standing at our bedroom door.
Q. You and [the complainant] shared a bedroom is that right?
A. Yes.
Q.They were at your bedroom door. Do you recall whether the light in the hall was on?
A.No, it wasn’t. The light in the lounge room was on which reflected into the hallway.”
When the complainant’s sister was cross-examined she disclosed that she had first been asked to recall the events of the relevant night when spoken to by the complainant in September 2003. She revealed significant uncertainties with respect to the year in which the event occurred and whether her youngest sister had been born at the time. She could not recall whether George had been to the home before the incident and revealed that she had had discussions with the complainant to try and “work out (the) time frame.” She had also spoken with her parents about the relevant events. Perhaps surprisingly, her last memory of the appellant that night was seeing him “at the bedroom door” where she “could see his back.” She does not remember either the appellant or George leaving the house.
Given the uncertainty of the sister’s recollection and the fact that her recall of the events came after discussions with the complainant and their parents I have no difficulty in accepting that the jury concluded that they could not utilise her evidence as supporting the complainant. The uncertainties as to the year in which the events were alleged to have happened, whether her sister had been born and her lack of recall in relation to more peripheral matters would have left the jury without evidence supporting the fourth count.
I do not believe that the jury’s request for the transcript of the complainant’s evidence in relation to counts 1 and 2 has particular significance. It may be that before making that request the jury had decided to acquit on counts 3 and 4. Of course, if they had done so, they would have acted contrary to his Honour’s direction to first consider counts 1 and 2. But, if this was the course which they took, it is rationally explained by the jury having concluded that there was nothing to support the complainant on counts 3 and 4 and accordingly, it was only necessary to carefully scrutinise her evidence in relation to counts 1 and 2. Whatever be the explanation the fact that they asked for the transcript both confirms the care with which the jury approached their task and confirms that the jury, having heard the evidence and, after reviewing the transcript, were satisfied that the complainant’s evidence could be accepted on counts 1 and 2 beyond reasonable doubt.
It is important to remember the powerful impact of a warning given by a trial judge. When that warning is couched in terms that “it would be dangerous to convict” I have no doubt that a jury would approach its task with great care. Faced with such a warning many jurors would conclude that whatever be their view of the complainant’s evidence a conviction was not possible without at least some evidence which confirmed some aspects of the complainant’s account of the events.
I have already indicated that in my view the allegation in counts 3 and 4 could not be described as fanciful. Furthermore, I do not believe the verdicts returned by the jury justify a conclusion that the jury rejected the complainant as a credible witness.
In the present case I do not believe the verdicts of acquittal can be explained as merciful or returned after concluding that convictions on counts 1 and 2 would be sufficient. However, it is not possible for this Court to capture the atmosphere of the trial and the “subtle conclusions” available to a jury are not available to an appeal court. It may even rationally be the case that the evidence of the complainant on one count was adjudged as certain and reliable but on other counts the jury was left with a doubt. It may also be, as Wood CJ at CL points out in Markuleski, that the jury accepts a complainant on one or more counts, but maintains reservations as to whether the complainant has resorted to exaggeration to reinforce the claim of wrongdoing on the other counts.
The appellant raised 3 further grounds of appeal. Ground 3 requires consideration of the fact that the jury raised a question with the trial judge in relation to the onus of proof. The question was in the following terms:
“We require clarification of the legal definition of what constitute reasonable doubt, ie does this mean we need to be a 100% sure either way.”
The appellant submitted, in my opinion correctly, that to that point it would seem that the jury were unsure of how to apply the directions which they had been given as to the onus of proof.
After discussing the matter with counsel his Honour provided a further direction in which he said to the jury:
“… I should also remind you what needs to be proved beyond reasonable doubt are the fundamental propositions contained in the indictment in respect of any charge … In order for the Crown to prove the guilt of the accused, it must prove in the first charge the three fundamental propositions. In the second charge the two fundamental propositions. In the third charge the three fundamental propositions and in the fourth charge the two fundamental propositions. All of those must be proved beyond a reasonable doubt for the Crown to succeed in each of the respective charges.”
I am satisfied that any confusion which the jury maintained in relation to the onus and standard of proof was dispelled by these directions. Accordingly, I reject ground 3.
Ground 4 raised for consideration the trial judge’s direction that the jury were to consider the counts in a sequential manner. Howie J has considered these matters and I agree with his Honour that the directions given by the trial judge were not appropriate. However, having regard to the fact that the jury sought the transcript of the complainant’s evidence only in relation to counts 1 and 2 I am satisfied that the jury gave independent consideration to each count and did not follow the sequence suggested by his Honour. I would dismiss this ground of appeal.
In ground 5 the appellant complained that his Honour did not tell the jury that if they had a doubt about counts 3 or 4 it could be taken into account when determining counts 1 and 2. During the course of the summing-up the trial judge told the jury that they were required to consider each count separately. He said:
“In the course of that separate consideration, however, should it come to pass that you entertain a reasonable doubt, in respect of the complainant’s reliability, in relation to one or more than count, then you are entitled to examine whether the complainant’s reliability, believability, is she believable? If you have problems about the complainant’s believability in respect of the first count or in respect of the second count, you are entitled to say, does my attitude in respect of her believability mean that it will impact also on the 3rd and 4th count?”
This direction was confused. That confusion arose from the trial judge’s instruction that the jury should consider each count separately. However, the judge did effectively indicate that, although they should consider each count separately, if the jury had a reasonable doubt in respect of the complainant’s reliability on one count, they could consider whether she was believable in respect of her evidence in relation to the other counts. The reference by the trial judge to the various counts in the passage I have quoted should be understood as an illustration of how the jury might go about its task rather than the prescription of a mandatory process. Although the conventional direction about credit in relation to multiple charges is required I doubt whether a rational jury would confine a judgment about the reliability of a complainant by separately considering the evidence on each count. Even without instruction from a trial judge any sensible person would ask the question “can I believe the complainant”, and they would answer the question having regard to the whole of her evidence.
Although the direction which was given would have been improved by greater clarity I do not believe it can explain the jury’s decision to convict on counts 1 and 2 or has led to a miscarriage of justice. There was no complaint made about this direction at the trial which was a clear indication that counsel did not perceive any significant problem to arise.
I would dismiss the appeal.
HOWIE J: I have received the very significant benefit of reading the judgment of Hall J in draft. I agree with the orders his Honour proposes for the reasons given by him. I wish to make a brief comment about the ground alleging that the first two counts were unreasonable. I also wish to briefly say something about the ground of appeal complaining of the trial judge’s directions as to the approach the jury were to take in their deliberations. I rely upon the account Hall J has given of the evidence.
I have also had the benefit of reading in draft the judgment of McClellan CJ at CL who has come to the view that the verdicts on counts 1 and 2 are not unreasonable. The Chief Judge concludes that any doubt the jury might have had about the complainant’s evidence in support of counts 3 and 4 could have been overcome by evidence in respect of counts 1 and 2 that generally supported the reliability of the complainant’s account. This was so notwithstanding that the jury had been warned that it was dangerous to convict on the uncorroborated evidence of the complainant and there was no corroboration of her allegations of the sexual assaults giving rise to the first two counts.
It is clear that the test to be applied by this Court in determining a ground of appeal that challenges the reasonableness of a verdict remains the same regardless of the evidence and circumstances upon which such a ground of appeal relies. It is the test stated in M v The Queen (1994) 181 CLR 487: see MFA v The Queen (2002) 213 CLR 606 at 614 to 615. The issue is whether this Court finds that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. However, if, after having considered all of the evidence, having paid due regard to the advantage of the jury and having taken into account the atmosphere of the trial, this Court has a doubt about the guilt of the accused, that is a doubt that a reasonable jury ought to have entertained: M v The Queen at 494.
Here the issue of the reasonableness of the guilty verdicts on counts 1 and 2 is raised by the jury’s acquittal on counts 3 and 4. There is nothing else in the evidence in respect of the first two counts that would suggest that otherwise the verdicts were unreasonable. In such a case the focus of attention is often whether there is any apparent explanation for the different verdicts. That is understandable because, if there is such an explanation, then the Court is generally relieved from having to assess the evidence itself to determine whether the guilty verdicts are unreasonable. Sometimes the apparent explanation for the different verdicts will be in the variable quality of the evidence called by the Crown in support of the different charges, for example there may be corroboration in respect of some charges but not others.
Sometimes, in perhaps relatively rare cases, the apparent explanation will be found in the breadth of the jury’s power to bring in whatever verdict it pleases provided that it is consistent with the evidence and the law as explained by the trial judge. The jury’s powers are so wide that they can determine to bring in a verdict for a less serious charge than a strict adherence to the evidence might warrant, notwithstanding that they are motivated by a degree of compassion for an accused or by a sense that fairness warrants a conviction for a lesser serious offence: see Boulattouf v R [2007] NSWCCA 102. They can even acquit on one or more counts notwithstanding that strictly there may be evidence that warrants a conviction on all counts; see MacKenzie v The Queen (1997) 190 CLR 348 at 368 and quoted by Hall J at [203].
The difficult case is one such as the present where there is no obvious explanation for the different verdicts but it could not be said that they are illogical or irrational. If they were, the Court would quash the guilty verdicts without a consideration of the evidence supporting them on the basis that they are unreasonable because they appear to be the result of a compromise. In the present case the ground of appeal is to be determined, not by trying to explain the verdicts and how the jury must have approached their task, but by considering the evidence in support of Counts 1 and 2 bearing in mind that the jury acquitted on Counts 3 and 4 and the implications arising from the fact that the Crown failed to prove its case on those two allegations: see MFA v The Queen at [34]. The observations found in that passage and set out in the judgment of Hall J at [193] inform this Court as to the possible implications that arise from the jury’s decision to acquit on some of the counts and cautions against acting on assumptions that may not be valid. However, there is no bright line test for determining whether a verdict is unreasonable. There will always exist a tension between this Court’s statutory duty to ensure that a miscarriage of justice has not occurred and the right of a jury to determine verdicts as they will.

As Hall J has pointed out, the verdicts of not guilty on counts 3 and 4 could only mean that the jury must have had a doubt about the credibility of the complainant on those counts. It was not a case of the jury having a doubt about the particulars of the events giving rise to the charges such that, although they believed that the appellant had been sexually assaulting the complainant, they had a doubt as to whether he had done so on these occasions because of some question as to whether the complainant was confused about the events. The occasions giving rise to counts 3 and 4 were unambiguous and fell within the dates specified in the indictment.
Nor was it a case where there was corroboration of counts 1 and 2 but not of counts 3 and 4 so that the different verdicts could be justified on that basis. On the contrary there was support for the complainant’s allegations in counts 3 and 4 even though the jury were entitled to, and probably did, doubt the reliability of her sister’s evidence. Although there was evidence of opportunity for the appellant to commit the offences in counts 1 and 2 that evidence could not itself, in my view, account for the difference in the verdicts. It may be that the jury were distracted by the conflict in the evidence as to whether the complainant could have been in the house with the appellant on the particular occasion when she alleged the offences in the first two counts occurred. Although there was evidence that generally supported the complainant’s account of the opportunity for the appellant to commit the offence, it was no more than that.
It might well be the case that they acquitted on counts 3 and 4 on the basis of the warning given by the Judge that it was dangerous to convict on the uncorroborated evidence of the complainant. But it seems to me that the evidence in support of counts 1 and 2 has to be reviewed in light of the fact that, having scrutinized the complainant’s evidence in support of counts 3 and 4 with care, as they were directed to do, they were not prepared to accept it to the necessary standard of proof, and this notwithstanding that they had seen the complainant give evidence and were in a better position than this Court to evaluate her.
If it is accepted that there was no corroboration of counts 1 and 2, the jury were required to approach the evidence of the complainant on those counts in the same way that they approached the evidence in relation to counts 3 and 4. They were not prepared to accept her evidence as credible in counts 3 and 4 yet apparently they were prepared to do so in counts 1 and 2. In my opinion any doubt that existed in relation to the complainant’s evidence on counts 3 and 4 ought also to have existed in relation to counts 1 and 2. In my opinion there is nothing about her evidence in relation to those allegations that could have enabled the jury to overcome the danger that they must have found existed in relation to a conviction on counts 3 and 4. The fact that she may have been found to be reliable in respect of the opportunity of the appellant to commit the offence in my opinion does not raise her evidence above that in relation to counts 3 and 4.
Put simply, having regard to the fact that the jury in their advantageous position of having seen the complainant give evidence did not accept her account beyond reasonable doubt in relation to counts 3 and 4 raises a doubt in my mind that she should be accepted in respect of counts 1 and 2 in all the circumstances of this particular case. This is not to suggest that it is simply the fact that the jury acquitted the appellant on counts 3 and 4 that makes the verdicts on counts 1 and 2 unreasonable. My decision is based upon a consideration of all the evidence, including the delay in complaint and other matters touching upon the complainant’s credibility but in the light of the jury’s failure to accept her evidence to the requisite degree in counts 3 and 4. I accept that minds might reasonably differ in making such an assessment, as is the case whenever this Court is considering a ground of appeal based upon a consideration of the evidence to determine whether a verdict was unreasonable.
During the course of argument in this Court an issue arose about the directions given by the trial judge as to the approach the jury should take in determining the four counts on the indictment. As a result the appellant was granted leave to add a further ground of appeal complaining about the directions given by the Judge in this regard notwithstanding that no objection was taken at the trial. The particular passages to which objection is now taken are as follows (my underlining):
I have been directing you that [you] are obliged to consider each case separately, subject to what I have said about counts one and two. In the course of that separate consideration, however, should it come to pass that you entertain a reasonable doubt, in respect of the complainant's reliability, in relation to one or more than one count, then you are entitled to examine whether the complainant's reliability, believability, is she believable? If you have problems about the complainant's believability in respect of the first count or in respect of the second count, you are entitled to say, " Does my attitude in respect of her believability mean that it will impact also on the third and fourth counts?" because this is a case where the evidence of the criminal acts comes from only the one source, that is the complainant, and you will have to be satisfied beyond a reasonable doubt, as I will tell you shortly, that the complainant is honest and is accurate. When I say "accurate", that is a word equivalent to the word [defence counsel] used when he said, "reliable". That is, is she accurate?
So if you have formed a view about the reliability of the complainant in respect of the first and second counts you are entitled to consider whether that reliability as you have assessed it, is such as to taint her evidence in respect of the other charges the accused is facing, bearing in mind, the only direct evidence of the criminal acts comes from her………………
The fact that there are multiple counts does not permit you to compromise on any of them. It would be wrong if any agreement were made by one juror to reach a verdict of guilty or not guilty on one charge, on a condition that some of the jury would reach a verdict of guilty or not guilty on another charge. In other words, you are not in there to bargain. That is why you determine at the outset, the first count, then turn to the second count and determine that one. Then determine the third and then determine the fourth one. There can be no bargaining. No juror can say, "Listen mate” or "Ma’am, if I find him guilty on this, will you find him not guilty on that?" Or vice versa……….
The submission is that there are two vices in what his Honour said in these passages: firstly the Judge was directing the jury as to the approach they were to take in determining the four counts and, secondly, the directions may have misled the jury in that it suggested that the jury could reason from the first and second counts to the third and fourth but not vice versa. In other words it was argued that the jury were told that a finding adverse to the complainant on the first two counts might impact upon their findings on the third and fourth counts but not that an adverse finding on the last two counts might impact upon their findings in respect of the first two counts.
In Stanton v The Queen (2003) 77 ALJR 1151 the High Court were concerned with directions given to a jury as to the manner in which they were to approach their consideration of a charge of murder and the alternative of manslaughter. The trial judge told the jury they were first to consider the charge of murder and only if they determined that the Crown had not proved its case on that charge were they to consider the charge of manslaughter. The Judge emphasised that this was the approach the jury should take in answer to a jury question.
In dismissing the appeal, the majority of the Court, Gleeson CJ, McHugh and Hayne JJ, stated that it would be wrong if the effect of the trial judge’s direction to the jury were to tell them that they could not even think about the charge of manslaughter until they had first decided unanimously the charge of murder. The trial judge should not dictate to the jury the sequence of their deliberations. Their Honours noted at [35]: “Jurors are free to organize their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient.” The majority held that there was no error in the circumstances of the case before them.
Although that decision was concerned with alternative verdicts, it seems to me that it also applies to an indictment involving multiple counts. Generally it is no business of a trial judge to direct the jury as to how they are to embark upon their consideration of the counts before them. In particular there was no reason in logic or law in the present case why the jury should have commenced their deliberations by considering the first count and moving sequentially throughout the other counts on the indictment. Such a direction might lead the jury to understand that it should determine the first two counts without considering any of their findings on the third and fourth counts as to the credibility or reliability of the complainant. There was no indication that the jury might revise any determination it made of the first two counts as a consequence of any findings it made on the third and fourth counts.
After it retired the jury indicated that it wished to have the transcript of the cross-examination of the complainant in respect of the first two counts only. It is a dangerous exercise to attempt to draw conclusions about a jury’s reasoning processes from questions or requests raised by the jury after it has retired. But it is reasonable to assume that in the present case it had determined the third and fourth counts in favour of the appellant at the time it made its request. If that were so, the danger inherent in the directions given by the Judge as to how the jury was to approach its deliberations may have come to fruition. The jury may simply have disregarded its findings on reliability or credibility of the complainant when deciding the first and second counts based upon its consideration of the transcript.
Because the Court has concluded that the verdicts on the first two counts were unreasonable in the facts and circumstances of the present case, it is unnecessary to determine the outcome of the further grounds of appeal. But the directions of which complaint is now made add to my disquiet about the verdicts given by the jury and confirm my view that a miscarriage of justice had occurred.
I would further note that the present case is an example of the extent to which the summing up has developed to the point of almost taking over from all other aspects of a criminal trial. The evidence in the trial took 117 pages of transcript over a period of two days with addresses. The summing up took over a day and comprised 88 pages of transcript. There was so much information given to the jury by way of warnings, directions, comments and review of evidence and arguments that it is little wonder that they had not properly grasped the concept of beyond reasonable doubt by the time they retired to consider their verdicts. With respect, there was an unnecessarily detailed review of the evidence, including cross-examination, in what was a short trial with very narrow issues in a situation where the jury had heard all the evidence and addresses uninterrupted over a period of just two days before the summing up commenced. It is a good example of both the need for a trial judge to tailor the summing up to the realities of the trial and the need for a review by the legislature of the obligations of a trial judge in summing up a sexual assault case.

HALL J: The appellant was tried in the District Court at Campbelltown before his Honour Judge Nicholson, SC. and a jury of 12 on an indictment that contained four counts, each alleging sexual offences said to have been committed upon the complainant during the period 31 May 1983 to 30 May 1984 when the complainant was between 11 and 12 years of age. The appellant entered pleas of not guilty to each count:-
(a)Counts 1 and 2 were alleged to have occurred within a six month period of 1983 (expiring on the complainant’s 12th birthday) when the complainant attended the appellant’s home in order to baby sit the appellant’s twin sons who were born in 1978. The Crown alleged that on the occasion in question, the appellant, firstly, indecently assaulted the complainant (Count 1), contrary to s.61E(1) of the Crimes Act 1900 (NSW) and, secondly, had sexual intercourse with her, charged as an offence of unlawful carnal knowledge of a female under the age of 16 years, contrary to s.71 of the Crimes Act 1900 (NSW).
(b)Count 3 - the Crown alleged that a short time after the birth of the complainant’s younger sister (which occurred on 15 November 2003), the complainant walked to the appellant’s home with her baby in a pram. The Crown case was that the appellant forced the complainant to perform fellatio upon him. The offence alleged was that of indecent assault (person under 16 years of age) contrary to s.61E(1) of the Crimes Act 1900 (NSW).

(c) Count 4 – the Crown case was that the appellant and a male friend attended at the complainant’s home where she lived with her parents. The Crown case was that:-

(i)the complainant’s parents were not at home but that the complainant was at home with her elder sister, who was about two years older than the complainant.
(ii)the appellant enticed the complainant out into the back of the house and then took her inside into her bedroom where it was alleged that during a period of some 20 minutes whilst they were in the bedroom, sexual intercourse took place with her. The alleged offence was that of carnal knowledge of a girl (above the age of 10 years and under the age of 16 years) contrary to s.71 of the Crimes Act 1900 (NSW).

The appellant entered pleas of not guilty to each count and on 28 October 2005, the jury returned verdicts of guilty upon Counts 1 and 2 and verdicts of not guilty upon Counts 3 and 4.
The convictions entered pursuant to s.61E and s.71 of the Crimes Act 1900 (since repealed) exposed the appellant to a maximum penalty of imprisonment for six years and imprisonment for 10 years respectively.
On 11 April 2006, in respect of Count 1, the sentencing judge sentenced the appellant to an effective non-parole period of six months, comprising a fixed term to commence on 11 April 2006 and to expire on 10 October 2006 and, with respect to Count 2, to a non-parole period of six months to commence on 11 April 2006 and to expire on 10 October 2006, with a balance of term of 18 months to commence on 11 October 2006 and to expire on 10 April 2008.
On 5 January 2007, the appellant lodged a notice of appeal dated 15 January 2007 and filed on 23 January 2007. He relied upon three grounds of appeal as follows:-
“Ground One - The verdicts of the jury on Count 1 and Count 2 on the indictment are unreasonable, having regard to the evidence.
Ground Two – The verdicts of the jury on Count 1 and Count 2 on the indictment are unreasonable, having regard to the verdicts of the jury on Count 3 and Count 4 on the indictment.
Ground Three – The questions asked by the jury during the course of their deliberations give rise to a concern that the jury did not properly understand the onus of proof in a criminal trial.”
Mr Hamill SC, who appeared on behalf of the appellant, sought leave to amend grounds of appeal to include the following:-
“Ground Four – The trial judge erred in directing the jury that it was required to approach the counts on the indictment in a sequential manner, by considering Count 1, then Count 2, then Count 3 and then Count 4.
Ground Five – The trial judge erred in failing to direct the jury that any doubt it experienced in respect of Counts 3 and 4 must, or might, be taken into account in its determination of whether it was, or could be, satisfied beyond reasonable doubt as to Counts 1 and 2.”
Although the Crown opposed the application to amend, leave was granted to the Crown to lodge written submissions in relation to the additional grounds. In those circumstances, no prejudice arises and, accordingly, I am of the opinion that leave to amend the grounds of appeal should be granted.
The evidence in the trial was adduced in a little over two days commencing 24 October 2005 and the trial judge gave an extensive 82 page summing-up on 26 October 2005.
In relation to Ground 3 of the grounds of appeal, two questions were asked by the jury. In the written submissions on behalf of the appellant, it is submitted that they give rise to some concern “… that they may have misunderstood their task in assessing the evidence in the case”. In the first place, the jury asked, what was described in the appellant’s submissions, “a curious question”:-
“We would like to see the transcript of (the complainant’s) evidence to the Crown and her cross-examination on Counts one and two.”
In the appellant’s written submissions (paragraph 14), it was submitted that the discussion relating to this question (at summing up, p.83.1 and following) did “not raise the issue as to why the jury would want to see the cross-examination on only two of the four counts and nor is this addressed in the directions given to the jury in response to the question”.
The jury were given extracts from the cross-examination of the complainant, it being submitted on behalf of the appellant “… it is difficult to conceive why the jury should distinguish between the cross-examination relating, on the one hand, to Counts 1 and 2, on which they convicted, and on the other hand, to Counts 3 and 4, on which they acquitted …”. It was submitted that there was no readily apparent explanation.
The second question raised by the jury was as follows:-
“We require clarification of the legal definition of what constitutes reasonable doubt, ie, does this mean we need to be 100% sure either way?” (emphasis added)
74 It was submitted on behalf of the appellant that the terms of this question, particularly the reference to the need to be “sure either way” indicates that the jury may have misconceived the onus and standard of proof. It was further submitted that the circumstances were such that the jury should have been directed, as they had been in the course of the trial and in formal directions in the summing up the previous day, “… that the requirement for proof beyond reasonable doubt only applied to evidence relied on in the case for the prosecution. The suggestion that there may have been a need to be ‘sure either way’, that is that there may be some kind of onus on the appellant, should have been firmly put to rest by further directions, at this important stage of the deliberations of the jury” (appellant’s written submissions, paragraph 17).
(I) FACTS
At the time of the offences charged, the complainant lived with her parents, her elder brother and elder sister in Liverpool, New South Wales. Her younger sister, as noted earlier, was born on 15 November 1983, that is, just after the complainant had turned 12 years of age (whose date of birth was 3 November 1971).
The evidence established that the appellant had been a friend of the complainant’s father and lived nearby with his wife and his twin sons.
The appellant’s family resolved towards the end of December 1983 to move to a location near Tamworth. The appellant remained working in the country, his wife having returned to their home in Liverpool. The appellant only returned to that home in May 1984 to help pack up the house.
Following that time, the evidence established that the appellant and his wife stayed with the complainant’s family on only two occasions.

In her evidence, the complainant stated that the offences alleged in Counts 1 and 2 occurred during the course of one encounter before the birth of her younger sister, “L”. In cross-examination, she stated there was some uncertainty as to whether the child had actually been born or the birth was imminent.
Counts 3 and 4 were alleged to have occurred as separate episodes. Count 3 is said to have occurred at the appellant’s home approximately a week or so after the complainant’s baby sister “L” was born. The complainant gave evidence that she took her sister in a pram for a walk and called into the appellant’s home to see his wife and the twins. The appellant opened the door and invited her in. She found that the appellant’s wife and twins were not home. The complainant stated that the appellant took her into the spare room. The complainant gave evidence that, whilst there and after settling the baby who had been crying, the appellant took her into the spare room where he dropped his pants and instructed her how to give him oral sex and that she did so.
Count 4 was alleged to have occurred approximately two weeks after Count 3. It was alleged that the appellant and his friend, George Lager, went to the complainant’s home. The complainant’s parents were out. The complainant was at home with her sister, “L”. It was alleged that the appellant persuaded the complainant to go outside for a cigarette. Having done that, they re-entered the house. It was alleged that he took her into the bedroom where sexual intercourse took place.
The sister, “L”, gave evidence in relation to Count 4 supporting the fact of the visit and the appellant and the complainant going outside and of seeing them in the hallway near the bedrooms.
There was, accordingly, evidence of opportunity in relation to Counts 1 and 2. However, counts 1, 2, 3 and 4 were not corroborated and were essentially depended upon the complainant’s word against that of the appellant. There was no recent complaint. There was evidence of complaint by the complainant to her boyfriend approximately 10 years after the relevant events and some 20 years later an official complaint was made to police.
The appellant did not give evidence. On 7 September 2003, the complainant made a phone call to the appellant by arrangement with police to whom a complaint had been made in Queensland. This telephone call was part of investigation methodology. It has been referred to as a “pretext” telephone call. The method was discussed by this Court in Regina v. Workman (2004) 60 NSWLR 471. The appellant denied any wrongdoing towards the complainant. The transcript of the recorded conversation was admitted at trial as Exhibit B2.
The relevant events concerning each of the counts is set out below:-
Count 1
It was alleged that the appellant committed the offence in the “second half of 1983”, that is, some 23 years before the plaintiff gave evidence at the trial. The Crown relied upon evidence of the appellant’s wife to the effect that in 1983 she had left Sydney for one week, Tuesday to Tuesday, to visit her sick father. She went to Brisbane on 17 August 1983. The Crown case was that during that week, the complainant was babysitting for the appellant. It was alleged that in respect of Counts 1 and 2, the appellant came home with his friend, Mr George Lager, after a night out. The complainant’s evidence was that the appellant went into the matrimonial bedroom where the complainant was told to sleep where he indecently assaulted her and had sexual intercourse with her. Her evidence, in examination in chief and in cross-examination, established a number of events and other matters as follows:-
(a)At the relevant time, the appellant’s wife was away “at Tamworth”. Those present in the house when the incident occurred are said to have included the appellant’s two young sons, the complainant, the appellant and possibly, as indicated below, the appellant’s friend, George Lager.
(b)The appellant had asked the complainant to baby sit “so that he and George could go out”. The “arrangement” was for her to stay over.
(c)The appellant and his friend George Lager left the house. The appellant told her that she could sleep in the matrimonial bed.
(e)The appellant’s sons stayed up and then they went to bed. The complainant soon after retired to the matrimonial bed and slept.
(f)The complainant recalled hearing “them” coming in and then the appellant came to the bedroom where she was located (the complainant later said that she was not sure if “George” came home with him.
(g)The appellant, according to the complainant, came to her side of the bed and “he climbed over” and “started touching me” over her clothing on the breast and vagina areas.
(h)The complainant “told him to stop it”. He said, “It’s okay, it’s alright”.
(i)The appellant continued to “touch me and kiss me – and he put his hand down my pants and up my top”.
(j)The appellant told the complainant to wait there – he went into the bathroom across the hallway and came back with a towel.
(k)The appellant placed the towel underneath the complainant.
(l)The appellant got back into the bed “started kissing me again and started to remove my clothes” - her pyjama pants and underpants, but did not remove her top.
(m)The appellant took his pants off.
(n)The appellant continued to “touch me on my vagina and then he climbed over on top of me and put his penis in my vagina” (later said to have lasted 20 minutes, half an hour). His penis was erect. The appellant said nothing to her.
(o)The complainant said she felt pain and she was bleeding (on the towel).
(p) Then the appellant “just got up took the towel, bathroom light went back on and I heard water running”.
(q)The appellant went and slept with his sons.
(r)The complainant said “I couldn’t sleep – waited till sun up and sent home”.
(s)The complainant did not say anything to the appellant before she went home.
In cross-examination of the complainant, the following matters were raised.
(a) Statement to police – 3 September 2003
The complainant stated that she attended a Queensland Police Station where she saw Officer Kylie Hayden on 3 September 2003 at 2.00 pm. She completed a statement there that day.
When the statement was made on 3 September 2003, she was affected by a “break down” and “hadn’t slept for days – was emotionally drained”.
In her statement, the complainant said she did not tell her mother “because she’d just had a baby” (as noted above, the younger sister was born on 15 November 2003). The complainant admitted some confusion in telling the police that “Mum just having a baby” (sic). In relation to how she came to be at the appellant’s home, she stated that she told her parents “I just told them that I got asked to baby-sit and they said ‘yes’”. The complainant also added as an explanation for not having told her mother “because me and my parents had a very hard time with communicating back then and I was scared they wouldn’t believe me”.
The complainant conceded that the statement in evidence to the effect that she was scared that her parents would not believe her did not find its way into her statement of 3 September 2003. It was accepted, however, that she had told police that she had not reported the matter to her parents by reason of difficulties she had had in communicating with them.
(b) The issue of whether “George” was present in the house
An asserted inconsistency put to the complainant was that she included “George” in the picture when she made her statement to police. In evidence, she told the Crown she was not sure as to whether “George” was around when the first incident took place.
The complainant stated that she heard the voices of the appellant and “George” returning home. She said she wasn’t fully awake and she told police “I woke up when Steve walked into the room that I was sleeping in”. She said that she meant that she heard them but wasn’t awake until he walked in.
The complainant responded by saying that she was not sure whether he was in the bedroom so she was not willing to say that he was there, “I didn’t see him go in”. She was therefore not willing to say that he was in the spare bedroom. When she made the statement she really thought that he was there.
Whilst reminded that she stated in chief that she was not sure if “George” came home with the appellant, she said in cross-examination “George and Steve entered the house but I didn’t see him actually walk into the spare bedroom. I heard them speaking”.
She agreed that she had told police “George was in the spare room which was next door to where I was staying. I don’t recall that there was any noise made, so George would not have heard anything”. She said that the last recollection of “George” was hearing him talk that night.
When asked to explain when her uncertainty as to “George’s” presence arose, she stated “since I’ve spoken to some people, they said unless you’ve got complete – you’ve seen him walk him (sic) I can’t say for sure”.
It was put to her that she was unsure as to whether “George” was present or not. She replied “I heard his voice”. She did not see him in the house.
At the end of the day, the asserted inconsistency concerning the presence of “George” does not appear to be a marked or significant inconsistency.
(c) The issue of whether all clothing had been removed
A further asserted inconsistency was her statement to police that the appellant had removed her clothing:-
“He then removed my clothing. I was wearing pyjamas which consisted of a top and bottom and a pair of undies.”
The complainant’s recollection in evidence was that “he did not remove the top of what you were wearing” to which she said “that’s right”.
She was asked whether she was sure that her pyjama top had been left on. She replied, “Yes”.
It was put to her that in respect of “all of those five things you’ve said something different on a previous occasion?”. She responded, “probably in little ways, like little things but not that my top was always on. I never said all my clothing was taken off. I probably didn’t add in that he went into the bathroom and washed the towel out but on – I know that it happened”.
This asserted inconsistency could not have been seen as significant by the jury.
(d) The issue of whether the appellant used a towel
It was put to the complainant that she may have combined her memory of the third incident with the first when referring to her recollection that the appellant took the towel from the bedroom and a later recollection of a tap running, she said “no, no, no. It happened the first incident too”.
She agreed that it was an oversight not to have mentioned the towel in relation to Count 1 when describing the event to the police. She said that she had not forgotten the detail about the towel being taken out and the tap running, but that she “just didn’t include it”. She said that she knew the incident concerning the washing of the towel occurred.
She was asked whether she was unsure in relation to “incident one” as to whether or not the towel was washed. She stated “No, I’m sure”.
(e) Presence of blood on the complainant’s clothing
In relation to blood and whether it was on her clothing, the complainant stated “yeah, there would have been, yeah”. She did not have any actual recollection of this because it was so long ago but that there “would have been, yes”.
As to the blood on her clothing, she said it would have been on her underpants, but does not remember whether it was on the pyjamas.
She was asked whether she was sure whether there was blood on her underpants and she replied, “yes”.
(f) Other matters
The complainant confirmed that she would describe the activities involved in the first count as “being extremely painful” (AB 277, lines 35-37). She said that she was “scared” and didn’t want it to happen.
She stated that Count 3 occurred about a week after the first. It was put to her that she had told the police that it was about a week later (AB 277, lines 55-58).
The complainant was asked if the appellant told her that the appellant’s wife was in Tamworth. She stated “it was common knowledge” (AB 288, lines 1-6). She added that it was either the appellant or her mother or father who informed her. She said she was told that she went to Tamworth visiting family.
The complainant was asked whether, having regard to changes in her recollection, that caused her to wonder. She replied, “No, I questioned myself for 20 years. I’m not going to question myself any longer” (AB 291, lines 5-10). The complainant explained that she was not questioning whether it ever happened because “I’ve always known it happened”.
By way of general observations, although certain inconsistencies arose in the complainant’s evidence in relation to Counts 1 and 2, I do not consider that they, in themselves, constituted a basis for concluding that the complainant’s general credit had been significantly undermined.
Count 3
The complainant said in evidence in chief that her younger sister was a week or so old when the events involved in Count 3 occurred. She pushed the baby in a pram around the corner to the appellant’s home “and I dropped in to see (the appellant’s wife) and the twins”.
The appellant answered the door and said “come in”. She took her younger sister in the pram into the house “… and that was when I found out Diane and the boys weren’t home”. They were then just sitting, talking in the lounge room. The baby commenced to cry and she picked her up to comfort her.
The complainant then said that the appellant came out with the comment “wouldn’t you like a little baby of your own?”. She said she didn’t say anything and continued to comfort the baby. She put the baby in the pram after she stopped crying.
She was on the three-seater lounge and the appellant came over and grabbed her by the hand and took her into the spare room.
The appellant is then said to have dropped his pants and instructed her how to give oral sex. When asked about this, the complainant said he commented “get on my knees” and then he “pulled my head towards his groin, put his penis in my mouth”. He was, at this time, sitting on the bed. The complainant said this went on “probably 10 minutes”. The appellant is said to have ejaculated. She pulled away, went to the lounge room, got the baby and went home. The complainant did not report the incident.
In cross-examination, the complainant could not recall the words the appellant used in instructing her concerning the performance of oral sex.
She confirmed that there was about a week between Counts 1 and 2 and the occurrence of Count 3. She had chosen to go to the appellant’s house to take the baby and visit the appellant’s wife and sons. She did not contemplate whether or not the appellant would be home, but she did not think that she even considered whether he would or would not be at home.
She was asked whether it was the case that she had blocked out her recollection of what happened a week earlier and she said “probably trying to”. She said that she thinks it was “pretending it didn’t happen”.
The complainant added “as I got older, I like to think myself as a survivor not the victim. So I just wanted to pretend it didn’t happen”.
She stated that she went around to the appellant’s home after Counts 1 and 2 “to show off my little, my baby new born sister”.
Paragraph 15 was quoted to her from a statement in which, inter alia, she said she had “gone over to Steve’s place to see the boys and Dianne and the boys weren’t there”.
As discussed below, in relation to Count 3, there is a need to consider the complainant’s account of an apparent willingness to visit the appellant’s house so soon after the alleged assaults a week before and the inference that may be drawn from the jury’s verdict of not guilty. That matter is discussed below in the analysis of the multiple verdicts.
Count 4
In relation to the Count 4, the complainant’s evidence was that she was home with her elder sister. Her baby sister was also at home and her parents were out. She stated that her younger brother, who was three years younger then her, was with their father.
She said that the incident occurred about two weeks following Count 2.
She said that there was a knock at the door. Her elder sister went and answered the door and that it was the appellant and “George” and her sister let them in.
They were sitting around the lounge room just talking. She could not recall what the subject matter was. She stated that no-one ever smoked in her parents’ home. The applicant went out the back for a cigarette. Somehow, she could not remember how he got her to go out with him.
The complainant then went to the backyard. She saw him have a cigarette. He “pulled me towards him by my waist and starting kissing me”. She could not recall whether there was conversation, or if there was, what it was.
The complainant stated that the appellant grabbed her after he had finished his cigarette and she thought he was taking her back to the lounge room but, instead, took her up the hallway to her bedroom.
She stated that he then got a towel and placed it under her, removed her pants and just took his pants down to his ankles and had sex with her.
She stated that she did not see her sister when she came back into the house, nor did she see “George”.
She said she and the appellant were in the bedroom for about 20 minutes. Subsequently, “we” walked out of the bedroom, he went into the bathroom and she sat on the lounge.
She heard the tap running and she thought he was washing the towel out.
Following this incident, she said that the appellant had come to her parents’ home “a few times”.
After the appellant moved to the country, he “dropped in a few times when he was down in Sydney doing some work” and the last time she heard he had had an accident involving a horse.
She agreed that she did not tell anyone about these events until some time around 2000 – 2001 and that account was given to her boyfriend.
141 A number of asserted inconsistencies were put to the complainant in cross-examination. These were:-

(a) Whether the complainant remained in the lounge room
There was an asserted inconsistency in the complainant’s account in that she told the police on 3 September 2003 “I don’t think that I even went out of the room until Steve and George left the house”. She stated in evidence “I can’t recall whether I went out or not. I think I went out to the lounge room”.
(b) The incident involving a towel
It was put to her that she told police in relation to the towel, “when he was finished, Steve took the towel and went and rinsed it out in the bathroom and hung it up”. She agreed she said that to police. She also agreed that she told the jury that in the aftermath she only heard the tap running. It was put she had no recollection of Steve physically washing the towel to which she responded “I actually do remember going later that night and the towel was hanging on the rack, wet”. She confirmed that she was not in the room when he washed the towel. She agreed there was no reference in her statement to having seen the towel, in particular, the wet towel.
(c) The statement to police
The complainant was asked in evidence on 25 October 2005 about the statement she had completed on 19 October 2005. In the statement, reference was made to the fact that she was going out with her abovementioned boyfriend from July 1990 until 2000/2001 (having given evidence that she had got together with him in the year 2000).
When it was put that she had said in the October 2005 statement “I remember that I told [her boyfriend] I (sic) the first 12 months of our relationship”, she replied, “it was 1990, it wasn’t 2000, yes. Sorry. Just got the years I, I just, yep”.

In MFA (supra), Gleeson CJ, Hayne and Callinan JJ observed (at 618) that the test established by s.6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. That observation focuses attention upon the essential question.
In some circumstances, of course, clear inconsistency may itself evidence unreasonableness. In MacKenzie v The Queen (1997) 190 CLR 348, it was stated (at 368):-
“It is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside …”
It is clear from what has been stated above that, in determining unreasonableness, an intermediate appellate court may look to see if there is an obvious explanation of the differences between the verdicts on the various counts in the indictment.
In MFA (supra), McHugh, Gummow and Kirby JJ observed (at 621) that in the statutory context and against the tradition of the jury trial over the centuries, the setting aside of a jury’s verdict is, on any view, a serious step. Hence it was stated it is a step that assigns to the words “unreasonable” or “unsupported” in s.6(1) of the Act “… a strictness of meaning that, in isolation or in other contexts, those words might not enjoy”.
A further contextual indication of what s.6(1) of the Criminal Appeal Act is driving at is given by the reference to the demonstration “on any other ground whatsoever, of a ‘miscarriage of justice’”. It was observed by McHugh, Gummow and Kirby JJ at 621 in MFA that these words “suggest that the kind of ‘unreasonable’ verdict or verdict that ‘cannot be supported, having regard to the evidence’ with which s.6(1) is concerned is one that leaves the appellate court believing that, notwithstanding the verdict, there has been a ‘miscarriage of justice’” .
In a case of multiple counts where an accused is acquitted of some counts and found guilty on others, the question as to whether the guilty verdicts were unreasonable is to be determined by the test stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M (supra) (see, in this respect, MFA (supra) at 614 per Gleeson CJ, Hayne and Callinan JJ).
In MFA (at 623) it was observed that the majority in M favoured a broader test for unreasonableness or insupportability of a verdict. Instead of asking whether the jury “must” or were “bound to” have a reasonable doubt about the accused’s guilt, the majority posed the question whether it was “open to the jury” to be satisfied of the accused’s guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict “upon the whole of the evidence”.
Reliance was placed in the written submissions on behalf of the appellant upon the principles stated by the High Court in MacKenzie (supra) at 366 to 368. The third general proposition there stated by the Court in that case was in the following terms:-
“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 Regina v Stone is often cited as expressing the test:-
‘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.”
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. Thus, if there is a proper way in which the appellate court may reconcile the verdicts, allowing it to conclude that the jury perform their functions as required, that conclusion will generally be accepted. 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. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one counts: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, decline to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In Regina v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:-
‘Juries cannot always be expected to act in accordance with strict 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 had 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.’
5. We agree with these practical and sensible remarks.”
However, the Court in MacKenzie (supra) went on to state (the fifth general proposition) that there are, nonetheless, a residue of cases:-
“… 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’ …”
As Spigelman CJ observed in Regina v Markuleski (2001) 52 NSWLR 82 at 92, in the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The Chief Justice added:-
“… the issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A Court of Criminal Appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.”
In Markuleski (supra) it was stated that several aspects of the reasoning in Jones pertinent to the issue of credibility of the complainant in that case, often arise in other cases (at 93). These include:-
•Absence of corroboration in a word against word case.
•Delay in making complaint.
•Lack of apparent difference in the quality of the complainant’s evidence amongst the different incidents.
•Availability of contradictory evidence with respect to some, but not all, incidents.
In relation to such matters, Spigelman CJ observed that each raises questions of fact and degree which may affect the ultimate assessment or the reflect upon the credibility of the complainant in the particular case before the Court when the complainant’s evidence is not accepted to the criminal standard on some counts (at 93). The Chief Justice stated (at 93):-
“… the fact that the High Court found in Jones that the effect on credibility was such that, together with other factors, it was not open to the jury to convict, does not determine the outcome of other cases. The variation in fact and degree will differ from case to case.”
In Jones (supra), the appellant was charged with two offences. The first was said to have occurred between 1 February 1991 and 1 June 1991 involving sexual intercourse with a child under his authority (the appellant was a gymnastic coach), being a girl of 11 years of age.
The second count offence was said to have occurred on a date between 1 June 1991 and 30 June 1991. Again, the allegation was that the appellant had engaged in sexual intercourse.
The third offence was alleged to have taken place on a date between 1 June 1992 and 4 July 1992. This was said to have occurred at the appellant’s home and not at the gymnasium, as alleged in the other two counts.
The complainant’s testimony was entirely uncorroborated. She also claimed that sexual incidents between herself and the appellant had occurred on two or three other occasions, but she said she could not remember much about them.
Cross-examination revealed that she had not made any complaint of the incidents until 1995. There was therefore a four year delay in respect of the offence charged in the first count of the indictment, a three and a half year delay in respect of the second and a two and a half year delay in respect of the third count.
Cross-examination of the complainant also revealed that she had sent cards to the appellant after the three incidents were alleged to have occurred.
The complainant agreed that in early 1993 while on a visit to her mother, she had spoken to the appellant’s wife who had invited her to stay the night at the appellant’s house. After consulting her mother, she had accepted the invitation.
The High Court held that the jury’s finding of not guilty on the second count damaged the credibility of the claimant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count.
The Court noted that the jury may have acquitted because the unshaken evidence of the appellant’s wife and daughter established the absence of opportunity for the alleged offence and engendered a reasonable doubt about the appellant’s guilt on the second count.
The court also stated that the jury may have possibly acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. However, having regard to the convictions on the first and third accounts, the latter alternative seemed an unlikely explanation for a verdict on the second count.
The court noted that whatever the explanation may have been, the jury’s rejection of the complainant on the second count diminished her overall credibility.
The only reasonable conclusion was that the jury was not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. The Court was not satisfied that the confusion as to whether it took place on a Thursday or a Saturday was sufficient to explain the acquittal on that count, otherwise they would have acquitted the appellant on the first count.
The Court then observed:-
“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.”
In the present case, there were two particular matters that made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care:-
(a)The lengthy delay in the complainant making a complaint.
(b)The lack of any corroborative evidence, including the absence of any medical evidence.

In evaluating the cogency of the evidence in relation to Counts 1 and 2, it is necessary to examine the extent to which the complainant’s evidence was consistent with her earlier statement to police and the extent to which it was internally consistent and also the extent to which there was other evidence which was to a greater or lesser extent supportive of her evidence.
This, in general terms, was the approach adopted by the High Court in MFA (supra). There, the majority judgment observed that, notwithstanding inconsistencies in the evidence of the complainant and the witness, MA, the evidence of MA, in relation to two counts (Count 7 and Count 8 being the only counts of a total of nine counts on which guilty verdicts were returned) was substantially supportive of the complainant. Counts 7 and 8, in that case, were the only counts in which the complainant’s evidence was supported by another witness.
In this appeal, it, of course, remains the responsibility of this Court to scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. In that respect, as observed in MFA (at 613), the Court properly is to be conscious of the fact that there may be aspects of the case that will not be reflected adequately in the written record.
224 The five grounds of appeal have been set out above (paragraphs [5] and [6]). I consider that the issue raised in those grounds are best considered in the analysis that follows.
(IV) ANALYSIS
The statement of principle and approach referred to above establishes that in reconciling mixed verdicts on the basis of logic and reason, it is necessary to have regard to any inadequacies that were established in the evidence given by the complainant in relation to Counts 1 and 2 as against Counts 3 and 4.
In general terms, whilst it may be said that there some discrepancies raised during the cross-examination of the complainant in relation to Counts 1 and 2, they could not, in my opinion, be regarded as major discrepancies or inconsistencies in her evidence.
In relation to Counts 3 and 4, it is, however, possible to identify discrepancies of a more significant kind. Additionally, the complainant’s sister’s evidence was, in several respects, undermined by virtue of the fact that she had admitted discussing facts and her recollection with others, which affected the reliability of her evidence.
In submissions in support of the appeal, Mr Hamill SC contended that “the doubts the jury experienced in relation to Counts 3 and 4 are such that logic and reason dictated those doubts would carry over” (transcript, pp.5 to 6).
The essential task, at the appellate level, in a case of disparate verdicts in a case involving multiple counts is the identification, wherever possible, of a proper basis upon which the verdicts may be reconciled, thereby enabling a conclusion to be reached that the jury has performed its functions as required.
The basis for such a reconciliation must involve a rational explanation. That is essential before the Court can maintain a comfortable satisfaction as to the verdicts of guilty: Markuleski (supra) per Wood CJ at CL at [229] to [237]. Plainly, as indicated in the earlier discussion in this judgment, the mere difference between the verdicts returned does not in itself demonstrate a lack of credibility in the complainant: Markuleski (supra) per Wood CJ at CL at [219]. However, as Spigelman CJ stated in that case (at p.101):-
“There are cases in which nothing at all appears to differentiate the complainant’s evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case, the MacKenzie test of ‘logic and reasonableness’ is not satisfied.”
The rational explanation for disparate verdicts may be found in a case where there is evidence, independent of that of the complainant, which provides support for his or her evidence in relation to counts upon which verdicts of guilty have been returned. In the circumstances of the present matter, reference has been made below to the evidence which does provide some limited support for the complainant’s accounts in relation to Counts 1 and 2 but that such evidence does not constitute corroboration of the offences themselves.
In relation to Count 3, there was no evidence from any other source which, in any way, provided support for the complainant. Without such support, the jury were plainly not prepared to accept that within a week of the sexual assaults alleged in Counts 1 and 2, the facts said to have constituted Count 3 occurred. On the evidence, one can only infer that, without some form of support, the jury could not be satisfied beyond reasonable doubt that the complainant would have returned willingly to the home of the appellant in the wake of the events constituting Counts 1 and 2.
In relation to Count 4, the support offered by the complainant’s sister was, as the Crown submissions acknowledged, undermined by the cross-examination of her. The cross-examination revealed that she had discussed the attendance of the appellant and his friend George at their home when their parents were absent with others. In the Crown’s written submissions dated 2 April 2007, it is acknowledged that the evidence of the complainant’s sister said to constitute some support for her was, however, “… undermined by effective cross-examination which had focused on inconsistencies between her sworn evidence and her statement to police, it being suggested that the changes had come about as a result of discussions with her parents” (at [36]).
In evaluating the evidence and the jury’s approach to it, it is relevant, as the Crown has submitted, to have regard to the jury’s request that they be provided with the complainant’s evidence in chief and in cross-examination in relation to Counts 1 and 2 as illuminating their reasoning process. It is, as the Crown submitted, consistent with the fact that the members of the jury were mindful of the direction that had been given that it would dangerous to convict on the complainant’s evidence alone. The request for the transcript relating to Counts 1 and 2 does, in my opinion, reflect the fact that the jury had determined that Counts 3 and 4 had not been proved to the required standard before deciding to convict the appellant on Counts 1 and 2.
In examining and contrasting the verdicts on Counts 1 and 2 with Counts 3 and 4, it is, to some extent, true to say that Counts 1 and 2 did not involve what has been referred to in the Crown submissions as “… a chance drop in” or “chance encounter”. The complainant’s account of her undertaking babysitting activities on occasions for the appellant’s family, the week-long absence of the appellant’s wife in the relevant period, the fact of the residence of the appellant’s friend, George, in the relevant period, were all facts objectively established and confirmed by other evidence as being accurate. Added to this, the failure to expose any material inconsistency or discrepancy in the complainant’s evidence, having regard in particular to her statement to police, provided the jury with an evidentiary basis whereby, acting properly and in accordance with directions given, it was open to determine Counts 1 and 2 adversely to the appellant. As earlier stated, if there is an identifiable evidentiary basis for a finding of guilty on some but not all counts, it does not follow that, in every case, not guilty verdicts on some counts equates to irreconcilable inconsistency between verdicts.

The question is whether, in those circumstances, there is any other matter that indicates that the guilty verdicts on Counts 1 and 2 were unreasonable. That question is to be examined by evaluating the matters that supported the guilty verdicts and those that did not.
The matters that support the guilty verdicts on Counts 1 and 2
Central to the appellant’s arguments on appeal were the following matters:-
(a)The fact of the delay (approximately 20 years) in reporting by the complainant allegations to police, which delay, according to the complainant, was due to two matters – first, the fact that she was “scared” she would be disbelieved by her parents (not referred to in her statement to police) and, second, that there was difficulty in communicating with her mother (which was referred to in her statement to police).
(b)The jury’s request for a copy of the transcript of the complainant’s evidence in relation to Counts 1 and 2.
(c)The trial judge’s direction in relation to what was referred to as sequential reasoning (the jury were to firstly consider Counts 1 and 2 and then Counts 3 and 4) (Appeal Grounds 3 and 4).
(d)The appellant’s denials during the “pre-text” phone call.
(e)The fact of the not guilty verdicts on Counts 3 and 4.
In the present case, the following general observations may be made:-
(a)As observed earlier, the complainant’s evidence in relation to Counts 1 and 2 was not exposed as containing marked inconsistencies or as affected by substantial discrepancies.

(b) The complainant’s evidence in relation to Counts 1 and 2 had some support as to ancillary matters, being in particular:-

(i)the fact of the complainant having babysat for the appellant and his wife;
(ii)the timing issue, that is, the fact that the appellant’s wife was absent from the home from 17 August 1983 for a week in the period when the alleged offences were said to have occurred.

the fact of the complainant staying overnight at the appellant’s home for babysitting purposes was a matter that had been discussed with her parents or contemplated.
(iv)the fact that Mr George Lager, in fact, resided in the appellant’s home between March 1983 until Christmas 1983 at the relevant time consistent with the complainant’s evidence.

Whilst the supporting evidence referred to in the preceding paragraph does not, of course, go to the actual events said to have constituted the offences themselves, it is evidence that provided support in relation to Counts 1 and 2 in terms of the fact of opportunity to commit the offences and, to an extent, as to the credibility of the complainant.
The question of the complainant’s credibility on Counts 1 and 2 depends partly upon the consistency of her evidence in the sense discussed above, together with the extent of support for her account from the independent evidence to which reference is made in paragraph [238]. The assessment of the same is important in evaluating Mr Hamill’s submission that the doubt the jury had in relation to Counts 3 and 4 “are such that logic and reason dictated those doubts would carry over” into Counts 1 and 2.
The question, as the High Court in M v The Queen (supra) stated, at 493, is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of Counts 1 and 2.
A consideration of the whole of the evidence in the present case must take into account that the events related by the complainant in relation to Counts 1 and 2 were not inherently implausible. Essentially, the account entailed the proposition that the babysitting arrangement was made by the appellant with the complainant at a time when the appellant’s wife was away and his friend, George, resided in the appellant’s home. The arrangement was made in the context of the appellant and his friend having a night out together. The sleepover arrangement was said, by the complainant, to have been initiated by the appellant and involved a direction that the complainant utilise the availability of the matrimonial bed. The events constituting Counts 1 and 2, if can be inferred, occurred later at night after the appellant and his friend returned home after a night out.
The jury were required to evaluate the complainant’s evidence, having regard to her level of maturity along with matters such as the vulnerability of a girl of 11, almost 12 years of age in someone else’s home in circumstances revealed by the evidence which consisted of involuntary submission following protest to the acts which she claimed the appellant perpetrated upon her.
The matters that suggest inconsistency of verdicts on Counts 1 and 2
The non-guilty verdicts on Counts 3 and 4, as discussed below, can only rationally have been based either upon:-
(a)the fact that the jury were unable to accept the complainant’s evidence as reliable and not merely by reason of inconsequential inconsistencies arising in the course of her evidence; or
(b)the jury were not prepared to convict on the complainant’s evidence alone without something additional.
Either conclusion, of course, carries significance in relation to the guilty verdicts on Counts 1 and 2. That is particularly so when the events alleged in relation to the four counts were said to have occurred within a period of approximately three weeks and there was no corroboration for them.
As Spigelman, CJ in Markuleski (supra) observed (at p.101), there is a distinction between a case in which a jury rejected as unreliable the substance of the complainant’s evidence from a case in which it was “cautious about some details” as expressed in Regina v Maddox (Supreme Court of Queensland, Court of Appeal, per McPherson J at [1]). In the present case, the conclusion open to be drawn is that, for reasons discussed below, the jury did not accept or were not prepared to accept the substance of the complainant’s evidence alone in relation to the offences alleged in Counts 3 and 4.
In relation to Count 3, the only rational explanation for the not guilty verdict is that the jury was not prepared to accept that within a week of the occurrence of two serious sexual assault matters (as alleged in Counts 1 and 2), the complainant willingly visited the appellant’s home with the new baby unaccompanied by an adult. On the complainant’s own version, the jury were, in effect, asked to accept that, notwithstanding the complainant’s experience as related by her in relation to Counts 1 and 2, she, without apparent reticence or reluctance, took it upon herself to visit the appellant’s home approximately a week after the initial assaults allegedly occurred.
In relation to Count 4, the only rational inference is that the jury were not prepared to accept the complainant’s account that, after the three serious sexual assaults allegedly committed upon her, she was prepared, on the occasion in question, to voluntarily leave her sister and George in the lounge room and go outside to be alone with the appellant and thereafter willingly, and without apparent protest, to go with him to the bedroom. There is no evidence of any resistance or attempt by her to escape the appellant’s company in her own home or to seek assistance by calling out to her sister. The account given by the complainant additionally involved acceptance of the proposition that the appellant was prepared to run the risk of attacking her in her home.
In Markuleski (supra), Wood CJ at CL observed that there could well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or of a central witness. Examples included:-
“Where the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable (R v W (1999) 109 A Crim R 51 provides a possible example) …”
I consider that the jury’s verdicts of acquittal on Counts 3 and 4 are to be explained as a matter of rational inference either upon the basis of the inherent improbability associated with the evidence or material aspects of the evidence given in relation to those two counts or upon the basis referred to by the High Court in MFA (supra), namely that whilst the jury might consider it more probable than not that a complainant is telling the truth it “… requires something additional before reaching a conclusion beyond reasonable doubt” (at 616). The verdicts of acquittal on the two counts, in my opinion, undermine the complainant’s general credit.
One fact which was common to all counts was the complainant’s delay in reporting the offences alleged in them. That was an issue that is relevant to the reliability of the complainant’s evidence. It is of some importance for this Court to have particular regard to the explanation given by the complainant for the delay in reporting and the sufficiency of that explanation. The Crown did not in chief elicit any evidence by way of explanation. In cross-examination, it was recorded in a question to the complainant that she had told police:-
”I didn’t tell anyone at home what had happened, my Mum just had a new baby, Leonie. I’ve always had some difficulty communicating with my parents.”
The complainant supplemented her statement to police in that regard in cross-examination by saying “because me and my parents had a very hard time with communicating back then and I was scared they wouldn’t believe me”.
On the question of delay and the explanation for delay, it is to be noted that the complainant’s evidence was that she left home at the age of 17 years, that is, in the latter part of 1988. The difficulty in communicating with her parents may be regarded and accepted as an explanation for not having disclosed or reported the matter to her parents in the five years between 1983 and 1988. She agreed when it was put to her in chief that she told her boyfriend about “these events” (without any specificity as to what she said) “… some time around 2000, 2001”. It was not until cross-examination that she corrected that date by saying that it was in 1990 that she related something to her boyfriend about the events.
Accordingly, there was no explanation for the delay in failing to report the matter to police from the time she left home in 1988 and September 2003, when the matter was reported (a period of approximately 15 years). If the complainant told her boyfriend in 1990 about the alleged events, then the question arises as to why she would not have brought the matter to the attention of police at about that time.
Whilst there had been a friendship between the complainant’s family and the appellant’s family in the early 1980s and some contact and relationship continued after the appellant moved from Sydney (at least up until 1990), it cannot be said on the evidence that there had continued to be such a close relationship between the families over the 20 year period of delay as to operate as an inhibiting factor on the complainant reporting the alleged offences.
As Deane J in Longman v The Queen (1989) 168 CLR 78 at 101 observed, in the context of the nature of sexual offences, the length of time between alleged offence and first complaint “assumes great significance”. His Honour there observed:-
”…The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored, The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after their alleged occurrence require to be scrutinised with very great care indeed. It was not merely a matter of whether the jury were satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant’s guilt.”
In Longman (supra), the complainant was six years old at the time of the offence alleged in the first count and 10 years old at the time of those alleged in the second count. Deane J (at p.100) noted, ”The long effluxion of time (more than 20 years) between alleged offences and complaint …” a similar period of delay as occurred in the present proceedings. In that case, McHugh J (at p.107) observed:-
”The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp.269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, 20 years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …”
In the present case, it is to be noted that the complainant’s evidence was that she was asleep in the appellant’s home and awoke when she heard the appellant and his friend arrive home and that the alleged offences in Counts 1 and 2 occurred shortly afterwards. Such circumstances bear some resemblance to those in Longman which were said to have also occurred at night soon after the complainant awoke.
Whilst there was no criticism in this appeal of the trial judge’s directions given on the question of delay, in performing its constitutional duty in determining whether the jury’s verdicts in respect of Counts 1 and 2 were unreasonable such as to constitute them unsafe or unsatisfactory, it is necessary for this Court in giving due consideration to the totality of the evidence to evaluate the circumstances of the delay that occurred between the time of the alleged offences and the formal complaint being made.
In the circumstances of the present case, including, in particular, the absence of corroboration, the jury’s verdicts of acquittal on Counts 3 and 4 and the circumstances of delay and the absence of a sufficient explanation for delay in reporting the alleged events all, in my opinion, support the conclusion that the convictions on Counts 1 and 2 were unsafe and unsatisfactory.
I have, accordingly, conclude that it is likely that the not guilty verdicts on Counts 3 and 4 either represented a rejection of the complainant as reliable in relation to the alleged assaults or that the jury were not prepared to convict upon the complainant’s evidence alone. That rejection is relevantly to be seen in the context of the extremely long delay before the matter was reported to police.
Conclusion
The Crown case in relation to the four counts essentially depended upon an acceptance of the reliability of the complainant’s evidence.
The only supporting evidence in relation to Counts 1 and 2 was evidence that went to establish opportunity and to a point the complainant’s credibility.
The not guilty verdicts in relation to Counts 3 and 4, as a matter of rational inference, can only be explained either by the jury having concluded that the events alleged in relation to both were improbable or that they were not prepared to convict on the appellant’s evidence alone.
The guilty verdicts on Counts 1 and 2 were accordingly sufficiently unreasonable to constitute a miscarriage of justice.
I, accordingly, propose the following orders:-
(a) The appeal be upheld.
(b) The convictions on Counts 1 and 2 be set aside.

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LAST UPDATED: 6 August 2007