Paton, R.C. v The Queen

Re: ROBERT CLAUDE PATON
And: THE QUEEN
No. A G11 of 1992
FED No. 520
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Miles(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal Law - appeal against convictions on seven counts alleging sexual offences against a person under the age of ten years - whether the verdicts of guilty were unsafe or unsatisfactory - function of a Court of Criminal Appeal to assess the sufficiency and quality of all the evidence led both by the Crown and by the defence - whether verdicts were unreasonable because they were inconsistent with a verdict of acquittal on a further count.

Cases applied:

Chamberlain and Another v The Queen (1983-1984) 153 CLR 521 Morris v The Queen (1987) 163 CLR 454

The Queen v Gledhill (1988) 144 LSJS 98

The Queen v Kelly (1985) 38 SASR 561

HEARING

CANBERRA

#DATE 22:7:1992

Counsel for the appellant: Mr S.H. Pilkinton

Solicitor for the appellant: Porter Pilkinton

Counsel for the respondent: Mr J.C. Ibbotson

Solicitor for the respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant was tried by judge and jury in the Supreme Court of the Australian Capital Territory on an indictment alleging eight sexual offences against a person under the age of ten years. The complainant was his grand-daughter then aged eight years of age. The first, third, fourth, fifth and seventh counts allege that the appellant committed an act of indecency, involving the touching by the appellant with his finger of the genitalia of the complainant. The remaining counts allege that the appellant engaged in sexual intercourse, constituted by an act of cunnilingus. The jury brought in verdicts of guilty on all but the fourth count where the verdict was not guilty.

Grounds 1, 2, and 4 in the notice of appeal may be taken together as they compendiously contend that the verdicts of guilty were unsafe or unsatisfactory. Ground 3 of the notice of appeal alleges that the verdicts of guilty should be set aside on the ground that they are unreasonable as it was illogical and inconsistent for the jury on the evidence before it to acquit the appellant on count four but to find him guilty on the other counts, and in particular on the fifth and sixth counts which alleged offences on the same night as the fourth count.
The Crown case was that acts alleged formed part of a course of conduct by the appellant which extended over a period of several months, commencing early in 1989 and continuing until about 5 January 1990 when the girl complained to her mother. Her complaints were then reported to the Sexual Assault Unit of the Australian Federal Police in Canberra, and the complainant provided a long statement to the police on 16 and 17 January 1990.
The appellant was confronted by the complainant's father on 5 January 1990 with a general allegation that he had sexually molested his grand-daughter. He denied the allegation. He also made a general denial to the police when they spoke to him briefly on 19 January 1990. The appellant said he wished to seek legal advice. On 1 February 1990 in his presence the appellant's solicitors handed a letter to the police denying any sexual interference with the complainant on the part of the appellant. The appellant was not further interrogated. In due course he was charged. The committal hearing commenced on 23 October 1990. On 12 November 1990 the appellant was committed for trial. The trial took place in March 1992.
The complainant was born on 14 August 1981. She was aged ten when the trial took place. She gave sworn evidence. Her evidence was that she had first met the appellant, her mother's father, in about August 1987. Thereafter her family, and the appellant and his wife, had frequent contact at their respective homes, and at a holiday site at Batemans Bay in New South Wales. She became very fond of the appellant.
The first acts of indecency about which she complained occurred early in 1989 at Batemans Bay in the appellant's caravan. Other acts of indecency of a similar nature also occurred in the complainant's parents' caravan at the same location. The interference took the form of the appellant placing his finger in the area of the complainant's genitalia and at times was followed by acts of cunnilingus. As this conduct occurred in New South Wales it was not the subject of specific charges in the indictment, but was led in evidence as part of the course of conduct, and to prove that the association between the complainant and the appellant was not an entirely innocent one.
The counts contained in the indictment are not listed in chronological order. The fourth to eighth counts allege incidents which happened whilst the complainant's mother was in hospital in about October or November 1989, and the complainant was staying with the appellant and his wife in their house at Monash. Counts seven and eight concern incidents on the evening of the third night of that stay. The appellant came to her bed and placed his finger in the area of her genitalia (count seven) and then committed an act of cunnilingus (count eight). Counts four, five and six occurred on another evening during that stay. It is not clear whether these events were alleged by the complainant to have occurred on an evening before counts seven and eight, or on a later evening. The appellant, his wife, the complainant's father, the complainant, and her brother had been to the Lakeview Restaurant for dinner. The complainant's brother is one year older than the complainant. The complainant fell asleep at the restaurant. When the party left, her father travelled to his home by separate vehicle. The others travelled to the Monash house in the appellant's motor vehicle which was driven by his wife. The appellant nursed the complainant in the front passenger seat during the journey. The complainant alleged that the appellant placed his finger inside her underpants in the vicinity of her genitalia (count four). When they arrived at the appellant's home she was placed in her bed. Later she awoke to find the appellant beside the bed. Again he placed his finger in the area of her genitalia (count five) and then committed an act of cunnilingus (count six).
Count three alleges an occasion when the appellant and his wife visited the complainant's home in Gowrie on an evening in October or November 1989. After the complainant had said goodnight to the family and gone to her bed, the appellant came into her room, climbed up the ladder to the top bunk which she occupied, spoke with her, and placed his finger in the area of her genitalia.
The first and second counts allege that whilst the complainant was staying at the appellant's new house at Theodore on 25 December 1989, the appellant came into the room in which she was sleeping alone, and in a manner similar to the earlier occasions, touched her on the genitalia (count one) and committed an act of cunnilingus (count two).
At trial the complainant's brother gave sworn evidence, as did her parents, about the occasions on which the offences were alleged to have occurred. In addition there were two police witnesses and a medical witness who had examined the complainant. The medical evidence was neutral, the examination revealing nothing untoward. For the defence, the appellant and his wife gave evidence. The appellant denied any sexual impropriety.
In his careful summing up about which no complaint is made on the appellant's behalf, the trial judge warned the jury that although the complainant and her brother had given sworn evidence, by reason of their age the jury should approach their evidence with a great degree of caution because of the danger of convicting on the uncorroborated evidence of a child. The learned judge directed the jury that there was no evidence which corroborated the complainant's evidence, and the appeal has been conducted on the footing that this direction was correct. The direction may have been unduly favourable to the appellant. As a matter of law the sworn evidence of one child can corroborate the sworn evidence of another: R v Campbell (1956) 2 QB 432 at 436, 438; DPP v Hester (1973) AC 296; The Queen v Schlaefer (1984) 37 SASR 207. The evidence of the complainant's brother about an occasion at Batemans Bay to which reference is made later in this judgment, in our view, was capable of amounting to corroboration of the complainant's evidence. However it seems that the trial judge took the view that the brother's evidence was unreliable on two matters of detail relating to two other occasions about which he had given evidence, and decided that it was expedient in the interests of a fair trial to direct the jury as he did.
In determining whether a verdict is unsafe or unsatisfactory the proper test to be applied in Australia is to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused: Chamberlain and Another v The Queen (1983-1984) 153 CLR 521 per Gibbs C.J. and Mason J. at 534. In determining whether a verdict is unsafe or unsatisfactory a Court of Criminal Appeal must undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That function is not discharged merely by a consideration of whether there was sufficient evidence to sustain a conviction, for a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict. The Court must as well assess the quality of the evidence: Chamberlain and Another v The Queen at 531 and 621 and Morris v The Queen (1987) 163 CLR 454 at 461-462, 472-473. This Court must therefore undertake the task of examining both the sufficiency and the quality of the evidence given at trial and, as the jury was required to do, must heed the danger inherent in relying on the uncorroborated evidence of young children.
The complainant's evidence given at trial covered each of the offences charged in a simple and straightforward way which was not inherently improbable. Evidence provided by the other witnesses, and in particular by the appellant himself, confirmed the opportunity for the appellant to commit each of the offences, and many of the details of each occasion described by the complainant. The point of departure between the complainant's evidence and that of the appellant was as to whether acts of an indecent nature occurred on those occasions.
It is contended on the appellant's behalf that there were a number of demonstrable and important inconsistencies in the evidence of the complainant. Whilst the learned trial judge correctly directed the jury on the topic of inconsistency and instructed them that prior inconsistent statements of a witness could lead them to doubt or even to reject the evidence of that witness, it is contended that the number and nature of the inconsistencies in the complainant's evidence were such that the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal.
Counsel for the appellant painstakingly took the Court through passages in the complainant's evidence about each offence said to demonstrate the inconsistency. We have carefully considered this evidence. The inconsistencies alleged are between the complainant's evidence at trial on the one hand, and, on the other hand, statements earlier made by her either to officers of the Sexual Assault Unit in January 1990, or in her evidence at the committal hearing in October and November 1990. The alleged inconsistencies in relation to each of the offences charged, with the possible exception of count four, upon analysis, are constituted by omissions from her evidence at trial of additional facts described on earlier occasions.
In relation to counts one and two she omitted from her evidence parts of a conversation with the appellant which accompanied the acts alleged which she had recounted in January 1990. In relation to count three, she omitted an additional complaint that she made in January 1990 that besides touching her with his finger the appellant had committed an act of cunnilingus. In relation to counts five and six the omitted details were of additional acts of touching and licking and accompanying conversation which she had described in January 1990. In relation to counts seven and eight she omitted details of additional acts of touching. However insofar as she described events in her evidence, her description was closely similar to the allegations initially made to the police. This feature of her evidence distinguishes this case from The Queen v Hegarty, Court of Criminal Appeal of Queensland, unreported 28 March 1991, and The Queen v Lee, Court of Criminal Appeal of New South Wales, unreported 31 May 1991, which were cited in argument. Having regard to the age of the complainant it is to be expected that her memory would fade, and details would be lost to her over a period of more than two years. Insofar as passages were put to her from her evidence at the committal there was no significant inconsistency between them and her evidence. Rather the passages from her evidence at the committal suggest that she had by that time already forgotten some of the additional details originally reported.
The inconsistency alleged in the complainant's evidence about count four is not merely that she failed to repeat details reported in January 1990, but that she differently described how the act of indecency was committed. Relevantly, at trial her evidence in chief was:

"What do you remember next?---Well, grandad put his hands down my pants and started moving his finger around again... ...

Well, did anything happen to your underpants when you felt his finger in your private parts?---He put his hands - he put his hand down them.

However in January 1990 she had said:

"What did grandad do that night?---Well, on the way home I fell asleep and dad carried me out and put me on grandad's knee. While (the appellant's wife) was driving home grandad put his finger in my private parts...

How did grandad put his finger in his (sic) private parts?---He pulled my pants down.

How far did grandad pull your pants down?---Just to there."

The police officer, Detective Barnicoat, recorded "I saw (the complainant) indicate between the top of her legs and her knee".

At the trial, after putting this part of her January 1990 statement to the complainant, counsel for the appellant asked her

"So when you said just to there you put your hands down to your knees, didn't you? You are nodding your head, do you mean yes?--- Yes.

That's what you told (Det. Barnicoat), wasn't it?---Yes."

Detective Barnicoat gave evidence at the trial but she was not asked about the indication which the complainant gave when she said "Just to there".

An element of inconsistency in the descriptions of the way in which the underpants were handled is apparent in these answers. But the degree of the inconsistency may not be significant. The inconsistency between the evidence in chief and the January 1990 statement may be more apparent than real. The generality of the answers in chief does not deny the possibility that the pants were pulled down to a degree, and the description recorded by Det. Barnicoat, is imprecise. The significance which is to be attached to the answers in cross-examination at the trial was a matter very much for the jury, who had the considerable advantage over this Court of seeing and hearing the complainant in the witness box. In the passage last cited, the answers were made to leading questions put in a way that had a tendency to elicit from a young witness an unqualified positive response that might not have accurately reflected the belief of the witness. The jury, quite reasonably, might have attached little or no weight to those answers.
It was contended that inconsistency also existed in the evidence which the complainant gave about her father's attitude to a bowel condition which she suffered during part of 1989. This condition caused her from time to time to soil her pants and in the early stages of this condition, until its cause was diagnosed, her father blamed her when she smelt. In our opinion the evidence relied upon does not establish a significant inconsistency between her evidence and other evidence given at trial. Rather, the evidence suggests that the cross-examiner, and the complainant, were referring to different points in time and were at cross purposes.
The criticisms of the complainant's evidence, which in our opinion amount almost entirely to a complaint of failing memory on her part, are to be considered in conjunction with other evidence which tended to support her evidence. In respect of incidents which she alleged happened at Batemans Bay, the supporting evidence was cogent. She described incidents which occurred in evenings after she had gone to bed. She and her brother shared a set of bunks. She slept on the top bunk. The bunks were situated in her parents' caravan. Attached to the caravan was an annex in which was situated a large refrigerator which stored drinks. After she and her brother went to bed, her parents, and the appellant and his wife, sat and talked in the appellant's nearby caravan. From time to time one of the adults would come to the refrigerator. The complainant's evidence about these incidents was as follows:

"Did anything happen when you'd be in your bed?---Yes. What would happen?---Well, I would complain of tummy ache because I used to get tummy aches. And he would come across and I'd tell him and he would just put his finger in my private part and move it around in a circle and say, 'Does that feel better?' And I'd say, 'Yes'.

Is that the only time he'd do that when you mentioned about a tummy ache or what?---Yes. But some times he used to just come in and do it.

And what would he just come in and do?---Put his finger in my private part.

...

When your grandad used to come in you'd be in which bunk?---The top one.

When you were sleeping in your caravan?---The top one. Would (your brother) be sleeping in the bottom bunk when your grandad came in?---Yes.

Do you remember if he used to say anything to you when he was doing that to you?---'Do you love me.' 'I love you, do you love me.'

...

All right. And where would your grandad's feet be when he did that with his finger when you were in your top bunk?---In the bottom bunk.

On (your brother's) bunk?---Yes.

...

And did it use to happen at any time, like was it during the day or night or what?---Night.

And would your grandad do anything after he'd done that to you, or what happened then?---He would get out. He would get down off the bed and go and get the beers and everything and walk across the road.

Go and get the beers and everything. Where would he get the beers from?---The fridge in the annex."

In the course of his cross-examination about these allegations the appellant agreed that quite often he would go to the complainant's caravan during an evening to replenish the supply of drinks, and on some occasions he had gone to the complainant in her bunk. On some of these occasions she was complaining about a sore tummy and on other occasions he just went to say goodnight. On occasions when the complainant said she had a sore tummy the appellant said "I would talk to her, yes, and rub her tummy, but never ever put my fingers anywhere near her genitals". He would rub her around the navel area but not in a way which could have led her to misconstrue that rubbing with his finger moving around her genital area. On one particular occasion he said he heard the complainant whimpering. He went to her and she said "I have got very bad pains in my tummy". The appellant's evidence continued:

"And what did you do to her then?---I rubbed her tummy. She said she had pains in her stomach. I said do you want to take anything for it, she said 'No' and I said 'Where is the pain?' and she lifted up her nightie and said to me 'Here in my stomach'. It was quite a cool night and I rubbed my hands together to warm them and then I massaged her tummy.

With both hands or one?---Both hands I think.

Then what happened?---I put my ear down to her tummy and I could hear the gurgling in her stomach.

You put your ear down to her tummy?---Yes.

Is there any reason why you did not mention your ear on her tummy when you gave evidence in chief, this morning?---I thought I did. (He had not done so)

So you put your ear to her tummy, why did you put your ear to her tummy?---She had a pain and she said her tummy was gurgling, I put my ear down to listen.

What for?---I don't know why you do these things."

The appellant agreed that on the occasions that he went to the bunks the complainant's brother was in the bottom bunk. He denied that he had ever stood on the bunk to speak to the complainant or that he had on one occasion stepped on the brother's leg.
The brother however gave evidence of an occasion when his grandfather whilst standing on the edge of his bunk to talk to the complainant, had stepped on his leg. This had hurt and he had called out, causing the appellant to move his foot. The brother said that on this occasion he heard the appellant say "Do you love me? I love you." The complainant alleged that similar expressions had been uttered by the appellant when acts of indecency were committed on her.
It was open to the jury to treat this evidence of the appellant's conduct at Batemans Bay as strongly supportive of the complainant's evidence. There was also evidence from the complainant's parents that on Christmas Day she had shown an uncharacteristic reluctance to stay the night in the appellant's home, and from her mother about her reluctance to sit next to the appellant on an occasion at Batemans Bay on about 4 January 1990. It was open to the jury to treat this conduct on the complainant's part as supportive of her evidence.
Putting aside for the moment the contentions of the appellant in relation to the inconsistency of the verdict on count four, it cannot, in our opinion, be said that the jury, acting reasonably, must have entertained a sufficient doubt arising on the complainant's evidence to have entitled him to an acquittal.
The principles applicable where a jury has brought in verdicts of guilty on some counts but not guilty on others, which may on the face of them appear to be inconsistent, were discussed in The Queen v Gledhill (1988) 144 LSJS 98 at 99 by King C.J. (with whom the other members of the Court agreed). The learned Chief Justice said:

"Mr Jennings cited to us the decision of the Full Court in R. v Kelly (1985) 38 SASR 561. In that case the Full Court applied to the facts of that particular case the well established principle that where a jury brings in verdicts of guilty and not guilty in circumstances in which no reasonable jury could bring in such verdicts, then an appellate court will interfere on the basis that the verdicts of guilty are unreasonable.

As this Court pointed out, however, in R v Kirkman (1987) 44 SASR 591, appellate courts must be cautious about interfering with verdicts of juries upon the ground of inconsistency. Juries have their own way of reaching verdicts. They are not required to give reasons for those verdicts and it is sometimes not easy for a trained lawyer applying the techniques of legal reasoning to see precisely how a jury has arrived at a particular verdict. It does not necessarily follow that for that reason the verdict is unreasonable.

All the circumstances of the case have to be considered before a court can reach a conclusion of that kind. For that reason, among other reasons, little assistance can be gained by a consideration of how the well established principle has been applied to the facts of other cases. It is necessary to examine the facts of the case under consideration."

In The Queen v Kelly (1985) 38 SASR 561 to which King C.J. referred Zelling J, with whose reasons for judgment the other members of the Court agreed, said (at p 562):

"The law on this matter is not in doubt. It is usually taken from the judgment of Devlin J. (as he then was) in the case of The Queen v Stone (unreported. Court of Criminal Appeal (U.K.), 13th December, 1954) as follows:

'When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. 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. But the burden is upon the defence to establish that.'

That statement of the law was accepted as correct by a later Court of Criminal Appeal in The Queen v Hunt (1968) 2 QB 433, at p 438 and by Sangster J. in the Court of Criminal Appeal of this State in The Queen v Emery (1975) 11 SASR 169, at pp 180-181."

Brief reference has already been made to the complainant's evidence about the incident on the way home from the Lakeview Restaurant, the subject of count four. In his evidence in chief about the incident the appellant said:

"What did happen on the way home, do you recall?---I do recall that on the way home I did notice a rather strong pungent smell and I did put my hand down underneath to see if she had an accident or anything. That didn't happen so that was it. Hand down underneath, where did you put it?---Well, she was on my lap and I just put my hand underneath her just to feel if there was any faeces.

On the inside or outside of the slacks?---Outside."

The complainant had given evidence that on the night in question she was wearing a skirt. The complainant's father was not questioned about her clothing. The appellant, for the first time, in his evidence, said she was wearing black slacks, and her clothing belatedly became an issue. On this issue he was supported by the evidence of his wife. At the committal hearing the appellant chose to give evidence, part of which is supportive of the fact that she was wearing a skirt. When cross-examined at trial about his earlier evidence the appellant said he could be mistaken about the slacks. His cross-examination continued:

"How did you become aware that (the complainant) hadn't made a mess?---There was nothing squishy or squashy there, that's for sure.

You had a bit of a feel, did you?---Well, you put your hand under there, you can tell.

It wasn't damp, is that what you're saying?---No, I didn't say that.

Well, did you feel around a bit? Did you move your fingers?---I probably did."

On all accounts, the complainant had been asleep in the restaurant, and was sleepy, if not asleep, during most of the journey home. If the jury believed the complainant's evidence about the appellant's conduct on the earlier occasions about which she complained - and their verdict implies that they did - it is quite possible that they reasoned that if the appellant had moved his hand under her in the manner he described she may in her sleepy state have misconstrued his actions. It is unlikely that the appellant, sitting next to his wife in a small car, would engage in indecent activity during the journey. It is understandable that a jury, acting reasonably, might entertain a reasonable doubt about the appellant's conduct on that occasion without, at the same time, doubting the reliability of the essential aspects of the balance of the complainant's evidence. The verdict of acquittal on count four does not establish unreasonableness on the part of the jury. That acquittal does not carry with it the likelihood that the jury rejected the complainant's evidence on court four on the ground that it was fabricated or an inexplicable flight of imagination. It may readily be explained on the ground that on the evidence there was room for a mistaken belief by the complainant about the appellant's conduct.

It is submitted on the appellant's behalf that the verdict on count four demonstrates that the jury misunderstood the concept of reasonable doubt and the requirement of law that the Crown prove the guilt of the accused beyond reasonable doubt. After approximately three hours of deliberation the jury asked to be redirected on these two topics. It is accepted that the trial judge properly redirected the jury, but it is contended that the verdict of acquittal on count four shows that the jury nevertheless adopted a process of reasoning that required the appellant to prove his innocence. He succeeded in doing so on count four, so it is argued, because the complainant's story to the police in January 1990 that her pants were pulled down to her knees was bizarre in the setting in which the offence was said to have taken place, and because the appellant's denial was in that instance corroborated by his wife who saw no such happening. But in the other instances the appellant was found guilty because the complainant's story was not inherently improbable and his denial was not corroborated by other evidence. He could not therefore prove innocence.
We are unable to accept these submissions. The directions of the trial judge were clear and it would be extraordinary if the jury reasoned in the way suggested. We have already referred to the evidence about the pulling down of the complainant's underpants. The jury may well have discounted that evidence and rejected the notion that the complainant's evidence about count four was bizarre. Moreover the evidence of the appellant's wife was not corroborative of the appellant's actual evidence. She was unaware that the appellant had moved his hand under the complainant in the manner he described in his evidence.
The appellant's submissions about the verdict on count four do not add weight to the submission that the verdicts of guilty on the other counts were unsafe or unsatisfactory.
In determining whether a verdict is unsafe or unsatisfactory a Court of Criminal Appeal is not confined to an examination of the evidence led in the Crown case. Consideration must be given to all the evidence including evidence led by the defence. When the accused has given evidence, the possibility that the jury took an adverse view about exculpatory evidence given by the accused, and treated that evidence as a fabrication indicative of a consciousness of guilt, will usually be a factor to be considered: cf. Chamberlain and Another v The Queen at 564 and 592.
In this case the appellant gave evidence. He was widely cross-examined. When first spoken to by the police on 19 January 1990 the appellant volunteered in answer to the statement: "Mr Paton, are you aware why we are here?" the answer. "Yes, I have a fair idea. The only explanation I can offer is I saw both of them watching one of those movies. It was stupid. I should have - I turned it off as soon as I realised..." In his evidence he identified a particular x-rated video which he said he had found the complainant watching at Monash. The appellant's wife gave evidence that on a night between August and October 1989, when the complainant and her brother were staying at the house at Monash, the appellant came into the kitchen and said that the children had been found in the bedroom watching the video in question. Both the complainant and her brother denied having ever seen such a video in the appellant's home. The cross-examination identified inconsistencies between the appellant's evidence at trial and at the committal hearing about the video. It was put that his evidence on this topic was false. The cross-examination also raised questions whether evidence given by the appellant at the trial, but not at the committal hearing, about a dog and about the clothes which the complainant was wearing on the night of the incident the subject of count four, were recent inventions. The appellant's credit was put in issue on substantial grounds.
However, the jury was not specifically directed that if they were satisfied beyond reasonable doubt that the evidence about the video, the dog, and the clothes was fabricated because the appellant had something to hide, they could treat that fabrication as probative of the guilt of the appellant. The jury were directed that:

"Because the burden is on the Crown, always, as I said to you earlier, it is for the Crown to establish the accusation, not for the accused to disprove it so even if you thought the accused's evidence was of no help to you one way or the other in determining whether you accept the allegations or not, even if you thought that you were not persuaded by it, positively, you would still have to evaluate carefully the evidence of the prosecution to determine whether you accept it beyond reasonable doubt."

In light of this direction, when considering whether the verdicts of guilty are unsafe or unsatisfactory we consider we should not allow for the possibility that a jury could have found parts of the appellant's evidence to be a fabrication which they regarded as probative of his guilt. Disregarding that possibility, it is nevertheless our opinion that it has not been demonstrated that a jury, acting reasonably, and heeding the warning of the danger of acting on the uncorroborated evidence of children, must have entertained a doubt about the guilt of the appellant on the seven counts on which he was convicted, or any of them. We do not consider the verdicts were unsafe or unsatisfactory.
In our opinion the appeal should be dismissed.

[1992] FCA 520

22 JULY 1992