R v Brown - [2009] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BROWN
[2009] SASC 226
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kelly)
6 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant tried before a jury upon indecent assault and unlawful sexual intercourse - the charged conduct occurred in the 1970s when the appellant was the complainant's swimming coach - appellant convicted of indecent assault and found not guilty of unlawful sexual intercourse - whether verdicts inconsistent and for that reason unreasonable.
Held: Verdicts not inconsistent - it was open to the jury to discriminate between the two counts - differing verdicts explicable in terms of the evidence - appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE
Appellant sought to lead fresh evidence to show that the complainant was unreliable when giving evidence on the indecent assault charge - evidence could have been obtained by reasonable diligence prior to trial - evidence not of such a quality as to have had a significant impact on the jury - evidence not received.
R v Dorning (1981) 27 SASR 481, applied.
R v McIntee (1985) 38 SASR 431, discussed.

R v BROWN
[2009] SASC 226
Court of Criminal Appeal: Gray, Vanstone and Kelly JJ

GRAY J: I would dismiss this appeal. I do not consider there is a basis for concluding that there was an inconsistency of verdicts. I do not wish to add to the reasons of Vanstone J.
VANSTONE J: Graeme John Brown stood trial before a judge and jury in the District Court upon charges of indecent assault and unlawful sexual intercourse. The charges were based on incidents alleged to have occurred in the late 1970s. Apart from evidence going to the two occasions the subject of charges, the jury heard evidence of uncharged acts. All the conduct was alleged to have taken place in the context of the relationship between the appellant and complainant of swimming coach and student. At the time of the conduct the complainant was 14 or 15 years of age. The appellant is 22 years older than the complainant.
The appellant was convicted for the indecent assault, but acquitted of the second count. Mr Brown appeals, with permission, against the conviction, arguing that the verdicts on the two counts are, factually, inconsistent and that, as a result, the conviction is unsafe and unsatisfactory. The appellant also applies to introduce fresh evidence to expand upon what was an important factual issue at trial, namely the dates and times during which a film showed at drive-in theatres in the metropolitan area of Adelaide, at the time the offence was said to have occurred.
Background
The complainant’s evidence was that she was coached by the appellant between about March 1975 and January or February 1979. She represented the state, as a swimmer, on several occasions, including in Perth in August 1977. Leading up to those championships she had been in a relationship with another of the appellant’s students, a boy who was then 17 years of age. That relationship ended in Perth during the championships. The complainant said that during the flight back from Perth she was upset about the break-up and about performing poorly in Perth. She was comforted by the appellant. She described an incident a couple of months later when she was at the Balyana Centre and left training ahead of schedule. The appellant must have seen her do so and also left the Centre prematurely, picking her up in his car. He then took her to the Windy Point lookout, where they spoke about an argument she had had with her mother. She said that he presented her with a diary and asked her to write in it of her feelings and to give it to him to read from time to time. In the ensuing months, she did so. In turn, the appellant would write letters and cards to the complainant, which, she said, included an account of his feelings for her.
According to the complainant, the appellant began to take her in his car for picnics in the Adelaide Hills, near Cudlee Creek. This happened on perhaps twenty occasions. They would return to the same location. They would often stop on the way to pick up some food for lunch and he would take a rug and, quite often, wine as well. The complainant said they would spend several hours at that location and there would engage in intimate conduct including oral sex. The complainant told the jury that she enjoyed their intimacy and that she idolised and was obsessed by the appellant. For his part, he told her that he loved her. No charge was laid in relation to any of the Cudlee Creek incidents.
The complainant said that on one occasion the appellant took her to a drive-in movie theatre. This incident was the subject of count 1, the particulars of which nominated the date as between 1 December 1977 and 28 February 1978. In her evidence, however, the complainant said she was not sure of the year. She said that it was “sometime during the year of 1978, possibly 1979. I was 15 years of age [being after May 1978] and it was summer. That’s all I remember.” She also said that it occurred “well into our relationship”. (No previous inconsistent statement was put to the complainant on the issue of the date.) She said she had been at a “swim meet”, or a training session, at the Adelaide Aquatic Centre and that after the meet she and the appellant went together in his car to an (unspecified) drive-in theatre. The complainant said he did not pay for her to enter. To avoid having to do so, she hid under the dashboard. She said they saw The Exorcist, which was an R-rated film. The complainant said that during the film they moved into the back seat of the car and engaged in “sexual contact”, which included the appellant inserting his fingers into her vagina. This led to the complainant having her first orgasm.
The police officer who investigated the allegations, Sergeant Huntley, told the jury that he went to the State Library to search for microfiche copies of The Advertiser showing advertisements for drive-in theatres screening The Exorcist II in early 1978. He examined the advertisements for a number of different drive-in theatres which were, at that time, in operation. He established that the first release of The Exorcist II to a drive-in was at the Hi-Line at Panorama and the Main-Line at Gepps Cross on 12 January 1978. Its season at the Hi-Line ran until 18 January 1978. From 19 to 25 January 1978 it was shown at the Blue-Line at West Beach and the Hollywood at Salisbury. The film commenced at the Park-Line at Mitchell Park on 23 February 1978 and ran until 1 March 1978. It was indeed an R-rated film.
This evidence was given without objection. There was no cross-examination of the police officer on that topic. No evidence of the times of the various screenings of The Exorcist II was given.
Count 2 on the information, of which the appellant was acquitted, was said to have occurred subsequently, and on the appellant’s thirty-eighth birthday, being 23 January 1979. The complainant said that on that occasion she went to his home at Linden Park. She was unsure of the circumstances leading to her being there, except that she said the appellant had picked her up in his car. It was at night. She said she recalled they had purchased a takeaway Chinese meal, which they ate there. During this occasion the complainant said they watched a “blue movie”. Then they had sexual intercourse on a sofa in the living room. The complainant described how, from there, they moved to the bathroom and touched each other in front of a mirror. The complainant said that this was the first occasion on which they had had sexual intercourse. The complainant could not remember at what time of day she left the appellant’s home, or how she got to her own home. The complainant said that this was the last occasion of sexual intimacy between herself and the appellant for about two years. She did not explain in her evidence what led to the cessation of sexual relations with the appellant, but she did give up swimming quite soon after the occasion of count 2.
At a point in the period December 1980 to January 1981, at the appellant’s invitation, the complainant began to work for him as an assistant swimming coach. By that time the complainant was 17 and a half years of age. Soon after that arrangement was struck, a sexual relationship between them began again. It continued for most of the year 1981. It came to an end after a meeting between the complainant’s parents and the appellant. In essence, the appellant was told by the complainant’s father that the relationship was to end. It finished, according to the appellant, soon afterwards.
The appellant gave evidence in his defence. He acknowledged that he had a close relationship with the complainant during the period when he coached her. He agreed they had gone into the hills for picnics, on three or four occasions only, and shared food and wine. He agreed he might have given her a peck on the cheek to greet and farewell her on such occasions. He agreed that he picked her up and returned her, not at her home, but at a nearby street. However he denied going to a drive-in theatre with her, or having any sexual relationship with her until during the time when she worked for him. During that period they might have had sexual intercourse at his then home at Magill and he might have shown her a “blue movie”.
Arguments on appeal
There are two main strands to the appellant’s attack upon the conviction.
First, he argues that the verdicts as to the two counts are inherently contradictory. He puts that there was no valid reason to discriminate between the two counts. Both turned substantially on the evidence of the complainant and if she were found not to be reliable or honest in relation to one count, then that should have flowed to the verdict on the other. In fact, counsel for the appellant, Mr Apps, argues that the evidence on count 2 was, if anything, more detailed and comprehensive than the evidence going to count 1. In particular, in relation to count 2, the complainant had always been consistent that the conduct occurred on the occasion of the appellant’s thirty-eighth birthday at his home at Linden Park. Her account of the sexual activity between them on that occasion was detailed. Counsel argued that whereas the drive-in incident was said by the complainant to have occurred in 1978 or early 1979, the dates alleged in the information and in the prosecution opening address were December 1977 to February 1978, suggestive of either unreliability, or a previous inconsistent statement, or both. Counsel pointed to the fact that she could not recall which drive-in they attended and he said her contention that she had no difficulty in climbing from the front seat to the back seat of the appellant’s car could be refuted by reference to the make and model of his then vehicle. Counsel suggested that the witness’s demeanour could not have been a decisive factor in the jury’s mind, as that would have led to like verdicts. Mr Apps agreed that in circumstances where 30 years had passed since these events, it was possible that the witness might have confused what occurred in the later, lawful, relationship with what occurred in the period when she was the appellant’s student. In addition, counsel argued that the unexplained inconsistency could be suggestive of a compromise verdict.
In terms of what could be deduced from the acquittal on count 2 and its impact on the credibility of the complainant, Mr Apps sought to rely on remarks made by the trial judge in sentencing the appellant. Apparently, because of the acquittal, the judge was not disposed to find proved the uncharged acts attested to by the complainant. The appellant was therefore sentenced on the basis that count 1 was an isolated incident. In my view this matter can immediately be put aside. There is no proper basis for having regard to the judge’s remarks on sentence.
The appellant sought to introduce what was called “fresh evidence” upon the appeal. Affidavits of the appellant’s solicitor, Mr S C Ey, of Mr J A McVann and of the appellant, were placed before the court. Mr Ey’s affidavits were directed to supplement the information concerning The Exorcist II presented to the jury by Sergeant Huntley. Mr Ey’s researches showed that the film was not shown at any drive-in theatre between 2 March 1978 and 1 April 1979. Further, Mr Ey located the same microfiche copies of The Advertiser advertisements as had been referred to by Sergeant Huntley, for the purpose of proving at what time the relevant film commenced. He annexed the advertisements to his affidavit. It is apparent that the commencement time of the relevant screenings ranges between 8.30 pm and 9.00 pm. However, it is also apparent that in some cases The Exorcist II formed part of a double feature and the advertisements do not stipulate which film was first shown.
The affidavits of Mr McVann and the appellant focussed on the starting time and duration of various state championship, “Top 10” and interclub swimming meetings held in 1978. The principal contention appears to be that such meetings would finish, at the earliest, at about 10.15 pm. Neither affidavit stipulates where such meetings would be held. In his affidavit, the appellant adds that at the time when The Exorcist II was screening, the appellant’s son was also competing in swimming meetings, including at state and national level. At the completion he would be taken from such meetings to his home by the appellant.
Counsel for the appellant puts that the fresh evidence has several functions. First, it is capable of demonstrating as a fact that the complainant was unreliable when she expressed a belief that she saw The Exorcist II with the appellant after she turned 15 and in the summer of 1978/1979. The material makes explicit what the jury might have inferred from the disharmony of the dates given by Sergeant Huntley, as against the complainant’s recollection; that is, that there was no overlap between the dates. Counsel further argues that the affidavit material demonstrates that a meeting at the Aquatic Centre in the evening would not have finished in time for the appellant and the complainant to attend at any drive-in theatre to see The Exorcist II. Finally, counsel points to the appellant’s own assertion that his son would have accompanied him on any trip home from such a meeting.
Analysis
Consistency of verdicts
In my opinion the verdicts are not inconsistent. There were good reasons why the jury might have discriminated between the two counts in their evaluation of the prosecution case.
It is true, as Mr Apps argued, that the evidence going to the unlawful sexual intercourse charge was at least as detailed as count 1, the drive-in incident. However, there were also one or two inadequacies in relation to the evidence going to prove count 2, which could have affected the conclusions reached by the jury. It was common ground that at the time when the appellant turned 38 years of age, he was living with his then wife and son at the Linden Park home. His wife worked as a schoolteacher and his son was of a similar age as the complainant. Upon the complainant’s account, the only explanation as to where either of the appellant’s family members were at that time, or why the appellant would have felt safe in entertaining the complainant at his home on that occasion, was that she believed the appellant’s wife was interstate. There was no further evidence touching that topic. In defence counsel’s address he argued to the jury that, on any view, it was improbable that the appellant would risk engaging in such conduct at his family home, as opposed to taking her to some other location safe from detection. The complainant did not claim to remember where she was immediately before travelling with the appellant to the house, or where she went afterwards. She was also cross-examined about uncertainty in her police statement as to where in the house the intercourse occurred. The unlikelihood of there being such uncertainty in her mind if the incident occurred as she said was the topic of a submission to the jury by defence counsel. It will be remembered that the appellant acknowledged that he might have shown the complainant a “blue movie” in the later period after their relationship was renewed, but at the Magill house.
The judge gave strong warnings to the jury arising from the 30 or so years which had passed between the date of the alleged offences and the trial. In particular, he instructed the jury that they should act on the basis that the appellant had suffered forensic disadvantage by that lapse of time, perhaps most notably in relation to count 2. He said that, had the allegation been made at an earlier time, it was likely that the appellant would have been able to ascertain where he was on the occasion of his thirty-eighth birthday. The judge instructed the jury that bearing in mind the fact that there was no independent support for the complainant’s account of either of the incidents, her evidence must be “scrutinised very closely”. He went on to warn the jury that “it would be dangerous to convict on either charge unless, bearing in mind that warning, you are completely satisfied of the truth and accuracy of that evidence …”.
In this context I think it was open to the jury to draw a distinction between the two counts. In respect of count 1, the evidence of Sergeant Huntley provided a firm basis for finding that the incident occurred in the first stage of the relationship, when the complainant was 14 or 15. However, the failure to firmly account for the absence of the appellant’s wife and child from the Linden Park house, together with the appellant’s acknowledgment that he might have shown the complainant a movie at his Magill house, viewed against the stern warnings given by the judge, might have left the jury with reasonable doubt, not as to the occurrence of count 2, but as to its timing. Indeed, the showing of the “blue movie” by the appellant is, in my mind, something which is more likely to have occurred when the complainant was older, rather than younger. In addition, the fact that the complainant offered no reason for the sudden cessation of the relationship after count 2 raises the question as to whether that incident occurred, not during the first stage of the relationship, but just prior to the intervention by her parents and the directive to the appellant to cease contact with her.
I should add that, as is the practice, the jury were given directions requiring them to treat each count separately. They were not specifically invited to import to their consideration of count 2 any conclusions they had drawn in relation to the complainant’s honesty or reliability in respect of count 1.
Fresh evidence
I turn then to the question of the “fresh evidence”.
In R v Dorning (1981) 27 SASR 481 at 485 the Full Court set out the principles relating to the reception of fresh evidence. The Court said:
In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible.

In R v McIntee (1985) 38 SASR 432 at 435, King CJ observed that notwithstanding such a statement of principle, a court would always receive fresh evidence if it could clearly be shown that failure to do so might allow an unjust conviction or sentence to stand.
In the present case it cannot be said that this evidence is fresh. It could plainly have been obtained with reasonable diligence prior to trial. Indeed, copies of the relevant advertisements could have been obtained from Sergeant Huntley. It appears from the appellant’s affidavit that he did not turn his mind to the question of the time of the drive-in screenings until after his conviction.
Further, the extent of the impact which this further material would have had at trial is a matter of doubt. It seems to me to be quite clear that the jury would have reached a view that the complainant’s estimate as to when the incident occurred was mistaken to the extent of a year. That was apparent from the inconsistency as between her evidence compared with the particulars of the information, the prosecutor’s opening address and Sergeant Huntley’s evidence. As to the times of the various screenings, the new material is inconclusive. Some of the advertisements refer to double features and do not indicate which film would screen first. In any event, that the appellant was obliged to, and did, stay until the very end of every swimming meeting and that he would always take his son home after such fixtures, relied solely on his evidence. In addition, the complainant did not assert that they were present throughout the film.
My conclusion is that this court should not receive the so-called “fresh evidence”. As I have said, the evidence is not fresh in any relevant sense. There is no adequate explanation for the appellant not investigating the matter at an earlier time. Neither is it of such quality that it would have had, in my mind, any significant impact on the jury, let alone a decisive one. I would refuse the application to admit the evidence.
Conclusion
In my view the differing verdicts on the two counts faced by the appellant are readily explicable in terms of the evidence before the jury and the directions given it. There is no relevant factual inconsistency. The ultimate issue is whether the inconsistency in the verdicts is such as to demonstrate that the verdict on count 1 is unreasonable: s 353(1) Criminal Law Consolidation Act 1935. No ground for such a conclusion, apart from the difference in the verdicts, is put forward.
I would not admit the fresh evidence presented to the court, first because, though credible, it could have been obtained and presented at trial and second, because I am not satisfied that it would have had a marked impact, or any impact, upon the jury.
The appeal should be dismissed.
KELLY J I agree that this appeal should be dismissed for the reasons given by Vanstone J