R v C - [1999] QCA 270

[1999] QCA 270

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 39 of 1999

Brisbane

[R v C]

THE QUEEN

Appellant

Pincus JA
Davies JA
Thomas JA

Judgment delivered 20 July 1999.

Separate reasons for judgment of each member of the Court, Thomas JA dissenting.

APPEAL DISMISSED.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - OTHER MATTERS.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED.
Evidence of alibi witnesses uncontradicted by the Crown - two bodies of evidence not meeting - onus on the Crown to negative alibi beyond reasonable doubt - Palmer v The Queen (1998) 193 CLR 1 considered - term "alibi" considered - whether verdict was unsafe and unsatisfactory.
Jones (1997) 72 ALJR 78 followed
M (1994) 181 CLR 487 considered
Palmer v The Queen (1998) 193 CLR 1 considered

Counsel:The appellant appeared on his own behalf.
Mr T Winn appeared for the respondent.

Solicitors:The appellant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 23 June 1999.

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 20 July 1999

I have read the reasons of Thomas JA. The issue is whether the verdict passes the "open to the jury" test: Jones (1997) 72 ALJR 78. The principal judgment in that case recalls that in M (1994) 181 CLR 487 at 494, the application of the test was explained in a way which includes the expression "there is a significant possibility that an innocent person has been convicted" (emphasis added). I have found this a difficult notion. Where sexual abuse of children is alleged, it commonly happens that there is, as there is here, no direct support for the child's allegations, which are denied by the person accused. In some such cases the jury accepts the complainant's story and in others it does not. It may sometimes occur that the jury is in error in accepting the complainant's version; how an appellate court detects such errors is not very clear.
In a passage from M the sentence in which the expression "significant possibility" occurs begins:
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force . . . ".
Discrepancies and inadequacies in the child's evidence are common in prosecutions of the present kind and they are commonly excused on the ground that they are just what one would expect. Here, apart from the alibi evidence, to which I shall refer, I can find nothing in the record particularly to arouse one's suspicion about the veracity of the complainant's version. That is, apart from the alibi evidence I can see no good reason for doubting the correctness of the verdict, other than a reason which commonly exists: scepticism about the doctrine that juries composed of persons having no expertise in assessing the probability of stories such as the complainant told here can always be absolutely relied on to give a correct answer, when asked whether the complainant is to be believed beyond reasonable doubt.
The alibi evidence must be approached against the background that the defence was placed in difficulty by the vagueness of the Crown case as to the times of the offences. The complainant gave evidence that she went to her aunt's flat on the morning in question, that her aunt left the flat halfway through a video movie, that after the movie was concluded she went to the appellant's flat where the offences were committed. She was it appears unable to estimate a time at which the offences were committed; the Crown put forward that they must have happened between noon and about 10 minutes to 3 pm. Another Crown witness, the complainant's cousin, was cross-examined on the basis that she had noticed the complainant had gone from her aunt's flat about 1.30 pm; but it seems clear that the Crown did not tie itself to the case that the offences were committed about that time.
The two alibi witnesses, it appears, gave statements to the appellant's solicitor about a month after the offences were alleged to have been committed. The evidence as to the time of relevant observations the male alibi witness gave and that given by the female were, considering the lapse of time, oddly in harmony with one another:
EventMale  Female
Appellant left  10, 10.30  Between 10 and 10.30.
First return  3, 3.30  About 3
Left again4, 4.15  4, 4.15
Returned again  Between 5 and 5.30              Between 5 and 5.30

It would have required a rather credulous jury to accept that each witness independently made these time estimates. The male witness said he was spoken to by police on 9 May, and that was two days after the alleged offences were committed; but he could not remember having said anything then about the appellant's movements on 7 May. He denied that he and the female witness discussed the matter before "putting anything in writing". The female witness was asked about the circumstances in which her statement was given. She said she gave the statement to the appellant. The female witness denied that she talked to the male witness about the times the appellant went in and out, with the exception, apparently, of the time the appellant came back "[l]ater in the afternoon . . . around 5, 5.30". She agreed that until "that point in time" - apparently being when the statements were taken - the events of 7 May had no reason to stick in her memory.

It seems to me that the jury were not obliged to accord weight to the alibi evidence; it was inherently improbable that the unremarkable events which were the subject of their evidence would have been remembered so precisely, a month after they occurred - if, indeed, they were remembered at all. There were other factual points in the case, of varying degrees of significance, referred to in the reasons of Thomas JA. As his Honour points out there was evidence of a possible reason why the complainant would have wished to do harm to the appellant, associated with the taking up of a petition complaining of bad conduct. But the complainant denied any knowledge of that matter and there was nothing in the evidence to controvert her denial. There was some evidence of damage to an item of clothing that she was said to have been wearing at the relevant time, evidence of some "generalised redness over the body of her labia" and evidence of distress shortly after the alleged offences were committed; none of these, as it seems to me, would necessarily have been treated by a rational jury as significant pointers to the truth. The likelihood is that the jury, having seen and heard the complainant, were convinced of her veracity and that they simply disbelieved the appellant and his witnesses. Although the case is, as such cases often are, somewhat troubling, I find myself in respectful disagreement with the conclusion of Thomas JA.
The case does not appear to me one in which it was not open to the jury to convict. I would dismiss the appeal.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 20 July 1999

I have had the advantage of reading the reasons for judgment of both Pincus JA and Thomas JA. Subject to what I say hereunder I adopt in substance the statement of facts contained in the reasons of Thomas JA.
The case below involved a substantial conflict of evidence between the complainant child and the appellant; the former swearing that the appellant sexually assaulted her in his unit sometime in the early afternoon of 7 May 1998; the latter swearing that he was not at home between 10.00 am and 3.00 pm that day. Apart from the evidence from the witnesses M and N, which the appellant submitted supported the appellant's alibi, the case was no more than one of word against word. Although the appellant also relied in this Court on the absence of medical evidence supporting the complainant's evidence the case was plainly one on which, apart from the evidence of M and N, it was open to the jury to convict. The sole question before this Court is whether that evidence should have caused the jury to have a reasonable doubt as to the guilt of the appellant.
Mr M and Ms N lived together in a unit in the same block as the appellant's unit. On 7 May 1998 they spent most of the day in the garage of their unit where a pool table was set up.
According to Mr M he was in the garage from approximately 9.00 am to approximately 5.00 pm except for one or two occasions when he returned to his unit. In answer to a suggestion that he may also have returned there for lunch he said: "No. I usually send Karen in to do that." The reference to "Karen" was to Ms N. According to him a Mr S was also present. He said that for most of the day he and Mr S played pool whilst Ms N watched.
According to Ms N there was a fourth person present a Ms P. Also, contrary to Mr M's recollection Ms N said that she was playing pool also. She said she was playing pool all day although she did not state commencement or concluding times. When asked whether she left the garage at all to go upstairs she said: "I had to go in and get lunch or something like that, yes." She also said: "Most times I was in the garage but sometimes I went outside of the garage and just walking around."
In one important respect the evidence of Mr M and Ms N coincided almost exactly. This was as to times at which they saw the appellant in his car going from and returning to his unit. Mr M said that he saw C leaving his unit between 10.00 and 10.30 am on that day, return at 3.00 to 3.30 pm that day, leave again at 4.00 to 4.15 pm and return at 5.00 to 5.30 pm. Ms N also said that she saw the appellant leave between 10.00 and 10.30 am, return about 3.00 pm, leave again about 4.00 to 4.15 pm and return between 5.00 and 5.30 pm.
Both Mr M and Ms N were asked in cross-examination whether they collaborated as to the times on which the appellant left and returned. No doubt it would have been natural for them to do so. And Ms N agreed in cross-examination that "we just talked about the date and how we were that day and about [C] going in and out, and stuff." She was then asked "Did you talk about the times he went in and out at all?" To which she replied: "Not really. We just sort of said, 'well, he was out most of the day', and we wrote it down." When asked similar questions Mr M denied any collaboration. However he did say that "we" saw him leave at 10.00 to 10.30 am.
Even if it were accepted that Mr M and Ms N both saw the appellant leave his unit at 10.00 to 10.30 am and also saw him return at 3.00 to 3.30 pm it would not follow that he could not have been in his unit at, say, 1.00 pm, about the time when, according to the complainant, the offences were committed. Neither Mr M nor Ms N swore that, if the appellant had returned at any time between 10.30 am and 3.00 pm they would have seen him or that they were, throughout that period, in a position to do so. Mr M's evidence in this respect was that he was sometimes standing at the entrance to the garage, from where, no doubt, he would have seen the appellant return had he done so, sometimes he was in the garage playing his shot or watching his opponent play a shot and on one or two occasions he returned to his unit. When he saw the appellant leave at 10.00 to 10.30 am he happened to be standing at the entrance of the garage waiting to take his shot. And when he saw him return at 3.00 to 3.30 pm he was actually standing outside the garage after taking a shot. He said that when standing inside the garage he would not be able to see anything but standing outside he could see all the way up the street.
Ms N did not say where she was when she saw the appellant leave at 10.00 to 10.30 am or return at 3.00 pm. But she said that every time he came in or went out "he stopped or beeped and commented on the games". As mentioned earlier she returned to the unit to get lunch and sometimes, presumably when she was not playing a game, she went outside the garage and walked around.
It is reasonable to infer from the evidence that neither Mr M nor Ms N were in a position to swear that the appellant did not return to his unit some time between 10.30 am and 3.00 pm and they did not purport to do so. There were also reasons to doubt the accuracy of their recollection as to the times to which they swore they saw the appellant come and go.
Both were interviewed by Ms Farmer a police constable a few days later. She said she asked each of them whether they had seen the appellant on the day in question. Mr M confirmed that he was asked by a female police officer for information as to the appellant's whereabouts on that day. When asked whether he mentioned to her having seen the appellant driving in and out as he had outlined in his evidence he answered: "Off-hand, no, I can't remember". When asked again did he mention to her seeing the appellant driving past his place four times he answered: "No, no, I wouldn't have. She was more interested on whether I had seen any children walking past the units or anything like that." But he had earlier volunteered that she had asked for information as to the appellant's whereabouts that day.
Both Mr M and Ms N prepared their statements, at the appellant's request, about a month later. It was in these statements for the first time, presumably, that the two witnesses gave their coincidental estimates of the times on which they recalled the appellant coming and going.
Neither Mr M nor Ms N was a close friend of the appellant. On the other hand they were friendly towards him and unfriendly towards the complainant and her family. Indeed the appellant, Mr M and Ms N had each been signatories to a petition to the landlord to exclude the complainant's family from the premises. I do not intend to imply by this any dishonesty on the part of Mr M or Ms N in giving their evidence. But it is not uncommon for honest witnesses unconsciously to take sides and to reconstruct events more favourably to those whom they support. The coincidentally exact estimates of time at which they say they saw the appellant coming and going in statements made at the appellant's request, according to Mr M without collaboration, one month after the event, notwithstanding Mr M's failure to mention any comings or goings of the appellant when asked by a police officer shortly after the event, lend some support to such an assessment of their evidence.
But even taking the evidence at its highest the jury would have been entitled to conclude that, having regard to the relevant periods during which neither witness would have been in a position to observe the appellant's comings and goings, it did not support the alibi which the appellant claimed.
For all of those reasons I cannot be satisfied that the evidence of Mr M and Ms N should have caused the jury to have a reasonable doubt as to the guilt of the appellant. I would therefore dismiss the appeal.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 20 July 1999

The appellant was convicted of two sexual assaults on a 13 year old girl. On her evidence the assaults occurred on 7 May 1998 when she visited the appellant in his unit. He denied that any such incident occurred and further denied being in the unit at or even close to the time it was alleged to have happened. He gave evidence and called witnesses to support this. He appeals on the ground that the verdict of the jury was unsafe and unsatisfactory, in particular because the evidence of alibi witnesses was uncontradicted by the Crown.
The appellant was the occupant of a unit (No 16) situated in Kingston. The complainant's aunt and her family lived in Unit 10 in the same complex. The complainant's family and her aunt's family had all slept in Unit 10 on the night of 6 May.
The date, 7 May, was an essential and fixed part of the Crown case. For a large part of that day the complainant and her cousin, K, were left to their own devices in Unit 10. They had decided not to go to school that day. When the complainant's mother returned to the unit in mid-afternoon the girls were in an hysterical condition. They made a complaint implicating the appellant, and the complainant's mother thereupon took them to the police station. An investigation promptly commenced.
The Crown case was that the complainant at or a little after 1.30 p.m. had gone to the appellant's unit (No 16) to return some packets of cigarette papers that he had loaned to her brother and that while she was there he interfered with her by inserting his finger in her vagina and by licking her vagina.
Not long before 7 May the complainant and her mother (D), her twin brother J and her mother's partner B had lived at another unit in the complex, probably Unit 17. However there had been a falling out between her mother and B, and they had ceased paying the rent. There had also been a written complaint or petition prepared and signed by various tenants including the appellant, concerning the conduct of the group of young persons (of whom the complainant was one) in and around the premises. This had been delivered to the managing agent of the complex not long before the tenancy had terminated.
The usual occupants of Unit 10 were the complainant's uncle and his family which included his wife X and three children aged 13, 14 and 15, including K. On the night of 6 May both families had slept in Unit 10.
During the morning of 7 May all the occupants left Unit 10 except the complainant and K. The complainant's mother and two boys left between 8.30 and 9.30 a.m. to go shopping and did not return until after 2.30 p.m. The complainant's aunt, X, also left during the morning, although later than the complainant's mother. According to the complainant her aunt left half way through a movie, "Priscilla Queen of the Desert", which the complainant and her cousin were watching on video that morning. There was evidence, principally from the aunt, that before she left that morning the appellant had called looking for one of the boys to whom he had loaned some packets of cigarette paper. She told him that when the boys got back she would get one of them to return them to him, and he left. The appellant's evidence was that he had called to ask for his cigarette papers the day before, but not much turns on whether that visit occurred on 6 or 7 May. His presence at Unit 10 on either day is quite consistent with his absence from his own unit between approximately 10.00 a.m. and 3.00 p.m. on 7 May, which is the period to which the alibi evidence relates. Its main relevance is that the appellant had called at Unit 10 looking for his cigarette papers and that the complainant knew that they should be returned.
The complainant and K, who according to the complainant's mother "wagged it [school] quite a bit", finished watching the video movie and proceeded to do some cleaning up of the unit. In the course of this the complainant found the appellant's cigarette papers and decided to take them to him at Unit 16. On her account she knocked on the door and was asked in. She gave him the papers. He asked her could she make him a coffee. She responded "What, do you think I am a slave or something?" but she made him one because he had asked politely. While the jug was boiling he rubbed some cream on her shoulder. She was wearing a black swimming suit (which she had apparently been wearing for some days) underneath a white shirt and multi-coloured skirt. She saw the words "Keep out of reach of children" on the tube of cream. The appellant then rubbed her legs with cream after which she made the coffee. When she started to walk to the front door he told her he had something to show her, pointing upstairs. She followed him to his bedroom. She there saw some stuffed toys on the bedhead. He then grabbed her shirt and pushed her on the bed so that she was lying on it with her legs hanging over the end. Despite her resistance and telling him to stop, he pulled off her skirt, and caused a small rip to the side of her shirt. She was struggling but he grabbed her arms, and controlled them, holding them with one hand near her wrists, while he started to insert his finger in her vagina, having pushed the swimmers aside. The legs of the swimmers were described as "elasticised". He moved his finger in her vagina and it was sore. After he removed his finger he started licking her on the vagina, at the same time still holding her hands while she was struggling. The appellant then stood up and attempted to remove his own pants. She thereupon grabbed her skirt, ran down the stairs and outside the apartment, put on her skirt and returned to Unit 10. The complainant's evidence was that during the incident she was struggling vigorously and that his assaults had caused soreness in the vagina and in her arms where she had been restrained.

Upon her return to her unit both she and K said that she was crying. On the complainant's account she complained to K that C had tried to rape her, and on K's account that he had "fingered her and licked her out". Soon after this the complainant's mother arrived and they were taken to the police station where police recorded the commencement of their involvement as between 2.50 and 3.00 p.m.
The complainant was then taken to a doctor for medical examination. The medical practitioner, an expert paediatrician who used equipment with the benefit of magnification, was unable to find any sign of abrasions or bleeding in the area of the vagina and the hymen appeared to be normal. He observed some generalised redness over the body of the labia but noted that on the history given to him the complainant had been wearing a swimsuit for a substantial period namely since the preceding morning, and that a range of reasons could explain the condition that he found. In short the examination was unable to demonstrate anything of significance, and might fairly be described as neutral evidence. There was no evidence of bruising or any injury to any other part of her body.
The police who proceeded to search the appellant's unit found a number of ointments in his unit including Betnavate and Voltaren, both of which contained the warning "Keep out of reach of children".
There is an apparent discrepancy between the evidence of the complainant that the front door of the appellant's unit was open at material times while she was inside it, whereas the evidence of K was that some time after her cousin had left she had gone looking for her and had knocked on the shut door of the appellant's unit but no-one had answered. Whether this was explicable on the basis that there was a screen door as well as a wooden door was not fully explored.
The appellant gave evidence that he had left his unit on the morning of 7 May at about 10.00 a.m. in his white Camira which has a small red stripe along the sides. In order to leave the premises he had driven past other units including Unit 13. The occupants of that unit, M, N and another friend had a pool table in their garage and were playing pool. Mr M was standing outside the garage on the driveway and the car had come very close to him in getting past. He had stopped and exchanged pleasantries. There were some variations in the text of what was actually said, but all three witnesses (the appellant, Mr M and Ms N) said that there had been a conversation about the pool game at approximately 10.00 a.m. as the appellant drove out.
The appellant gave considerable detail about his movements over the ensuing five hours including his experience in queues at the CES at Woodridge, an interview at Centrelink and his obtaining of a Job Seeker's card at that place. The card that he produced in this respect was dated 5 May, but his evidence was that it was given to him on the day in question, namely the 7th. He obtained print-outs of vacant jobs and spoke with one potential employer, went to a further employment agency and filled out some more forms. He then visited the Logan City Bingo Hall arriving for the afternoon session which started at 1.00 p.m. It was a crowded session and he played a game. The Crown had called a witness Jean Baker, the bingo caller, who had not observed the appellant there at that time, but she agreed that it was a busy session and that there was nothing remarkable in not observing him.
When originally interviewed by police the appellant had clearly denied the complainant's allegations and had asserted to them his movements on the day in question, substantially as he eventually gave evidence, but also including a few details which he subsequently agreed were inaccurate. One of these was the assertion that he had won $45 at the bingo game, but under cross-examination he conceded that that had been in error and that that prize had been won a day or so previously. The Crown prosecutor elected not to tender in evidence the appellant's early statements of innocence to the police or his notice of alibi, and merely cross-examined the appellant in relation to details in his original statement that were erroneous.
The appellant's evidence continued that after leaving the bingo game he went to a shop called Logan City News where he put in an entry for a Powerball game for that evening. He was the owner of a Powerball card which enabled him to participate in such games. That such an entry had been made was verified by the calling of a witness who produced computerised records establishing that the appellant's card had indeed been used for entry into such a game at Logan City News at 2.31 p.m. on 7 May. He then went to a tobacconist and drove back to his unit arriving at about 3.00 p.m. Once again he passed Mr M and his companions who were still playing pool. The appellant says he had a further conversation with Mr M. Mr M says that the appellant beeped his horn and they waved. About an hour later the appellant again left his unit to go to Kingston railway station where his sister and her fiancé were arriving from Landsborough by train. He picked them and brought them back to his unit.
The details of the appellant's movements to and from his unit during that day were confirmed in evidence by Mr M and Ms N. Nothing was suggested against these witnesses. Mr M was a student at Griffith University studying to obtain a Bachelor of Medicine, and Ms N an administration officer at Police Headquarters. They were living in Unit 13 and were in a good position to see the appellant coming and going. They had no particular friendship or relationship with the appellant. They had been almost continuously in the same area during the whole period in question and could say that he had not returned. They saw him come back at about 3.00 p.m. and depart again an hour later and return again shortly thereafter. They confirmed actual contact on each occasion either by conversation or beeping of the horn as he came or went. They knew the day because detectives had come and knocked on their door asking for information on Saturday 9 May in relation to the events of 7 May. The police officer however at that time had been more interested in whether they had seen children walking to or from the units. They gave a full statement and statutory declaration to the appellant's solicitor with respect to these events on 6 June 1998.
The appellant conducted his appeal in person. The burden of his submission was that the evidence as a whole, including that from the Golden Casket Lottery employee and the other witnesses called by him, showed that he was innocent, or at least that the evidence was sufficient to have necessarily raised a reasonable doubt. In particular there was nothing to contradict the alibi witnesses.
Counsel for the Crown however submitted that the complainant's evidence in the case necessarily contradicted those witnesses utterly, and that the jury which had the advantage of seeing and hearing the witnesses had resolved what he described as "essentially a conflict of credit case".
I do not consider that the case can be so easily resolved.
In this case evidence was actually adduced showing it to have been at least reasonably possible that some resentment existed against the appellant on the part of the complainant's family, he having signed a complaint concerning the children's conduct not long before their tenancy terminated. The appellant in fact gave evidence that one of the boys had asked him if he had signed the deposition to get them thrown out, that he admitted that he had, and that the boy had threatened to "get" him. The boy in question however denied such an incident when he gave evidence. However independent evidence at least confirmed that the appellant had signed such a petition.
The existence of some discrepancies in the Crown case, such as whether the appellant's door was open or closed, are not in themselves of great moment, but they need to be remembered when the matter is considered overall. Perhaps of greater concern is the apparent difficulty that might be thought to exist in the appellant licking the complainant's vagina while holding her arms at a time when she was vigorously struggling and was still wearing an elasticised swimming suit.
How then is a case like this to be resolved when there are two bodies of evidence which do not meet? The High Court recently considered such a situation in Palmer v The Queen[1]. Brennan CJ, Gaudron and Gummow JJ observed:
"If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused's guilt, the conviction must be quashed and a verdict of an acquittal entered however cogent the prosecution evidence would otherwise be".[2]
[1](1998) 193 CLR 1.
[2]Ibid at p12.
In my view there is more than a superficial resemblance between important features that were present in both that case and the present one. Each case was concerned with a total denial by the appellant of any contact with the complainant girl on the day in question. In each, a particular day was designated and no other. In each there are features of the prosecution case that make it difficult although by no means impossible to accept the complainant's evidence at face value. The alibi evidence here is cogent, as it was in Palmer. If anything, there is a greater possibility that the alibi evidence in Palmer was manufactured than in the present one. The only weakness in the alibi evidence in the present case so far as it concerns the evidence of Mr M and Ms N would seem to be the possibility of a mistaken date, but given the sequence of events and remembering where the onus of proof lies, this would not seem to be a realistic possibility.
Further, Palmer was a case where there was no visible reason for the making of a false complaint, whereas in the present case the evidence exposed at least a possible reason for the making of a vindictive complaint. In this case the combination of the evidence of the Powerball transaction at 2.31 in the afternoon tends to fortify both the evidence of the appellant and of the alibi witnesses. So far as any estimates of time were given by the complainant and by K, the offence is alleged to have occurred at some time after 1.30 p.m. On the evidence of the complainant's mother and of the police, it would seem impossible for it to have occurred any later than 2.40 p.m. This tends to enhance the importance of the evidence of the transaction some distance away at 2.31 p.m. Counsel for the Crown sought to explain away the evidence of that transaction by submitting that there was still time for the offence to have been committed; and alternatively that a transaction might have been carried out by the appellant's girlfriend or by any person to whom he might have given the card. If the appellant bore the onus of proving an alibi beyond reasonable doubt, those possibilities might have some force. But the appellant bears no such onus. In any event the first of those suggestions is quite inconsistent with the evidence of Mr M and Ms N; and the second suggestion requires it to be assumed that the appellant was the beneficiary of a lucky coincidence at a critical time.
There is a risk that current community attitudes place an accused person in the position of actually having to prove his innocence whenever a sexual charge is laid. It is important at both trial and appellate levels that strenuous efforts be made to prevent that risk becoming a reality. I would not dismiss alibi evidence such as that given in this case on the basis that it is possible to raise some doubts about it. The Powerball transaction and the evidence of Mr M and Ms N tend to lend force to each other, and in my view the combination is strong.
The onus lay on the Crown to negative the alibi and to do so beyond reasonable doubt. I do not think that the complainant's evidence, aided only by recent complaint and her knowledge of the existence of ointments and toys in the appellant's unit (which the boys had visited from time to time), and her production of a torn garment can satisfactorily negative the combination of cogent alibi evidence in this case. The defence evidence in question was uncontradicted and untainted, and must raise at least a reasonable doubt as to the appellant's guilt.
The very word "alibi", perhaps because of its use by the entertainment industry, tends to give off a bad odour. Juries are suspicious of such defences and there is in my view a real danger that a reversal of onus tends to occur when such a defence is introduced especially under the name "alibi". Trial judges find it difficult to correct this imbalance. Without suggesting that it is always necessary to do so, it would not be amiss in such a case to remind a jury that there is nothing disreputable in the suggestion that an accused was not present at the time, and that such a suggestion is one of the strongest possible assertions of innocence.
Having examined all the evidence in this case I am of the view that in any reasonable mind there must exist a well-founded reasonable doubt of the accused's guilt, and accordingly find that the verdict was unsafe and unsatisfactory. I would allow the appeal and set aside the conviction.