R v Carbone

[2000] NSWCCA 387

CITATION:	R v Carbone [2000] NSWCCA 387
FILE NUMBER(S):	CCA 60665/99
HEARING DATE(S):	3 October 2000
JUDGMENT DATE:	3 November 2000
PARTIES :	Joe Michael Carbone Regina
JUDGMENT OF:	Wood CJ at CL at 1; O'Keefe J at 64; Carruthers AJ at 65

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0192
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	W.G. Dawe QC for Crown G.J. Stanton for Applicant
SOLICITORS:	S.E. O'Connor Agostino & Co
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction - sexual assault - multiple count sexual assault - uncorroborated evidence of complainant - conflicting or inconsistent verdicts - verdicts unreasonable or incapable of being supported having regard to the evidence - lack of probative force - verdicts of acquittal.
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) s6(1) Crimes Act 1900 (NSW) s61(M)(1), s61J, 66(C)(1)
DECISION:	(1) Appeal against conviction allowed; (2) Conviction and sentence set aside and verdicts of acquittal substituted

IN THE COURT OF
CRIMINAL APPEAL

No. 60665 of 1999

WOOD CJ at CL
O’KEEFE J
CARRUTHERS AJ

FRIDAY 3rd NOVEMBER 2000

Regina v Joe Michael CARBONE

The appellant was convicted of two counts of indecent assault, and one count of aggravated sexual intercourse. The first two counts related to acts committed on 3 December 1996, the further count related to acts committed on 7 August 1997. The jury convicted the appellant upon the uncorroborated evidence of the complainant in relation to some but not all counts in the indictment.

He appealed against the conviction on the grounds that the verdicts were unreasonable or incapable of being supported having regard to the evidence.

HELD (allowing the appeal):

1. The Court of Criminal Appeal is not bound to act in accordance with the opinions expressed by a trial judge as to whether or not, upon the evidence, they would have found an accused person guilty. Nevertheless, the Court should give careful consideration to the remarks of the trial judge, particularly where the remarks are from a judge with considerable experience.

2. The prosecution case lacked probative force and was tainted by a number of matters of disquiet relating to the prosecution evidence, including the lack of direct corroboration by those witnesses who might be expected to have seen the sexual misconduct alleged.

M (1994) 181 CLR 487 applied

3. Where a multiple count sexual assault case involves a single complainant and single accused, and the only direct evidence of the commission of the offences is that of the complainant and there is an acquittal on any of those charges, then in the absence of an acceptable explanation, an acquittal on the remaining charges will normally be required.

This is because the rejection of the complainant’s evidence damages his or her overall credibility, and cannot be overcome without some circumstance or fact which provides a rational basis for accepting the complainants evidence in regard to the other counts. This may be the case where the evidence is stronger for the count upon which it was accepted, than it was for the count upon which it was rejected.

Jones (1997) 191 CLR 439, R v RAT (2000) 111ACrimR 360, Wells NSWCCA 17 June 1998, James [1999] NSWCCA 191, Meala [1999] NSWCCA, R v W (1999) 109 ACrimR 51 applied.

4. There was no logical explanation for the conflicting verdicts, nor was there any identifiable surrounding circumstance which could have strengthened the complainants credibility or the reliability of the evidence in relation to the counts for which guilty verdicts were returned.

ORDERS PROPOSED

(1) Appeal against conviction allowed
(2) Conviction and sentence set aside and verdicts of acquittal substituted

IN THE COURT OF
CRIMINAL APPEAL

No. 60665 of 1999

WOOD CJ at CL
O’KEEFE J
CARRUTHERS AJ

FRIDAY 3RD NOVEMBER 2000

Regina v Joe Michael CARBONE

JUDGMENT

1   WOOD CJ at CL: The appellant appeared for trial in the District Court on 9 August 1999, upon 6 counts of sexual assault and one count of common assault. The first four counts related to acts alleged to have been committed on 3 December 1996,and the remaining three counts related to acts alleged to have been committed on 7 August 1997.

3 December 1996

2 So far as the 3 December matters are concerned the appellant was charged with two acts of indecent assault - touching the complainant KLD on her breast from outside her clothing, and placing his hand up her skirt (counts 1 and 2). These charges were preferred under S 61(M)(1) Crimes Act 1900. He was further charged with having sexual intercourse with KLD without her consent in circumstances of aggravation knowing that she was not consenting (count 3); and, in the alternative, with sexual intercourse with a person under the age of 16 years (count 4). These offences were respectively charged under S 61J and S 66(C)(1) Crimes Act 1900. At the time of the alleged offence KLD was aged 14 years. 3 It was the Crown case, based upon the evidence of KLD, that after leaving school this day, she walked to the Griffith Entertainment Centre with two girlfriends, NS and MGK. In the parking area, she saw the appellant and Ross Lentini, sitting on the appellant’s car. KLD said that the appellant made various suggestive comments to her, rubbed himself up and down a pole and against her knee before querying whether the three of them, ie KLD, MGK and the appellant, could have a “gang bang”. KLD said that, at the time of these exchanges, Lentini and NS were sitting in the back of the appellant’s car. 4 KLD said that the appellant then walked down the ramp, looked up to where she and MGK were standing, and observed “nice view up your skirt”. MGK, she said, made some comments about her not being a virgin and wanting to sleep with the appellant before walking away into the Entertainment Centre. The appellant according to KLD, then asked her whether she wanted to have sex with him. When she refused he grabbed her from behind and tried to push her to the ground. He then spun her around and pushed her against the rear offside door of his car. He undid his pants, placed his hands up her skirt and pulled her pants down and her skirt up. He then inserted his penis in her vagina, penetrating her four or five times, for less than a minute. (counts 3 and 4) After pulling away from her, according to KLD, he said aloud “You know you wanted me”. This occurred, according to her, while MKG was returning and while the appellant was doing up his pants. 5 Prior to this, she said, the appellant had placed his hand up her skirt between her legs, and had touched her breasts on the outside of her shirt. (counts 1 and 2) This, she said, had occurred while they were sitting on the bonnet of the car, while MGK was present. In cross examination KLD varied and expanded on this account to some extent, suggesting that the first touching occurred at the railings, and adding that the appellant had also rubbed his groin up and down her leg, while she was sitting on the bonnet, of the car, with MGK beside her. 6 KLD said that, after returning home, she changed and went to the swimming pool with a friend. She made no complaint to her parents that night, or to the friend who accompanied her to the pool. Later she said that, while having a shower, she noticed that she was very sore and bleeding. On the following day, she said that she informed a schoolteacher, Louise Chesworth, that she had been “raped”. 7 On 5th December she was examined by Dr. Marion Reeves. There was no finding of abnormality, but as Dr Reeves explained this did not confirm or exclude the occurrence of sexual intercourse. There was one difference of some moment in the history given, so far as KLD informed the doctor that the act of intercourse occurred after she had been pushed to the ground. A routine sexual assault investigation was conducted. No semen was detected on the vaginal swab or smear. 8 On 6th December she made a statement to police. On 31 July 1997, she gave evidence at the committal hearing in the Griffith Local Court. She was cross examined by Counsel for the appellant that day. 9 MGK gave evidence in relation to the events at the Entertainment Centre. She confirmed the circumstances of the meeting, as well as the identity of those present. There was some conversation between those present, she said, but to her recollection it was “just like a normal conversation. Nothing extraordinary”. She said that, after a time, she walked down the ramp, thereby taking herself away from the immediate area where the appellant and KLD were. She was away for about thirty seconds to one minute. While she was down the ramp she heard KLD say to the appellant, in a laughing tone “You sick bastard”. When she returned she noticed that KLD had a strange look on her face “as if she was a bit angry but not too bothered”. 10 Shortly afterwards KLD walked away. MGK followed her. According to her, KLD said “every time I (meaning MGK) turn around Joe’s been touching (me)”. She did not, however, see any sexual assault of any kind occur. In cross examination she agreed that at some stage she heard the appellant ask KLD somewhat firmly to get off the bonnet of his car, because to her impression she was acting immaturely, “like a bit of a tart, at times”. 11 NS similarly gave evidence of the three girls walking to the Entertainment Centre, of seeing the appellant and Ross Lentini there, and of getting into the back of the appellant’s car with the latter. She remained there, on her account, for about ten minutes. She did not see or hear anything happening around the car. She said that at one stage, KLD and the appellant disappeared from view. MGK similarly disappeared. When she finally got out of the car, she saw KLD following the appellant up the ramp. KLD, she said, had “tears running down her eyes”. 12 Ms Chesworth gave evidence of being approached by KLD on the morning of 4 December. She appeared not to be as happy or bubbly as she normally was. Rather, she seemed to be agitated and disturbed. KLD asked her whether she could keep a secret? She replied that she had a legal responsibility to pass certain things on to the relevant authorities. KLD took the conversation no further at that stage, but made several similar inquiries of her during that day. She eventually suggested that KLD speak to the school counsellor, Mr. Kruger-Davis. When KLD later said that she was not comfortable speaking to him, Ms Chesworth asked her what the problem was? She replied that she had been “raped” two days ago at the Entertainment Centre by the appellant. 13 Mr. Kruger-Davis, the school counsellor, confirmed having spoken to KLD, at the request of Ms Chesworth. When he saw her she appeared to be in tears, distressed and agitated. He arranged to meet with her the following morning. 14 Ms Rebecca Hall, a friend of KLD, gave evidence of receiving a letter from her in early December in which she stated that she had been “raped” at the Entertainment Centre the preceding day. She ripped up this letter, but on the same day that it was received, KLD repeated the complaint to her on their way home from school. No detail beyond the act of having been “raped” was provided. 15 The appellant was interviewed in relation to this matter by Det Senior Constable Casserly, on 3 January 1997. He denied the allegations made against him, although he acknowledged having spoken to KLD at the Entertainment Centre on the relevant day. He said that he had asked her to get off the bonnet of his car because he did not like the way she was carrying on. He was arrested, on 6 February 1997, by Det Senior Constable Blanchard, and charged with the offences that became Counts 1 to 3 in the indictment (the fourth count having been added later as a back-up charge). 16 At his trial, he gave evidence that, prior to 3 December 1996, he had not known KLD. He said that when he came out of the Entertainment Centre he saw KLD sitting on the bonnet of his car. At some stage he sat on the bonnet of his car with her and with MKG whom he already knew. He tried to have a conversation with the latter, but, according to him KLD continually butted in. He eventually went back into the Entertainment Centre. He said that by the time he returned KLD had already left. He denied having intercourse with her or indecently touching her. He also denied propositioning her, or engaging in smutty conversation with her, or about her. 17 Ross Lentini was not called, either by the Crown or by the appellant. 18 The jury returned verdicts of guilty in relation to the two indecent assault charges (counts 1 and 2) but acquitted the appellant on the sexual intercourse counts (counts 3 and 4).

7th August 1997

19   In relation to this date, the appellant was similarly charged with a count of aggravated sexual intercourse without consent (count 5) and with a back-up count of sexual intercourse with a person under the age of 16 years (count 6). The victim in each case was similarly said to be KLD, who was still aged fourteen years at the time. The remaining count (count 7) was one of common assault of a girlfriend of KLD, namely JMOS. 20   KLD gave evidence to the effect that, on the night of 7 August 1997, she attended a disco at the Griffith High School. She met some friends outside the disco and went to the ‘weather shed’ where they consumed some scotch whisky and coke. KLD said that she consumed two cups of this mix, which left her feeling ‘tipsy and light headed’. Miss JMOS, however, was significantly affected and was asked to leave the disco because of her inappropriate behaviour. She was removed from the school by police but asked KLD to meet her in fifteen minutes at the ‘tuckshop’. 21   KLD subsequently met her at Johnson’s tuckshop, after which they began to walk the 500 metres or so back to the school. She said that they heard someone behind them. She turned around and saw the appellant and another man who she did not know. The two men caught up with them at the gate to the primary school. There she said the appellant pushed JMOS to the ground. (count 7). 22   The other male, she said, held her around the waist. The appellant said to her “You got raped the first time bitch, I’ll show you what rape really is”. 23   JMOS she said went towards the High School for help. While she was away, KLD said, the unidentified man pushed her to the ground onto her back and pinned her hands above her head. The appellant she said, undid his trousers, pulled her pants down and said “Remember if you go to court where your undies are; they’re below your knees and above your ankles”. This she understood to be a reference to her confusion when giving evidence at the committal, a week earlier. The appellant having spoken these words, placed himself on top of her and inserted his penis in her vagina for “less than a minute”. When he withdrew, she felt sore and wet. 24   According to her version of events, the appellant stood up and redressed himself. He then walked over to the other man and said “go on, its your turn”. That man was somewhat hesitant, but at the appellant’s urging, he also had intercourse with her. After doing so the appellant told him to hold KLD down again. The appellant again penetrated her in a way that was rougher and more painful. Her back she said was scratched against the cement on which she was lying. KLD said that these events occurred over the three or four minutes while JMOS was away. 25   As the appellant pulled his pants up, KLD heard JMOS call her from about 5 metres away. The two men ran off, leaving her on the ground with her pants still down. Her clothing, she said, was wet and she had mud on her pants and on the back of her shirt. 26   KLD and JMOS then walked back together to the disco where they remained until it finished. No complaint was made to any teacher or to any friend that night. Two friends, however, questioned her as to what was wrong and took her to the toilets for a drink of water. One of them took her to Ms Carrodus, a teacher. Although she also asked what was wrong, no complaint was made by KLD that night either to Miss Carrodus, or to her mother, who picked her up from the disco. 27   The first occasion on which any details were provided of these alleged further events was in a statement made to police, on 22 August 1997, which was expanded in a later statement, made on 4 May 1998. In the first statement, there was no mention of the second male having had intercourse with her, nor was there any mention of the appellant having intercourse with her for a second time, ie following the other man. 28   KLD did not see a doctor after these events, but she was referred to a community nurse for pregnancy and chlamydia tests, three or four days later. 29   Rebecca Hall gave evidence of attending the school disco and of seeing JMOS being removed because of her drunkenness. JMOS, she said, was falling over everything and could not walk properly, when she saw her. Later that night she saw KLD in a distressed state. She appeared to have been crying, her back and arms had wet patches and her shirt was untucked. No complaint of having been sexually assaulted was however made to her. Later in the night KLD seemed to have settled down and was observed to be dancing. After leaving the disco she noted that there were wet patches and mud on the back of KLD’s trousers. 30   The complainant’s mother gave evidence of driving her daughter and several other girls to the disco, and of picking up KLD and Ms Hall at about 10pm. She said that, at that stage, KLD was dishevelled, her clothes were damp and she looked as if she had been crying and avoiding eye contact with her. She assumed that the girls had been drinking. When she later asked KLD “what was going on?” she received the reply “nothing”. Three unusual incidents stood out in her mind - namely that KLD sat in the back of the car on the way home; that on the following morning she got up early and placed her clothes in the washing machine; and that she found the buttons of the shirt which KLD had been wearing that night to have become loose. 31   Ms Carrodus, a teacher at the school, gave evidence of having been rostered to supervise the disco. At about 7.40pm. she was approached by KLD who appeared to be hysterical and upset about a friend of hers, who she thought was going to be in trouble. She noticed that KLD had wet hair and clothing. After speaking to her she went outside with another teacher to look for JMOS. Although she did not find JMOS she learned that someone else had taken her back to the foyer. She then waited with JMOS for some time before she was removed by the police. JMOS, she said, was wet and drunk, and made several attempts to leave the foyer and to go back into the hall where the disco was. She had to be restrained. 32   At about 8.45pm Rebecca Hall informed her that KLD wished to speak to her. She appeared even wetter than before, and her clothing was muddy. She was obviously upset and rambled about what had occurred that night in relation to JMOS. Ms Carrodus said that she gave her short thrift because it had been a trying night and KLD was rambling. 33   JMOS confirmed attending the disco even though, at the time, she was subject to suspension from the school. She was joined by several friends in the ‘weather shed’ where she and KLD consumed some Scotch whisky. She confirmed that at this time she was “quite drunk … not walking properly, and was very giggly and out of control”. She fell over a number of times. KLD, she said, was also intoxicated. After she was taken home by police she walked back to the school, meeting KLD on the way, at Johnson’s tuckshop. KLD was, at that point, already crying. As the night went on, she said that she “got better”, presumably as the effects of alcohol wore off. 34   They each noticed the appellant and another man following them. She said that when these men caught up with them, one of them, who she “believed” was the appellant, pushed her onto the ground where she fell half into the mud and half onto the concrete. KLD she said was dragged into the school. 35   She saw that the other man had hold of KLD around the waist. KLD was yelling and struggling and being pulled further into the school grounds. She said that she would go and get help. She made her way towards the disco but turned back when she heard KLD swearing and yelling. She also said that she did not get very far because her ankle had twisted when she was pushed over, and was sore. 36   When she got back she saw KLD lying on the ground with the appellant standing at her feet, and the other man sitting or kneeling behind her head. KLD’s pants were down past her knees and she was crying. The appellant pulled up his pants and the two men ran off. She and KLD returned to the disco and then parted company. There was, on her account, no discussion at this point as to what had occurred or as to what action they should take. She said that apart from the twisted ankle, she had a bruise on her leg and sore elbows. 37   JMOS agreed that she did not tell her parents, or any person in authority, what had happened to her or to KLD, until she gave her statement to police on 25 August 1997, at their request. 38   Melissa Stapleton and Nicole Murray each gave evidence of seeing KLD at the disco, at a time (about 9.30pm) when she appeared to be upset, and to have wet hair and clothes. They took her to the toilets to give her a drink of water. KLD said that she wanted to see Ms Carrodus, the disco supervisor. There was no specific mention to either of them as to what was troubling her. Nicole Murray said that KLD was unable to talk straight, and she noticed that her speech was “kind of slurred”. 39   On 28 August 1997 Detective Blanchard endeavoured to speak to the appellant in relation to this further series of allegations. When informed of the additional complaints he said “What, the first time behind the Entertainment Centre, and now at the primary school. I’m going to take this all the way, whatever it takes, I know what I’ve done and what I haven’t”. The appellant, after seeing his solicitor, refused to be interviewed. He was then charged with the offences that comprise the remaining counts in the indictment. 40   Inquiries by police failed to identify the second man alleged to have been involved in these events. Neither KLD or JMOS were able to identify anyone from an array of photographs shown to them, that included one possible suspect, named by JMOS who consented to his photograph being included in the display. 41   In giving evidence in relation to this night, the appellant denied having been present in the vicinity of the school. He could not, however, recall where he had been. He denied having sexual intercourse with the appellant or having pushed JMOS. He said that he had never seen the latter girl before sighting her outside the court during the week of the trial. 42   The jury acquitted the appellant of the common assault charge (count 7) but found him guilty of the offence of aggravated sexual assault. (count 5)

The Remarks of the Trial Judge

43   The seven counts were tried together because the complainant’s evidence was suggestive of the second night’s events having been incited by the fact of her earlier complaint, and of having been a form of revenge attack; and also by reference to the cross examination at committal where she had been challenged as to the position of her underpants when subjected to intercourse on the first occasion. 44   When sentencing the appellant, the learned trial judge (Shillington DCJ) expressed considerable disquiet at the outcome, observing that he had “profound misgivings” about the verdicts that had been returned. His Honour continued:

“First of all, I remark that I found the evidence of the complainant and the principal prosecution witness, Janice O’Shea, to be unimpressive. I also heard evidence from the prisoner and in that case my impression which I think is confirmed by the pre-sentence report which is before me, of him was that he is a straightforward uncomplicated young man and he struck me as an honest witness. I note he has no previous convictions.
If I had the power I would have dismissed all charges on the basis that the Crown’s evidence was in my view unsafe and unsatisfactory. I do not have that power, but clearly, in my view, it is incumbent upon me to express the views I have been being the presiding Judge and having the opportunity of seeing the witnesses during the trial.
Without detailing all my reasons I point to some matters which were of, in my view, significance. With regard to the events on 3 December I make the following comments. As I have already said the allegation is that this series of incidents occurred at the back of the amusement parlour in a car parking area which was open to the public. It was the evidence of [MKG], who was present, that she was in the area basically for the whole period but did go down a ramp at one stage.
The complainant’s evidence is that this girl (MGK) went into the amusement parlour and was away for some time and it was during that time that these events occurred, that is, two incidents of assault with acts of indecency, touching on the groin and touching on the breast and at a later stage an act of sexual intercourse committed by the prisoner upon the complainant.
It is to be noted that Ms (NS) who was in a car immediately adjacent to the area which the complainant said this latter incident occurred gave no evidence of anything of that type occurring. It is of significance, of course, that in respect to that later charge of sexual intercourse without consent that the jury returned a verdict of not guilty.
With regard to the incidents on 7 August, although the complainant’s evidence was of a series of serious sexual offences occurring no complaint was made of them until 22 August.
The evidence is in the crown’s case that the complainant went back to the disco very shortly afterwards. She made no complaint to any friend or more significantly to any teacher at the scene. She did have a discussion with one of the teachers, Ms Carodus, but she spoke about other things and the impression one had from that witness was to use the witness’s words “She gave her short thrift” and I am quoting from page 227 of the stranscript.
Clearly, in my view, the evidence of Ms O’Shea was not accepted by the jury as a corroborative witness to the incidents of 7 August, in view of the not guilty verdicts to count 7. She said that she left immediately after an approach by the prisoner and another unidentified person to go and get help at the disco which was a short distance away. She said that when she heard the complainant calling out, she then went back. When she returned she saw nothing more than the men there were adjusting their clothing. It was the allegation of the complainant that three acts of sexual intercourse occurred during this very short period. The two young women then apparently returned to the disco, as I have said, nothing of any kind was said by either of them about what allegedly occurred.
It is also of significance that the complainant, in her statements gave quite different accounts as to what happened, and in particular, the latter statement of 22 August in which she said that there was, in fact, two acts of intercourse by the prisoner and also an act by the other unidentified person. That was not the contents of the original statement. So, as I say without going into all the detail of the matter I was left with a feeling of unease having considered those aspects of the evidence.
I also remark that the jury’s verdicts in my view are inexplicable when considered in general terms. I make that remark bearing in mind the submissions which have been put to me by the Crown. Although there was no corroboration of the events of 3 December 1996, the jury found the accused guilty on the first and second counts of the indictment but not guilty on the major charge of sexual intercourse without consent and that, of course, comprised the third count in the indictment and the alternative fourth count. That would seem to have cast very substantial doubt upon the acceptance of the evidence of the complainant in light of those verdicts.
With regard to the events of 7 August 1997, the only corroborative evidence comes from Ms O’Shea to which I have already referred and, in my view, quite clearly her account was not accepted on the basis that the charge of assault upon her resulted in a verdict of not guilty by the jury.”
Verdicts unreasonable or incapable of being supported having regard to the evidence.

45 The basis for the appeal depends upon the appellant bringing himself within S6(1) of the Criminal Appeal Act 1912. The relevant ground is now to be considered in accordance with the decisions in M v The Queen (1994) 181 CLR 487 at 493; Jones v The Queen (1997) 191 CLR 439 at 450-451; Gipp v The Queen (1998) 72 ALJR 101; Fleming (1998)158 ALR 379; and Giam (1999) 104 A Crim R 426. 46 Reliance is placed upon the proposition that the verdicts were inconsistent; and upon the further proposition that, after making its own independent assessment of the nature and quality of the evidence, and giving due respect to the advantage of the jury in seeing and hearing the witnesses, this Court would come to the conclusion that the jury ought to have entertained a reasonable doubt as to the guilt of the appellant in relation to the counts in respect of which guilty verdicts were recorded. 47 My assessment of the evidence leads me to precisely the same conclusion as that reached by Shillington DCJ. This Court is not bound to act in accordance with opinions expressed by trial judges as to whether they would or would not have found an accused person guilty, upon the evidence led in the trial, since that would be to risk compromising the system of trial by jury. Nevertheless, the Court should give careful attention to such views, particularly when they are expressed by a trial judge having the depth of experience which his Honour, in the present case, possessed. 48 In summary, the matters of disquiet relating to the prosecution evidence, include, so far as the 3 December are concerned, the following matters:

a) the fact that in contrast to KLD, neither MGK or NS observed any conduct that could have constituted a sexual assault or act of indecency, or a sexually provocative comment on the part of the appellant;

b) the suggestion that the assaults occurred within the very brief period of 30 seconds to one minute that MGK walked down the ramp;

c) the proposition that the acts alleged, involving not just acts of indecent touching, but also penile/vaginal intercourse, occurred in a very public place, that was also proximate to the place where KLD’s mother worked;

d) The absence of an immediate complaint to the friends of KLD or to her mother, and of any discussion between them as to her appearance of distress;

e) The fact that the only “complaint” that MGK heard coming from KLD was voiced in a laughing tone;

f) the sworn denial by the appellant whose evidence remained unblemished after cross examination;

g) the absence of any positive corroboration of the prosecution case, other than the appearance of distress, which may also have been attributable to the somewhat greater interest that the appellant appeared to be showing towards MKG, or to his somewhat brusque instruction to KLD to get off his car.

49   As was pointed out in Gillard NSWCCA 29 October 1976 evidence of distress can constitute support or corroboration, but only in exceptional circumstances and then only subject to a warning as to the limited weight to be attached to it. 50   So far as the 7th August counts were concerned, the matters of disquiet, in relation to the prosecution case, concern the following:

a) the fact that each of KLD and JMOS were affected by alcohol, the latter more so than the former;

b) the fact that KLD was seen by several people to be wet, dishevelled and distressed well before the time of the alleged assaults;

c) the absence of any immediate complaint to the friends of KLD who saw her distressed later in the evening, or to her mother or to the teacher to whom she spoke at that time;

d) the fact that, in speaking to the teacher, her concern seemed to have more to do with JMOS’ plight than it did with anything involving herself;

e) the fact that KLD appeared to be happier and to be dancing later in the evening;

f) the significant enlargement of her statement, eight months after first speaking to police, to include a second act of sexual intercourse by the appellant and a similar act by another unidentified man;

g) the circumstance that, if KLD was to be believed, there were three separate acts of penal/vaginal intercourse involving ejaculation, during the very short period of a minute or so while JMOS went for help, none of which acts JMOS saw;

h) the somewhat surprising proposition that a man facing trial for an alleged sexual assault would, within a week or so of committal, repeat such an act in the presence not only of a friend of KLD but also in the presence of an unidentified friend and encourage him to similarly participate in the serious criminality involved.

51   As was observed by Mason CJ, Deane and Toohey J in M:

“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 (see Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505;511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. ( Chamberlain v The Queen [No 2] (1984) 153 CLR at 621)

Later their Honours observed:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experience by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. ( Chamberlain v The Queen [No 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444).

52   Having regard to the matters earlier identified, and leaving aside entirely, for the moment, the different verdicts, the evidence in the prosecution case seems to me to have been significantly tainted or otherwise lacking in probative force. The doubts that I entertain based upon it are of such a kind and exist to such a degree that I am unable to see how they could be explained by any advantage, which the jury may have possessed in seeing and hearing the witnesses who were called. Upon this basis alone I would be minded to allow the appeal. If any residual question remains in that regard, then it is in my view entirely removed by the circumstance of the different verdicts returned in relation to the two sets of alleged events. 53   In Jones, the High Court had occasion to consider the impact of the return of a verdict of not guilty in respect to some only of the counts in an indictment, and the return of verdicts of guilty in relation to other counts in the indictment (at 453 to 455). 54   There have been a number of appeals in which this decision has been considered, in relation to cases of conflicting verdicts, where the prosecution case depended as it did in the present matter, essentially upon the evidence of the complainant. Some of these appeals were conveniently reviewed in R v RAT [2000] 111 A Crim R 360. They included Wells NSWCCA 17 June 1998; James [1999] NSWCCA 191, Meala [1999] NSWCCA 388, and W (1999) 109 A Crim R 51. 55 Dunford J in RAT noted:

“…The matter of inconsistent verdicts was recently considered by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 365 to 368, where the majority (Gaudron, Gummow and Kirby JJ) pointed out that regard must be had to the jury as the "constitutional" tribunal for resolving disputed factual questions and the court's reluctance to undermine jury verdicts or to infer from them that the jury, drawn from the community, have done otherwise than their duty. On the other hand where doubt is cast upon a verdict because logically it cannot stand together with another verdict, the appellate court must decide whether the conviction based upon the verdict which is impugned is unsafe and unsatisfactory (or to use the terminology now current whether such verdict cannot be supported and/or is unreasonable, having regard to the evidence: Fleming v The Queen [ 1998] HCA 68, 158 ALR 379, R v Giam [1999] NSWCCA 53).

22 In dealing with inconsistency alleged to arise from different verdicts on different counts in the same originating process the majority approved the test laid down by Devlin J in R v Stone (unreported - 13 December 1954), followed in R v Hunt [1968] 2 QB 433, and went on to say that if there was a proper way by which the verdicts could be reconciled, allowing the conclusion that the jury performed their functions as required, that conclusion will generally be accepted; and if there is some evidence to support the verdict(s) 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. Their Honours went on (at 367):

"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 appellant court may conclude that the jury took a "merciful" view of the facts upon one count; a function which has always been open to, and exercised by, juries,"
and they referred with approval to the remarks by King CJ in R v Kirkman (1987) 44 SASR 591 at 593.

23 Finally they referred to the cases where different verdicts represent an affront to logic and common sense which is unacceptable and strongly suggests a compromise by the jury or confusion or a misunderstanding of their function, and said that it is only where the inconsistency rises to the point that the appellate court considers that the intervention necessary to prevent a possible injustice that the relevant conviction(s) will be set aside.”

56   His Honour then considered the line of decisions mentioned in which (save for Whitmore) an application of the Jones principle had led to convictions being quashed and verdicts of acquittal entered. In summary those decisions give recognition to the circumstance that, where in sexual assault cases with multiple counts involving a single complainant and a single accused, the only direct evidence of the commission of the offences is that of the complainant, then acquittal on any one of the charges will in the absence of an acceptable explanation, normally require acquittal on the remainder. 57   This follows from the circumstance that, in such a case, the rejection of the complainant’s evidence will involve a diminution in his or her overall credibility which cannot be overcome, in the absence of some circumstance that might restore that credibility for the other counts. This requires identification of some fact or surrounding circumstance that would provide a rational basis for accepting the complainant’s evidence upon the other counts, ie something which would justify the conclusion that the evidence, on those other counts, was more reliable, or stronger, than it was for the count upon which it was rejected. 58   The proper application of these principles was again considered by this Court in its very recent decision of R v Whitehead [2000] NSWCCA 400, a matter bearing some similarity to the present so far as the jury saw fit to convict the appellant, upon the uncorroborated evidence of the complainant, in relation to some but not all counts in the indictment. The appeal was allowed by reason of the court’s conclusion that:

“Once the jury found that the evidence of the complainant lacked sufficient cogency to convict on the fifth count, the Crown case on the first and fourth counts wore a different complexion. For it meant that when the complainant’s evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. Such an analysis relies, of course, upon views expressed by the majority of the High Court (Gaudron, McHugh and Gummow JJ) in Jones at 454-455.”

59   These remarks are apposite for the present case, having regard to the matters already identified as potentially weakening the strength of the prosecution case, and in particular having regard to the lack of direct corroboration by those witnesses who might have been expected to have seen the serious sexual misconduct which the complainant described. I am not able to identify any logical explanation for the different verdicts; nor am I able to see anything that may have elevated the credibility of the evidence in relation to the counts for which guilty verdicts were returned. 60   Once the jury were left in the position, in relation to the 3 December counts, that they were unable to accept the complainant’s explicit evidence concerning the alleged act of sexual intercourse, it is impossible to understand why they chose to accept it in relation to the indecent assault counts. There was nothing in the complainant’s evidence, or in the surrounding circumstances which provided any proper basis for supposing that her evidence was any more reliable in relation to those counts than it was in relation to the counts alleging sexual intercourse. 61   Similarly, in relation to the 7 August counts, there is nothing in the complainant’s evidence, or in the surrounding circumstances, which provides a reason for supposing that her uncorroborated evidence was any more reliable in relation to the serious acts of sexual intercourse that were alleged, than it was in relation to the less serious count of assault of JMOS, where it did have some corroboration (from JMOS). 62   Moreover, if it were the case that the jury elected to return merciful as distinct from compromise verdicts it is difficult to understand why it chose to acquit on both of the two sexual intercourse charges in relation to 3 December including the back-up charge, and then to convict in relation to the more serious of the charges referable to 7 August. 63   I am, accordingly, persuaded that the appeals against conviction should be allowed, the convictions and sentences set aside and verdicts of acquittal substituted. 64   O’KEEFE J: I agree with Wood CJ at CL. 65   CARRUTHERS AJ: I also agree with Wood CJ at CL.

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