R v Corbett - [2002] NSWCCA 137

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Corbett [2002] NSWCCA 137

FILE NUMBER(S):
60086/01

HEARING DATE(S): 8 February 2002

JUDGMENT DATE: 19/04/2002

PARTIES:
Regina
v
William George Corbett

JUDGMENT OF: Handley JA Sully J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 00/21/0193

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
Crown - P G Ingram
Appellant - J S Stratton

SOLICITORS:
Crown - S E O'Connor
Appellant - D J Humphreys

CATCHWORDS:
JURY - VERDICTS - WHETHER INCONSISTENT - WHETHER UNSAFE AND UNSATISFACTORY

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)

DECISION:
Appeal against conviction on count 1 upheld; Conviction and sentence on count 1 quashed; Verdict of acquital entered; Appeal against conviction on counts 5 and 6 dismissed. Appellant resentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60086/01 DC 00/21/0193
HANDLEY JA
SULLY J
SMART AJ
19 April 2002
REGINAv WILLIAM GEORGE CORBETT

Judgment

HANDLEY JA: The appellant stood trial before Luland DCJ and a jury on 20 November 2000 on an indictment containing seven counts of sexual misconduct with an under age female which was amended on 23 November. The first count charged the appellant with indecent assault on the complainant, a female who was then under the age of 16, at Guildford between 31 July 1969 and 1 March 1970. The second to the sixth counts charged him with having carnal knowledge of the complainant between 31 July 1971 and 31 July 1973, between 31 July 1971 and 31 July 1973, between 1 January 1972 and 31 December 1972, between 1 January 1972 and 31 December 1972, and between 31 July 1972 and 31 December 1972, and the seventh with indecent assault between 31 July 1974 and 31 July 1976. The last six counts charged the offences as having occurred at Granville.
The complainant’s evidence was that the first offence occurred at her aunt’s home at Guildford, and the others at her parents’ home at Granville.
The jury convicted the appellant on count 1 (indecent assault) and counts 5 and 6 (carnal knowledge) and acquitted him on the rest. On 21 February 2001 the trial Judge sentenced the appellant to a fixed term of 18 months on the first count to commence that day and expire on 21 February 2002, and to concurrent terms of 4 years on counts 4 and 5 to commence on 21 February 2001 and expire on 28 February 2005 with a non parole period of 2 years.
The trial Judge granted a certificate under s 5(1)(b) of the Criminal Appeal Act that this was a fit case for an appeal on the ground that the verdicts appeared to be inconsistent. After this appeal was filed, the Judge admitted the appellant to bail pending the hearing of the appeal.
The earliest of the charges related to events alleged to have occurred over 30 years before the trial when the complainant was only 4. The last of the charges related to events alleged to have occurred more than 24 years before the trial when the complainant was 11 or younger.
The complainant had made no verbal complaint to anyone before October 1989. She then complained to a girlfriend about what had happened to her on the occasion that became the subject of the first count. There was no complaint to the police until 1997.
There was evidence of conduct by the complainant during her childhood that might have been construed as a non verbal complaint, although it was not relied on as such, and it could not be related to any particular conduct of the appellant. The complainant gave evidence that prior to the occasion which was the subject of the third count, when her mother was going out for the evening leaving her at home with the appellant as her babysitter, she screamed and begged her mother not to leave her with the appellant (T 11 21/11/00). Her mother gave evidence that on occasions when she went out leaving the complainant with the appellant, her daughter would cry and ask her not to go out but never said why (T 40/41 22/11/00). The mother never asked her daughter why she did not wish to be left alone with the appellant.
About 6 months after the events the subject of the seventh count, and after the complainant had been removed from the former matrimonial home at Granville, the appellant visited the complainant and her mother at their new home. He was having a beer with the complainant’s mother when the complainant (according to her evidence), angry that the appellant was there, surreptitiously poured perfume into his can of beer. He became ill after drinking the contents and had to be taken away by ambulance.
According to the complainant, the appellant told her mother that the complainant had tried to poison him, but she told him he was being stupid. The complainant said she told her mother that the appellant was lying (T 25 21/11/00). The mother remembered the occasion and said that the complainant told her she had tried to poison the appellant, but she did not believe this (T43 22/11/00).
There was no corroboration of the complainant’s evidence about the essential elements of the offences charged, although there was corroboration about some of the incidental details. The appellant denied the charges in his record of interview and gave evidence at the trial but made no significant admissions. In his electronically recorded record of interview, which was played to the jury, the appellant said that the complainant had made sexual advances to him as a young girl which he described, but he had rebuffed them. He said in his evidence-in-chief that in giving his answers to the police he was doing his best to be accurate and truthful. He was challenged in cross-examination about his statements in the record of interview that the complainant made sexual advances to him when she was a child.
The principal submission for the appellant was that the verdicts were inconsistent, and the verdicts of guilty could not be allowed to stand. The relevant principles were reviewed by this Court in its recent 5 Judge decision in R v Markuleski (2001) 52 NSWLR 82. The basic question for the appellate court is that stated in Mackenzie v The Queen (1996) 190 CLR 348. The test is one of logic and reasonableness (366), and (367):
“… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”.
However, the joint judgment in Jones v The Queen (1997) 191 CLR 439, 453, 455 emphasised the significance of an acquittal on one count for the credibility of the complainant’s evidence on other counts. The Judges said at 453:
“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count … It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count”.
The question for this Court is whether there is a proper way by which the verdicts may be reconciled, having regard to the tests of logic and reasonableness, and giving proper consideration to the effect which the jury’s rejection of the complainant’s evidence on some counts should have had on their consideration of her evidence on other counts.
Counsel for the Crown undertook the task of demonstrating how the verdicts could be reconciled. He placed considerable reliance on a question which the jury asked the trial Judge on the morning of 24 November, the summing-up having been completed at 12.50 pm the previous day. The question was: “Whether we can change a charge to indecent assault?” This could only relate to the counts for carnal knowledge, counts 2 to 6, in the indictment. The Judge gave the jury the following answer:
“The short answer is no you can’t, the Crown has charged the charges that are on the indictment and let me just emphasise to you this that if you have a doubt about … any of the ingredients of the charge you are considering, then you’re duty bound to acquit the accused. So there’s no question of changing it to other charges, you’re dealing with the charges before you and that’s the high onus that the Crown has in respect of those particular counts”.
The jury could only have asked this question if they accepted, or were inclined to accept, the general credibility and reliability of the complainant’s evidence that there had been inappropriate sexual contact, but they were in doubt about her evidence that carnal knowledge had occurred. There was a substantial basis for that view in the complainant’s evidence relevant to the second count which charged the appellant with carnal knowledge of her when she was aged 6 or 7. According to her evidence, the offence occurred while the appellant was supporting her in the water in the public swimming pool at Granville. It was daylight at the time and there were other people in the pool and on the surrounding pavement. The complainant said that she felt pain but did not bleed. She was wearing a 2-piece bathing suit and the appellant was helping her to float on her belly. The appellant said he went to the pool with the complainant once and that he was trying to teach her to swim (T 61 22/11/00).
The Judge said with reference to this count in his summing-up (T 23 23/11/00):
“… the first one at the pool, that he had intercourse with her in those, what you might think to be, most unusual circumstances, but the complainant said that is how it did happen. The most the accused can say is well yes I did go to the pool with her. I do remember her floating on her belly but I did not have anything to do with any sexual act … I did not do such a thing, and you might have thought he was saying why on earth would you be doing such a thing in such public circumstances”.
The jury could well have thought that the appellant had indecently assaulted the complainant, but they were certainly entitled to have a reasonable doubt, to say the least, on the issue of carnal knowledge.
Mr Stratton for the appellant submitted that any reliance by the Court on the jury’s question involved impermissible speculation and that there was no basis in the evidence for a finding that the acquittal on this count could be reconciled with the convictions. I do not agree. In my judgment the test of logic and reasonableness is satisfied in relation to the acquittal on Count 2.
The evidence of the complainant on the carnal knowledge counts 3 and 4 on which the appellant was acquitted did not provide any basis for a finding that an indecent assault occurred without carnal knowledge on the occasions in question. During her evidence-in-chief relevant to count 3 the complainant first asserted that this incident occurred when the appellant told her to lie down on a couch in the lounge room (T 13 21/11/00). She then said that this incident occurred when she sat on the lap of the appellant with her back to him in a chair (T 13-14). She added in response to questions from the trial Judge that she had initially been mistaken when she said that this was the occasion when the appellant had intercourse with her on the lounge. However, in cross-examination, she was referred to a copy of her statement to the police where she said that this incident occurred on the lounge, and she said that the contents of her statement were right (T 43-46 21/11/00).
She said that these errors occurred through faulty recollection and confusion and that she had confused the events relevant to this count with what she referred to as “the second one” (T 46 21/11/00). In her evidence-in-chief relevant to the fourth count the complainant said that that incident occurred when the appellant sat on a chair in the lounge room while she was sitting on his lap (T 15-16 21/11/00). In cross-examination she was asked about the incident the subject of the third count, which was referred to as “the first occasion … at Waratah Street” (T 43 21/11/00). In these circumstances the complainant’s reference to “the second one” shortly afterwards (T 46 21/11/00) was a reference to the incident the subject of count 4, and the jury can be expected to have understood this.
The complainant’s evidence-in-chief in relation to the fourth count has already been referred to. Her mother had gone out but her father remained at home drinking. The incident occurred after he had passed out seated at the kitchen table. She said in chief that after sexual intercourse on the chair had finished, the appellant asked her to accompany him to the toilet where he wanted her to watch him masturbate and she did so and did not see her father again that night (T 16 21/11/00). However in cross-examination she said that after intercourse had ceased on the chair she had gone to the kitchen to check if her father was awake while the appellant went outside to the toilet and she had gone to bed without seeing the appellant again. She agreed that she had not told the police that the appellant asked her to go out to the toilet and watch him masturbate or that she had done so (T 7-10 22/11/00). When pressed about the inconsistencies in her evidence about the accused masturbating, she said she was “confusing everything” (T 10 22/11/00).
In his summing-up, the Judge directed the jury that they had to consider each count separately and that it did not follow that because they found one way in respect of one matter “that you must necessarily [find] the same way in respect of the others” (1-2). He also gave them the usual direction that they could accept some things a witness says and yet reject other parts (10). He told the jury that unless they accepted the complainant about the acts in question, they could not convict the accused and if they had a reasonable doubt about her evidence “in respect of the count you are considering”, then that would be the end of the matter, they would be duty bound to acquit (16).
The Crown had led evidence of other sexual contacts between the complainant and the appellant, and the Judge gave the usual direction about the use which could properly be made of this evidence. He said (20):
“It is certainly not evidence that you can use to substitute for the proof of these charges and you certainly cannot [say] that well if he did it on one occasion he must have done it on these other occasions”.
The Judge referred at some length to the inconsistencies in the complainant’s evidence, particularly with regard to the third count (24). He continued (25):
“Mr Parker [counsel for the accused] says … all an accused can do, and particularly after such a length of time, is to do his best, through his counsel, to look for any inconsistencies that may appear to say well how reliable is the evidence, how can you rely upon the mere fact of the statement that it occurred, and as he pointed out to you in most, if not all, of the cases he has been able to point to some inconsistency or other to say well how reliable is the complainant …
But those inconsistencies as relied upon by Mr Parker have all been pointed out to you as the facts relied upon by the Crown have been pointed out to you, and you might look very, very closely at those inconsistencies in determining whether you find that [the events] themselves [took] place, and particularly when you do have to scrutinise her evidence with such care, whether those inconsistencies reflect upon her in such a way as you are just not able to accept her to that very high standard that you have to accept her in respect of any or indeed all of these counts”.
He gave a specific direction in relation to inconsistencies in the complainant’s evidence about the third count saying (26):
“She certainly in respect of Count 3 said it happened in one way in one place … she has first of all said on the lounge chair, then went on to say it was on his lap and then it was pointed out to her that she said on the lounge chair so then she said oh yes that is right I remember that it is the way it was. Mr Parker says to you how could you be satisfied beyond reasonable doubt on the quality of evidence such as that, and certainly she is not supported in any way by other people”.
The confusion and inconsistencies in the complainant’s evidence directly relevant to Counts 3 and 4 was considerable. The jury, acting reasonably and in accordance with the Judge’s directions, particularly those in paragraphs 23 to 25, may well have had a reasonable doubt as to the reliability of her evidence on these counts while still accepting her as an honest and truthful witness. They could have accepted her evidence that acts of sexual misconduct occurred involving the appellant, without being satisfied beyond reasonable doubt that these particular acts of sexual misconduct occurred on these occasions as alleged. As a matter of logic and reasonableness, the verdicts of not guilty on Counts 3 and 4 can be reconciled with verdicts of guilty on other counts.
The seventh count, on which the appellant was acquitted, charged him with indecent assault. By the time this offence was alleged to have occurred, the complainant’s parents had separated, and the complainant and her brother were living with their father in the former matrimonial home in Granville. The complainant said that her parents separated when she was 10, that is in 1975, but her mother said that the separation occurred in 1977 when the complainant was 12 (T 46 22/11/00).
In her evidence the complainant said that on the evening in question her father had passed out drunk on the hallway floor and her brother was elsewhere in the house, and the appellant arrived while she was preparing dinner in the kitchen. He approached and began touching her in the breast area, on her bottom, and in the vagina area (T 23, 29-30 21/11/00). Nothing else had happened between her and the appellant (T 23) when her mother arrived with two adults (T 15 22/11/00). She collected the complainant and her brother and their belongings and took them back to where she was then living. This was the last time the complainant was in the house at Granville.
The complainant’s mother corroborated some of her daughter’s evidence about this occasion, but not her evidence about the indecent assault. However, in some respects her evidence was radically inconsistent with that of her daughter. She said that when she arrived at the house “my husband was on the floor out to it drunk, [the appellant] laying on a table drunk, he was asleep and my daughter was standing there cooking meat in the frypan and my son was running around the backyard playing”, the appellant “was asleep with his head on the table” (T 43 22/11/00). She confirmed this evidence in cross-examination (T 48). The Judge referred to this inconsistency between the evidence of the complainant and her mother in his summing-up (T 265-7):
“Mr Parker said it goes on to other factors and other features of inconsistency that would lead you to have grave doubts about any of the matters that she spoke of and in respect of the last event where she says that the accused just touched her and her mother had broken in to take her. The mother herself says that he was flat out on the kitchen table drunk when she came in so he must have gone from touching her to blacking out on the table almost instantly you might think on the two versions you got from mother and daughter, but it is a matter for you”.
Counsel for the Crown submitted that the acquittal on this count could be explained, consistently with the convictions, because the mother’s evidence placed the occasion in 1977, outside the period charged in the count between 31 July 1974 and 31 July 1976. This is a possible explanation, and the jury received general directions which may have led them to think that they should acquit on this count on that basis (1-2, 13-14). However the Judge did not specifically direct the jury to acquit if they accepted the mother’s evidence on the date, and counsel for the appellant did not seek such a direction.

In my judgment the most probable explanation for the acquittal on this count is that the jury either accepted the mother’s evidence that the appellant was asleep, apparently drunk, with his head on the kitchen table when she arrived, or they had a reasonable doubt about the complainant’s evidence that she was being molested at the time.
The acquittal on this count is significant because the complainant’s evidence on an important matter was contradicted by independent and apparently reliable evidence which cast real doubt on her evidence about the offence. The occasion was a dramatic and significant one for both the complainant and her mother, and one would think there was little scope for confusion with an incident earlier on the same day, or on another occasion. It was also the most recent of the offences charged when the complainant, according to her mother, was 12, and one would think that her memory was more reliable at that age than when she was younger.
The appellant was convicted on the first count of an indecent assault which occurred when the complainant was only 4. She had been taken by her parents to her aunt’s home at Guildford to be minded during the day. The appellant, the aunt’s son, was there and the complainant was left alone with him in the house. There was no corroboration for the complainant’s evidence concerning the indecent assault itself, but her mother did corroborate her evidence about the visit to her aunt’s home at Guildford because there was only one such visit (T 39 22/11/00).
The complainant said that while she was in her aunt’s house the appellant, who was then 20 years of age (T 57 22/11/00), put her on a bed and touched her in the vagina area. She blacked out and woke up to find that he was wiping her in that area with a wet cloth (T 5-6 21/11/00). In her evidence-in-chief she said that she thought she still had her panties on (T 7).
She said in her evidence-in-chief that she made her first complaint about her sexual abuse in childhood when she spoke to S, a female friend, in the early 1990s. S placed this conversation in October 1989 (T 36 22/11/00). According to the complainant she did not “go into details” (T 29). However, in cross-examination she agreed she told S that the abuse started when she was 4 (T 31), and that she could not remember if the account she gave S “about the incident at Guildford when [she] was 4, was that it involved a grown man having sexual intercourse with [her] including full sexual penetration”, but “I probably did. I don’t remember today if I said that, or if it really happened” (T 31-2, 36).
She said that she could remember S asking her the question “what, you were 4 years old and this man had full sex with you?”, but she denied that S was making it clear that she found this hard to believe (T 37), and she denied changing her account of this incident afterwards to make it easier to believe (T 37).
S, who was called by the Crown, gave the following evidence about a face to face conversation with the complainant in 1990 in the course of her cross-examination (T 37 22/11/00):
“Q.         Did you ask her a question and was the question that you asked [the complainant] a question in these terms ‘What, you were 4 years old and this grown man would have sex with you? He had full penetration with you?’.
A.           Yes.
Q.           And did [the complainant] answer that by saying ‘yes’?
A.           Yes”.
The complainant’s evidence in cross-examination revealed other, but minor, inconsistencies. Contrary to her evidence-in-chief (T 7 21/11/00) that she had her panties on, she first said that she didn’t remember, and then that she had them off (T 33 21/11/00), and that her earlier evidence was incorrect because she had been very nervous and so stressed that she couldn’t think straight. She also said that she thought the wet cloth the appellant used to wipe her was a face washer. However, in her statement to a woman police officer on 23 June 1997, she had merely said that the appellant was wiping her with “something” (T 34-6).
The Judge did not give any specific directions in relation to this count and did not refer, except in a general way, to the conflict between the complainant’s evidence and that given by S (T 25).
The jury were entitled, if they saw fit, to disregard the inconsistencies about the panties and the face cloth, but the conflict between the complainant and S was altogether a different matter. S’s evidence about the terms of the complaint made to her in 1990 were substantially corroborated by the complainant’s admissions about this conversation during her cross-examination. In these circumstances the jury acting reasonably were either bound to accept the evidence of S, or at the very least to have a reasonable doubt about the reliability of the complainant’s evidence in relation to this count.
If the complainant remembered in 1990 that full sexual penetration had occurred, how could she forget that later and, by 1997 and at the trial, only remember that she had blacked out? How credible was her complaint in 1990 that full sexual penetration had occurred? If it had occurred at that time, how could the complainant’s mother have failed to notice signs of this over the next few days while she was bathing and dressing her daughter? If S’s reaction made the complainant realise that she must have been mistaken in thinking that full sexual penetration had occurred, and she changed her story, how could the jury be satisfied that the new story told to others for the first time in 1997 was reliable?
These difficulties for the Crown case on this count were greatly aggravated by the complainant’s age at the time of the alleged offence, and the very long delays, of 21 years before the complaint to S, 28 years before the complaint to the police, and 31 years before the trial.
In my judgment the conflict, between the complaint made to S in 1990, and the complainant’s evidence at the trial, was such that the jury, acting reasonably, should have had a reasonable doubt about her evidence on this charge. In my judgment the verdict on this count was unsafe and unsatisfactory and must be set aside. However I can see no basis for a conclusion that the conviction on this count was inconsistent with the acquittals on the other counts. There was nothing in those acquittals which as a matter of logic and reasonableness was inconsistent with the conviction on this count.
There remain for consideration the convictions on the carnal knowledge counts 5 and 6. The complainant associated the events which were the subject of the fifth count with a hole being burned in her dressing gown. On the night in question her father had not returned from the hotel, and her mother had gone out leaving the complainant in the care of the appellant. In her evidence-in-chief she said that when she went to the toilet that evening she put some of her faeces on toilet paper which she wiped on the appellant. He called her “a little bitch” and went to the laundry to clean himself up.
She said that after he returned he began touching her sexually and this culminated in sexual intercourse. It was a winter’s night and when the complainant was getting undressed she threw her dressing gown onto a bar heater. When her father returned unexpectedly she grabbed her clothes, including her dressing gown, and ran to her bedroom where she got dressed and went to bed. When she retrieved her dressing gown she noticed that a hole had been burnt in it (T 16-19 21/11/00). She said the hole was burnt in the back of the gown (T 19).
In cross-examination she maintained her evidence that the heater was a bar radiator, and denied that it was a kerosene heater (T 11 22/11/00). She said that hole was in the back of the gown and not the front, but then conceded that in the Magistrate’s Court she had said that the hole was in the front of the gown (T 11), but in further cross-examination she agreed that earlier she had told the police that the hole was at the back (T 13).
The complainant’s mother remembered an occasion when her daughter’s dressing gown was burnt, but said that the hole was in the front (T 41-2 22/11/00). She said that the lounge room was not heated by a bar radiator, but by a kerosene heater (T 46). She did not ask her daughter to tell her how it was that the hole had been burnt in her dressing gown (T 42).
In his record of interview the appellant denied the faeces incident (Q 126-130), but recalled an occasion when he called the complainant “a little bitch” (Q 131). A question about his knowledge of the hole burnt in the dressing gown was asked but not answered at the end of a tape and the question was not asked again (Q 140).
The complainant said that she was about 7 at the time. Her evidence about this occasion was clear and consistent subject only to the differing accounts of where the hole had been burnt in the dressing gown and the type of heater which had caused the damage. The jury were entitled to treat the mother’s confirmation of the damage to the dressing gown as extremely significant and the differences as to the location of the damage and the type of heater as insignificant. Clearly the gown had been in contact with the heater, whatever it was, while the complainant was not wearing it. Why would she take off her dressing gown on a winter’s night in the lounge room, leave it on the heater in the first place, and then leave it there long enough for a substantial hole to be burnt in it?
The jury saw and heard the complainant and the appellant give evidence and in view of the significance of the damage to the complainant’s dressing gown they were, in my judgment, entitled to convict on this count despite the difficulties with the complainant’s evidence on counts 2, 3, 4, and 7 and their acquittals on those counts. As a matter of logic and reasonableness this conviction is not in my judgment inconsistent with those acquittals.
The complainant associated the events which were the subject of the sixth count with an occasion when the appellant gave her a blue backless dress which she became very fond of and wore a lot. Later on the evening of that day the complainant’s mother went out leaving her with the appellant. According to the complainant’s evidence when they were alone the appellant initiated sexual contact and this culminated in sexual intercourse. After this was over he went outside to the toilet. The complainant said she “snuck out” to see what he was doing and saw him masturbating on the toilet. She went back to the lounge and fell asleep. When her mother returned she was woken up and put to bed (T 19-21 21/11/00). This was the last occasion she remembered having intercourse with the appellant (T 13 22/11/00).
Her mother remembered the blue dress (T 42 22/11/00) and said that she had not bought it for her daughter, but she was not sure that the appellant had given it to her (T 42). The appellant in his record of interview denied giving her the blue dress (Q 146). The complainant’s evidence on this count was clear and consistent and she was not cross-examined about any prior inconsistent statement. The jury were entitled to be impressed with her evidence associating this occasion with the appellant’s gift of a blue dress. In my judgment the jury were also entitled to convict on this count, despite their acquittals on others. As a matter of logic and reasonableness this conviction is not inconsistent with the acquittals on other counts.
Moveover in my judgment the jury were entitled to take the view that the appellant’s statements in his record of interview about the complainant’s sexual advances to him by word and deed when she was a young child corroborated her evidence that a sexual relationship existed between them. The relevant answers are to questions 65, 88, 90, 91, 92, 95, 131, 132, 134, 215, 216, 218, 223, 224, 226 and 227. The jury were also entitled to treat as far fetched the appellant’s suggestions during his record of interview that the complainant had made these allegations against him because of a dispute between himself and her mother about rent. See the answers to questions 110 and 241. It is also significant that this suggestion was not put to the complainant in cross-examination.
For these reasons I would allow the appeal against conviction on count 1 and enter a verdict of acquittal but dismiss the appeal against conviction in relation to counts 5 and 6.
The trial Judge sentenced the appellant to a fixed term of 18 months on count 1, the indecent assault count on which the appellant was convicted, to commence on 21 February 2001 and expire on 20 August 2002. He sentenced the appellant on counts 5 and 6 to imprisonment for a term of 4 years to commence on 21 February 2001 and expire on 20 February 2005 with a non parole period of 2 years to expire on 20 February 2003. The setting aside of the conviction on the first count provides no basis for disturbing the jointly concurrent sentences imposed on counts 5 and 6. He received no additional effective sentence because of his conviction on this count, and in layman’s terms if it did not go up it should not come down.
I have had the benefit of reading the reasons for judgment of Smart AJ in draft form. His Honour favours allowing the appeal on sentence in respect of counts 5 and 6 and reducing the head sentences to 3 years and the non-parole period to fifteen months. I respectfully disagree. Any sentence of full time custody will bear heavily on this appellant and life has not been kind to him. However all the material referred to by Smart AJ was before the very experienced sentencing Judge, and with respect I can discern no error in his exercise of the sentencing discretion. The only change apart from the acquittal being entered by this Court on the first count is the lapse of time since the sentences were originally imposed on 21 February 2001 but this has not been unusual.
SULLY J: I have had the benefit of reading in draft the judgments of both Handley JA and Smart AJ.
As to the conviction appeal, I agree with Handley JA. On the matter of sentence I agree with Smart AJ.
I agree with the orders proposed by Smart AJ.
SMART AJ: This appeal has caused me some concern in view of the doubts entertained by the trial judge, namely:
"Each case depended upon the credibility of the victim and it is difficult to see why the jury convicted on counts 1, 5 and 6 and not the others. I do not believe the mother's evidence of support for the victim's supporting details were (sic) such as to make any difference on the totality of the evidence when one considers the jury's findings of not guilty in respect of the other matters."
The mother's supporting evidence as to counts 5 and 6 went to details that were not at the core of the case. Those as to count 5 were, however, of some importance. This was a memorable incident as the complainant in her anger, on her evidence, put faeces on some toilet paper which she wiped on the appellant. The complainant identified this as the occasion on which she removed her warm winter dressing gown (and pyjamas) and the appellant had vaginal intercourse with her. This was interrupted by her father's return. This was the occasion on which her dressing gown was burned. It was not unimportant that the mother confirmed that there was an occasion on which the dressing gown was burnt and that there was a heater in the lounge room.
As to count 6, the details of the alleged incident were quite memorable but not as memorable as those relating to count 5. The complainant said that after they had intercourse the appellant went to the toilet at the back of the house. She said that she "snuck out of the back door and I was peeking around the corner at him in the toilet" and saw him "masturbating on the toilet", the toilet door being open at that stage. She said that this was the last occasion on which she and the appellant had intercourse. She said that earlier in the evening he had given her a backless blue dress which had flowers upon it, and some earrings. She said that she loved the dress and wore it all the time. The complainant's mother confirmed that the complainant had a blue backless (or halter) dress. The mother said that she did not buy the dress and that she was not sure that the appellant gave it to her.
The jury must have found that the evidence of the complainant as to these incidents with the additional detail as to the surrounding circumstances was compelling. The evidence of the mother provided some support for the evidence of the complainant as to the surrounding circumstances. It was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on these counts. Such verdicts were not inconsistent verdicts: Jones v The Queen (1997) 191 CLR 439, R v Markuleski (2001) 52 NSWLR 82 and Mackenzie v The Queen (1996) 190 CLR 348. Further, they were reasonably supported by the evidence: Jones v The Queen (supra).
I agree with Handley JA for the reasons he gives that the appeal against conviction on count 1 should be allowed and that the appeal against conviction on counts 5 and 6 should be dismissed.
I have found the question of sentence troubling. The judge was bound to impose the correct sentence for each offence and then deal with questions of concurrency: Pearce v The Queen (1998) 194 CLR 610. Unless the three sentences were made concurrent to reflect the principle of totality, it is not easy to appreciate why they would otherwise be made concurrent. Count 1, the indecent assault was alleged to have occurred between 31 July 1969 and 1 March 1970, Counts 5 and 6 refer to separate incidents. The incident the subject of count 5 took place between 1 January 1972 and 31 December 1972 and during the middle part of that year. The incident the subject of Count 6 took place between 31 July 1972 and 31 December 1973 and later than the incident the subject of count 5.
In general my mind baulks at a result whereby an offender receives the same effective sentence for two offences as he did for three offences where it is held that the conviction on the third offence was not reasonably supported by the evidence. This is despite the fact that the sentence for each offence must be looked at individually. I accept that there may be cases where there ought to be no adjustment to the sentences where a conviction on one offence is set aside but the convictions on other offences remain and all sentences are concurrent. It is necessary to look at the facts in a little more detail.
The judge held that given the verdicts of acquittal on counts 2, 3, 4 and 7, one could not be satisfied in respect of the other alleged acts of sexual intercourse put before the jury as relationship evidence. Accordingly, he sentenced the appellant on the basis that the three acts upon which the appellant was convicted were isolated acts.
The appellant was born on 26 February 1949 and is a disability pensioner. The complainant was born on 31 July 1965. She and the appellant were first cousins. The offences were alleged to have occurred between 1969 and 1973. At the trial in November 2000 the offences were between 27 to 31 years old. The complainant did not tell anyone about the appellant's conduct until October 1989 when she complained to a girl friend. There was no complaint to the police until 1997. I regard an indecent assault on a four year old girl as a serious matter.
The appellant had no previous convictions.
The pre-sentence report and the medical reports reveal that the appellant was greatly disadvantaged as a child with few opportunities and is now a ravaged man in a parlous state.
As the judge found, the appellant was one of five children, raised in a very dysfunctional family. His father died of his alcoholism. He has had no contact with his mother or siblings for 10 years. He was introduced to alcohol at an early age. By the age of 17 he was binge drinking heavily. He continued to drink heavily until relatively recently. The judge made these further findings.
"He has lived mostly in boarding houses with other alcoholics and disturbed people. For the past eleven months he has resided in a boarding house managed by a retired nurse who seems to be benevolent and nurturing of the residents therein. The prisoner has, as a result, refrained from drinking in more recent times because he was nearly evicted because of his alcohol abuse.
The prisoner spends ninety nine per cent of his time in the premises and is seen on a weekly basis by his psychiatrist Dr Tompkins and receives medication from the doctor in what is called a bubble pack. The psychiatrist says that the prisoner's present living arrangements are the most suitable he has had for the past fifteen years that the doctor has been treating him. A report from the prisoner's general practitioner, Dr Rheinberger, details the prisoner's medical conditions as (1) chronic heart disease, (2) severe chronic disruptive airways disease complicated by heavy smoking, (3) hypertension, (4) asthma, (5) peptic ulcer, (6) severe obesity, (7) epilepsy. He is receiving a multitude of medical prescriptions.
It is said incarceration would have a major adverse effect upon the prisoner. His psychiatrist says that due to his mental state the prisoner should really be hospitalised but due to difficulty obtaining admissions for patients into such institutions, this cannot be arranged. I am very conscious of the great difficulty that the prisoner will experience in gaol. Nonetheless, the offences for which he has been convicted are extremely serious, even though they occurred a long time ago. Deterrence plays an important role and the courts have a duty to acknowledge the real community concern in respect of the molestation of children by adults. Children are entitled to grow up free from the risk of psychological upset, confusion and difficulties in later life caused by such conduct.
The present victim has been deprived of this entitlement as can be seen from the victim impact statement tendered on her behalf. The prisoner has shown no remorse for his proven conduct. He continues to assert his innocence. I have had regard to the prisoner's serious health problems but given the seriousness of the offences, I am satisfied that the only appropriate sentence is one of full time custody. The executive has a responsibility to provide proper care for the prisoner in custody. I recognise that due to the nature of the offence he will likely have to serve his sentence in some form of protective custody."

The Probation and Parole officer has written:
"In view of the opinions of people closely and professionally involved with [the appellant] (house manager and psychiatrist) he is unlikely to offend in a similar way again."
The house manager is a retired nurse.
Dr Tompkins, psychiatrist, who has treated the appellant since 1985 and sees him regularly, has written:
"He has required and continues to need a vast array of medication from his GP and various specialists to keep him alive and I have treated him with both psychotropic and anti-convulsant drugs. There is evidence he may also suffer from epilepsy, which has been attributed to brain damage, most likely due to alcohol and trauma. He has always been compliant with medication but apart from controlling any epilepsy his psychiatric illness has not improved very much despite intensive treatment.
Mr Corbett has suffered from mental illness for many years and has had numerous admissions to the Schedule V system (Public Psychiatric Hospitals) over many years. His condition since I have been caring for him has had a considerable number of occasions when he has experienced acute exacerbations which in my opinion warrant his admission to a psychiatric hospital but the difficulty experienced in obtaining admission for patients into such institutions these days has precluded my being able to arrange it.
Such admissions may well have assisted him in his overall prognosis but he has managed to just cope with his environment with not infrequent admissions to general hospitals when in an acute phase of illness, usually for cardiac breakdowns and self-neglect and overdose has occurred.
Depending on the particular place in which he were to be incarcerated, his attitude to both peers and staff, I feel, would immediately alienate him from both unless it was of the supportive type of institution such as a psychiatric hospital. Such alienation and his ongoing indifference to his own well being and his rare use of common sense particularly regarding his health and safety could have a very serious effect regarding his survival.
The condition from which he suffers is of a permanent nature regardless of the diagnosis; he has primarily presented as a personality disorder but on occasions does certainly appear to suffer from an undifferentiated psychotic illness resembling schizophrenia. In either case his illness has on occasions responded to medication while on other occasions acute exacerbations arise in spite of medication and ongoing psychiatric support.
Overall the prognosis for both his psychiatric illness and his longevity must be very guarded. With the not infrequent abuse he has inflicted on his body since I commenced attempting to treat him, I am surprised that he has survived this long. As stated, I have frequently told him his behaviour towards himself is suicidal."
It seems that the appellant does not possess the ability to look after himself to any appreciable extent. I think that the prospects of his surviving in gaol are not good, given his medical, physical and mental condition. The position now is even more difficult. He was convicted in November 2000 and sentenced in February 2001. He was released on bail because primarily the judge was troubled by what he regarded as the inconsistent verdicts. This Court is delivering judgment in April 2002.
Special circumstances exist. This is the appellant's first time in custody and he has grave health problems. The physical, mental and medical condition of the appellant, his precarious state of health and his sombre prospects of survival especially in prison and his acquittal on count 1 lead me to the conclusion that the sentences remaining are manifestly excessive. The circumstances mentioned are in combination exceptional.
I propose the following orders:
1.Appeal against conviction on count 1 upheld; conviction and sentence on count 1 quashed; verdict of acquittal entered.
2.Appeal against conviction on counts 5 and 6 dismissed.
3.Leave to appeal against sentence on counts 5 and 6 granted. Appeal allowed; sentences quashed. In lieu thereof the appellant is sentenced on each of counts 5 and 6 to concurrent terms of imprisonment of 3 years commencing on 19 April 2002 with a non-parole period of 15 months commencing on that day and ending on 18 July 2003 on which day the appellant is to be released on parole.
4.Direct that a copy of the Pre-sentence Report, the report of 30 January 2001 (wrongly dated 2002) of Dr Errol Tompkins and the report of 17 January 2001 of Dr Clause Reitberger and these reasons accompany the warrant of commitment.
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LAST UPDATED: 19/04/2002