R v Fuller

[2001] NSWCCA 390

CITATION:	R v Fuller [2001] NSWCCA 390
FILE NUMBER(S):	CCA 60782/00
HEARING DATE(S):	26 September 2001
JUDGMENT DATE:	26 September 2001
PARTIES :	Terrence James Fuller (Appellant) Regina (Respondent)
JUDGMENT OF:	Heydon JA at 1, 36; Wood CJ at CL at 34; Carruthers AJ at 35

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 00/31/0170
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL :	Mr P Segal (Appellant) Mr G E Smith (Respondent)
SOLICITORS:	H Schleiger & Associates (Appellant) S E O'Connor (Respondent)
CATCHWORDS:	Criminal Law - Sexual offences - Appeal against conviction of carnal knowledge of person under age of 16 years - Whether acquittal in relation to one count made conviction in relation to another count inconsistent and unreliable - Whether the verdicts could be reconciled - Criminal Practice and Procedure - Judicial directions - Sexual offences - "Kilby direction" - Whether trial judge's direction on complainant's credit having regard to delay was inadequate - Reduced impact of delay on credibility of complainant where another person witnessed matters pointing towards occurrence of offence
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Jones v R (1997) 191 CLR 439 R v Markuleski [2001] NSWCCA 290 MacKenzie v R (1996) 190 CLR 348 R v Doney (1988) 37 A Crim R 288 Donley v R (1990) 171 CLR 207
DECISION:	See para 36

IN THE COURT OF
CRIMINAL APPEAL

60782/00

HEYDON JA

WOOD CJ at CL

CARRUTHERS AJ

Wednesday, 26 September 2001


REGINA v Terrence James FULLER

Judgment

Background

The appellant was tried before Garling DCJ and a jury on 9-13 October 2000. Thirteen counts went to the jury. Counts 1-6 were allegations of six acts of sexual intercourse between the appellant and the complainant without consent at times when she was aged between 12 and 15. Counts 1A-6A were respectively alternatives to Counts 1-6 alleging, not sexual intercourse without consent, but carnal knowledge of a person under the age of 16 years contrary to various sections of the Crimes Act 1900 (NSW). Count 8 was an allegation of sexual intercourse without consent with a person under the age of 16 years. On 13 October 2000 the jury returned its verdicts. The accused was acquitted of all counts except Count 6A. On that count he was convicted, and he now appeals against his conviction on two grounds.

Ground 1: inconsistent verdict

2 Ground 1 was:

“The verdict in count 6A is inconsistent and unreasonable.”

3 The inconsistency relied on was a supposed inconsistency between the acquittal on Count 6 and the conviction on Count 6A. Count 6 was:

“In the months of June or July 1986 at Kempsey in the State of New South Wales [the appellant] did have sexual intercourse with Julie Ann DONNELLY without her consent and knowing that she was not consenting thereto, she then being 14 or 15 years old.”

Count 6A was:

“In the months of June or July 1986 at Kempsey in the State of New South Wales [the appellant] did have sexual intercourse with Julie Ann DONNELLY she then being 14 or 15 years old.”

4 The appellant was the de facto husband of Lynette Joy Donnelly, who was the sister of the complainant’s mother Karen May Murray. The complainant regarded the appellant as her uncle.

5 On Counts 6 and 6A, the complainant’s evidence in chief was that on occasion she stayed overnight at her aunt’s house.

“Q. Where would you sleep when you stayed overnight?
A. Sometimes in the loungeroom on the floor on a mattress and other times in my cousin’s bedroom.
Q. Can you remember any specific occasion, sleeping on the mattress in the loungeroom?
A. I do remember an occasion, yeah.
Q. Is this an occasion that something occurred or not?
A. Yes.
Q. Between you and the accused?
A. Yes.
Q. Can you say when it was?
A. Early morning, 4, 3 or 4 o’clock.
Q. In the morning?
A.. Yeah.
Q. Are you able to say how old you were?
A. I think I was 15 at the time, 14.
Q. You’d gone to sleep on the mattress at some time?
A. Yep.
Q. Do you know what time you went to sleep or you went to the mattress at least?
A. Around 10.
Q. What were you doing before you went to sleep?
A. We were watching videos.
Q. Who’s ‘we’?
A. My aunty Lynette, Terry and Ian Dufty.
Q. Who is Ian Dufty?
A. He was a friend of the accused and my aunty.
Q. Was he older or younger than you?
A. Older than me.
Q. How much older?
A. Five or six years I think.
Q. What, was he a regular visitor to the house or not?
A. He was.
Q. So you were watching videos?
A. Yep.
Q. In the loungeroom?
A. Yep.
Q. You’ve gone to the mattress to go to sleep I presume?
A. Yep.
Q. Who was in the loungeroom then?
A. I think my aunty had gone to bed and Terry used to sit up in the kitchen a lot, drinking coffee and reading books and stuff, I was alone I think in the loungeroom when I went to bed.
Q. What about Ian Dufty, do you know if he was still there?
A. I can’t recall if he was still there, I think he may have been.
Q. So you went to sleep?
A. Yes.
Q. And you were awoken?
A. Yes.
Q. When you woke up, what did you see?
A. Terry fuller on top of me.
Q. Was there a light on or not?
A. No there wasn’t a light on, but I knew it was him.
Q. Was there any light in the room at all?
A. No – oh actually yeah there was, the light from the TV.
Q. The TV was still on was it?
A. The TV was on but it was turned right down, it was just the light.
Q. How did you know it was Terry Fuller?
A.. I just knew it was him.
Q. You said – did you say he was on top of you?
A. Yes.
Q. Were you wearing any clothes when you went to bed?
A. Yes I was.
Q. What were you wearing?
A. A nightie and knickers I think.
Q. Did you notice anything about your clothing when you woke up?
A. It was pulled up and my knickers were down.
Q. You’ve indicated to the top part of your body, that’s your nightie is it?
A. Yeah.
Q. Nightie pulled up?
A. Yep.
Q. And your knickers were pulled down?
A. Yep.
Q. Do you know how that happened?
A. I think he done it, yeah before, before he got on top.
Q. You said he was on top of you, are you able to just tell the jury if you could, the position that he was in relation to you?
A. Yeah I was laying on my back and he was on top of me.
Q. Was he laying straight along the length of your body or --
A. Straight on top, yep.
Q. What was the situation with your legs?
A. They were open, he’d opened my legs, forced my legs open.
Q. Did anything happen after you woke up and you saw what was happening?
A. Yeah, he proceeded to have sex with me.
Q. Can you say what he did please?
A. He put his penis in my vagina and was there for like 5 minutes.
Q. What was he doing, was he moving or was he still or --
A. Yes, he was moving.
Q. Did you say anything after you woke up?
A. He had his hand on my mouth, I couldn’t talk.
Q. Did you try to or not?
A. Yeah I did, I knew my aunty was in the house at that time.
Q. What did you try to do?
A. I tried to make a noise but it didn’t work.
Q. You tried to what?
A. Tried to make a noise, but it never had any effect.
Q. You said this happened for how long?
A. 5 minutes.
Q. Did something happen then?
A. Yeah while he was still on top of me, I seen the light come on and heard the door open and my aunty was standing in the doorway and she just straight away attacked him, like ‘what are you doing.’
Q. Can you say what happened?
A. She asked him what he was doing.
Q. In what sort of voice did she say that?
A. She was angry, she knew straight away what was going on, what had happened, she was calling him names, she smacked his face.
Q. Are you able to remember what she said?
A. She called him a ‘dirty bastard’ and asked him what he was doing.
Q. When you saw the light go on, where was he?
A. Still on top of me.
Q. Had he taken his penis out of your vagina at that time?
A. He jumped off really quickly once he realised my aunty was standing in the doorway and told her he was just talking to me.
Q. I’m sorry I missed that?
A. He told her he was just talking to me.
Q. He said that he did he?
A. Yep.
Q. Did you aunt say anything after he said that?
A. She didn’t believe him, she --
Q. Can you say what she said?
A. She just called him a ‘dirty bastard’ and asked him what he was doing and he wouldn’t give her a straight answer and she was just that angry, she got in the car and left, it was then that she went down to my mum’s place.”

6 Five or ten minutes later her stepfather arrived and took her home. The complainant was also asked:

“Q. When the light came on, did you see the accused?
A. Yes.
Q. Where was he when the light came on?
A. On top of me.
Q. Which way was he facing?
A. My face.”

The complainant adhered to her evidence in cross-examination.

7 Mrs Donnelly’s evidence in chief about Counts 6 and 6A was as follows:

Q. That’s all right. Now Mrs Donnelly I’m going to ask you try and remember a particular night that Julie was at your house, staying overnight. Can you remember a particular occasion when something occurred?
A. Yes I do.
Q. Can you say, think of that time, when that was?
A. Yeah it was, it was in 86 and it was at, at the house.
Q. That’s at West Kempsey?
A.. Yes.
Q. Are you able to say what time in 86?
A. It was around June, July.
Q. Is there any reason you can nominate those months?
A. Yes, my son was about three months old.
Q. Which son was that?
A. Scott James Fuller.
Q. You said it was at the house?
(No verbal reply)
Q. Can you say what time of the day or night it was?
A. I recall going to bed around 12.30 that night.
Q. If I can just stop you there. When you went to bed who was in the house?
A. Julie and Terrence and Ian Dufty.
Q. Who’s Ian Dufty?
A. He was a friend of the family and he lived in the neighbourhood and we kind of met him when we moved in there and Terry’d done a bit of work to his, one of his cars that he was fixing up and we kind of met him through there. He was kind of like family. He used to come and sometimes he’d stay and he’d have lunch or tea with us.
Q. So you went to bed about 12.30?
(No verbal reply)
Q. Where was Ian Dufty in the house?
A. Ian was in the lounge room with Terrence and Julie. They were watching television.
Q. Was Julie still awake when you went to bed, do you know, or not?
A. Yeah, Julie was still awake when I went to bed.
Q. What about Mr Dufty?
A. Yeah, he was awake as well.
Q. What about the accused, Terry?
A. Yeah, Terry was there with them, yeah.
Q. What about the children, where were they?
A. They were in bed.
Q. What’s the next thing you remember happening that night?
A. I woke up around 4.30 and Terry wasn’t in the bed so I thought I’d go and have a look for him and I walked from the main bedroom through the hall to the lounge room and the lounge room door was closed and I opened it and the lounge room was in darkness so I turned the light on.
A. What did you see?
A. I saw Terrence lying on top of Julie, between her legs, with no clothes on.
Q. Who had no clothes on?
A. Terrence had no clothes on. He had, when he stood up his underpants were hanging at his ankles and Julie was uncovered and she had no clothes on.
Q. Did you say anything?
A I said, ‘what do you think you’re doing.’ He said ‘nuthin’ I’m only talking to her’ and he repeated his self and I told he was a bastard and I smacked his face.
Q. Where was Julie when you said and did that?
A. Still laying on the mattress.
Q. What was her state of dress at that time?
A. She was very upset.
Q. Did she have any clothes on at the time?
A. No.
Q Did you see Mr Dufty?
A. When I smacked Terrence’s face I saw Ian kind of sit up and – he must’ve heard the commotion. He kind of slightly moved up a bit because he was on a mattress over toward the wall, near the television.
Q. Did you see Julie do anything at that time?
A. She tried to pull the sheet up over herself to cover herself.
Q. Did you notice anything about her?
A. Only that she was upset.
Q. What did you notice about her to make you think that?
A. She was really upset in the face.
Q. How were you at that time?
A. Upset.
Q. What did you do then?
A. I went into the bedroom and got my car keys and I got in my car and I drove to my sister’s place at 45 Broughton Street and knocked on the door.
Q. Can I just stop you there – your sister, your mean Julie’s mum?
A. Yes.
Q. You knocked on the door?
A. And her husband John answered the door and I went in and sat on my sister’s bed and I asked my sister could she remove her daughter from my house, that I just caught Terry laying on top of her in the lounge room on a mattress.
Q. Did you speak to John?
A.. I may’ve said that to John when he answered the door.
Q. Did John go somewhere?
A. John went up to get Julie from the house.
Q. John left. What did you do. Did you stay there?
A. I stayed there talking to my sister, yeah.
Q. Just pardon me one moment please ma’am. Did John eventually come back to the house?
A. John came back, not long after, and he had Julie with him.”

8 Mrs Donnelly was cross-examined as follows:

“Q. Ma’am you told us yesterday that you went around to your sister’s place leaving Julie and Terry Fuller in the house with your kids, remember telling us that?
A. Yes I do.
Q. And as a result of you going to your sister’s place you tell us that John went back round to your place and brought Julie back home?
A. Yes.
Q. And you said, when you were being asked questions by the Crown Prosecutor, that you said to your sister Karen, that you’d found Terry Fuller on top of Julie?
A. In the loungeroom, yes.
Q. In the loungeroom. Now ma’am I suggest that you didn’t say that to your sister that night?
A. I beg your pardon, I did,
Q. And I suggest that it was on a later date that you spoke to or told your sister what you say you saw that night?
A. It wasn’t on a later date at all.
Q. And I suggest that you didn’t say you found Terry Fuller on top of Julie?
A. I did find Terry Fuller on top of Julie in my loungeroom.
Q. I suggest that you didn’t say that ma’am to your sister Karen?
A. I did say that to my sister.
Q. I suggest that you said to your sister Karen, ‘I went into the loungeroom and Terry was leaning over the top of Julie’?
A. Terry was on top of Julie in the loungeroom.
Q. Ma’am if you could listen to my questions. I suggest that you said to your sister Karen, these words. ‘I went into the loungeroom and Terry was leaning over the top of Julie’?
A. I did not, I did not tell my sister that. I told my sister that I had found Terrence laying on top of Julie in the loungeroom on a mattress.
Q. I see and you say that you told her that that night, is that right, or that day?
A. That morning, the early hours of that morning.
Q. Well ma’am you’re talking about a conversation that you say you had about 13 or 14 years ago, that’s right isn’t it?
A. Yes and I remember.
Q. You remember, word for word what you said?
A. Yes I do.
Q. Did you make a note of it somewhere?
A. No, it’s something that I’m not going to forget ever, what I saw.
Q. And what about what you told your sister?
A. I told my sister what I saw.
Q. Isn’t it true that all you saw ma’am that night was Terry in the loungeroom at the same time that Julie was in the loungeroom?
A. I saw Terrence on top of Julie in the loungeroom, okay, that’s what I saw, that’s what I saw.”

9 Mrs Murray’s evidence in chief was:

“Q. … Now Miss Murray I wonder if I could ask you to take your mind back to 1980s, do you recall a night, when you were living in Broughton Street, when your sister came to the house?
A. Yes, she came there a couple of times actually.
Q. Can you remember a – and if I can ask you to remember a particular night and this is an occasion – if I can just take your mind to it, when your husband left and got Julie?
A. Yes, I remember the night.
Q. Firstly, can you remember what time of the night it was that Lynette came?
A. Late, to the best of my knowledge it was late, because we were woken up.
Q. So you’d been to sleep?
A. We’d been in bed, yes.
Q. You were woken up?
A. Yep.
Q. And Julie was there?
A. No.
Q. I’m sorry, I withdraw that. Lynette was there?
A. Lynette came in.
Q. Did you notice anything about Lynette when she came in?
A. She was angry.
Q. Anything else?
A. Upset.
Q. What did you notice about her to make you think that?
A. She was crying.
Q. Now was there a conversation, or did Lynette say something, just ‘yes’ or ‘no’ at this stage?
A. Yes.
Q.. She did, who did she say it to?
A. To me.
Q. And where were you, can you remember it?
A. I was lying in bed and she was sitting alongside the bed.
Q. So she came into your bedroom?
A. Yes.
Q. And was your husband at home that night?
A. We were both in bed at the time, he answered the door.
Q. Now can you remember what Lynette said to you?
A. Yes I can, she said, that ‘Could I please go and get Julie from her home as she had just found her husband,’ or at that time, ‘Terry laying on top of our daughter.’ John immediately got into the vehicle, I said to John, ‘Go and get her’, John left, about a five minute drive to the house where Julie was, he returned with her, she went straight to her room and slammed the door and went to bed. Lynette was still sitting there with me, I recall that she was still there when John came back.”

She was cross-examined to suggest that what Mrs Donnelly in fact said was: “Terry was leaning over the top of Julie”.

10 Mr John Murray confirmed the arrival of Mrs Donnelly and his own role in collecting the complainant, but he said he did not participate in the conversation between Mrs Donnelly and Mrs Murray, though he did hear the names of the appellant and the complainant being mentioned.

11 The appellant denied having sexual intercourse with the complainant, as he had in an interview with the police and as he has to this day.

12 Mr Dufty gave evidence on behalf of the appellant. He said that it was he who had had sexual intercourse with the complainant. Calling him reflected a strategy that carried risks; if he had been accepted, the chance of acquittal on Counts 6 and 6A was greatly increased, but once the jury rejected him, an adverse inference may well have been drawn.

13 The trial judge gave a direction about the relationship between the main counts and the alternative counts which, so far as Count 6A is concerned, might well be regarded as an extremely favourable one from the appellant’s point of view. He said:

“Now I have got to say this to you, it is always a matter for you, you are the jury, but you may well think, as I do, that if you find the accused not guilty of any one of those charges, you would find him not guilty of the alternate charge. The reason for that is that you are either going to accept beyond reasonable doubt her evidence. If you accept her evidence beyond reasonable doubt, then it is going to ground those charges, that is the first charge in each one, and the alternative charge just will not raise its head. If you do not accept her evidence, then you would find him not guilty on both.
You have got to be very careful that you do not compromise. It might be a temptation, in some cases, for juries to have differing views, and to decide that they will compromise by finding someone guilty of the alternate charges, but not of the main charges. If you did that in this case, I believe, and it is a matter for you, I believe you would be wrong. I believe if you find him not guilty of the main charges, you should find him not guilty of the alternate charges. Having said that, it is always a matter for you, but I warn you to be very careful with them, and not to fall into that trap of reaching some sort of a compromise.”

14 For the jury’s benefit the trial judge in his summing up summarised the evidence of the complainant, Mrs Donnelly, Mrs Murray, Mr Murray, the appellant and Mr Dufty in great detail. He read out the relevant part of the appellant’s record of interview, which consisted of denials. He prefaced his summary of the complainant’s evidence by saying:

“The Crown says that Julie’s evidence is corroborated, at least on one occasion. They say to you it is corroborated by her aunt, Lynette, who walked into the room and said she saw the accused on top of Julie.
Corroboration is evidence from a source other than Julie, which could possibly implicate the accused in the commission of the alleged offence. It must be evidence which shows, or tends to show, not only that the offence was committed, but that it was committed by the accused. I am required to tell you, and it is quite a simple matter, what material in the present case is relied upon as corroboration. It will then be for you, as the judges of the facts, to decide, firstly, whether you accept that material, and, secondly, if you do, whether you consider that it does confirm the alleged complainant’s possible account in a material way by tending to show not simply that the offence was committed, but that it was the accused who committed it.”

15 After the trial judge had summarised the evidence of Mrs Donnelly, Mrs Murray and Mr Murray, he said:

“You may well think that if you accept that evidence beyond reasonable doubt that that corroborates Julie’s version of what occurred on that night. It was argued by counsel for the accused that even if you accepted it, that it did not necessarily indicate sexual intercourse was taking place. Well that is a matter for you. You have Lynette’s evidence that the accused was naked, on top of Julie, who was naked. And it is a matter for you how you deal with that.”
The appellant did not complain about how the trial judge summed up on confirmation.

16 The first submission advanced on behalf of the appellant was that the verdict of guilty on Count 6A was inconsistent with all the verdicts of not guilty. However, no detailed argument in support of this submission was advanced, and it should be rejected. It was entirely reasonable that the jury might have acquitted on all the counts (i.e. all except Count 6 and Count 6A) on which there was no confirmation, but have arrived at a different conclusion on one or other of the counts, namely Count 6 and Count 6A, on which there was confirmation.

17 The next submission of the appellant was put thus:

“Is it possible to reconcile the verdict of guilty to count 6A and not guilty to count 6? At the very least the verdicts of not guilty in counts 1 to 5 and 8 establish an unwillingness of the jury to accept her assertions of sexual intercourse without the existence of some corroboration. Corroboration applied to both 6 and 6A. Corroboration came through aunt Lynette and is evidence independent of a complainant and tends to connect an accused with the crime.
In this case seeing the appellant lying between the legs of the complainant is clearly corroboration. It is not however direct evidence of all the elements of the offence, nor need it be. Significantly, it does not directly corroborate penile/vaginal penetration, nor dies it corroborate absence of consent or the use of force. It simply corroborates that an offence may have been committed by the then accused. If therefore the jury was influenced by evidence of corroboration it has on the face of it inferred that the evidence supported intercourse but not absence of consent. Such inference seems arbitrary given the unambiguous and stark evidence of the complainant.
That is to say, the corroboration applies equally to count 6 as it does to count 6A. Yet the jury has accepted part of the evidence of the complainant in respect of 6A, but not 6, without any discernible basis on the evidence. Any sense of comfort engendered by such corroboration to 6A should have applied to count 6. Corroboration can do no more than support the version of the complainant.
In finding the appellant not guilty of count 6 the jury has rejected the version of events given by the complainant. A verdict of guilty to count 6A disregards the complainant’s version which imported the forced separation of her legs and the covering of her mouth to prevent her talking or calling out to her aunt. Notwithstanding the trial judge’s admonition to the contrary (s/up. 10), the verdict has been a compromise.”

18 The appellant then referred to the following passage in Jones v R (1997) 191 CLR 439 at 455:

“Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion.”

The appellant concluded by saying:

“In the instant case, the jury found that the evidence of the complainant lacked sufficient cogency to convict in respect of count 6, and there is nothing to provide more cogency for count 6A. The evidence of corroboration cannot rebuild the credit for count 6A, which is by implication impugned by virtue of the verdict to count 6.”

19 The Crown pointed out that Jones v R is not authority for the proposition that “a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence”: R v Markuleski [2001] NSWCCA 290 at [64]-[65]. The Crown pointed to the following observation of Spigelman CJ in that case at [125]:

“… a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances.”
Simpson J, though dissenting in the result, did not dissent from the exposition of the law advanced by the Chief Justice, by Wood CJ at CL, and by Grove J. Carruthers AJ agreed with the Chief Justice.

20 To the above passages may be added the following remarks of Wood CJ at CL. At [203]-[205] he referred to authorities decided on Jones v R which:

“… appear to have reflected a presumption that, in such a case, absent the positive identification of some fact or surrounding circumstance providing a rational basis for accepting the complainant’s evidence on the counts of which the accused was found guilty, the other verdicts should be regarded by a Court of Criminal Appeal as unreasonable.
The rationale for such conclusion was that the rejection, by the jury, of the complainant’s evidence, in relation to the counts or counts upon which verdicts of not guilty were returned, involved a fatal diminution in that witness’s overall credibility. These decisions, accordingly, required the Crown, if it were to maintain the convictions, to point to circumstances that could positively restore the complainant’s credibility on the remaining counts, or to identify some rational basis for the jury having distinguished between the counts on which it returned verdicts of guilty and not guilty respectively.
Upon reflection, and with the benefit of a comprehensive review of the decisions to date, I have reached the conclusion that this line of decision has read too much into Jones, and has advanced a principle that is altogether too rigid.”

He then referred to the following passages in MacKenzie v R (1996) 190 CLR 348 at 366-7:

“A convenient starting point is the decision of the High Court in MacKenzie v The Queen (1996) 190 CLR 348 where Gaudron, Gummow and Kirby JJ emphasised, at 366:
‘Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and unreasonableness’.
As their Honours continued, at 367:
‘ … the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate courts may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict 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. 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’.”

He then said (at [208]-[212]):

“The respect which is properly to be afforded to the constitutional role of the jury, and the advantage which it has in seeing and hearing the evidence unfold was recognised in M v The Queen (1984) 181 CLR 487 at 493, in a passage cited with approval in Jones at 451:
‘ … 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. 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 these considerations’. (emphasis added)
It is with this fundamental respect for the role entrusted by the criminal justice system to the jury, to find the facts according to the evidence, that this court should apply the test enunciated in M at 494 to 495, and in Jones , when it is required to determine whether guilty verdicts are unreasonable and incapable of being supported. That test necessarily requires close reference to the evidence, since it was said in M at 494 to 495:
‘… where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displayed 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 to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.’
In applying the decision in Jones it is not to be overlooked, as was made clear in the judgment at 455, that it was the combination of the credibility factor arising from the acquittal of the appellant on one count, ‘with the uncorroborated nature of the complaints,’ and the effect of the lengthy and unexplained delay in the making of the complaints, that led to the conclusion that the convictions were ‘unsafe and unsatisfactory’ (as the ground was conventionally described before the decision in Fleming v The Queen (1999) 197 CLR 250 and R v Giam (1999) NSWCCA 53).
These two additional factors, their Honours confirmed, made it ‘necessary’ or ‘essential’ for the jury to scrutinise the complainant’s evidence in the case with ‘considerable’ or ‘great care’. Additionally, there was the circumstance, to which considerable importance had been attached in Longman v The Queen (1987) 168 CLR 79, and Crampton v The Queen (2000) 75 ALJR 133, concerning the considerable difficulty which the defence may face in dealing with allegations made of events occurring many years in the past.
So understood, I do not regard Jones as an authority for the presumption previously mentioned. It does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to wholly accept or to wholly reject what a witness says, but are free to accept part and to reject part of his or her account.”

21 Is there a “proper way by which” this Court can reconcile the verdicts on Count 6 and Count 6A, to use the language of Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 at 366?

22 Count 6A required only proof of sexual intercourse. The unshaken testimony of Mrs Donnelly as to the state of undress of the appellant and the complainant, their relative positions, and the rather incredible statement of the appellant that he was only talking to the complainant, may not of itself have proved sexual intercourse beyond a reasonable doubt. But it unquestionably and very powerfully confirmed that part of the complainant’s evidence which complained of sexual intercourse, and made it safe to act on it. The trial judge said to the jury in relation to the defence argument that even if Mrs Donnelly’s evidence was accepted it did not necessarily indicate sexual intercourse: “Well that is a matter for you. You have Lynette’s evidence that the accused was naked, on top of Julie, who was naked. And it is a matter for you how you deal with that.” It would be strange if the jury had not been satisfied that sexual intercourse had taken place.

23 On the other hand, Mrs Donnelly’s evidence did not point nearly so strongly to lack of consent. Mrs Donnelly did give evidence that the complainant was upset. The fact that she seemed upset was capable of being attributed to the appellant’s alleged violence. It was also capable of being attributed to the fact that a 15 year old girl had been discovered by her aunt in the middle of an act of consensual intercourse. Even though Mrs Donnelly’s evidence was capable of confirming the complainant’s evidence that she had not consented, it was open to the jury to explain it in a different way or at least to experience a reasonable doubt about whether the Crown had negatived consent and proved that the appellant knew of or was reckless as to a lack of consent. Acceptance by the jury of the complainant’s evidence that there had been intercourse so as to lead to persuasion of its occurrence beyond a reasonable doubt was, in the light of Mrs Donnelly’s evidence, wholly unsurprising. It was not inconsistent with that acceptance and that persuasion that the jury failed to be convinced beyond a reasonable doubt in relation to consent.

24 The jury must be credited with the possibility that they carried out their duty in considering the case presented on each count, including the alternative counts, separately, and considering in relation to each count whether or not all ingredients had been proved beyond a reasonable doubt. The jury saw the witnesses. It was open to the jury to acquit on all the counts lacking confirmation. It was also open to them to convict on Count 6A, where the confirming evidence was very strong, but to acquit on Count 6 where it was less strong. The jury was entitled to accept what the complainant said about sexual intercourse, but to experience a reasonable doubt about lack of consent. The Crown evidence on Count 6A did not contain discrepancies, inadequacies, taints or any want of probative force in such a way as to suggest to this Court a significant possibility that an innocent person has been convicted. To some extent the submissions of the appellant suggested that so far as evidence in the nature of what at common law was known as corroboration did not prove the actual commission of the offence charged, it could not operate as being corroborative or confirmatory of the complainant’s evidence. That was not so at common law: R v Doney (1988) 37 A Crim R 288 at 297-8; Doney v R (1990) 171 CLR 207 at 211. It is not so in relation to confirmatory evidence under the Evidence Act 1995 either.

25 Ground 1 is rejected.

Ground 2

26 This ground was:

“The direction of the learned trial judge in relation to evaluating the credit of the complainant having regard to delay in complaint was inadequate.”

27 The appellant submitted:

“The judge was obliged to give a direction in view of delay in complaint that the appellant had been placed at a disadvantage in defending himself and indicate what those disadvantages were. See Longman v The Queen 1989 168 CLR 70). The judge did this (s/u p.26).
The judge was also obliged in view of the delay in complaint to give two further directions. One is a statutory direction indicating a complainant may have good reason not to immediately complain. (See now s. 107 Criminal Procedure Act 1986, and before this, corresponding terms in s. 405B Crimes Act 1900). The judge did this (s/u p. 27).
The other direction is to be given to balance the former in favour of an accused. It is to the effect that delay in complaint may be taken into account in assessment of the credit of the complainant
That a direction dealing with delay was proper was noted in Kilby v The Queen (1973) [129] CLR 460, where Barwick CJ said at 465 it would ‘… be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity.’ This was a decision before provision in the nature of s107. This passage was cited with approval in Crofts v The Queen (1996) 186 CLR 427 at 447, dealing with a s.107 type provision. The delay in that case was 6 months to 6 years. In this case it is 13 to 16 years.
The trial judge here gave a direction touching on these principles which was inadequate. He directed in this regard (s/u p.26):
I must warn you the mere absence of complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant, but it does not necessarily do so . There may be good reasons why a person who has been sexually assaulted does not complain to anyone . (Emphasis added)
It is respectfully submitted that the effect of this direction is to ‘sandwich’ the Kilby/Croft direction (words emphasised) in favour of the accused, between two s.107 type directions in favour of the complainant. The s.107 direction was then repeated after the Longman direction, introduced with the words ‘… Now the other matter about complaint is this …’ (s/up.27pt7). This has so diminished the Kilby/Croft direction as to deny the appellant the balance in the direction to which he was entitled, and create an imbalance in the competing directions.
The Croft principle was considered in Regina v DJK NSWCCA 8th October 1997. The delay in complaint there was seven years. Hunt CJ at CL observed (p.9) in relation to a Kilby direction ‘… Such a direction remains appropriate notwithstanding the provision of s.405B.’ He then went on to observe in light of Crofts ‘… the High Court – accepting that such a direction is appropriate – has now said more specifically that the duty to give such a direction arises … to restore a balance of fairness . (Emphasis added)
The part of the direction that related to delay in complaint affecting credit was further diminished by the attachment of the words ‘ … but it does not necessarily do so.’
Counsel sought no redirection in relation to this point. It is submitted however that the matter is so important that the absence of balance has led to a miscarriage of justice. In relation to Ground 2, the leave of the Court is sought. (Rule 4).”

28 There is a degree of unreality in this submission. A “complaint” in this type of case means a statement by the victim to a third party making the allegation against the accused which is made in the victim’s testimony at the trial. Failure to complain for a long time may have a negative impact on the credibility of the victim’s testimony. Speedy complaint may enhance it. While these considerations were unquestionably material in relation to all counts except Count 6 and Count 6A, and may well have significantly contributed to the acquittals on all those other counts, they had more limited materiality in relation to Count 6, and very little materiality in relation to Count 6A. That is because the credit of the person complaining about sexual intercourse assumes a less crucial significance if another witness, whose evidence is itself corroborated by two other persons, observes matters pointing very strongly to the fact that sexual intercourse had just ceased. There would be little point in the complainant complaining to her aunt about the appellant’s behaviour when the aunt had just seen it for herself. Similarly, there would be little point in the complainant complaining to her mother when her aunt had just rushed off to see her mother and told her mother something which had had the result of her stepfather hurrying back to take her home.

29 Leaving that consideration aside, however, the criticism of the trial judge’s summing up based on a supposed failure to give the appellant the benefit of a warning about what flowed from her lack of complaint is to be rejected. The totality of what the trial judge said was as follows:

“Now there is another important issue in this case, and that is one relating to lack of complaint. There is, in effect, no evidence of complaint. Julie did not complain about what was happening. It is argued that you would have expected her to have complained. You would have expected her to tell her aunt or her mother or her cousin who she used to go and see, that these sort of things were going on. That is what you would have expected from her. That did not happen. And that is one of those matters, it is argued, which you should consider when you are looking at whether or not you can accept her evidence beyond reasonable doubt. On the other hand, she has said to you she did not complain. She said she was only young, she was very fond of her aunt, she did not think she would be believed, and, in effect, she did not complain.
Now that is a matter you will have to look at and consider when you are looking at her evidence. But there is a matter of law which I must put to you. I must warn you the mere absence of a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone. It is important, however, that I give you certain warnings. It is important that you appreciate fully the effects of absence of complaint on the ability of the accused to defend himself by testing prosecution evidence, to establish a reasonable doubt about his guilt. In this regard you will take into account that these matters happened, or are alleged to have happened many years ago.
What you have to consider is this – and this was a matter which was argued to you with some force – that because of these delays, the delays in making the complaint, the accused has a loss of means of testing the complainant’s allegations which possibly could have been open to him had they been made at an early time. Had the allegations been made soon after the alleged event it would have been possible to explore in detail the alleged circumstances, perhaps to adduce evidence throwing doubt upon the complainant’s story, or confirming the accused’s denial. But because of the delay, that opportunity may have passed.
The evidence of Julie perhaps could not be adequately tested after such a passage of time, and you must look very carefully at her evidence, and be satisfied of its truth and accuracy, bearing in mind there was a considerable delay. It was pointed out to you that the accused was at, or could have been at some difficulty in meeting some of these allegations because of the long lapse of time before a complaint was made. For instance, there may have been a medical examination which could have been held which may have assisted one way or the other. Perhaps there could have been forensic evidence. Perhaps there could have been records. People’s minds would be clearer closer to the event. That is a matter you will bear in mind when you are considering the case against the accused.
Now the other matter about complaint is this, that whilst there was no complaint – where there is no complaint or a considerable delay, I am required to say this to you, I must warn you that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and I must also inform you that there may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making a complaint about the assault.”

30 This direction is much fuller than was suggested by the appellant’s argument. It is not correct to suggest that all the trial judge said was that lack of complaint “may indicate fabrication on the part of the complainant”. The first paragraph in the passage just quoted referred to an expectation of complaint. As Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290 at [244], it may be unwise to assume that immediate complaint of sexual assault is always to be expected. However, the direction complied with the law, and even if the direction assumed too much, the assumption made favoured the appellant. That first paragraph in the passage just quoted makes it plain that the failure of the complainant to meet the expectation of complaint left it open to conclude that there was nothing to complain about and that the complainant’s testimony that there was had been made up years later. The central significance of the plaintiff’s credibility in relation to what she said happened so many years earlier was made plain in that passage. It was also made plain in other passages. Thus at pages 16-17 of the summing up the trial judge said:

“It may be said that this case turns on a conflict between the evidence of the prosecution witnesses, and evidence of the accused, and indeed his witness. And you may ask yourself who is to be believed. But even if you think the prosecution witnesses are probably telling the truth, that does not conclude the issue whether the prosecution has proved the case against the accused. Even if you prefer the evidence of the prosecution, you should not convict the accused unless you are satisfied beyond reasonable doubt of the truth of that evidence. It is, as has been said to you by both counsel, and I will say to you, you must accept on those important points the evidence of Julie beyond reasonable doubt before you can convict.
Mr Fuller said to you that he and Lynette had been together for seventeen years. He denied having sex with Julie. The occasion when Lynette walked into the loungeroom and saw him on top of Julie never happened. She never slapped him across the face. He was not alone in the house with Julie, there was always children there. He told you about Mr Dufty and how he was often there, they would go to the wrecking yard. Julie was often at the house. Sometimes she would come over with her friends, and, in effect, he denied each and every one of these charges.
In a case such as this, I would normally say to a jury, because of the facts surrounding it you must be very careful before you convict the accused. That is, you have a complainant who was a young girl at the time, the incidents are alleged to have happened many many years ago, there was no complaint made for many many years. It is the evidence of one person against another. And having said that, I might point out to you that in relation to sexual offences you may well think that most of those, when they do occur, occur in private, that you do not have a whole lot of witnesses. That is not unusual. And so normally I would say to you, you have got to be very very careful.”

At page 18 the trial judge said:

“If you decide there is no evidence which in your mind so confirms Julie’s account in such a material respect, then I warn you as a matter of law that you should exercise considerable caution before you convict the accused on the uncorroborated evidence of Julie, taking into account all those other matters I have put to you. You may do so, but before doing so, it is essential that you carefully scrutinise the evidence, that is the evidence of Julie.”

Even if, which is highly questionable, the significance of the lack of complaint in relation to the central question of the complainant’s credibility was not obvious, the trial judge made it plain.

31 Wood CJ at CL said in R v Markuleski [2001] NSWCCA 290 at [249] that in that case it might be assumed, by reason inter alia of the terms in which the s 107 direction was given, particularly so far as it was expressed in terms that the delay “does not necessarily indicate” unreliability, and “there may be good reasons” for it, that the jury were well alive to the possibility that lengthy failure to complain could reflect upon the complainant’s credibility. That observation is applicable here to the words:

“[Absence of complaint] may indicate fabrication on the part of the complainant, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone.”
Contrary to the appellant’s submission, those words do not impermissibly weaken the Kilby direction.

32 In the circumstances, the reason why the appellant’s counsel at the trial did not request a redirection was almost certainly because she saw no vice, from the point of view of her client’s interests, in the direction which was actually given.

33 Ground 2 is rejected.

Ground 1 and 2 of the appeal as lodged should be dismissed for the reasons provided by the presiding judge.

: I agree.

The court makes the following order and directions:

1. Order that Grounds 1 and 2 of the appeal as lodged be dismissed.

2. Direct that:

(a) any affidavits to be relied on by the appellant, in relation to the issue the subject of discussion at the start of this appeal, together with any Amended Notice of Appeal, to be filed on or before Friday, 26 October 2001;

(b) in the event that the appellant decides not to proceed with the application to rely on further evidence the appellant to file in the Registry a document indicating the decision to withdraw the application;

(c) the Crown file any affidavits it wishes to rely on, in answer to affidavits filed by the appellant, on or before 11 November 2001.

(d) it be noted that if it is not reasonably practicable for the Crown to comply with direction 3 above that the Crown have liberty, without prejudice, to apply for an extension of time.

(e) the matter to be listed before the Registrar on Monday, 12 November 2001.

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