R v GDM

[2002] NSWCCA 261

CITATION:	R v GDM [2002] NSWCCA 261
FILE NUMBER(S):	CCA 60891/2001
HEARING DATE(S):	28 May 2002
JUDGMENT DATE:	31 July 2002
PARTIES :	Regina GDM
JUDGMENT OF:	Mason P at 1; Hidden J at 11; Carruthers AJ at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3104
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

COUNSEL :	WG Dawe QC - Crown RC Pontello - Appellant
SOLICITORS:	SE O'Connor - Crown Marsdens - Appellant
CATCHWORDS:	CRIMINAL LAW: charges of sexual assault - verdicts of guilty on some counts, not guilty on others - whether verdicts of guilty unreasonable.
LEGISLATION CITED:	Crimes Act, 1900
CASES CITED:	R v W (1999) 109 A Crim R Jones v The Queen (1997) 191 CLR 439 R v Markuleski (2001) 52 NSWLR 82 Mackenize v The Queen (1996) 190 CLR 348 R v Kirkman (1987) 44 SASR 591 M v The Queen (1994) 181 CLR 487 Longman v The Queen (1989) 168 CLR 79
DECISION:	Appeal dismissed (by majority).

60891/2001

MASON P
HIDDEN J
CARRUTHERS AJ

Wednesday, 31 July, 2002

REGINA v GDM

Judgment

1 MASON P: I have had the advantage of reading in draft form the judgments of Hidden J and Carruthers AJ.

2 I agree with Carruthers AJ, subject to the following remarks.

3 In my view it is possible, but no more than that, that the jury acquitted the appellant on counts 8 and 9 because of doubts as to whether the alleged offences occurred within the time frame covered in the indictment. The summing up in relation to these counts does not suggest that timing was at the forefront of the defence case in these matters, nor does the evidence generally.

4 There were however particular problems with the Crown case touching counts 8 and 9. The complainant did not mention this incident when she spoke to her mother in June 1997. This incident was first reported when she went to the police two years later. There were other specific matters raised by the defence, including a strong challenge to the complainant’s evidence insofar as she had said that the incident occurred at a time when her mother was nearby in the back yard, hanging out the washing.

5 In finding verdicts of not guilty on these counts the jury were being true to the judicial admonition to consider each count separately. The jury were given proper directions as to the impact of an acquittal on one count upon their assessment of the complainant’s credibility generally. These are set out by Carruthers AJ.

6 R v Markuleski (2001) 52 NSWLR 82 addresses the circumstances in which a jury’s verdict is to be examined in cases such as the present. Key passages are set out by Hidden J.

7 The appellant submitted that the present case falls within the category, referred to by Wood CJ at CL at 131-2 ([234)] where he said:

There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness. This may arise, for example, where:
…
(c) … the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable ( R v W (1999) 109 A Crim R provides a possible example …

8 This is not such a case, on my reading of the evidence concerning counts 8 and 9. It did not raise a “fanciful or inherently improbable” account, especially because there was ample evidence explaining the complainant’s inability to confront her brother or complain to her mother at the time.

9 If I return to the broader enquiry enjoined by the Chief Judge in the passage from Markuleski at 132 ([237]-[238]) set out by Hidden J, I remain comfortably satisfied as to the verdicts of guilty, despite (or even because of) the acquittals on counts 8 and 9. As indicated, I agree generally with Carruthers AJ.

10 In my view the appeal should be dismissed.

11 HIDDEN J: The appellant was tried before Coleman DCJ and a jury on a number of charges of sexual interference with his sister between 1972 and 1975. There were nine counts in the indictment, brought under sections of the Crimes Act which have since been repealed: three counts of indecent assault (s 76) and six counts of attempted carnal knowledge (s 72). He was found guilty only of counts 2, 3 and 5. Count 2 was indecent assault, and counts 3 and 5 were attempted carnal knowledge. The trial judge directed his acquittal of count 4 (attempted carnal knowledge) and the jury found him not guilty of the remaining counts. He appeals against conviction only.

12 The offences were alleged to have occurred in the family home at Fairfield. The complainant was born on 13 October 1961, and was aged between 10 and 14 at the relevant time. The appellant, born on 25 December 1953, is about eight years older. The complainant was born profoundly deaf, and from the age of about 3 or 4 she attended a special school for blind and deaf children at North Rocks. There are four other children, two of whom are also hearing impaired. During her childhood the complainant communicated with her parents by way of mime, lip reading, facial expressions and improvised signs. It was not until she was about 17or 18 that she began to learn sign language.

13 Although the appellant was acquitted of most of the charges, to understand the argument on the appeal it is necessary to sketch the evidence relating to all of them, as well as that relating to an earlier incident which did not give rise to a count in the indictment. The appellant gave evidence denying all of the complainant’s allegations.

The uncharged incident

14 The early incident which was not the subject of any charge was referred to in the trial as the “turtle incident”. The complainant said that some time when she was between 3 and 5 years old she was at the back fence of the house, looking for her pet turtle. She went on to say that the appellant took her into the house, unbuttoned her shirt, pulled her pants down and sexually abused her in a manner which she could not clearly recall. At the committal proceedings she had given evidence that she believed that a friend of the appellant, Stephen Bradshaw, was present when this occurred, although at the trial she said that he was not.

15 In support of his denial of this incident, the appellant called Stephen Bradshaw to give evidence that there was never an occasion when he saw the appellant interfere with the complainant’s clothing or sexually abuse her in any way.

16 Counts 2 and 3 arose from one alleged incident. It is convenient to deal with them next because the complainant said that that incident occurred before the event the subject of count 1.

Counts 2 and 3 (indecent assault, attempt carnal knowledge)

17 These counts, of which the appellant was found guilty, constituted what became known in the trial as the “home sick incident”. The complainant said that she was at home in bed, sick. At the same time the appellant was also at home, recovering from injuries he had received in a car accident. She said that the appellant pulled down the bed covers, picked her up and turned her over. He removed her pyjama pants and inserted his finger into her vagina (count 2). She then felt his erect penis trying to penetrate her, although she could not see what he was doing (count 3). The offences were charged as having occurred between August 1972 and October 1975, and the complainant said that she was about 10 years old at this time.

18 It was not in dispute that the appellant had been involved in a car accident on 18 September 1972, that he spent about three weeks in hospital, and that he then spent another week with his aunt at Concord before convalescing for a few weeks at the home at Fairfield. He denied that the complainant was home from school because of illness at any time during that period.

19 For this there was some support in the evidence of his mother. She was working at the time, but she said that she came home every day at lunchtime to prepare a meal for him. She could not recall the complainant being home sick during that time. She made inquiries at the school about any records of her daughter’s absences, to find that there were none.

20 There was also evidence that the appellant suffered a number of fractures as a result of the accident, including a fracture to his collar bone which required his right arm to be supported by a figure eight bandage. It was his evidence, again supported by his mother, that he was in pain and his movement was restricted. It was the defence case that it would have been impossible for him to have picked up the complainant and turned her over, as she claimed.

Count 1 (attempt carnal knowledge)

21 This count, of which the appellant was found not guilty, arose from what became known in the trial as the “out the window incident”. The complainant said that the appellant pulled her to the floor in the bathroom of the home, lubricated his penis with saliva and attempted to penetrate her. There was the sound of people arriving home, and she said that the appellant started to fill the bath with water and motioned her to get into it, telling her to be quiet. She was afraid that her mother would find out what was happening, so she climbed out the bathroom window.

22 This offence was charged as having occurred between March 1972 and October 1975. The complainant could not say how old she was but, as I have said, it was her evidence that it occurred after the “home sick” incident. If that were so, it could not have been earlier than October 1972.

23 The first time the complainant told anyone about the appellant’s behaviour was to her sister in August 1997. She told her sister that this incident occurred one afternoon after she had returned home from school by taxi. It seems that there was a period when the Department of Education arranged for her transport to and from school by sharing a taxi with some other children. However, the evidence of the appellant and, more importantly, of his mother was that that arrangement came to an end in 1971, and in 1972 she was using public transport.

Count 4 (attempt carnal knowledge)

24 This count related to what was referred to as the “third bedroom incident”, being alleged to have occurred in a bedroom occupied by two of the complainant’s sisters. According to the complainant, the appellant seized her, removed her pants, laid her down and tried to penetrate her.

25 Like counts 2 and 3, this offence was charged as having occurred between August 1972 and October 1975. Initially, the complainant said that it occurred after the “home sick” and “out the window” incidents, when she was about 12 or 13 years old. However, she later said that it would have been in 1971 or earlier. For that reason, the trial judge directed the jury to acquit the appellant of that count.

Count 5 (attempt carnal knowledge)

26 This count, of which the appellant was found guilty, arose from what was described as the “second bathroom incident.” The complainant said that the appellant again attempted to penetrate her after lubricating his penis, on this occasion, with baby oil. This offence also was charged as having occurred between August 1972 and October 1975. There is nothing to establish with any precision when it might have occurred, although the complainant’s evidence suggests that it must have been some time after the appellant’s car accident.

27 The remaining four counts all charged offences said, again, to have occurred between August 1972 and October 1975. Counts 6 and 7 arose from the same alleged incident, as did counts 8 and 9. The complainant’s evidence suggests that the latter was the first in time but it is convenient to summarise the evidence according to the order in which the counts appeared in the indictment.

Counts 6 and 7 (indecent assault, attempt carnal knowledge)

28 These counts, of which the appellant was found not guilty, arose from what was called the “hot summer’s day incident”. The complainant said that on this occasion it was a very hot day and she had travelled home from school on public transport. The appellant was the only person at home. According to her, he told her to “come here” and she knew from his expression what he wanted. She ran out of the house, but came back in when he told her to. He seized her and she struggled. He pulled her to the floor in the hall, pulled her pants down and tried to kiss her vaginal area (count 6). He then tried to have intercourse with her (count 7).

29 The complainant could not say how old she was at the time but said that she was at high school. However, in 1997 she told her sister that this incident also occurred after she had travelled home from school by taxi. Again, the appellant relied upon evidence that that travel arrangement ceased at the end of 1971, when she was only 10.

Counts 8 and 9 (attempt carnal knowledge, indecent assault)

30 These counts, of which the appellant was also found not guilty, comprised what was called the “garage incident”. The complainant said that the appellant gave her a $1 note, and again she knew from his facial expression that he wanted sexual contact with her. He led her to the garage, where he shared bedroom accommodation with his brother. Their mother was hanging out washing on the clothesline only a matter of metres away, although her back was turned to them. The complainant said that the appellant laid her on their brother’s bed, lubricated his penis with baby oil, and attempted to penetrate her vaginally (count 8) and then anally (count 9).

31 The complainant said that this took place well after the appellant’s accident and that she was somewhere between 12 and 14 years old at the time. However, unlike the other counts of which he was acquitted, the appellant did not produce evidence that the incident could not have occurred in the period of time alleged. Rather, he relied upon the improbability of the appellant having behaved in such a way when the risk of discovery by their mother was so great (whether or not the mother would have been able to see what was occurring in the garage from her position at the clothesline). Moreover, the complainant acknowledged in evidence that, although she had spoken about the appellant’s behaviour to his sister and, to a limited extent, to her mother in 1997, she did not articulate these particular allegations until she made a statement to police in June 1999, some two years later.

Complaint

32 As I have said, the evidence is that the complainant first raised her allegations against the appellant with her sister and her mother in 1997, more than twenty years after the last incident complained of. She said that she had earlier spoken to a counsellor, but the evidence does not disclose who this was, when it was or, apart from some discussion about incest, what passed between them. As I have also said, it was not until 1999 that she went to the police about the matter. The appellant was first informed that she had made the allegations in October 1997.

33 The complainant explained her silence throughout her childhood and adolescence in terms which accord with human experience and are commonly encountered in cases such as this, such as embarrassment and a lack of insight into the aberrance of the appellant’s behaviour. In addition, because of her disability she had the difficulty of communication to which I have earlier referred. She said that it was not until after she married in 1983 that she read publicity about sexual abuse and began to grasp the significance of what she had been through. The lengthy delay between then and the time of her complaint to her sister and mother was unexplained, as was the further delay before she reported the matter to police.

34 There was evidence that around the middle of 1997 the complainant applied for a disability pension, which was refused. Later in the year she reapplied on the basis that her capacity to work had been affected by her experience of sexual abuse, and on that occasion her application was successful. The pension entitlement was to be reviewed in two years’ time, that is in 1999. It was put to her that she had fabricated the allegations against the appellant to secure and maintain that pension. It was suggested that this was why she had made the allegations to her sister and her mother in 1997, and to the police in 1999. This, of course, she denied.

Admissions

35 The complainant’s sister gave evidence that she confronted the appellant with the complainant’s allegations in a telephone conversation towards the end of 1997, and he had said that “it was embarrassing” and “it happened a long time ago.” However, she acknowledged that in her statement to police in September 1999 she had said that in that telephone conversation the appellant had denied sexually abusing the complainant. That was the effect of his evidence in the trial about the conversation, although he agreed that he could have said something to the effect that the allegations were “embarrassing.”

36 The appellant’s former wife, whom he married in October 1995 and from whom he separated in January 1998, gave evidence that she discussed the complainant’s allegations when they came to her attention. According to her, he said it was “only experimentation for them” and that he definitely remembered “doing it”. She said that he asked her whether she ever wanted “to do this” herself. He also told her not to believe what she heard, saying that he “only wanted to touch her [the complainant’s] pussy.” The appellant gave evidence denying that he had said these things and the reliability of the witness was challenged in relation to another matter which I need not recite.

The appeal

37 The only ground of appeal is that the verdicts of guilty of counts 2, 3 and 5 are unreasonable. In relation to counts 2 and 3 (the “home sick” incident), counsel for the appellant relied upon the evidence tending to call into question the complainant’s account, particularly the evidence of the appellant’s injuries at the time. In relation to count 5 (the “second bathroom” incident), it was argued that the complainant’s evidence lacked detail and specificity. Generally, her credibility was impugned on a number of bases, including the fact that her account of the “turtle” incident was contradicted by the evidence of Stephen Bradshaw. More importantly, it was said that the jury’s acquittal of the appellant of counts 8 and 9 (the “garage” incident) demonstrates that they had taken an unfavourable view of the complainant’s credibility.

38 Reliance was also placed upon the long delay in complaint and the fact that, apart from the evidence of the appellant’s admissions, there was no corroboration. Counsel argued that the admissions attributed to the appellant were vague and unspecific, and could not be related to any particular count in the indictment. He pointed out that, notwithstanding that evidence, the jury acquitted the appellant of most of the counts.

39 It is the jury’s acquittal of the appellant of counts 8 and 9 which has persuaded me that the verdicts of guilty cannot stand. The other matters relied upon by counsel, viewed in combination, have considerable force but they would not lead me to the view that the verdicts of guilty are unreasonable. The jury were directed appropriately about the need to scrutinise the complainant’s evidence and the significance of delay in complaint. I am mindful of the respect which must be afforded to the jury’s role as the tribunal of fact and their undoubted advantage in having seen and heard the witnesses, particularly the complainant, the appellant and their mother: M v The Queen (1994) 181 CLR 487, in the joint judgment at 493.

40 The acquittals of counts 1, 6 and 7 (the “out the window” and “hot summer’s day” incidents) are explicable on the basis that the jury were not satisfied that those offences occurred within the period of time alleged. That the jury were concerned about that matter is apparent from a question which they asked after they had retired, leading his Honour to direct them accordingly. However, the acquittals of counts 8 and 9 cannot be explained in this way. The complainant’s account of that incident, sketched very briefly in paras 20 and 21 of these reasons, called for examination with a very critical eye, and I am driven to the conclusion that the jury acquitted the appellant of those counts because they were not satisfied to the requisite degree of the truth of her evidence concerning the incident: cf Jones v The Queen (1997) 191 CLR 439, in the joint judgment at 453.

41 It does not seem to me that that question about the complainant’s credibility can be confined to those counts, without infecting the rest of her evidence. An unusual feature of this case is that the appellant was found guilty of counts 2 and 3 in the teeth of positive evidence tending to undermine the complainant’s account. This could be because the jury were not impressed by the appellant and his mother as witnesses. However that may be, it was the truthfulness of the complainant which was the foundation of the Crown case.

42 I am well aware of the caution with which an appellate court should assess an argument that acquittal of some counts in an indictment should lead to verdicts of guilty on other counts being set aside. I have had regard to the examination of this area by Spigelman CJ and Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82, including their Honours’ careful analysis of Jones and kindred cases. In particular, I have been assisted by the enumeration of relevant factors to be found in the judgment of Wood CJ at CL at paras 234-5, mindful that his Honour was not suggesting “that there must inevitably be a search for an explanation for a difference in verdicts” (para 236).

43 The Chief Judge continued (paras 237-8):

“I am not, accordingly, persuaded that it is necessarily helpful, or indeed essential, to narrow the search for an actual or possible logical basis for distinction. There will be cases where, once the entirety of the case is reviewed, the appellate court will maintain a comfortable satisfaction as to the verdicts of guilty in relation to the relevant counts, upon the basis of the evidence separately considered concerning them.
Ultimately, the question remains one of fact and degree as to whether the difference in verdicts is such that, as a matter of logic and reasonableness , bringing to account all of the factors which I have mentioned, including the practical approach which juries are entitled to bring to their task, the conviction should be regarded as unreasonable or incapable of being supported upon the evidence.”

44 His Honour’s reference to “logic and reasonableness” derives from the judgment of Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348 at 366. This is certainly not a case where the verdicts of guilty are explicable on the basis that, as a matter of fairness and justice, the jury saw them as sufficient to mark the appellant’s overall criminality: cf R v Kirkman (1987) 44 SASR 591, per King CJ at 593; Markuleski, per Spigelman CJ at paras 75-7 and Wood CJ at CL at paras 228-230.

45 While I see the acquittals of counts 8 and 9 as determinative, it is apparent that the complainant’s evidence about them was not the only difficulty which the Crown faced in the troubling case. To adopt the words of Wood CJ at CL in the passage from Markuleski quoted above, having reviewed “the entirety of the case”, I cannot maintain “a comfortable satisfaction” about these verdicts of guilty “upon the basis of the evidence separately considered concerning them.” In my view, as a matter of logic and reasonableness, they cannot stand with the acquittals of counts 8 and 9.

46 I would allow the appeal, quash the verdicts of guilty of counts 2, 3 and 5, and direct a verdict and judgment of acquittal in respect of each of those counts.

47 CARRUTHERS AJ: In this matter I have had the benefit of reading in draft form the judgment of Hidden J. I am indebted to his Honour for the outline of the relevant factual matters associated with the nine counts in the indictment and there is no need for me to repeat that detail. I am, however, unable to reach the same conclusion as his Honour insofar as the resolution of this appeal is concerned.

48 It is important to bear in mind certain background evidence. The complainant was born profoundly deaf and was the youngest of six children. The appellant is a little under eight years older than the complainant. In evidence the complainant related persuasively and in detail the considerable difficulties which she experienced in her formative years by reason of her profound deafness. She lacked the capacity to communicate effectively with her parents, her siblings, and peers. This resulted in her having inadequate knowledge of human behaviour and, in particular, matters of a sexual nature. Her knowledge in this latter regard would have been well below that of her peers.

49 It is clear that by reason of her deafness the complainant had considerable difficulty during her formative years in comprehending dates on which events occurred associated. I refer here to events not only with the alleged sexual misconduct of the appellant but in all respects of her daily life.

50 There were obviously difficulties in her relationship with her parents and, in particular, she related how she feared the anticipated reaction from her mother if she were to complain to her about the conduct of her brother.

51 She obviously felt dominated by the appellant and described with some emphasis in evidence how she followed his instructions, “like a dog”.

52 It was inevitable then that when she came to give her evidence that she would experience extreme difficulty in fixing the various allegations by reference to the calendar. Thus, for the sake of convenience descriptive titles were allocated to the various counts in the indictment. Those titles are set out in the draft judgment of Hidden J. In these circumstances it is quite understandable that the jury would have experienced little difficulty in accepting the complainant’s explanation for the delay in her making complaint, firstly to members of her family and ultimately the police.

53 This is not a case where the complainant entirely lacked corroboration. The complainant’s case was assisted by the evidence of admissions deposed to by the complainant’s sister PA and her former sister-in-law, LB. It is important, therefore, to set out the detail of the evidence given by these two witnesses of the alleged admissions. PA is approximately nine years older than the complainant and the eldest of the six children in the complainant’s family.

54 PA gave evidence that in August 1997 the complainant related to her the detail of alleged sexual assaults by the appellant. The complainant instanced “At least nine, ten, eleven” specific incidents in that regard (T151).

55 PA gave the following evidence in chief:

“Q. Did you speak to your brother [the appellant] about what [the complainant] had told you?
A. Yes. Yes. There was a – things sort of came to a head and --
Q. Did you have a conversation with him?
A. Yes, yes, I had a conversation with him yeah and I confronted him about the sexual abuse of [the complainant].
Q. When was that?
A. When was that, that was towards the end of 1997.
Q. What did you say to him?
A. I confronted him, I can’t remember the exact words but I confronted him about sexual abusing [the complainant].
Q. What did he say to you, using the words he used if you can. ‘He said’ and then use the words he used?
A. First he implied --
OBJECTION. OBJECTION UPHELD.
CROWN PROSECUTOR: Q. You can’t paraphrase?
A. He said it was embarrassing it happened a long time ago.
Q. Did he say anything else in that conversation?
A. Not that I can remember in close (sic).” (T150)

56 PA adhered to this evidence when challenged during the course of cross-examination.

57 The following evidence was then given by PA in re-examination:

“CROWN PROSECUTOR: Mr Pontello just asked you this question, ‘[the appellant] denied sexually abusing [the complainant]’ and you said, ‘Yes’. What words did he use in order to deny that?
A. I can’t recall word for word, but I can – it was sort of like, ‘it wasn’t as bad as that’. Yeah, words to that effect.
Q. Anything else constituting what you say was a denial?
A. That was more or less it.” (T159)

58 LB gave evidence that she married the appellant on 11 October 1995 and they separated on 26 January 1998.

59 She gave evidence that it came to her attention during the course of the marriage that the complainant had made certain allegations against him.

60 Her evidence continued:

“Q. Did you ever discuss those allegations with the accused, with [the appellant]?
A. They came up in conversation, yes.
Q. What did he say to you about those allegations, and please use the words he used to the best of your ability?
A. He was saying that it was only experimentation for them and he definitely remembers doing it and he was asking me whether I wondered if ever – was I ever curious, ‘Didn’t you ever want to do this yourself?’. He was saying it wasn’t how it’s coming out. ‘What you hear, don’t believe what you hear’. And he was only saying, ‘I only wanted to touch her pussy’.” (T160)

61 Prior to these conversations taking place, LB had not met the complainant.

62 In cross-examination the witness adhered to her evidence of the admissions and she gave evidence that she made a statement to the police in that regard on 3 November 1999.

63 In cross-examination it was put to the witness “You spoke to him on numerous occasions about the allegations, correct?”. The witness replied, “On different occasions, yes, not numerous” (T162)

64 It was clearly open to the jury to accept this evidence of admissions (albeit the admissions were denied by the appellant) and to weigh it in the complainant’s favour when assessing her credibility. I acknowledge, of course, that the admissions did not correspond to the specific allegations made by the complainant, but were of a very general and limited nature. Nevertheless, they did have some probative value.

65 The sole ground of appeal in this matter is that “The verdicts of guilty in relation to counts 2, 3 and 5 are unreasonable and cannot be supported having regard to the evidence adduced at the Appellant’s trial”.

66 In support of this ground counsel for the appellant relied firstly upon the delay in complaint. For the reasons I have given, I do not think the submissions in that regard justify the intervention of this Court. His Honour gave the jury detailed and appropriate instructions with regard to the significance of the delay and the difficulties which delay created for the appellant in defending the charges.

67 The second basis was refined to the submission that the verdicts of not guilty with respect to counts 8 and 9 necessarily disclosed a rejection by the jury of the complainant’s credibility. Therefore, in the circumstances, the jury should have taken that lack of credibility into account when considering counts 2, 3 and 5 and recorded verdicts of not guilty under those counts: see Jones v The Queen (1997) 191 CLR 439 and R v Markuleski (2001) 52 NSWLR 82. It was submitted that there could be no rational explanation for those two particular verdicts of not guilty, other than a rejection by the jury of the complainant’s credibility.

68 It is important to bear in mind in the instant case that his Honour’s summing-up was impeccable and included the appropriate directions and warnings which the law requires in cases of this nature.

69 His Honour gave the jury written directions and, in addition, gave the jury the following direction in compliance with Longman v The Queen (1989) 168 CLR 79, and related cases.

70 In this regard his Honour said:

“Now ladies and gentlemen I am just going to interrupt my written directions at this point to give you another direction of law. You must be satisfied that the Crown has proved each ingredient of a particular charge to your satisfaction beyond reasonable doubt. But there was one important qualification to this process of separately considering the charges. As I already said the principle issue in this trial is whether the complainant is a witness whom you can rely upon as truthful and reliable to prove the charges beyond reasonable doubt. If it is the case and it is entirely a matter for you as to whether it is or not, but if it is the case that you come to have a doubt or a question mark in relation to the truthfulness or reliability in relation to one or more counts then it is a matter that you should take into account in considering whether you are prepared to accept her as a credible witness in relation to the evidence she has given about the other counts. An example in this case may be the evidence about the home sick incident. And remember ladies and gentlemen I am giving you this only by way of an example, I have formed no opinion one way or the other and if you think that I have formed an opinion or that I am hinting that I have formed an opinion then you must as I know you will disregard it entirely. But as I have said an example in this case maybe the evidence given about the home sick incident. If the evidence from the mother of the complainant the accused as to [the complainant] not being home when [the appellant] was recuperating causes you to have a doubt regarding that incident as [the complainant] has described it, then you should take that doubt into account in considering her overall credibility in relation to the other counts. I reiterate, I have used that as an example only. As I have said, it is not for the accused to put evidence forward to prove his innocence and I will explain to you later in my directions the difficulty caused to him in defending the charges by reason of delay.
But he has been able to put forward evidence in relation to that count which might cause you to have a doubt about it. It might be that you have a doubt regarding that count of another one or one – I will start again. It might be that you have a doubt regarding that count or another one or other for different reasons altogether. Such as your assessment of the complainant’s demeanour or because of inconsistent account at different times regarding the detail of the allegation or for any other reason. Any doubt you have for any reason should be taken into account when you come to consider whether you are prepared to act upon her evidence as truthful and reliable regarding the other counts.
Ladies and gentlemen that is the only qualification but it is an important one to my directions that you only consider the evidence relating to each charge when deciding whether the Crown has proved it beyond reasonable doubt.” (S/U 18-20) [My emphasis.]

71 These directions were given in clear and precise terms and one would reasonably expect the jurors in discharge of their responsibilities would have adhered to the directions.

72 After having retired to consider their verdicts the jury asked two questions, firstly, whether they could have a transcript of his Honour’s summing-up. His Honour informed the jurors that he was unable to provide that transcript but if they identified any particular matter which was causing concern then his Honour would redirect them.

73 The second question was in this form:

“If the jury believes that a particular offence occurred outside the dates specified in the indictments, can we give a verdict on that basis, or must it be within the date range specified?”

74 His Honour answered that question as follows:

“The Crown must satisfy you, beyond reasonable doubt, that the particular offence was committed on one specific occasion during the period specified in the count applying to that charge. If it does not do so, you must find the accused not guilty of that particular charge.”

75 The foreperson indicated that the responses by his Honour were adequate for the jury’s purposes.

76 The second question was, of course, particularly pertinent bearing in mind the uncertainty contained, in some respects, in the complainant’s evidence regarding the dates upon which particular events occurred.

77 The inference is clearly open from a careful perusal of the evidence that a significant factor in the verdicts of not guilty with relation to counts 1, 6, and 7 was the fact that the jury were not satisfied, to the requisite standard, that the sexual conduct alleged took place within the time parameters of the respective counts. It was, of course, on this basis that his Honour directed a verdict of not guilty in relation to count 4. Counts 8 and 9, as I have indicated, are the counts specifically relied upon by counsel for the appellant. They were categorised as the “garage incident”. It is important then to consider the relevant evidence. The complainant gave the following evidence in chief:

“Q. Do you remember how old you were when that happened in the garage?
A. No.
Q. How long after [the appellant]’s accident?
A. Maybe twelve to fourteen, it was well after the accident the scar was healed, like it was well after and [the appellant] had a son at that time.” T33)

That evidence was, of course, vague as to the relevant date. Thus, it seems to me, the jury could well have experienced a degree of uncertainty as to whether these alleged offences were committed within the time frame averred in the indictment and entered verdicts of not guilty without having a doubt about the credibility of the complainant.

78 Turning then to the counts upon which the appellant was convicted. The first matter one should note is that the cross-examination of the complainant extended over eighty-nine pages of transcript. No stone was left unturned. The cross-examination consisted of a sustained and determined attack upon the complainant’s credibility. It is not, perhaps, inappropriate to note, however, that Judge Coleman, whose extensive trial experience is well recognised, had no difficulty in being satisfied beyond reasonable doubt, when sentencing the appellant, that the complainant’s evidence in relation to the three guilty counts was to be accepted.

79 One comment should be made in relation to the second and third counts (the “home sick incident”). It is true that at the time of these offences the appellant was to some extent disabled as a result of his motor vehicle accident and the defence relied heavily upon this fact. However, he was then eighteen years of age and the complainant was about ten years of age. There would then have been a significant difference between their relative strengths.

80 It is relevant to note that during the course of his evidence in chief the appellant was asked the question:

“Q. Could you pick up or push heavy objects whilst at home during that period?
A. Well with the left hand but not the right, no.” (T174)

There seems little doubt, when reading the evidence in relation to the second and third counts, that the jury could well have concluded that the appellant would have been physically able to perform the conduct of which the complainant gave evidence.

81 With regard to those two counts, it is also significant that there was ample opportunity for the appellant to have committed those offences, because he and the complainant were the only two persons in the home at the relevant time.

82 With regard to the fifth count (the “bathroom incident”) the complainant gave a rather graphic and detailed description of the appellant’s conduct on that occasion. It is not to be forgotten, of course, that in this regard the jury were entitled to call in aid the evidence of the admissions allegedly made by the appellant to which I have referred earlier.

83 This is not a case in which it is necessary to revisit the discussion of the relevant principles regarding inconsistent verdicts in Jones and Markuleski.

84 As the joint judgment of the High Court in M v The Queen (1984) 181 CLR 487 at 493-495 explains, the ultimate question must always be whether the appellate 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. However, their Honours added:

“But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.” (Footnotes omitted.)

85 The subject trial was conducted with impeccable fairness and in all respects in full accordance with the law. The jury, in my estimation, discharged their responsibilities with care and attention to the evidence and, I have no doubt, the directions of law in the summing-up. Having carefully read the totality of the evidence and the summing-up I am quite unable to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the second, third and fifth counts.

86 I would dismiss the appeal.

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