R v Graham Malcolm Hurrell No. SCCRM 93/51 Judgment No. 3940 Number of Pages 8 Appeal and New Trial

[1993] SASC 3940

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1), BOLLEN(2) AND MILLHOUSE(1) JJ

CWDS
Appeal and new trial - appeal - general principles admission of fresh evidence
Criminal Law - multiple charges - different verdicts - on the facts no fatal inconsistency in the verdicts - fresh evidence - proposed evidence could have been obtained for trial - proposed evidence lacked cogency - application to call "fresh evidence" refused
R v Mclntee (1985) 38 SASR 432, applied. Gallagher v R (1986) 160 CLR 392; R v Mickelberg (1989) 167 CLR 259 and R v Winslett (CCA 22 December 1992, unreported), discussed.

HRNG ADELAIDE, 22 April 1993 #DATE 19:5:1993
Counsel for appellant:     Miss E F Nelson QC
Solicitors for appellant:    Johnston Withers acting
   as agents for
   Jenkins Anderson and Co
Counsel for respondent:     Not known

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J The appellant was charged with the following five offences. I set them out with the particulars of each as in the Information save that I have called the girl concerned "M".
    "First Count Statement of Offence Unlawful Sexual Intercourse
    with a Person Under 12. (Section 49(1) of the Criminal Law
    Consolidation Act, 1935.) Particulars of Offence Graham Malcolm
    Hurrell between the 1st April, 1987 and the 31st December, 1987
    at Port Lincoln, had sexual intercourse with M, a person under
    the age of 12 years, by inserting his finger into her vagina.
    Second Count Statement of Offence Gross Indecency in the
    Presence of a Person Under 16. (Section 58 of the Criminal Law
    Consolidation Act, 1935.) Particulars of Offence Graham Malcolm
    Hurrell between the 1st April, 1990 and the 30th June, 1990 at
    Port Lincoln, committed an act of gross indecency in the
    presence of M, a person under the age of 16 years.
    Third Count Statement of Offence Unlawful Sexual Intercourse
    with a Person Under 17. (Section 49(3) of the Criminal Law
    Consolidation Act, 1935.) Particulars of offence Graham Malcolm
    Hurrell between the 1st April, 1990 and the 30th June, 1990 at
    Port Lincoln, had vaginal sexual intercourse with M, a person
    under the age of 17 years.
    Fourth Count Statement of Offence Gross Indecency in the
    Presence of a Person Under 16. (Section 58 of the Criminal Law
    Consolidation Act, 1935.) Particulars of Offence Graham Malcolm
    Hurrell between the 3rd May, 1990 and the 3rd June, 1990 at Port
    Lincoln, committed an act of gross indecency in the presence of
    M, a person under the age of 16 years.
    Fifth Count Statement of Offence Unlawful Sexual Intercourse
    with a Person Under 17. (Section 49(3) of the Criminal Law
    Consolidation Act, 1935.) Particulars of Offence Graham Malcolm
    Hurrell between the 1st June, 1988 and the 1st September, 1989
    at Port Lincoln, had sexual intercourse with M, a person under
    the age of 17 years, by performing an act of cunnilingus on
    her." 2. The appellant denied each charge. A jury found him guilty on counts 1, 4 and 5 and not guilty on counts 2 and 3. The verdicts were unanimous. 3. The girl was the stepdaughter of the accused. The appellant appeals against the three convictions. 4. Leave to appeal was granted by Millhouse J. The grounds of appeal in the Notice of Appeal are (on page 2 of the Notice):-
    "(1) The Learned Trial Judge erred in his directions to the jury
    as to the use that could be made of the evidence of Michelle
    Potts in that he failed to canvass all possible sources of the
    money that the victim had in her possession from time to time.
    (2) That there is fresh evidence which was not available to the
    appellant at the time of his trial namely that the Prosecutrix
    had stated to Brent Chambers on the 29th or 30th March, 1992
    that, 'I've got Graham where I want him' and 'I'll do anything I
    can to get Heather a nervous breakdown' and additional fresh
    evidence relating to the source of the Prosecutrix's money.
    This evidence is contrary to the Prosecutrix's evidence at the
    trial and supportive of the appellant's evidence on oath." and (on page 3 of the Notice of Appeal):-
    "(1) Leave is sought in relation to ground (2) of paragraph 15
    hereof. Leave is sought on the grounds that there is now fresh
    evidence available which was not available at the time of trial
    which casts doubt on the verdict at trial and indicates that an
    injustice to the accused may have occurred.
(2) The evidence is of such a nature that it would have been
    capable of affecting the verdict of the jury." 5. The very first stated ground was not argued as a separate ground although the question of "money" was certainly debated. 6. At the hearing before this court Miss Nelson QC, for the appellant, sought and was granted (without opposition) leave to amend by adding two additional grounds. They are:-
    "1. The jury was not satisfied of the accused guilt in relation
    to counts 2. and 3. The inconsistency of verdicts requires
    that the conviction be quashed.
    2. The Learned Trial Judge was in error in directing the jury
    as to the manner in which they could treat the evidence of the
    witness Maver particularly having regard to the Learned Trial
    Judge's refusal to give a similar direction relating to the
    witness Boothey." 7. Miss Nelson argued that both the additional grounds were made out and that the appeal should, therefore, be allowed. Indeed that it should be allowed if either ground was made out. I thought Miss Nelson was the more urgent in arguing "the inconsistency" ground. If the court was against her arguments, Miss Nelson relied on the "fresh evidence" ground. 8. The events alleged to have happened in count 1 happened prior to those alleged in the other counts. The events alleged to have happened in count 5 were second in time. The events alleged to have happened in counts 2 and 3 were said to have occurred on the one occasion. The charges are said to have been representative charges alleging some of many occasions of sexual contact and indecency by the accused to or with the girl or done in her presence. 9. I need not recite the evidence at any length. The intercourse alleged in count 1 was intercourse by the inserting of fingers of the accused into the vagina of the girl. 10. The intercourse alleged in count 5 was an act of cunnilingus by the accused on the girl. 11. The conduct alleged in counts 2 and 3 was, as to count 2, masturbation by the accused in the presence of the girl and, as to count 3, penetration of the vagina of the girl by the penis of the accused. 12. There may be some initial surprise at the different verdicts returned by the jury. I must, therefore, say a little more about the evidence called to support counts 2 and 3. The greater part of that evidence is:-
    "Q. During that time was there a particular occasion when you
    were watching television and the accused came in.
    A. Yes. He came in and he started undressing himself and then
    me and then he started playing with his penis so it was erect
    and went into the bedroom and got a condom out and put it on and
    tried having intercourse with me.
    Q. This occurred in the lounge room that he tried.
    A. Yes.
    Q. Just go back for a moment. He came in and what did he do
    with his own clothes.
    A. He took them off.
    Q. All or just some.
    A. All of them.
    Q. What about your clothes.
    A. He took them off too.
    Q. Then you say he came back in with a condom.
    A. Yes, he went into the bedroom, took me with him to get a
    condom.
    Q. Where did he get the condom from.
    A. Out of a thing I gave my mother for Mother's Day a while
    back.
    Q. What type of thing was it.
    A. It was like two love hearts. You can take the top off and
    take another section out so there were two sections to it. In
    the top section there were condoms in there.
    Q. Whereabouts was that container in the bedroom.
    A. Sitting on the duchess, the dressing table.
    Q. Once you got back into the lounge room what occurred. Tell
    us slowly.
    A. He put the condom on his penis and tried to have sex with
    me.
    Q. What position were you in.
    A. I was laying on the floor and he had hold of my arms.
    Q. Which way were you facing.
    A. With my feet towards the TV, so I was facing this way.
    Q. Looking up or down.
    A. Looking up at the ceiling.
    Q. So your back was on the floor.
    A. On the floor.
    Q. Whereabouts was he.
    A. He was on top of me. He had hold of my arms and he spread
    my legs.
    Q. Where were his legs.
    A. Holding mine out.
    Q. Where were they, outside or inside yours.
    A. Inside.
    Q. What did he do with his penis.
    A. He tried to put it into my vagina.
    Q. Did it go in.
    A. It went part of the way in, but I got him off of me before
    he could get it fully in.
    Q. How did it feel when he got it partly in.
    A. Very painful.
    Q. How did you get him off you.
    A. I raised my hips so he went up in the air and as he came
    down I had my knee sticking up and it got him right in the
    groin.
    Q. What was his reaction when you did that.
    A. Very painful.
    Q. How could you tell.
    A. He was rolling around holding his groin." 13. Miss Nelson by no means suggested that it was in law impossible in cases like this one for a jury to return different verdicts on various counts. But Miss Nelson contended that in this case: "... if the jury had a reasonable doubt about any of the incidents, then that reasonable doubt should have extended to all of the allegations and the accused should have had the benefit thereof." (paragraph 1 of her Outline). Mr Rofe QC, for the respondent Attorney-General, reminded us that jurors might well return different verdicts for reasons which seemed good to them even if strict logic might not support different verdicts. Moreover, he submitted that the occasions when the second and third counts were said to have occurred was the only occasion when penile penetration was alleged by the girl to have happened and was the only occasion when she claimed to have exercised physical retaliation. The jury may well have rejected the allegations of the girl about the penile penetration or about her physical retaliation. The jury could have rejected that evidence while accepting beyond reasonable doubt all else that she said of other occasions. To this we may add this evidence given by the accused:-
    "Q. Have you ever kept condoms in the house.
    A. No.
    Q. Have you had to use any form of contraception since you
    married your wife.
    A. No.
    Q. Why not.
    A. My wife had a hysterectomy before we met and so there's no
    use for any contraception whatsoever." 14. Perhaps the jury did not reject this evidence. Perhaps the jury thought that the evidence of the girl about the condom was not reliable. 15. There were, then, adequate reasons for the differing verdicts. I am by no means implying that different verdicts cannot stand in the absence of apparent good reason for them. Here there was good reason. The "inconsistency ground" fails. The accused called a friend of the family, Andrew Maver. He gave some evidence capable of being helpful to the accused. Of the evidence of Maver the learned trial judge directed the jury thus:-
    "Ladies and gentlemen, you will consider all that, of course,
    and you will also consider whether you should weigh against Mr
    Boylan's argument the undoubted fact that Mr Maver was not an
    entirely independent witness. He had been a close friend of the
    accused and his wife, and Mr Maver's own de facto wife was a
    niece of the accused's wife. You may well consider, and it is
    entirely a matter for you, whether it was not a strange thing
    for Maver to have busied himself in the way that he did, and
    cross-questioned the girl, then aged 15, in the way that he did,
    and whether, perhaps, she has done justice to herself if you
    find that she gave the answers that Maver told you she did.
    They are all matters, ladies and gentlemen, that you will
    consider at the proper time when you consider your verdict in
    the jury room. That is all I intend to say. If, as a result of
    the evidence of Maver, or of any other weakness that you
    consider exists in the Crown case, and in the evidence of the
    witness M, you entertain any doubt at all about his guilt of all
    or some of these counts, you will find him not guilty. Indeed,
    it would be your duty to do so. If, on the other hand, having
    weighed the evidence of Maver and the address of Mr Boylan, and
    all the arguments attacking the credibility of M, having weighed
    all those things, you are still convinced she has told you the
    truth, things, you are still convinced she has told you the
    truth, that you are convinced beyond reasonable doubt that these
    incidents occurred as she described them to you, your verdict
    will be guilty." 16. I can find no error in these comments in themselves. Miss Nelson QC argued in effect that what was sauce for the goose should have been sauce for the gander. 17. The Crown called a former boyfriend of the girl, Richard Boothey. He gave evidence adverse to the accused. Apart from reading some of the evidence given by Boothey to the jury His Honour said:-
    "Miss Vanstone put to you, and you may well agree with her, that
    Mr Boothey, although he had been her boyfriend, seemed to be a
    genuine young man and to be a guileless young man. His
    evidence, of course is important from the point of view of the
prosecution because it contains some admissions by the accused." 18. His Honour did not direct the jury in the way in which he directed them about the evidence of Maver. After the jury had retired counsel invited His Honour to call the jury back and direct in relation to the evidence of Boothey in like manner as he had directed in relation to the evidence of Maver. The learned trial judge declined. In my respectful opinion he was right. The fact that Boothey was not entirely independent was obvious. The danger of his giving inaccurate or false evidence against a former girlfriend must have been apparent to the jury. The "relationship" or former "relationship" of Boothey to the girl and of Maver to the accused with all the relevant overtones of such relationships must have been apparent to the jury. I cannot think that it really matters whether the learned trial judge gave any or no directions about either of these "relationships". 19. The "sauce for the goose ... " ground fails. What of the suggested fresh evidence? The principles governing the reception of fresh evidence are well established (see, in particular, Gallagher v R (1986) 160 CLR 392: R v Mickelberg (1989) 167 CLR 259 and R v Winslett (Court of Criminal Appeal, 22 December 1992, unreported). In the first place I do not think that the proposed evidence was evidence which could not, with due diligence, have been ready to call a trial. Most of the proposed witnesses speak of the fact that the girl was often in possession of more money than would have been usual for one of her age. She said in her evidence, in effect, that the accused paid her to keep quiet about his sexual actions with or on her. She said, in particular, that after the act of cunnilingus the accused gave her "about fifty dollars". The girl went on to give this evidence:-
    "Q. Did he say why he was giving you fifty dollars.
    A. No.
    Q. Did he mention your mother.
    A. Yes, he said for me not to tell my mother about the money or
    she'd ask where it come from, not to let her see it.
    Q. Why did you think he was giving you the money.
    A. I never knew. All I knew, he just kept giving me money for
    everything he did.
    Q. What do you mean 'everything he did'.
    A. Well, every time an incident occurred, I seemed to get
    money. It ranged between ten, fifty, maybe even more." 20. It is important to remember that the girl always alleged that the accused had given her large sums of money. The reason advanced for the failure to marshall the evidence of the proposed witnesses in time for trial is that the Crown sent a declaration of one Michelle Potts to the solicitors acting for the appellant only about two weeks prior to trial. As to that I say in the first place that that should have given adequate time for the evidence to be found and the witnesses marshalled. 21. Michelle Potts deposed to the fact that between 1998 and 1991 inclusive the girl had more money than did Michelle. Michelle gave this evidence:-
    "Q. And over that period that you knew M, did she seem to have
    more or less or the same amount of money as you.
    A. She usually had more.
    Q. What sort of amounts of money did you see her with.
    A. Usually ten, or $20 at a time.
    Q. Notes, do you mean or -
    A. Yes, notes.
    Q. And have you seen her with notes bigger than a 20 dollar
note.
    A. Yes. Every now and then, but it wasn't all the time.
    Q. And did she ever shout you coffees or sandwiches.
    A. Every now and then she would shout me lunch, yes.
    Q. And what sort of things did you see her spend the money on,
    apart from lunch, food.
    A. Clothes and accessories, things like that, yes.
    Q. Did you know how much pocket money she got.
    A. No, I wasn't sure.
    Q. How did the amounts of money that she had seem to have
    compared with amounts that other friends had.
    A. It was usually more than most of my friends had. That's as
    well as me, yes.
    Q. Did you go to the Tunarama Festival in 1991.
    A. Yes, we did.
    Q. Did you notice how much money she seemed to be carrying
    around on that occasion.
    A. Yes, she had about a hundred, say, each day to spend and it
    would be gone by the end of each day.
    Q. And what did she spend that money on.
    A. Just rides and things like that, food.
    Q. How many days was that Festival.
    A. I'm not sure exactly.
    Q. How many days did you go to it. Was it more than one, was
    it.
    A. Yes." 22. This is, of course, consistent with the girl being paid for silence. But it is said that the other evidence now available would throw doubt on payment for silence by proving or raising the possibility of another source of money. That source of money is said to be theft by the girl from the office of the accused. For example, one Caroline Sara Catt, has given a statement which includes the information:-
    "I can recall in year 9 (1989) when I stayed at the Hurrell
    house with M. She asked whether I wanted to go down to the
    shop. I said that I would because I had some money of my own.
    I went into Mr. Hurrell's office with M and saw her take some
    coins (I think about $4.00 or so) from a drawer in a desk in the
    office. I noticed a sprinkle of coins in the top drawer but I
    didn't see any notes. The drawer was not locked." Lisa Jane
    Sirmulis recalls an occasion when:-
    "M went into Graham's office. I stood by the door and she went
    through the drawers of a desk in the office. She found about
    $7.00 in coins and we then went to Possum's Deli to purchase the
    cigarettes. We had about $4.00 or so left over with which we
    purchased some lollies and chocolates." 23. But neither these two proposed witnesses nor any other of those who have given statements speak of the girls taking large sums or large sized bank notes from the desk of the accused. They do not, in short, speak of the girls taking or being in possession of sums likely to have been expended to buy silence. 24. On another score one Brett Chambers as a proposed witness. His evidence would be fresh evidence because he speaks of a conversation with the girl after trial and after the sentencing of the accused. The sentence was imprisonment for five years. Chambers was friendly with the girl. He met her one day in August 1992 in Hindley Street. They sat at a table in an hotel. He says:-
    "M asked me what I thought of Heather and I said that she was a
    nice person and I had become quite close to her. M then said:

    'I've got Graham where I want him'. I laughed at her. M then
    said to me: 'I'll do anything I can to get Heather a nervous
    breakdown'. I made no response to that remark." 25. Heather is the mother of the girl. The background of this information is that the girl and her mother were on bad terms. The appellant would wish a jury to think it a reasonable possibility that the girl had made false allegations against the appellant to cause him to be imprisoned to the distress of her mother. But, of course, the remarks suggested are equally capable of being remarks made by a victim of sexual attacks who was glad that her assailant was in prison. And it will be noticed that the statement of Chambers contains these sentences:-
    "During the course of general conversation she said 'Graham's
    abusing me'. But she (said) it in an unconvincing way. I
    didn't believe her and didn't discuss the matter with her. M is
an attention seeker." 26. I cannot think that the appellant would have a reasonable chance of acquittal if a jury heard the "evidence" of Chambers. 27. The evidence of theft is meaningless. The evidence of Chambers is equivocal and could be dangerous to the appellant. 28. Speaking of all the proposed "fresh" evidence, Mr Rofe QC said and wrote in his Outline:- "... The proposed evidence ... lacks cogency and could not be said to be likely to have raised a reasonable doubt." 29. I agree. In R v McIntee (1985) 38 SASR 432 at 435 King CJ said:-
    "The rules relating to fresh evidence, like all rules of law, should
    be applied so as to serve and not to frustrate the interests of
    justice. I have no doubt that appellate courts will always receive
    fresh evidence if it can be clearly shown that failure to receive such
    evidence might have the result that an unjust conviction or an unjust
    sentence is permitted to stand." 30. The failure to receive the suggested "fresh evidence" here could not have "the result that an unjust conviction (would be) ... permitted to stand". 31. I would dismiss the appeal.

JUDGE2 MOHR J I agree with Bollen J in this matter.

JUDGE3 MILLHOUSE J I agree that the appeal be dismissed.