R v Huxley

[2000] NSWCCA 314

CITATION:	R v Huxley [2000] NSWCCA 314
FILE NUMBER(S):	CCA 60654/99
HEARING DATE(S):	16 May 2000 (Orders made 22 May 2000)
JUDGMENT DATE:	17 August 2000
PARTIES :	Regina v. John Frederick Huxley
JUDGMENT OF:	Mason P at 1; Sperling J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/710082
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	P Byrne SC MC Marien
SOLICITORS:	Holman Webb SE O'Connor
CATCHWORDS:	Verdict unreasonable - 30 year delay - uncorroborated complainant - conduct inconsistent with documents - flashbacks
LEGISLATION CITED:	Nil
CASES CITED:	Jones v The Queen (1997) 191 CLR 439
DECISION:	Appeal allowed. Convictions and Sentences Quashed. Verdicts of acquittal entered.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60654/99

MASON P
SPERLING J
SMART AJ

Thursday, 17 August 2000

REGINA v JOHN FREDERICK HUXLEY

1   MASON P: I agree with Smart AJ. 2   SPERLING J: I concur with the reasons for decision by Smart AJ which I have seen in draft. 3   SMART AJ: John Frederick Huxley appealed against his conviction on 6 counts of indecently assaulting a female under 16 years of age. On 22 May 2000 this Court allowed the appeal, quashed the convictions and sentences on each of the counts on which the appellant was convicted namely counts 1, 2, 3, 4, 5, and 7 and directed that verdicts of acquittal be entered on each of such counts. I now set out my reasons for participating in those orders. 4   The offences were alleged to have occurred between January 1965 and December 1969, the complainant being the niece of the appellant. The appellant was acquitted of count 6 which was also a charge of indecent assault on a female under 16 years. The appellant contends that the verdicts were inconsistent and further that they were unreasonable and not sufficiently supported by the evidence. 5   The complainant was born on 26 September 1957. Between 1965 and 1969 she lived on a property at Goolgowi about 35 miles from Griffith with her parents, four brothers and her uncle, the appellant. The property consisted of a number of paddocks, two houses (one being old), sheds and chicken yards. 6   As to count 1 the complainant alleges that between about 1 January 1965 and 31 December 1967 when she was about 8 or 9 years of age the appellant piggy backed her from the house up towards the old house. She was wearing a jump suit with elastic around the waist and legs, bloomery type pants with shoe string straps over the shoulders. The appellant had his right-hand underneath her leg and put his fingers inside her trouser leg and up into her vagina. She said that it hurt and the appellant wanted to see where it was hurting. He put her on a mattress in the old house pulled her pants to one side, had a look and put his fingers inside her vagina again. He told her that it was their secret and that she was naughty for allowing him to do what he had done. 7   As to count 2 the complainant stated that when she was about 8 or 9 years old she accompanied the appellant in his utility to the bee boxes that he kept. At the boxes he came around to the side of the utility where she was sitting, pushed her down on the seat and put his fingers in her vagina. This offence was alleged to have occurred between 1 January 1965 and 31 December 1969 as were all the subsequent offences. 8   As to count 3 the complainant stated that when she was 8 or 9 years of age she accompanied the appellant to the "wash away" (an eroded area) which was in the paddock at the front of the house but across the road. She was on the edge of the gully with her back against the dirt. He took her pants down and put his fingers in her vagina. 9   As to count 4 she stated that the appellant was living at a neighbouring property when she was about 9 or 10. She was riding a push bike on the road at the front of her house and the appellant was carting wheat for the next door neighbour. She alleged that the appellant had been down to the silos and on his return stopped and put the complainant's bike underneath the wheat bin on the back of the truck. She said that after he had done that she got into the truck with him. While he was driving the truck he put his hands down inside her pants and put his fingers inside her vagina. 10   As to count 5 she said that she and the appellant were lying outside on the back lawn at the back of the house and up towards the cedar trees. She was about 9 or 10 years of age. It was night-time and they were looking for satellites. She said that they were lying on their backs and that she was using the appellant's stomach as a pillow. She said that she could feel his penis against her head so she moved up towards his chest. She asserted that the appellant undid his fly, moved her head towards his penis and put his penis in her mouth. 11   As to count 6 being the count on which the appellant was acquitted the complainant said that she was aged between 8 and 10 years and was standing between the rain water tanks. The appellant was standing where the tanks joined the ground and she was up on the tank stand. He put his hands inside her pants and his fingers inside her vagina. 12   As to count 7 she said that when she was aged about 11 years she was with the appellant in his utility in Banna Lane in Griffith behind the Westpac Bank and sitting in the passenger seat. She reached up for something. She said that the appellant remarked that she was starting to grow hair and asked her where else she was growing hair. The appellant reached across, pulled her pants down from the top and looked down the front of her pants. 13   The complainant gave evidence that she had a conversation with the appellant in April 1996, a couple of days before she made her first statement to the police. She said that after an initial greeting she asked the appellant if he remembered what he had done to her when she was little. She said that he said, "No." She pressed on and said, "You remember don't you?” And he said, "Yes, but you wouldn't tell anyone now, would you?” I said, "Yes I already have...” He said, "Oh, but I didn't penetrate you though, did I?”
14   The mother of the complainant gave evidence of the complainant's birth date, the layout of the houses, the length of the appellant's stay in their home and the family custom of viewing the sky for satellites. It appeared from the evidence that the family used the back door of the house as the main point of entrance and exit. The water tank were situated close to the house and beside a path which went to the back door and would have been used by people coming to and leaving the house or the property. 15   It appeared that the appellant made two statements to the police. The first statement was made on 17 April 1996. That statement dealt with the matters which became the subject of counts 1, 2, 3, 4 and 7. She said that she did not mention the matters, the subject of count 5 because she was so embarrassed about the oral intercourse that she just could not bring it up. She said that she remembered this matter at the time of making her first statement but the embarrassment precluded her from raising it. 16   As to the incident at the water tanks, she said that she had forgotten about this incident when making her statement to the police on 17 April 1996 but remembered it later. She said that she had been having flash backs and still had them. 17   On 26 April 1996 the complainant in her second statement to the police mentioned the matters the subject of counts 5 and 6. She agreed that in relation to both of the incidents the subject of counts 5 and 6 she had told the police officer that she had been having flash backs and that she was trying to create the impression in the officer's mind when she made the second statement that the two incidents in question had come to her in the intervening period between 17 April 1996 and making her second statement as a result of flash backs. As to the fellatio incident it was untrue to suggest that that had come to her as a result of a flash back. 18   The complainant agreed that she never said anything to the police officer about being too embarrassed to tell her about the penis in the mouth incident. The impression created by the complainant's evidence is that she had a considerable number of flash backs over the years. As appears from their verdict the jury did not accept what the complainant said about the tank stand incident and the alleged flash back. 19   In his evidence the appellant denied ever putting his fingers into the complainant's vagina or putting his penis into her mouth. He also denied looking down the front of her pants in Banna Lane Griffith. The appellant said that he may have piggy backed the complainant at some stage but denied indecently assaulting her. 20   He agreed that he kept bees and that he had taken the children to visit the boxes. He denied, however, that he put his finger into her vagina at the hives. The appellant also denied putting his fingers into the complainant's vagina at the "wash away". The appellant said that carting wheat was a very busy time and that he did not have time to stop and pick her up. He denied putting her bush bike on the truck and he denied putting his fingers into her vagina. 21   The appellant said that it was fairly standard family practice to look at the night sky for satellites. He denied that he put his penis into her mouth. He also denied indecently assaulting the complainant at the tank stand. He said that he did not recall an occasion where he took the complainant to town. He denied having a conversation with her about growing hair and opening her pants to look at her vaginal area. 22   The appellant recalled the complainant telephoning him in April 1996. While he did not recall the conversation exactly he denied that the conversation was as described by the complainant. 23   It appears that there was a lot of activity around the main house on the farm and that there were an appreciable number of people using the back door to the house. Accepting that the incident was alleged to have occurred at night the location of the incident was close to the back of the house and seems an improbable but not impossible place for the alleged activity. 24   The appellant relied on a number of cards sent by the complainant to him over the years at Christmas and birthday times. These were written when the complainant was married and had some three children. They are not in formal terms. One urged the appellant to come and visit them in the new year. A birthday card urged him to come and see the complainant and her family. Another card couched in warm terms refers to a visit that the appellant had made to the complainant and her family and contains news about the activities of the family. Another affectionate card refers to the use that the complainant's family had had of the appellant's residence and urged the appellant to allow them to return the hospitality of the appellant. 25   In 1992 and 1993 the complainant forwarded the appellant photographs of her family. The warmth of the cards and photographs forwarded by the complainant to the appellant are, in the absence of explanation, difficult to reconcile with the evidence of a series of earlier incidents of sexual abuse by the appellant upon the complainant especially when it is borne in mind that the complainant was then a mature woman living with her husband and three children and she was advocating a close relationship between the appellant and her family. 26   Counsel for the appellant directed a considerable amount of his submissions to the point that the verdicts were inconsistent and analysed the judgments in Jones v The Queen (1997) 191 CLR 439. The acquittal on count 6 is able to be explained on the basis that the jury was not prepared to accept her evidence that she had had a flash back to the tank stand incident between 17 and 26 April 1996 and that this brought it to her mind but did accept her evidence when it was not dependent on a flash back. Counsel correctly pointed out that every count depended on the uncorroborated evidence of the complainant as to the events alleged to have occurred over 30 years ago and submitted that it could not be said that the complainant’s evidence on counts 1 to 5 and 7 was more reliable than on count 6. This was a case where she had had ample time to collect and collate what she was going to say to the police. There was nothing in the surrounding circumstances to bolster the credit of the complainant. 27 While I appreciate the strength of the appellant's submissions I prefer to approach the consideration of this appeal upon the basis the verdicts were unreasonable and could not be supported on the evidence. The quality of the complainant's evidence was not high. She was prepared to allow the police officer to be under the mistaken impression that the matters the subject of count 5 (oral intercourse) came to light as the result of a flash back between 17 and 26 April 1996. The flash back which brought back the tank incident was not accepted. She was unable to explain why she sent the cards and photographs (in warm and encouraging terms) to the appellant if he had abused her as alleged. Nor did she reveal what caused her to go to the police after about thirty years. The appellant was not significantly damaged in cross examination. Notwithstanding that the jury had the opportunity to see and hear the complainant and the appellant giving evidence I have concluded after examining all the evidence that the verdicts of guilty cannot be supported on the evidence and that the jury should have had a reasonable doubt. My reasons for those conclusions include:

(a) The prosecution in respect of each of the seven counts depended entirely on the evidence of the complainant. Her evidence was not accepted on count 6 and that damaged her credibility as to the other counts. Count 6 could not fairly be isolated although she explained that she had had a flash back. The exact nature of the flash back was not clear. Its alleged occurrence between 17 and 26 April 1996 was curious;

(b) As indicated earlier, the evidence of the complainant was not convincing in significant respects. It was uncorroborated;

(c) The lengthy delay of over 30 years in her complaining to the police impinged significantly upon her credit. Further, there was no adequate explanation for the delay nor any explanation as to why she went to the police after 30 years. The lack of specificity as to the dates of each incident made it virtually impossible to assess or investigate each incident. There was little more than bare allegations. Reference to some of the features of the farm and the habits of the family added nothing to the proof of the allegations;

(d) The cards and photographs sent by the complainant to the appellant are, absent any reasonable explanation, inconsistent with the evidence of incidents of sexual abuse alleged by her;

(e ) The appellant by reason of the extended delay and the lack of particularity was precluded from mounting an effective defence. In substance he was confined to the production of the cards and photographs and bare denials.

28   As the verdicts were unreasonable this Court had no alternative but to allow the appeal and make the orders mentioned earlier.

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