R v John William Parbery

[2003] NSWCCA 120

Reported Decision: 141 A Crim R 43

New South Wales

Court of Criminal Appeal

CITATION:	R v John William Parbery [2003] NSWCCA 120
HEARING DATE(S):	02/05/03
JUDGMENT DATE:	2 May 2003
JUDGMENT OF:	Ipp JA at 45; Buddin J at 1; Smart AJ at 46
DECISION:	In respect of counts 3, 5, 6 and 7 in each case the conviction is set aside and judgment and verdict of acquittal entered.
CATCHWORDS:	Uncorroborated and delayed allegations of sexual impropriety - verdicts unreasonable and inconsistent
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v The Queen (2001) 193 ALR 184 R v Markuleski (2001) 52 NSWLR 82
PARTIES :	Crown John William Parbery
FILE NUMBER(S):	CCA 60025/2003
COUNSEL:	RA Hulme SC (Crown) J Dailly SC (Appellant)
SOLICITORS:	SE O'Connor (Crown) James A Hall (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1209
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

60025/03

IPP JA
BUDDIN J
SMART AJ

FRIDAY 2 MAY 2003

REGINA v JOHN WILLIAM PARBERY

Judgment

1 BUDDIN J: The appellant stood trial in July 2002 upon an indictment which contained seven counts involving various allegations of sexual impropriety against a young male. There were four counts of aggravated indecent assault and three counts of aggravated sexual assault. The appellant was convicted of three counts of aggravated sexual assault and one count of aggravated indecent assault. He was acquitted of two counts of aggravated indecent assault and in respect of one further count of aggravated indecent assault, the jury was unable to agree. In respect of each of the aggravated sexual assault matters, the appellant was sentenced to a term of imprisonment of four years with a non-parole period of two years. Each of those terms was ordered to commence on 8 August 2002 and to expire on 7 August 2006 with the non-parole period to expire on 7 August 2004. A concurrent fixed term of 12 months was set in respect of the conviction for the offence of aggravated indecent assault.

2 The appellant relies upon the following grounds in support of his appeal against conviction:

“(1) The jury, acting reasonably and in all of the circumstances must have entertained a sufficient doubt as to the guilt of the appellant.

(2) The verdicts of guilty on counts 3, 5, 6 and 7 are inconsistent with the jury’s verdicts of “not guilty” on counts 1 and 2 and with the jury’s inability to reach a verdict on count 4.

(3) The learned trial judge did not sufficiently direct the jury as to the impact of any reasonable doubt arising as to the complainant’s evidence as to one count upon a proper assessment of the complainant’s evidence in relation to other counts.

(4) In respect of counts 5, 6 and 7, his Honour erred in telling the jury that, on the evidence, if the applicant had committed the alleged acts of sexual intercourse ‘it would have been apparent to the accused that there was no consent’.”

3 The appellant also seeks leave to appeal against the sentences which were imposed upon him. It is convenient to deal first with ground 1. Given the way in which the matter has been argued, it is also convenient at the same time to consider ground 2, particularly as the grounds are said to be interwoven.

4 So far as ground 1 is concerned, the relevant test to be applied is not in question. In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ in a joint judgment said that:

[W]here, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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 those considerations. (at 493)

5 A little later, their Honours said that:

[i]f the evidence, upon the record itself, contains discrepancies, displays 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. (at 494-5)

6 In MFA v The Queen (2001) 193 ALR 184, Gleeson CJ, Hayne and Callinan JJ in a joint judgment, reaffirmed that the appropriate test was the one propounded in M. In that case, and of particular relevance for present purposes, the appellant argued that “the verdicts of guilty on counts 7 and 8 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 1, 2, 3, 4, 5, 6 and 9”. Their Honours said that:

In MacKenzie v R , Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However, the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1–6 and count 9. The complainant was, to a significant extent, supported by MA .
Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case . Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones . It also overlooks the principles stated in MacKenzie , which were not qualified in Jones , and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M , which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.
The test established by s 6 (1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment . (at 191-3) (footnotes omitted) (emphasis added)

7 McHugh, Gummow and Kirby JJ in a separate concurring judgment agreed that the appeal should be dismissed. Although the Honours concluded that the Court of Criminal Appeal had erred in its reasoning in determining whether the verdicts were unreasonable, they said:

Before parting with this case we wish to make it clear that there is no difference between us and the other members of this court about the essential issues decided in this appeal. Upon the application of the test in M, the operation of the principles in MacKenzie and the significance of the decision in Jones , this court speaks with a single voice. (at 206)

8 With those principles in mind, it is now necessary to refer in some detail to the evidence which was led at the appellant’s trial.

9 The complainant was born in 1983 and was thus 19 when he gave evidence. He was the only witness called in the Crown case. His evidence was not corroborated in any respect whatsoever. The evidence disclosed that his family had become friendly with the appellant and his family during the 1990s. The complainant’s family owned horses and were clients of the appellant’s veterinary practice. The families also formed a friendship arising from a shared interest in boating in the Pittwater area. The complainant developed a friendship with the appellant’s son, Mark, who was of a similar age. The complainant often went boating with the appellant and his family and frequently stayed overnight on the latter’s boat. Indeed, it was the complainant’s evidence that all but one of the incidents which gave rise to a separate count in the indictment occurred on that boat. The only other incident which gave rise to a count in the indictment took place upon the complainant’s family’s motor cruiser (Count 6).

10 The complainant gave evidence that the first offence occurred some time in 1992 and that the last incident occurred on or about 3 April 1998. He was aged about 9 or 10 at the time of the first of the alleged offences and 15 at the time of the offence alleged in count 7 of the indictment. During the entirety of that period, he was living at home with his family. The complainant did not tell anyone about the appellant’s activities until 26 August 1999 when he made a statement to the police. It was thus more than seven years before he made complaint. He said that he was too embarrassed to complain earlier. He also regarded Mark as a very good friend and he did not want to jeopardise the friendship. There was evidence in the trial to the effect however that he was able to further his friendship with Mark by having him to stay on board his own parents’ boat and by going surfing with him.

11 He agreed in cross-examination that after the first assault the last person whom he wished to be near was the appellant whose conduct he found to be offensive. Nevertheless he said that he thereafter slept overnight on board the appellant’s boat on about 50 occasions.

12 He gave evidence that after various of the incidents in question, he had got up the following morning and proceeded to enjoy the company of the appellant’s family. He then gave the following evidence::

Q And may we take it from 1992 to 1998 your attitude towards John Parbery, your friendship and your friendliness towards him, never changed?
A No.
Q Is that right?
A Yes.
Q So anyone who would have been watching you both for example would have seen no difference at all in the attitude you had with John Parbery before these terrible assaults--
A No.
Q --and the attitude you had at the end of them?
A No.
Q That’s correct is it?
A Yep.

13 It is now convenient to turn to consider the complainant’s evidence in relation to each individual count.

Count 1 (aggravated indecent assault – verdict of not guilty)

14 The complainant gave evidence that he was on board the appellant’s boat one night during a weekend in the summer of 1992. He, together with the appellant and his son, Mark were sitting on the front deck talking and looking at the stars. He and the appellant were sitting on one side of a glass hatch whilst Mark sat on the other side of it. They had their backs to the front saloon window. The appellant’s wife was in the saloon with their three year old daughter, Kelly and another son, Adam, who was then aged 12, may also have been in the saloon. The complainant and the appellant were only wearing swimmers. The complainant gave evidence that the appellant “put his left hand on my right leg and just started rubbing my leg for a while and then he eventually started playing with my genitals”. This occurred, he said, for “about five, six minutes or so”. They then went down to the main saloon to get a drink.

15 It emerged in cross-examination that Mark was less than a metre away at the time of the alleged incident. The complainant agreed that the incident took place “in front of” the appellant’s son. It also emerged that on summer weekend evenings the Basin (which is where the boat was moored) is crowded with boats all moored within a short distance of each other and within clear sight of each other. There was also evidence of a practice known as “rafting” whereby two or more boats would be tied up together on the one mooring. There were photographs in evidence (tendered on behalf of the appellant) which confirmed these parts of the evidence. The complainant conceded that on some of the occasions about which he gave evidence that his own family’s boat may have been “rafted” only a couple of metres away from the appellant’s boat.

16 There was also evidence that when the boat was moored at night and anyone was outside on the deck, the deck lights would be turned on for safety reasons. The position of those and other lights was such that they would have illuminated the area in which the alleged activities had taken place and would have enabled anyone who was watching from another boat to have observed the appellant’s conduct. Moreover, given the size of the saloon windows any such irregular conduct on his part would have been observable by the appellant’s wife from inside the saloon.

Count 2 (aggravated indecent assault – verdict of not guilty)

17 The complainant placed this incident as having occurred whilst it was “relatively warm, so around March/April”. The complainant gave evidence that the incident occurred in 1993 although he was uncertain as to how he had ascertained the relevant year. He gave evidence that the incident occurred when he was again staying overnight on the appellant’s boat at the weekend. The complainant said that the appellant, his wife, Mark and Kelly were on board and possibly Adam was as well. The incident took place at bedtime, at which time the appellant and Mark were together with the complainant in the front ‘V’ berth of the boat. The light was off but there was moonlight coming through the portholes. The complainant gave the following evidence:

[W]e were lying up the front just talking as usual, Mark and I always talked before we went to bed all the time and John was in there and he tried to – John tried to put his hand down into my sleeping bag. I tried to pull it tight but he managed to get his hand in there and once he got his hand in the sleeping bag he started playing with my leg, just rubbing it and squeezing it. After a few minutes he moved his hand down and started playing with my genitals on the outside of my swimmers because I wore swimmers. After a while he tried to put his hand underneath my swimmers to play with my penis and probably after about a minute or two I pinched his hand – his arm really hard and he pulled it out, pulled his hand out and said that we can’t – don’t talk any more because he wants to go to sleep and he left.

18 It is apparent from the evidence that the area in which the incident is alleged to have occurred is very restricted. The complainant agreed in cross-examination that Mark was again only a metre or so away at the time. He said that the appellant “lay in between us”. He claimed that the appellant was conducting a “normal” conversation with his son at the time of the incident. The complainant was asked to draw a sketch diagram depicting the positions in which he, the appellant and Mark had been lying at the time of the incident. He had drawn a similar diagram in 1999 for investigating police. He was obliged to concede that the earlier sketch in which he had depicted himself and the appellant and Mark lying almost at right angles to the direction of the boat, instead of in line with the beds in the ‘V’ berth, was inaccurate. He agreed that if he had been lying in the position which he had originally indicated, then it would have been impossible for the incident to have taken place in the manner which he had described.

19 He also conceded that the evidence which he had given at the committal hearing that was consistent with the original sketch plan, was false and “in the eyes of the law it was a lie”. He was unable to explain how that situation had arisen.

20 There was also relationship evidence before the jury which was not the subject of any count in the indictment. The complainant said that the appellant fondled his genitals nearly every time he went out on the appellant’s boat. He said “we would like walk past each other on the side of the boat or wherever and he would touch my penis and squeeze it just quickly and he would just sort of walk off without saying anything.” No-one else apparently observed these activities. The complainant also said that the appellant constantly paraded naked around the boat. The appellant, his wife and son denied that this was so and there was no other evidence called to support this aspect of the complainant’s evidence. Nor apparently had the many visitors to the appellant’s boat ever observed behaviour of this kind.

Count 3 (aggravated indecent assault – verdict of guilty)

21 The complainant gave evidence of an incident which he said had occurred on board the appellant’s boat towards the end of 1995. He arrived at that date because it was the year that he started high school and by reference to his sister’s birthday which was in August. He thought that the appellant’s wife and two of their three children (and possibly all three) were also on board at the time. The complainant then gave the following evidence:

Everyone was like ready to have showers and I hopped in, hopped in the bathroom and closed the door behind me. I don’t think the lock latch actually worked on that door… I was having a shower and I had closed the screen, the shower screen and John came into the shower while I was showering and he was naked and he hopped in the shower with me. I remember him touching – touched my penis and saying how big it’s getting and he started touching it for a while and then I turned around to face the shower so like I could face my back towards him and that was after about probably five minutes or so I have been in the shower with him and I turned off the shower and left and he stayed in the shower.

22 The complainant agreed in cross-examination that in order for the appellant to have gained access to the toilet, which is next to the shower, which was itself a separately screened area within the bathroom, then he must have entered the toilet doorway from a distance of no more that 2 – 3 metres from where his wife and children were watching TV. Photographs tendered on behalf of the appellant together with other evidence, demonstrated that the area of the rear cabin in which the bathroom was located, was very confined. The shower itself was “tiny” and the area “cramped” when two people were in there. The door to the bathroom opened out into the appellant’s bedroom. When open it is only 20 cm from the corner of the double bed. It was the family’s practice to lie on that bed or to sit on a chair to watch TV. The bathroom door is louvered and any noise is readily emitted into the bedroom. There is a light in the bathroom and the lights in the saloon customarily remained on until everyone went to bed. The complainant conceded in cross-examination that the appellant’s wife and children “would have known that John was in there at the same time I was”.

Count 4 (aggravated indecent assault – jury unable to reach a verdict)

23 The incident giving rise to this count allegedly occurred late in 1995 at night on board the appellant’s boat. The complainant, together with the appellant, Mark and Kelly were lying on the appellant’s double bed watching a video on the TV. The appellant was on his right hand side. The appellant’s wife was in the saloon which was only 3 – 4 metres away, albeit up a few steps. The light from that room projected into the bedroom. The saloon could be seen from the double bed and the complainant could see the appellant’s wife from the position which he was in. The TV was on and this also provided some illumination of the room. The complainant then gave the following evidence:

{I}t was relatively cold because I remember I was wearing jeans and a tee shirt and I don’t know if I was wearing a jumper or not. Ann was sitting up there doing the crossword. While we were watching the video John was lying slightly on his left. He used his left hand to rub my – like he was, like yeah, he was using his left hand to rub my right leg. After he was rubbing that for a while he undid the fly of my jeans and started playing with me, with my genitals. He was playing with that for, not that long, probably five minutes or so. After that I sort of snapped and said I’m going to go and get a drink and I walked up to the main saloon, got a drink and then I sat down on a chair off the bed.

24 The complainant was taken to evidence he had given at the committal hearing in which he had described the appellant as “propped up on his left elbow and …still fiddling [him with his] left hand”. He accepted that that was a correct version of what had taken place. He conceded that it “seems to [have been] impossible” for the appellant to have been propping himself up on the bed on his left elbow whilst simultaneously managing to unzip the complainant’s fly with his left hand and then to assault him. He agreed that he was unable to explain this apparent difficulty in his evidence. He conceded that although the incident had gone on for some time he had made no effort to stop the appellant’s activities. He also agreed that the unzipping of the fly had made a noise but maintained that no-one seemed to notice. The complainant further conceded that the appellant was in the direct view of his son and that his (the complainant’s) groin area was very close to Mark’s line of sight as he lay watching TV. Indeed Mark was lying next to him. In re-examination he suggested that the video was on top of the TV, thus raising Mark’s line of sight. There was photographic and oral evidence which contradicted this suggestion.

25 We were informed that this charge had been dismissed by a magistrate at the committal hearing upon the basis that “there was no reasonable prospect a jury would convict”.

Count 5 (aggravated sexual assault – verdict of guilty)

26 The incident giving rise to this count is said to have occurred in 1996 at which time the complainant was aged about 13. The appellant’s wife and Mark and possibly Kelly were also on board at the time. The complainant said that he was in the forward ‘V’ berth and that Mark was sleeping on the couch in the saloon. The appellant approached the complainant to say goodnight. His evidence continued to the following effect:

I just had a sleeping bag on and I think I recall him saying that it was too hot to have a sleeping bag and he pulled my sleeping bag down and I was just wearing boxer shorts I think. He proceeded to pull the boxer shorts down like off me probably about to my waist – I mean my thighs and then he started sucking my penis. … I was talking to Mark and when he started doing it I stopped talking to Mark and Mark started talking to John and he actually stopped and say [sic] a few words to Mark and then keep going . (emphasis added)

27 The complainant said that the sucking of his penis continued for “around five minutes or so.” The complainant said he “was scared, I didn’t really know what to do. I sort of moved further back towards the side of the boat. That didn’t deter him at all and eventually he just stopped, kissed me good night and walked up back to bed.”

28 The complainant claimed that the appellant had walked into the cabin naked, having apparently walked past other members of his family in that state. The complainant also maintained that the appellant continued to have a “normal” conversation with his son whilst he was engaged in performing fellatio upon the complainant.

Count 6 – (aggravated sexual assault – verdict of guilty)

29 Later in 1996 the complainant was on his own family’s boat together with his father, two brothers and two other boys. The appellant was also on board, having moored his own vessel nearby. The complainant said that his father left in a dinghy to pick up the complainant’s mother and his sister from Palm Beach. The complainant said that the appellant then suggested to all the other boys that they go off in his dinghy to “do some laps around [another] boat” that had just arrived. That left the complainant and the appellant alone. The complainant then gave the following evidence:

We just got a new toilet put in, in the bathroom and John asked me to go down and show him how it worked. … I went in there and showed him – the toilet had a button timer, so I pressed the button. …and I turned around and John was directly – was behind me but to my right blocking the door, I turned around and he just pulled my swimmers down and started sucking my penis.

30 The complainant continued, “[A]fter he was sucking for a while he would say things like, ‘You’re my special boy, I love you,’ comments like that and I remember him getting my hand and putting it down into his swimmers and I didn’t do anything, I just let – my hand was here and I just pulled it out again”. This continued “for around five minutes or so” until a dinghy went past the toilet porthole. The appellant then “immediately stopped and told me to get out and he was going to go to the toilet, so I got out and walked upstairs”.

31 The complainant could not explain, when cross-examined, why he had not gone with either his father or with the other children, rather than apparently willingly remain alone in the company of a man who had been continuously assaulting him. No evidence was called from any of the other people who had been present on the occasion immediately prior to when this incident was said to have occurred.

Count 7 (aggravated sexual assault – verdict of guilty)

32 The appellant and his family planned to go on a six month boating trip to the Whitsunday Islands in April 1998. The complainant, who was by now 15, agreed that he was keen to accompany them. Although Mark had initially indicated that he wanted the complainant to join them he ultimately chose another companion and the complainant accordingly did not go on the trip. He said that he was very disappointed that he was not able to go. In re-examination he said however that it was ultimately his father’s decision that he not go. The complainant said that on the day before the planned departure, the complainant’s family and the appellant moored their boats close to one another at the Basin. The complainant, his mother and his brother Daniel, went on board the appellant’s boat to farewell him. The rest of the appellant’s family were to meet up with him later at Newport. The complainant then gave the following evidence:

John asked me to help him get the boat ready to cast it off and my brother would pick me up in the dinghy, so Daniel and my mother hopped in the dinghy and went back over to our boat and it was John and I on the boat. I went back down into the forward cabin where the B [sic], read V] berth is and went into the bathroom to close the porthole and I had to close the main hatch into the V berth as well before I did that. …When I was – I just finished closing the porthole and John had walked downstairs, he walked downstairs into the bathroom blocking the door and like when I turned around he was standing in front of me. He pulled my swimmers or board shorts down, I can’t remember and basically just started sucking my penis.

33 This continued he said for “around five, six minutes or so” [before the appellant] said that he had to stop because Daniel would get suspicious because Daniel was waiting to pick me up from the boat.” The appellant went up to the steering wheel and the complainant got into the dinghy and went back to his family’s boat. The complainant did not go onboard the appellant’s boat thereafter.

34 There was no other evidence called in the Crown case which would have placed the appellant at the scene at the relevant time, although it may be observed there was considerable confusion on the part of the complainant as to the precise day on which he said that the incident had taken place. Evidence was also called to establish that at the time the appellant’s boat was a “mess” with bags, provisions and scuba equipment lying everywhere. This made it difficult to move around the boat and to gain access to the toilet and yet the complainant was unable to recollect having to step over any bags in order to gain access to it.

35 The evidence revealed that prior to making the complaints about having been sexually assaulted by the appellant, the complainant had discussed with police the availability of criminal injuries compensation. He said that he had not however, made such a claim at the time of trial.

36 The appellant gave evidence in which he denied each of the allegations made against him. He also denied groping the complainant on any other occasion. He told the jury that he had no criminal convictions. He said that the complainant had never expressed any problems with him and that he had slept on the appellant’s boat on many occasions. The appellant’s son Mark, gave evidence that he did not see his father touching or molesting the complainant at any time. Some of the conduct in question could not, he said, have taken place without his knowledge. The appellant’s wife gave evidence to similar effect. Neither of them saw the appellant go into the toilet area at any time when the complainant was having a shower. Each gave evidence, as did the appellant, that the lock on the bathroom door was always in working order.

Conclusion

37 Having carefully assessed for myself the evidence given at trial in accordance with the principles to which I referred at the outset of this judgment, I have concluded that that this was a case in which it was not “upon the whole of the evidence .. open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. There are a number of factors, the cumulative effect of which, have led me to that conclusion. They are as follows:

(1) The allegations made by the complainant were wholly uncorroborated.

(2) The complainant left it seven years before he first made complaint. When he did so it was not to a member of his family or even to a friend or counsellor but directly to the police.

(3) There was a complete absence of evidence, frequently to be found in cases of this kind, to the effect that the complainant’s silence had been occasioned by any threats from the appellant.

(4) There was, for the most part, no evidence of any form of protest by word or conduct on the complainant’s part in respect of the appellant’s activities and similarly no evidence of any endeavour on his part to remove himself from the circumstances in which he found himself. That was of particular significance in relation to counts 5 – 7 in respect of which the Crown had to establish both that the complainant was not consenting and the existence of the requisite state of mind on the part of the appellant as to that state of affairs.

(5) Notwithstanding the fact that the complainant was horrified by the appellant’s conduct towards him following the first occasion upon which he was assaulted (and indeed thereafter for a period of six or so years), he continued to accept, with considerable frequency, invitations to spend the night on board the appellant’s boat.

(6) Moreover the complainant was very keen, notwithstanding his assertions of a six year history of abuse, to spend many months on board the appellant’s boat on the occasion when he and his family were going to the Whitsunday Islands.

(7) In addition to those factors, there were a number of other aspects to the complainant’s evidence which are difficult to accept and which told against his credibility. Upon his own admission, his version of how the events in respect of counts 2 and 4 unfolded would have been well nigh impossible. The complainant’s version of events in respect of counts 1 – 5 inclusive was difficult to accept given the close proximity of members of the appellant’s family to the various incidents at the time at which they were said to have occurred. Moreover the circumstances giving rise to count 5 were on their face, somewhat implausible. In respect of counts 6 and 7, there was no explanation forthcoming as to why the complainant did not take the opportunity to ensure that he was not left alone in the appellant’s company when there was ample opportunity to do so.

(8) The complainant exhibited considerable uncertainty as to a number of the details which surrounded the various offences. For example, he had real difficulties in bringing to mind with any exactitude when each of the incidents had occurred. That uncertainty was reflected in the way in which the various counts in the indictment were framed. For example, in respect of counts 3 and 4 the offences were said to have occurred somewhere between 1 January 1993 and 31 December 1995. The complainant gave evidence that he had determined the various periods of time during which the relevant incidents were said to have occurred after talking to the informant. In respect of one matter he said that they spoke “about it for an extensive period of time and [we] came up with that date”. In relation to the fifth incident, he said initially that it had occurred in 1997 and was then reminded that in his statement to the police he had said that it had occurred in 1996 between April and July. He was asked how he had been able to fix that time period and he answered “through a series of questions from the detective”.

(9) The appellant, a professional man with no prior convictions, gave sworn evidence. A fair reading of the transcript does not suggest that he was in any way shaken in cross-examination. Insofar as it was possible to do so, his evidence was supported by other members of his family.

(10) In addition to all those considerations, there is the question of the different verdicts at which the jury arrived. In approaching this issue I have kept at the forefront of my mind the principles enunciated in MFA . I have particularly borne in mind that the issue for determination is “unreasonableness and not inconsistency”.

38 One can glean something of the atmosphere in which the trial was conducted from what the trial judge said to the jury. His Honour directed the jury in the following terms:

It is important that you consider each of these counts separately. There are of course seven charges, individual separate charges. You must consider each of them separately. In theory, it would be open to you to return verdicts one way in respect of some or more of the charges and a different verdict on others.
In this particular case you might think that that is an unlikely situation because the whole Crown case relies and depends on the evidence of [the complainant]. So that if you, for example, were to reject certain things that he said which resulted in a verdict one way in respect of one count, no doubt that view of the facts would impact on the decision that you would make with regard to the other charges. So that I would imagine, members of the jury, as a matter of commonsense that you would be finding verdicts one way right through . I emphasise that the law is, nevertheless, that you must look at each charge separately one from the other and return verdicts separately in respect of each of the charges in the indictment. (emphasis added)

39 In his Remarks on Sentence the trial judge said that “it is not possible to determine the reasoning of the jury in arriving at the verdicts of not guilty in respect of counts 1 and 2”. His Honour hypothesised that it may have been that the jury had had difficulties about the complainant’s recollection given his age at the time. Nevertheless in a subsequent exchange with counsel, his Honour appeared to accept the proposition that it was almost impossible to reconcile the verdicts.

40 The Crown submitted that the incidents giving rise to counts 1, 2 and 4 “each involved occasions when other members of the appellant’s family were in the immediate presence of the appellant and the complainant. This is a factor that did not apply in relation to any of counts 3, 5, 6 and 7”. I am not persuaded by this argument. Whilst in general terms it may be accepted as an accurate statement so far as counts 6 and 7 are concerned, it would be contrary to the evidence to suggest that it was an entirely appropriate characterisation of the material led in support of counts 3 and 5. Whilst they did not perhaps occur in the immediate eyesight of other family members, each of those incidents were said to have occurred extremely close to where they were at the relevant time. It is also to be recalled that these activities were all alleged to have occurred within a very confined area.

41 In any event, the jury acquitted the appellant upon the first two counts because in my view the complainant’s evidence was demonstrated to be not capable of acceptance. That was certainly an indication “that the jury looked with real disfavour upon the credibility of the complainant”. See R v Markuleski (2001) 52 NSWLR 82 per Wood CJ at CL at 130-1. This was not a case in which the evidence in respect of counts 3, 5, 6 and 7 was “materially different” or higher in quality in any relevant sense from that led in respect of the counts upon which verdicts of not guilty were returned.

42 In Markuleski Spigelman CJ said:

There are cases in which nothing at all appears to differentiate the complainant’s evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of “logic and reasonableness” is not satisfied. (at 101)

This was such a case.

43 This conclusion is not however determinative of the matter. It is but one of the factors that has led me to conclude that the convictions were unreasonable. See Markuleski at 130 per Wood CJ at CL. It is tolerably clear from what I have said that this is a unusual case with a number of quite disturbing features to it.

44 In view of the conclusion at which I have arrived, it is unnecessary to consider grounds 3 and 4 of the conviction appeal (which would only entitle the appellant, if either of them was made out, to a new trial) or to the application for leave to appeal against sentence. I propose in respect of counts 3, 5, 6 and 7 that in each case the conviction should be set aside and a judgment and verdict of acquittal entered.

45 IPP JA: I agree.

46 SMART AJ: I also agree.

47 IPP JA: The orders of the Court will be as proposed by Buddin J.

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Last Modified: 05/05/2003