R v KING - [2007] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KING
[2007] SASC 358
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)
9 October 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
Appeal against conviction: appellant convicted of two counts of unlawful sexual intercourse - acquitted of seven other counts of unlawful sexual intercourse and indecent assault upon stepdaughter - appeal on grounds that trial should have been stayed by reason of unavailability of two potential witnesses - Longman direction inadequate - failure of trial judge to give a direction in accordance with Black v The Queen - verdicts of guilty on two counts inconsistent with acquittals on other counts.
Held: no miscarriage of justice resulted from decision not to stay trial - Longman direction adequate - no requirement to give Black direction by using any particular formula - no inconsistency in verdicts - appeal dismissed.
Holmden v Bitar (1987) 47 SASR 509; Davis v The Queen (1995) 57 FCR 512, distinguished.
Jago v District Court (NSW) (1989) 168 CLR 23; R v McCarthy [1994] NSWCCA (unreported, Gleeson CJ, Caruthers and Hunter JJ, 12 August 1994); R v Kenny [2000] NSWCCA 364; R v O'Neill (2002) 81 SASR 359; R v Noyes [2005] 1 Qd R 169; Longman v The Queen (1989) 168 CLR 79; Mackenzie v The Queen (1996) 190 CLR 348, discussed.
M v The Queen (1994) 181 CLR 487; DPP v Selway (Ruling No 2) [2007] VSC 244; Black v The Queen (1993) 179 CLR 44, considered.

R v KING
[2007] SASC 358
Court of Criminal Appeal: Doyle CJ, Layton and Kelly JJ

DOYLE CJ: I would dismiss the appeal against the convictions recorded in the District Court. I agree with the reasons given by Kelly J for so deciding.
LAYTON J: I have had the benefit of reading Kelly J’s draft reasons for decision. I agree that the appeal should be dismissed and I generally agree with her reasons. However, I provide additional reasons for concluding that the appeal should be dismissed.
Ground 1 – Stay of proceedings
This ground was initially argued by counsel for the appellant, Mr Algie, as an appeal against the ruling made by the trial Judge prior to trial, to refuse to stay the proceedings. In the course of argument, counsel correctly modified this argument to accord with the fact that a trial has taken place and that the appeal is against conviction on the basis of a miscarriage of justice. Therefore the issue before the Court was whether the unavailability by reason of death, of the complainant’s mother and of Mr Amer, resulted in a miscarriage of justice in the trial process by reason of unfairness to the appellant.
In view of Mr Algie’s submission, there appears to be two issues that require consideration:
·First, the criteria to be satisfied as to whether there has been a miscarriage of justice as a consequence of the unavailability of witnesses; and
·Second, whether such criteria or standard has been satisfied in this case.
As to the first issue, counsel for the respondent, Mr Brebner QC, submitted that the appellant was required to demonstrate that “it’s on the cards” that the witnesses “might have assisted the defence”. Whilst Mr Brebner may have used these words in an unguarded or in arguendo manner, it does not in my view accurately express the requisite criteria. Instead, it appears to borrow a familiar phrase used regularly in other legal contexts, being a phrase upon which some courts have expressed the view that it lacks clarity and specificity.[1]
[1] M v The Queen (1994) 181 CLR 487, 593; DPP v Selway (Ruling No. 2) [2007] VSC 244, [5] – [10].
The usual criteria with regard to an appeal against conviction on the ground that there was a miscarriage of justice on the basis of a verdict being unsafe or unsatisfactory, requires a court to be satisfied that it was not open to the jury to be satisfied that the accused was guilty of the offence.[2] However, this approach appears to require some modification, bearing in mind that the criticism relates to the fact that evidence was not before the jury due to the unavailability of witnesses.
[2] M v The Queen (1994) 181 CLR 487.
Most of the cases discussing the effect of unavailability of witnesses appear to be in the context of applications for a stay of proceedings. Nonetheless, it seems to me that the principles and factors which have been applied by courts in considering whether or not a stay should be ordered by reason of unavailability of witnesses, have some bearing on the criteria and factors relevant to considering an alleged miscarriage of justice arising from the unavailability of witnesses. Even so, I note that there are differences between the two situations, namely that in the case of miscarriage of justice the absence of witnesses can be considered in the context of the actual evidence which was before a jury and an actual verdict. Further, there is also a difference between the concerns that are raised with respect to a permanent stay of a trial process and the concerns that are raised with respect to the conduct of a trial process. In any event, in the case of both a stay and of a miscarriage of justice, an underlying issue is fairness and with respect to that, there are a number of pertinent comments which have been made as to the relationship between fairness and the unavailability of witnesses.
In Jago v District Court (NSW), Brennan J said:[3]
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes … adverse revelations in a public inquiry … absence of competence representation … or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures … by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. [Emphasis added]
[3] (1989) 168 CLR 23, 47.
In R v McCarthy, Gleeson CJ (with whom Caruthers and Hunter JJ agreed) said:[4]
Time and time again it appears in criminal proceedings that for one of a variety of reasons witnesses who may be regarded as important by one side or the order die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal list in this state. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed.
[4] (Unreported, [1994] NSWCCA, Gleeson CJ, Caruthers and Hunter JJ, 12 August 1994, 12).
Furthermore, in R v Kenny,[5] Smart AJ (with whom Foster AJA and Dunford J agreed) considered whether the appellant was prejudiced because of the absence of a grandmother who used to baby-sit the complainant from time to time and her unavailability to give evidence by reason of ill health. His Honour concluded as follows:[6]
The appellant has lost the opportunity to call Mrs Nelson [the grandmother] there has been no detailed statement from her. It is not known how compelling her evidence would have been and how well she would have faired in cross-examination. The unavailability of Mrs Nelson will not render the proceedings seriously defective. The jury can be told of her state of health and they will have the advantage of the conversation she had with her daughter providing general support for the appellant. The jury can also be directed that the absence of her evidence has made the conduct of the appellant’s case more difficult and put him at a distinct [dis]advantage in defending himself with the delay in complaint by the complainant’s contributing to the situation[s]. The directions could and should be put in cogent terms.
[5] [2000] NSWCCA 364.
[6] Ibid, [34].
Therefore, unavailability of witnesses, which places an accused at some disadvantage, does not of itself amount to unfairness. In the context of an application to stay proceedings, there is a need to point to a real prejudice which cannot be adequately minimised or removed by directions to the jury. Moreover, “presumptive prejudice” is insufficient.[7]
[7] Jago v District Court (NSW) (1989) 168 CLR 23, 72 (Toohey J), 75 (Gaudron J).
Returning to the unavailability of witnesses in the context of a trial process and the miscarriage of justice, there appears to be an analogy between that situation and the approach which the court has taken when it has been argued that there has been a miscarriage of justice as a result of relevant and probative material evidence not being placed before a jury. As Martin J stated in R v O’Neill:[8]
[8] (2002) 81 SASR 359, 377.
When … credible and probative evidence was not placed before a jury (through no fault of the accused), the test is whether there is a significant possibility that the jury, acting reasonably, would have acquitted the accused if the fresh evidence had been called before it in the trial. If such a significant possibility exists, a miscarriage of justice has occurred.
In considering whether this criteria has been satisfied, it seems to me that the appellant’s case is far short of an argument that the unavailability of the witnesses resulted in credible and probative evidence not being available to the jury. In that regard, it is not open to the appellant to argue that there was a significant possibility of a jury, acting reasonably, would have acquitted him. Alternatively, using the stay of proceedings criteria, the appellant has not been able to point to a real prejudice that could not be remedied by directions to the jury.
I will now point to some of the deficiencies in the appellant’s submissions in the present case. First, statements had been taken from the witnesses so there was an indication of their potential relevance to the alleged offences in the case.
Second, neither of the two witnesses were shown to be directly relevant or material to the particular convictions which are appealed against, namely counts 6 and 7. Neither of these witnesses were present and there is no suggestion that they could have given peripheral or circumstantial evidence which was relevant to those counts. Further, there was no cross-examination of the complainant to suggest any potential relevance of those witnesses to those counts.
Third, in response to the appellant’s argument that, even though these witnesses may not have been directly relevant to counts 6 and 7, they were potentially relevant to the overall reliance and credibility of the complainant I note as follows. Mr Amer’s evidence could only be specifically relevant to count 4. If his evidence was adduced in accordance with his statement, given its generality, it did not necessarily contradict the complainant’s evidence or the events that occurred on a particular occasion. I agree with Kelly J’s observations in that regard. In relation to the mother, Mr Algie appears to have assumed that because of the personal relationship which previously existed between the mother and the appellant, it was likely that the mother “if she had been available … could have been called to contradict” the complainant’s evidence. This submission is nothing more that a presumption and a speculative one at best. It is arguable that the mother may have on the other hand supported the complainant, or alternatively she may have supported neither. Furthermore, the specific examples given by Mr Algie could only be argued as being potential evidence of uncertain peripheral relevance.
In R v Noyes,[9] the appellant was convicted of indecent dealing with a child and sodomy. The appellant argued that the trial Judge should have granted a permanent stay of proceedings. To support this argument, it was submitted that the alleged offences were committed 33 to 36 years prior and that some of the witnesses, who were employed at the home where the alleged offences were committed and who might have been able to give evidence for the appellant, had since died. The trial Judge rejected this argument and the trial then proceeded. On appeal, Holmes J (with whom McMurdo P and Muir J agreed) upheld the trial Judge’s decision not stay the proceedings:[10]
Before the learned trial Judge, the argument centred on a contention that evidence had been lost to the appellant in the form of what witnesses employed at the home – the Kirkpatricks, Ms Holmes and T’s grandparents – might have been able to say about the frequency of the appellant’s visits to the home …
… [The trial Judge] relied on the reasons given in the earlier prosecution for refusing a stay. Those reasons were to the effect that it was a matter of speculation, firstly, as to whether the five former employees of the home could have given evidence to support the appellant in respect of the maters such as when and how often he was there and the routines followed at the home …
…
It seems improbable that the individuals identified by the defence – the Kirkpatricks, Ms Homes and T’s grandparents – could have assisted significantly as to the occurrence of the offences or otherwise. None was suggested to have any direct knowledge of the events …
[9] [2005] 1 Qd R 169.
[10] Ibid, [76-77], [81].
These comments appear apposite to the circumstances of this case.
Thus, in order to sustain an argument of miscarriage of justice on the basis of unavailability of witnesses, the appellant must do more than simply point to potential non-specific evidence which is uncertain and of a peripheral nature which “could have” assisted the defence. It must go beyond speculative evidence. The potential evidence would need to be of such credibility and probity that there was a significant possibility that a jury, acting reasonably, would have acquitted the accused. Or, using the stay of proceedings criteria, the appellant must be able to point to real prejudice which could not be minimised or remedied by directions to the jury which resulted in unfairness.
Further, in my view, any potential prejudice to the appellant in this case could be adequately addressed by directions. This in turn leads to whether the Longman direction was sufficient. With respect, I adopt Kelly J in her reasons as to the adequacy of the Longman direction.
Ground 4 – inconsistent verdicts
In relation to inconsistent verdicts, a number of principles apply. The appellant carries the onus of satisfying the court that the verdicts of acquittal and verdicts of guilty cannot stand.[11] An appellate court must be satisfied that no reasonable jury, properly directed could have arrived at the verdicts. It must be clearly demonstrated that the verdicts are illogical and cannot be reconciled.[12] Differing verdicts may simply reflect different factual circumstances, different warnings, or even differences of time or differences in the detail of evidence. It is important that an appellate court not substitute its own reasoning for that of a jury. I agree with Kelly J’s approach which demonstrates that there were logical and reasonable explanations for the verdicts and that the two counts upon which the appellant was convicted concerned, as the respondent described it, “a specific, unique and undisputed event about which the complainant was unlikely to be mistaken”.
[11] Mackenzie v The Queen (1996) 190 CLR 348, 366-367 (Gaudron, Gummow and Kirby JJ).
[12] Ibid.
For these additional reasons I would also dismiss the appeal.
KELLY J:
Introduction
The appellant was charged with seven counts of unlawful sexual intercourse and two counts of indecent assault upon his stepdaughter, the complainant. All of the offences allegedly occurred between 1970 and 1980.
The appellant’s defence was that no act of sexual impropriety ever occurred between himself and the complainant.
At the close of the prosecution case one of the counts (count 2) was the subject of a directed acquittal. The jury was left to consider eight remaining counts. The appellant was acquitted of six of the remaining eight counts and convicted in relation to two counts (counts 6 and 7).
The appellant appealed on four grounds. In the first ground of appeal, it was argued that the trial judge erred in refusing to permanently stay the prosecution at the outset in order to prevent an abuse of process. The second and third grounds of appeal complain about the adequacy of the Longman[13] direction given by the trial Judge and the alleged failure of the trial Judge to give a full direction in accordance with Black v The Queen.[14] The fourth ground of appeal raises the question as to whether the verdicts of guilty on counts 6 and 7 are unsafe and unsatisfactory by reason of their inconsistency with the verdicts of not guilty on the remaining six counts.
The issues on the appeal
[13] Longman v The Queen (1989) 168 CLR 79.
[14] (1993) 179 CLR 44.
Background
I deal with only the facts relevant to each ground of appeal. The complainant was born on 6 July 1964. All of the offences allegedly occurred between 1970 and February 1980 when the complainant was aged between six and 15 years. The complainant’s mother and her natural father separated when she was about five. Both the complainant’s mother and father are deceased, the complainant’s mother having died in May 2001.
The complainant’s mother formed a relationship with the appellant and moved into his house at Kilburn when the complainant was aged about six or seven. The complainant lived there with the appellant, her mother and other siblings until she left home at the age of fifteen and a half.
Each of the offences charged on the information occurred during that time period. The first count on the information was an allegation of indecent assault. The complainant was about six years old at the time of this alleged offence. She and her mother had not yet commenced living with the appellant. The incident was said to have occurred while the appellant was fixing a car and lying underneath the vehicle.
Count 2 was the subject of a directed acquittal as no evidence was led from the complainant about that incident during the trial. Count 3 was an allegation of unlawful sexual intercourse which occurred at the time of the complainant’s thirteenth or fourteenth birthday in the back seat of a station wagon at either Dry Creek or Wingfield. Count 4 was an allegation of unlawful sexual intercourse at a rubbish dump at Dry Creek in 1978. Count 5 was an allegation of unlawful sexual intercourse at Yorke Peninsula during 1978 at the time when two family dogs died on consecutive days. Counts 6 and 7 arise out of the one occasion in or around December 1978 or January 1979. At the time the family was planning a trip to Sydney and the appellant told the complainant if she allowed him to have anal intercourse he would find the money for the family to travel to Sydney. Count 8 was an allegation of unlawful sexual intercourse which occurred on an occasion when the appellant allegedly had sexual intercourse with the complainant in exchange for giving her information about her boyfriend who had leukaemia. Count 9 was an allegation of unlawful sexual intercourse in the bedroom of the home at Kilburn when the complainant’s mother was out playing bingo. It was shortly after this alleged offence that the complainant left home in or about February 1980.

There was no evidence before the jury as to the circumstances in which the complainant first told anyone about the allegations. Evidence was led of the appellant’s arrest by the police on 15 July 2004, some 24 years after the date of the last alleged offence.
Ground 1 – stay of proceedings
Prior to the commencement of the trial the appellant applied for a permanent stay of proceedings. This application was based on two grounds. Firstly that there had been a very long delay between the first event complained of and the trial. Secondly that by the time the matter was listed for trial two important witnesses were deceased, namely the complainant’s mother and Mr Amer, whose evidence was potentially relevant to count 4. On these grounds it was claimed that the appellant would be prevented from receiving a fair trial.
It is well established that delay alone cannot found an application for a permanent stay of proceedings. The appellant nevertheless submitted that the combination of the delay together with the absence of the complainant’s mother and Mr Amer led to a miscarriage of justice in this case.
Mr Amer ran a rubbish dump at Wingfield. His evidence was said to be relevant to the likelihood of the events occurring as alleged in count 4. The evidence of the complainant’s mother was said to be specifically relevant to a number of counts but generally relevant to the credibility of the complainant in respect of all counts. It was said that the inability of the appellant to lead evidence from these witnesses to impugn the credibility of the complainant was fatal to a fair trial.
The difficulty with this argument is that it requires an assumption that the evidence of the complainant’s mother and Mr Amer would have supported the appellant. In the case of Mr Amer, there was apparently available a proof of evidence. It was possible to infer from the proof that this witness may have said that the appellant never attended the Wingfield dump alone with the complainant and that the dump was never empty of people. According to the proof the witness would have attested that the dump was about 25 acres in area but that it was completely flat and there was nowhere to hide. The complainant’s mother died in 2001 before proceedings were commenced.
The generality of the evidence proposed to be given by Mr Amer was such that, even on its face, it did not necessarily contradict the complainant’s assertions. As for the complainant’s mother, any assertion that her evidence would necessarily have assisted the appellant is purely speculative. It is equally possible that the evidence of the complainant’s mother may have had the effect of supporting the prosecution case. It is impossible to know.
In these circumstances the appellant has not demonstrated or pointed to any particular forensic disadvantage other than the prejudice suffered by any person where there is a significant delay between the date of the events complained of and the trial. It is precisely because of these considerations that trial Judges, particularly in cases involving very old allegations of sexual misconduct, are required to give the Longman direction. To some extent the presumptive prejudice suffered by any accused person in these circumstances can therefore be ameliorated.
The question for this court is whether the failure of the trial Judge to order a stay of proceedings has resulted in the appellant not receiving a fair trial. The facts of this case are in marked contrast to the facts in cases relied on by the appellant’s counsel such as Holmden v Bitar[15] and Davis v The Queen.[16] In those cases the accused was able to demonstrate that the destruction of a particular item of real evidence (records in Davis’ case and the loss of the pate in Holmden v Bitar) created a significant forensic disadvantage to the accused. Furthermore, in Holmden v Bitar the accused bore an onus of proof. The missing evidence was of particular relevance to the capacity of the accused to discharge that onus.
[15] (1987) 47 SASR 509.
[16] (1995) 57 FCR 512.
For these reasons I would dismiss this ground of appeal.
Ground 2 – the Longman direction
In giving the Longman direction the trial judge specifically brought the long delay to the attention of the jury. In the course of the direction His Honour noted the submissions made by counsel for the appellant that in the circumstances the long delay had resulted in particular prejudice to the appellant due to the absence of both the complainant’s mother and Mr Amer. He highlighted the consequences of the fact that no complaint had been made at an earlier date. For a time the prosecution was statute barred and by the time a prosecution became possible in 2003 the complainant’s mother had died. He referred to the specific forensic disadvantage arising from the long delay. Further, after a complaint from the appellant’s counsel that the direction was insufficient, the jury was redirected in the following terms:
… if a report had been made to the police within three years of any of these alleged offences occurring and the prosecution launched at that time then obviously [the complainant’s mother] and Mr Amer would have still been alive at that point. After that time limit passed and then until 2003 no prosecution was possible and then after 2003, of course, [the complainant’s mother] in particular had died, she died in 2001. So, it is a matter for you to consider when considering whether the evidence is sufficient, the evidence before you is sufficient to satisfy you beyond reasonable doubt of the guilt of the accused as to any of the counts that are before you. It is a matter for you to consider whether the absence of that evidence from [the complainant’s mother] is sufficient to affect your consideration as to whether evidence is so sufficient.
So I want to make that clear, that I did not mean to suggest that because this prosecution was not possible until after 2003 that it was irrelevant that that evidence was unavailable. It is a matter, of course, for you to take into account when considering whether you are satisfied beyond reasonable doubt that the case has been proved against the accused.
Counsel for the appellant submitted that the direction as a whole was nevertheless inadequate and defective. First, he contended that the warning should have been tailored more specifically to the facts. Second, it was submitted that the direction should have referred to the actual prejudice to the appellant arising from the absence of the complainant’s mother and Mr Amer. The appellant submitted that in all of the circumstances a direction should have been given that the absence of the two witnesses could in itself give rise to a reasonable doubt on the part of the jury. This was said to be necessary because both of those witnesses might have supported the appellant.
In my view this submission cannot be accepted. As I have remarked earlier the effect of the absence of both those witnesses was purely speculative. In any event, the significance of their absence was brought to the attention of the jury twice during the trial Judge’s summing up. On the first occasion the trial Judge specifically drew to the jury’s attention the submission made by counsel for the appellant about that topic. On the second occasion their absence was raised in response to a specific complaint by counsel for the appellant that the Longman direction did not go far enough. Furthermore, the trial Judge, when adverting to the delay, reminded the jury of the defence case as to the forensic disadvantage said to be suffered by the appellant, in particular, the inability of the appellant to properly test the complainant’s allegations and to recollect particular occasions after such a long delay. The trial Judge specifically directed the jury that it was dangerous to convict on the basis of the complainant’s evidence and of the need to scrutinise her evidence with great care and pay heed to the warning.
These directions were, in my view, adequate to bring to the jury’s attention the specific dangers inherent on the facts of this case. The fact that the jury acquitted the appellant on each count in respect of which either or both of the deceased witnesses might have given relevant evidence might indicate that the jury paid heed to the trial Judge’s warning. Therefore I would dismiss this ground of appeal.
Ground 3 – the Black direction
The jury returned with a question about four hours after it had retired. Given that there were eight counts to be considered, the question came at quite an early stage in their deliberations. The question was:
If we cannot reach a majority verdict on a particular count what is the procedure? Can we answer “no verdict”?
The trial Judge responded to the jury’s question in the following way:
The situation is that I cannot take a verdict piecemeal, that is, one at a time, so until such time as you have reached a final position as far as all the verdicts are concerned I should not take any of the verdicts. That is the first point to be made.
The second point is that, the four hours beyond which you are entitled to return a majority verdict has only just passed. I think at quarter to 4 or thereabouts. There may come a time at which it becomes obvious to all concerned that further discussion is pointless and the jury is deadlocked on a particular count. It would be highly unusual to find that that point had been reached after four hours. It would not be usual to find that that point had been reached and that further discussion would be quite pointless. So, I would invite you to continue discussion and listening to each others’ views for a further period in the hope that it may lead to a position where a verdict can be returned on all counts. If, after a further period of consideration, as I say, it becomes obvious that that cannot be achieved, then you are entitled to let me know and we will take the matter from there.
The procedure, in the event that that point is reached, is that the jury is discharged in relation to that particular count and that means that there may be the expense of a retrial. So, for that reason, courts are traditionally reluctant to find that a jury is deadlocked until, as I say, every avenue has been explored to see whether a verdict can be achieved.
So, I hope that answers your questions. I would invite you to continue your deliberations for a little time yet and see where that takes you and keep in mind what I said about the right to notify me should that point be reached.
The appellant submits that the effect of that answer was likely to place undue pressure on the jury to reach a verdict which may not have been the true verdict. It was contended the direction should have been in the form of the direction approved by the High Court in Black, specifically omitting any reference to the expense of a retrial.
It is unfortunate that His Honour referred to the expense of a retrial in the context of what was otherwise a pragmatic and sensible answer to the jury’s question.
However the issue for this court is whether the reference to the expense of a retrial in the context of the whole of the trial Judge’s answer to the jury has deprived the appellant of a fair trial.
The High Court in Black did not suggest that any particular formula must be used when assisting juries who may have reached the point of being unable to agree. The court did helpfully provide a model direction that might be used on an appropriate occasion; however, in any particular case any direction to the jury must be tailored to the circumstances which then exist. I do not understand the court in Black to have said otherwise.
Here the trial Judge’s reference to the expense of a retrial was at the end of his answer to the jury and by way of explanation as to why judges invite juries to continue deliberations. It does not appear to have been in the context of any direction or exhortation to them that they must therefore compromise in order to avoid the costs associated with a retrial.
Taken as a whole, although I consider it would be better if the trial Judge had not referred to the costs of a retrial, I do not consider that any miscarriage has resulted.
I would dismiss this ground of appeal.
Ground 4 – inconsistent verdicts
The fourth ground of appeal relates to whether the convictions on counts 6 and 7 should be allowed to stand in light of the verdicts of not guilty on the remaining counts.
The question for this court is whether it would be unsafe and unsatisfactory to allow the verdicts on counts 6 and 7 to stand in circumstances where the evidence to support the convictions on any of the counts charged came substantially from one witness, namely the complainant. The obligation to establish inconsistency of the verdicts rests upon the appellant: Mackenzie v The Queen.[17]
[17] (1996) 190 CLR 348 at 368.
The principles to be applied by an appellate court were enunciated by the High Court in Mackenzie. Their Honours Gaudron, Gummow and Kirby stated:[18]
Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
[18] Ibid, 367.
The test is one of logic and reasonableness.
This case substantially depended upon the evidence of the complainant. Nevertheless, it is a relevant consideration that, as well as the evidence of the complainant, there was evidence from three other witnesses, Ms Mesecke, Ms O’Halloran and Ms Davis. If accepted by the jury, their evidence was capable of supporting in a general sense the existence of a sexual relationship between the appellant and the complainant. Against that background I turn to consider the directions given by the trial Judge.
The trial judge’s directions
At the outset the trial Judge directed the jury that:
You need not necessarily accept everything that a witness says. It is not necessarily an all or nothing situation. You may think that a witness is reliable on some issues but not on others.
His Honour then went on to give standard directions about credibility and reliability concluding with the following admonition:
The other word I used was reliability. What I mean by that is whether or not you consider the evidence that you have heard to be accurate. You might think that a person has given honest evidence, that is, that they are doing their best to tell the truth as he or she remembers it. However, that does not necessarily mean that the evidence is accurate, that it is correct. Human memory can be fallible.
So, in assessing reliability of the evidence, again bring your experience of life and your commonsense to the task. Whether you think the evidence is intrinsically likely or unlikely, whether there are other factors which affect the person’s memory, that sort of thing.
Later he said:
It is very important that you give separate consideration to each count on the information. It would be quite wrong to reason because just because you find the accused guilty or not guilty of one or more of these counts that it necessarily follows that the same verdict is appropriate for another count. The evidence on that other count might be different, you might find it less reliable.
Each count must be considered separately in the light of the evidence that applies to it and you may properly come to different conclusions in relation to each count.
He then warned the jury about the danger of misusing the evidence of the uncharged acts concluding with the following direction:
Put simply, because you might be satisfied in a general sense that some sexual misconduct did occur, it would not be sufficient to prove beyond reasonable doubt that the accused has committed the specific counts on the information, unless you are specifically satisfied that that particular act, which is alleged in the information, occurred in the circumstances as alleged.
In addition to these directions the trial Judge warned the jury specifically in relation to the absence of the complainant’s mother and Mr Amer, witnesses said to be of particular relevance to the defence case.
The trial Judge directed the jury that it would be dangerous to convict the accused on the basis of the complainant’s evidence alone unless, after carefully scrutinising her evidence and paying heed to the warning, the jury were nonetheless satisfied beyond reasonable doubt of its truth and accuracy.
Analysis
In my view the verdicts of guilty on counts 6 and 7 are readily understandable against the background of the complainant’s evidence and in light of the specific directions given by the trial Judge.
An examination of the complainant’s evidence reveals that there were a number of occasions about which little detail was given in her account of the events surrounding the particular count charged. For example, the events giving rise to count 1 were alleged to have taken place many years before counts 2 to 9. The complainant was aged about six and the incident was alleged to have occurred under a car which the appellant had been repairing. The complainant conceded that the appellant was not mechanically-minded.
The events giving rise to counts 3, 5 and 8 were not particularised by the complainant at the time she was first interviewed by the police and provided a statement. The complainant herself conceded that the event the subject of count 9 could have occurred at some other time and place and with some other person. There was therefore some basis for doubting the reliability, as opposed to the veracity, of the complainant’s memory about those particular counts.
It was never in dispute that the complainant’s mother might have given relevant evidence in relation to counts 1, 5, 8 and 9 and that Mr Amer’s evidence was relevant to count 4. The jury acquitted the appellant in relation to those counts.
In contrast, the events that were the subject of counts 6 and 7 were linked to a quite unique event in the complainant’s life, namely her first trip to Sydney. The complainant’s evidence in relation to this particular count was more detailed and specific than her evidence in relation to the other counts.
The verdicts are consistent with the jury paying heed to the trial Judge’s directions and taking an appropriately cautious approach to the complainant’s evidence. The verdicts are also consistent with the jury taking the view that the complainant was a truthful witness who may have been mistaken at times. It is likely the jury was prepared to give the appellant the benefit of the doubt on the counts where the deceased witnesses might have given relevant evidence.
Although this was a matter involving very old allegations there was some evidence capable of supporting the complainant’s evidence generally. The evidence of Ms Mesecke, Ms O’Halloran and Ms Davis, if accepted by the jury, did support the allegation that there was a sexual relationship between the appellant and his stepdaughter during the relevant time.

Far from being irreconcilable, it seems to me that the verdicts are the product of cautious and careful deliberations by a jury which took the directions of the trial Judge seriously and applied those directions to the evidence before them.
For these reasons I would dismiss the appeal.