R v MacBeth - [2008] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MACBETH
[2008] SASC 71
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
12 March 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against conviction - application for leave to appeal against sentence and appeal against sentence - appellant charged with five counts of indecent assault contrary to s 56 of the Criminal Law Consoldiation Act 1935 (SA) and two counts of procuring an act of gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) - appellant found guilty of two counts - inconsistent verdicts - factual inconsistency - whether jury's verdict irreconcilable - judicial questioning of witnesses - whether comments made to the disadvantage of the accused - whether comments in summing up led to miscarriage of justice.
Held: not inconsistent for the jury to convict on counts 4 and 5 and acquit on all other counts - Judge's remarks did not unbalance the summing up as a whole - appeal against conviction dismissed - leave to appeal against sentence granted - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
MFA v The Queen (2002) 213 CLR 606, discussed.
R v Esposito (1998) 45 NSWLR 442; R v D (1997) 68 SASR 571; R v Liddy (No 2) (2002) 84 SASR 231, considered.

R v MACBETH
[2008] SASC 71
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ. Mr MacBeth was tried before a jury in the District Court on an Information charging him with five counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and two counts of procuring an act of gross indecency contrary to s 58 of the CLCA. The complainant in each case was the same boy, DP. At the time of the first incident giving rise to the charges DP was aged 13. At the time of the last incident he was aged 15.
The jury acquitted Mr MacBeth on counts 1 to 3, convicted him on counts 4 and 5, and acquitted him on counts 6 and 7. A Judge of this Court granted permission to Mr MacBeth to appeal on the ground that the verdicts of guilty on counts 4 and 5 are inconsistent with the acquittals on the other counts, leading to the conclusion that the verdicts of guilty are unreasonable and that there has been a miscarriage of justice.
On the hearing of the appeal Mr Griffin QC, counsel for Mr MacBeth, applied for leave to amend the grounds of appeal to add a further ground. It is that the Judge asked questions of witnesses and made comments in the course of his summing up which operated to the disadvantage of the accused. So expressed, that ground could not establish that there has been a miscarriage of justice. But as argued the ground was, in effect, that the summing up was unfair and unbalanced because of comments that the Judge made. Mr Griffin gave a satisfactory explanation for the delay. I would grant leave to amend the Notice of Appeal as proposed. As argued the ground is reasonably arguable, and I would grant permission to appeal on the proposed ground.
The case at trial
As I have said, DP was aged between 13 years and 15 years when the offences were allegedly committed. At that time Mr MacBeth was about 35 years old. At trial DP was 19 years of age, and Mr MacBeth was 41 years of age.
Mr MacBeth is a teacher. He taught DP in primary school. He taught him in year 5, which was 1999. In 2000 and 2001, when DP was in year 6 and year 7 respectively, DP took up “Pedal Prix”. Mr MacBeth was the main organiser of Pedal Prix, and had a lot to do with DP in that capacity.
DP showed great ability in Pedal Prix. He continued with it during year 8, year 9 and year 10, while at high school. His parents were involved in the sport. The MacBeth family (Mr MacBeth’s wife and children) became friendly with DP’s family (his parents and siblings).
The families visited each other’s home and sometimes went away together. The families holidayed together in January 2002, and in late December 2002 or early January 2003.
DP had a lot to do with Mr MacBeth through Pedal Prix. Mr MacBeth was also DP’s baseball coach at a local baseball club.
The evidence was, and this appears to have been common ground, that DP and Mr MacBeth were very close. By late 2002 DP’s parents were concerned about the relationship, thinking that Mr MacBeth had too much influence over DP. In late 2002 or early 2003 DP’s parents raised their concerns with Mr MacBeth.
In April 2003, when DP was 14 years of age, Mr MacBeth asked DP’s parents if he could take DP away for a weekend fishing trip. It is common ground that this happened, and that the purpose was for Mr MacBeth to discuss with DP the need for them to “move apart”. Incidents on this weekend were the subject of counts 4, 5 and 6.
On DP’s evidence the relationship continued into 2004. DP said that he spent less time with Mr MacBeth, and tried to minimise physical contact between them. Mr MacBeth denied that the physical contact occurred.
In March 2004 DP’s mother found a mobile phone in DP’s bedroom. Mr MacBeth had given it to DP, unknown to DP’s parents. DP’s mother found messages on the phone that had passed between Mr MacBeth and DP. The messages alarmed her. They were proved at trial.
In March 2004 there were several meetings involving Mr MacBeth, a school principal and DP’s parents. Mr MacBeth agreed that he would avoid being alone with DP.
The prosecution led evidence suggesting that Mr MacBeth found it difficult to do this, and that he tried to maintain contact with DP. Mr MacBeth either gave an innocent explanation for the relevant matters, or denied that they occurred.
DP made no complaint about conduct of a sexual nature by Mr MacBeth at the meetings in March 2004, when spoken to by a police officer in April 2004, or when spoken to by a school counsellor also in April 2004.
The first allegation by DP of sexual misconduct was made to a school counsellor in August 2005.
In September 2005 the police obtained statements from DP. The statements did not contain all of the allegations finally made by DP. Further statements were obtained in July 2006, and in September and October 2007.
DP explained the delay in his evidence. He said that Mr MacBeth told him not to reveal their relationship. DP said he was embarrassed to disclose details of the sexual relationship. He did not want his parents to know. He said that on various occasions Mr MacBeth threatened to stop his involvement in Pedal Prix and to stop coaching baseball if DP revealed their relationship. DP said that he did not want to be responsible for him doing that.
I turn now to the allegations by DP of sexual misconduct by Mr MacBeth.
The Judge summarised the prosecution case to the jury as follows:
… The prosecution contends that the accused became obsessed and infatuated with DP and developed a sexual relationship. He gradually groomed DP to engage in sexual activity. It began by hugging him at Pedal Prix events and progressed to seemingly accidental touchings of the boy’s penis whilst massaging him at Pedal Prix races and to making a seemingly innocent inquiry about penile hygiene and so on. The point was eventually reached where he gained emotional and physical control over DP to the extent that he was able to engage in the sexual acts alleged against him knowing that DP would not inform his parents or others of what was going on, knowing that he would not do so because of DP’s deep affection for him. So on the prosecution case, beneath the veneer of being a respected teacher and family man and sports coach there was another side to Mr MacBeth – manipulative and deceitful and one who may have been struggling with his own sexual identity.
The Judge summarised the Defence case as follows:
On the other hand, the accused contends that DP’s allegations are a complete fabrication. On the accused’s case he remained at all times nothing more than a friend and mentor to this boy. The accused conceded that he had a close relationship with DP and that it was a relationship stronger than he had with any other student, Pedal Prix rider or junior baseballer at the time, but on the defence case there had been other young people in his life with whom he had been close, for example, SW, the young man from Whyalla
The defence also pointed to the evidence given by the various defence witnesses that they had never seen or heard of the accused committing sexual acts on other children and that he appeared to have a strong marriage. The defence also pointed to the evidence of the accused’s wife. Mrs MacBeth attested that she and her husband did have a strong marriage and family life and that he had never displayed any signs of having a sexual interest in males. The defence say that it is improbable that the accused would develop a sexual interest in a boy when in his 30s and put at risk his job, marriage, family and reputation.
Having regard to the submissions, it is necessary to expand a little on the evidence before the jury.
DP gave evidence about conduct by Mr MacBeth which the prosecutor said amounted to “grooming” by Mr MacBeth. The prosecutor said that Mr MacBeth went “a little bit further each time, making the contact seem normal and then testing the boy’s reaction before moving on to the next step”.
DP said that sexual contact began in 2001, when he was in year 7. He said that Mr MacBeth would hug him on occasions, such as when he won a race. Mr MacBeth denied this, but agreed he would have patted DP on the back on occasions. DP said that Mr MacBeth massaged his legs after Pedal Prix races, and occasionally brushed against DP’s genitals. Mr MacBeth said there were occasions when he massaged DP’s legs, but this was quite innocent and was done in the presence of parents and other children. DP described an occasion in December 2001 or January 2002 when Mr MacBeth invited DP to the MacBeth home, after a Pedal Prix session. No-one was else was at home. Mr MacBeth suggested a session in the spa to recover from training. He said it did not matter if DP did not have any bathers on. Mr MacBeth went into the spa without bathers on. After a slight hesitation, DP did the same. While they were in the spa DP said that Mr MacBeth massaged DP’s legs. Then he suggested that DP have a cool shower. Mr MacBeth came into the bathroom and, under a pretence, the details of which do not matter, touched DP’s penis. Mr MacBeth denied that this incident occurred. DP said there were other occasions when he shared the spa with Mr MacBeth, and Mr MacBeth touched his genitals under the water. He said this caused him to get an erection. On some of these occasions DP said that his brothers and Mr MacBeth’s sons were also in the spa. Mr MacBeth denied that anything like this occurred. DP said that during 2002, 2003 and 2004 (when he was in year 8, year 9 and year 10) he regularly came to school early for Pedal Prix training, and on many occasions (when no-one else was around) Mr MacBeth fondled DP’s penis, and got DP to do the same to him. Mr MacBeth denied this. DP described other incidents of touching and fondling. In relation to all of this conduct, counsel for Mr MacBeth argued that much of the evidence was incredible, and that Mr MacBeth would not have run the risk of detection that most of the incidents involved. Counsel relied on aspects of DP’s evidence that were said to make the evidence unsatisfactory.
There is no complaint about the Judge’s directions relating to the uncharged acts.
I now turn to the charges.
The incident the subject of count 1 was said by DP to have occurred in the school holidays in early 2002. DP said that in late 2001 Mr MacBeth had taken him, his brothers and Mr MacBeth’s two sons on a fishing trip. They stayed in a caravan park near Lady Bay, south of Adelaide. DP said that in early 2002 Mr MacBeth took him, without any others, on another fishing trip. He said that they stayed at Normanville Caravan Park, but in cross-examination said it must have been the Lady Bay Caravan Park. DP said that he and Mr MacBeth slept in the same double bed. While they were in bed Mr MacBeth stroked his penis, causing him to get an erection. This had been preceded by a conversation about their relationship which, the prosecutor argued, was intended by Mr MacBeth to make DP feel sorry for him, and to make DP think that Mr MacBeth had a special place in DP’s life.
Mr MacBeth admitted going on the fishing trip in 2001, but denied that the second trip occurred. He was supported by his wife. On the other hand DP’s mother gave evidence capable of supporting a finding that Mr MacBeth took DP on more than one fishing trip.
DP said that on this trip he wore a ring that Mr MacBeth had given him previously, when the two families were on holidays together. Mr MacBeth denied that he gave DP a ring. Mrs MacBeth gave evidence that Mr MacBeth did not wear jewellery. The ring is relevant to the additional ground of appeal.
Count 1, the stroking of the penis, was a charge of indecent assault. The jury found Mr MacBeth not guilty.
Count 2 and count 3 were said to have taken place in 2002. It was not disputed that Mr MacBeth, at about the relevant time, took his two sons, DP and his brothers to stay at a holiday shack owned by Mr MacBeth’s father. It was on the coast south of Adelaide. Mr MacBeth’s father was at the shack at the time.
DP said that he and Mr MacBeth slept on mattresses on the floor in a kind of alcove, or around a corner, out of sight of the others. However, the others were sleeping nearby. DP related a conversation with Mr MacBeth while they were in bed, in which Mr MacBeth discussed his sexual activities, including activities with his wife. At Mr MacBeth’s prompting DP crouched on top of the bed, and Mr MacBeth masturbated him from behind until DP ejaculated. This incident was the subject of count 2, a charge of indecent assault. Next morning, about 6.30 am or 7.00 am, when DP said it was still quite dark, Mr MacBeth persuaded DP to masturbate him. This incident was count 3, a charge of procuring an act of gross indecency.
Mr MacBeth denied the allegations. In fact, he said that he slept in the same room as his father. His father gave evidence. The only occasion that the father could recall DP and his brothers coming to the shack was an occasion when their parents were there also. The father said that Mr MacBeth usually slept in the father’s room. But one of DP’s brothers said that DP and Mr MacBeth slept in the place indicated by DP. Defence counsel emphasised that it was unlikely that Mr MacBeth would have committed the alleged offences. The layout of the house was such that anyone could have walked in on them, or might have walked past the entrance to the area where they were sleeping.
The jury acquitted Mr MacBeth on counts 2 and 3.
Count 4, count 5 and count 6 are said to have occurred on the weekend of 12 and 13 April 2003. This was after DP’s parents had expressed concern about the close relationship between DP and Mr MacBeth. It is not disputed that Mr MacBeth asked DP’s parents if he could take DP for a weekend of fishing. He told them that he would stay at his father’s shack, and would talk to DP about them “moving apart”.
DP said that after setting off Mr MacBeth, instead of going to his father’s shack, went to a motel which was not a great distance from DP’s home. Mr MacBeth booked a room for the night for the two of them. DP said there was a dispute between them over DP having a girlfriend, and Mr MacBeth got very agitated. Later he calmed down. They slept in the same bed and before DP went to sleep Mr MacBeth stroked his genitals. This incident was the subject of count 4, the charge of indecent assault.
Next day they drove to Goolwa. Conditions for fishing were not good. They stayed the night at a motel at Goolwa, and not at Mr MacBeth’s father’s shack. In the evening they got into a spa in the motel room with bathers on. Mr MacBeth massaged DP’s legs until he got an erection. Then they masturbated each other. DP said that he did not want sperm in the spa, and stopped masturbating Mr MacBeth, but Mr MacBeth continued to masturbate DP until he ejaculated. Count 5 was the alleged masturbation of DP. The masturbation by DP of Mr MacBeth was count 6, a charge of procuring an act of gross indecency.
The following day Mr MacBeth returned DP to his home.
Mr MacBeth did not deny that he and DP stayed at the motels on the nights in question. Records that were tendered proved that they had stayed there. His explanation for not staying at his father’s shack was that after he picked DP up, he talked about them moving apart. He said that DP became greatly distressed, and attempted to jump out of the car. He stopped near the first motel to talk to DP, and when DP had calmed down suggested they have a meal at the motel. DP said that he did not want to go home, nor did he want to go to the shack. Mr MacBeth decided to stay the night at the motel, and booked a room. In the room he talked further about them moving apart, and DP became very distressed. He said they slept in separate beds, and denied any misconduct. He said he did not tell DP’s parents about the change, because DP did not want them involved.
Mr MacBeth said that on the following day, at Goolwa, DP continued to say that he did not want to go home or go to the shack. He booked into the second of the motels. In the evening they watched a movie in the motel room. He did not have a spa with DP, and denied any sexual act with him.
The prosecutor argued that Mr MacBeth’s explanation for staying at the motels was not believable. He said that if DP had been so distressed as to threaten to jump out of the car, surely Mr MacBeth would have telephoned DP’s parents. He suggested that aspects of the circumstances when Mr MacBeth booked the motel rooms suggested that Mr MacBeth was trying to “cover his tracks”. He pointed to the fact that Mr MacBeth did not tell DP’s parents that they had stayed at motels, when he returned him home. Mr MacBeth acknowledged in evidence that he made an error of judgment in not contacting DP’s parents, but pointed out that he had told his wife where they stayed when he got home. She gave evidence confirming that.
The jury convicted Mr MacBeth on counts 4 and 5, but acquitted on count 6. Count 5 and count 6 related to the one incident, in the spa on the second night.
Count 7 related to a trip to the Flinders Ranges. This was in October 2003. The group included Mr MacBeth, at least one of his sons, DP’s father, another man and his son. DP said that he slept on a mattress in Mr MacBeth’s camper trailer. DP said that Mr MacBeth slept on a bed in the trailer, with his son M. He said that the other son, B, was not on the trip. But other witnesses said that B was on the trip, and slept with his father, and that M slept on the floor. The Judge commented to the jury that it seemed that DP was “clearly mistaken in some respects about who slept in the camper on that trip”.
DP said that on one of the nights when he went to the trailer to go to bed, the other boys were in bed and seemed to be asleep. He got into his sleeping bag. Mr MacBeth came to the trailer a short time later, lay down next to DP and began talking to him. He fondled DP’s penis until he got an erection, and then until he ejaculated. That incident was the subject of count 7, a charge of indecent assault.

Mr MacBeth denied that any such incident occurred.
One of the boys who slept in the camper trailer gave evidence that differed from DP’s evidence in relation to the sleeping arrangements. He also said that on at least the first two nights, he went to bed at the same time as DP, and not before as DP suggested. His evidence suggested that on the second and third nights he saw Mr MacBeth enter the camper trailer and climb up on to his bed, contrary to the evidence of DP. The Judge commented that if this boy had given “a truthful and reliable account” it was difficult to see how Mr MacBeth could have committed count 7, unless it occurred on the third night as to which the boy was less certain.
Defence counsel argued to the jury that it was implausible to suggest that Mr MacBeth would do what DP said, with the other boys lying nearby in the camper trailer. On DP’s evidence the incident lasted for at least 20 minutes.
The jury found Mr MacBeth not guilty on this count.
It was in March 2004 that DP’s parents found the mobile phone that Mr MacBeth had given him. The prosecutor argued that giving him the mobile phone was inconsistent with his assertion that he was trying to distance himself from DP. Mr MacBeth admitted that what he did was foolish, but denied any intention that the giving of the phone be kept a secret. The prosecutor relied on the content of the messages that were found on the phone.
This all led to meetings with Mr MacBeth in March 2004, referred to earlier, and to Mr MacBeth agreeing that he would avoid being alone with DP.
For the purposes of the appeal, this is a sufficient summary of the case at trial.
Inconsistent verdicts
Mr Griffin submits that the jury’s verdicts are irreconcilable, and that accordingly the guilty verdicts on count 4 and count 5 cannot stand.
This is not a case of legal or technical inconsistency. They are not verdicts which, on the face of the record, cannot stand together: cf MacKenzie v The Queen (1996) 190 CLR 348 at 366 Gaudron, Gummow and Kirby JJ. This is a case of factual inconsistency. Mr Griffin submits that when the circumstances of the case are considered, one is driven to the conclusion that no reasonable jury could have come to the conclusion that this jury reached or, putting it a little differently, that the jury acting reasonably could not have come to the conclusion that they reached: MacKenzie at 366. As Gaudron, Gummow and Kirby JJ said at 366, “… the test is one of logic and reasonableness”. Dawson and Toohey JJ agreed with their reasons on this point at 350-351. In words often applied since, Gaudron, Gummow and Kirby JJ outlined the approach to a case like this at 367:
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. (Footnotes omitted)
After referring with approval to observations by King CJ in R v Kirkman (1987) 44 SASR 591 at 593 they added at 368:
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. (Footnotes omitted)
They added that each case will turn on its own facts.
The disposition of the appeal is governed by s 353 of the CLCA. The ultimate issue is whether the verdicts on count 4 and count 5 are unreasonable: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [36] Gleeson CJ, Hayne and Callinan JJ. Inconsistency of verdicts, if made out, may lead to a conclusion that the verdicts are unreasonable, but inconsistency remains no more than a step along the way.
As the ultimate question is the reasonableness of the jury’s decision, the significance of the verdicts of not guilty must be considered in light of the circumstances of the case: MFA at [34], Gleeson CJ, Hayne and Callinan JJ.
It is important to bear in mind, particularly in cases of the present kind, observations by Gleeson CJ, Hayne and Callinan JJ at [34]. As they said:
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.
As they went on to say at [35], the fact that the jury has acquitted on some counts does not mean that the Court is to “… consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility”. The significance of any acquittals must be evaluated in the context of the circumstances of the particular case. McHugh, Gummow and Kirby JJ made observations to the same effect at [89].
Their approach to the issue of inconsistency accorded with the observations set out above: MFA at [86] and [87].
Mr Griffin emphasised that the case was put to the jury by the prosecutor as one in which the question was whether DP or Mr MacBeth had lied. It was not a case in which there was any real scope for a suggestion of mistake. DP’s credibility was the critical issue. This is correct, but it does not follow that differentiated verdicts were not open to the jury. The jury might have believed DP, but might properly have looked for confirmatory evidence before finding a particular charge proved. The jury might have considered DP to be truthful but to be mistaken, or to be uncertain on a particular matter, and in particular whether an incident that he described occurred on the occasion he described, bearing in mind the evidence of uncharged acts and the extent of the contact between DP and Mr MacBeth. Also, as is usual, the Judge told the jury that they did not have to accept or reject all that a witness said. The Judge told the jury to give separate consideration to each count. Accordingly, while the credibility of DP was a critical issue, the appeal cannot be resolved on the basis that the jury came to a decision on each count solely by reference to the basic question of whether DP was telling the truth or not.
Mr Griffin took the Court through the evidence relating to each count. He made the point that on each count the defence was a denial that the relevant incident occurred at all. He put particular emphasis on the acquittal on count 6. The incident, the subject of count 6, allegedly occurred during the weekend when the incidents, the subject of count 4 and count 5 occurred. Moreover, count 5 and count 6 were allegedly committed on the one occasion, when DP and Mr MacBeth were in the spa at a motel. Mr Griffin submits that there is no rational basis for a verdict of guilty on count 5 and a verdict of not guilty on count 6, and that this inconsistency in particular infects the verdict on count 5. So Mr Griffin’s submission is one of what might be called overall inconsistency, and then a particular inconsistency in relation to count 5 and count 6.
I do not accept this submission.
As to the counts on which the jury acquitted Mr MacBeth, other than count 6, the evidence was such that the jury might have doubted the reliability (rather than the honesty) of DP. As to count 1, DP showed some uncertainty as to the caravan park at which they were staying at the time. There was also evidence suggesting that this particular fishing trip did not occur. The jury might not have been satisfied beyond reasonable doubt that count 1 occurred as and when described by DP, without finding him to be not worthy of credit.
As to count 2 and count 3, there was conflicting evidence as to the sleeping arrangements at the shack. The jury might well have had a doubt about this occasion. The same applies to count 7, in view of the conflicting evidence about sleeping arrangements.
To make these points does not mean that Mr Griffin’s submission can be brushed aside, but my consideration of the evidence satisfies me that, viewing the evidence as a whole, the jury might have concluded that they should not convict on these counts, and yet have been prepared to treat DP as an honest witness.
The circumstances were such that the jury might reasonably have taken the view that the evidence was stronger on counts 4, 5 and 6. There was evidence before the jury that might have been treated as supporting the evidence of DP in relation to these counts. First, the occasion on which these counts occurred was precisely identified, and there is no doubt about the place where the alleged incidents occurred. There was clear proof that DP and Mr MacBeth were together on the weekend in question, without anyone else being present, and that they stayed at the motels in question. The jury could well have been satisfied that Mr MacBeth did not tell DP’s parents about the decision not to stay at his father’s shack. There were aspects of Mr MacBeth’s evidence relating to this weekend that the jury might have found unsatisfactory. The same comment cannot be made, at least with the same force, in relation to the other occasions giving rise to charges. I can well understand that the jury, taking into account the Judge’s directions and warnings, might have come to a different conclusion on count 4 and count 5, and might reasonably and rationally have done so.
But how does one reconcile the verdict of not guilty on count 6 with the verdict of guilty on count 5?
Ms Telfer, counsel for the Director of Public Prosecutions, submits that there was no evidence that Mr MacBeth did or said anything that would support a finding that he procured DP to masturbate him on the occasion the subject of count 6, and so the evidence in proof of an essential element of count 6 was lacking. Her submission as to the evidence is correct. DP’s evidence was of an incident in which each of them masturbated the other, and DP gave no evidence of any request or encouragement by Mr MacBeth.
As to this, Mr Griffin submits that neither counsel in their addresses to the jury identified this deficiency in the evidence, nor relied on it in any way. Nor did the Judge in his summing up. Mr Griffin submits that the possibility that the jury acquitted on count 6 on this basis is academic or theoretical.
I disagree. The Judge had directed the jury in clear terms that the prosecution had to prove on count 3 and count 6 that Mr MacBeth procured DP to masturbate him. If the jury were attentive to those directions, they might have realised that there was no evidence of procurement on count 6, even though this had not been pointed out to them. In the language of Gaudron, Gummow and Kirby JJ in MacKenzie at 367, there is a “proper way” by which this Court can reconcile the verdict on count 5 with the verdict on count 6. For this Court to accept Mr Griffin’s submission, the Court has to ignore the fact that the verdict on count 6 is explicable having regard to the Judge’s directions, and has to assume what must be speculative, that is, that the jury did not identify the deficiency in the prosecution case.
In short, the evidence provides a basis upon which the jury might have convicted on count 5 and acquitted on count 6. The evidence as a whole is such that the jury might well have treated count 4 and count 5 differently from the other counts.
Having regard to these matters, I am not satisfied that the jury could not reasonably have convicted on count 4 and count 5, while acquitting on all other counts.
The Judge’s questions and comments
The additional ground of appeal has two aspects. First, a criticism of the Judge for having “excessively involved himself in the conduct of the trial by questioning witnesses …”. Second, a complaint that the Judge made comments in his summing up that “operated to the disadvantage of the accused”.
I have already commented that the latter point, as expressed, goes nowhere. The fact that a comment disadvantages the accused may be the result of the fact that the evidence in question points that way.
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. It is not suggested that the Judge offended against this principle. Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. There is a helpful discussion of the relevant guidelines in the reasons of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 468-473.
In short, the complaint about the judge’s questions has to be considered in the context of the role of counsel and of a judge in a jury trial, and paying appropriate regard to principles of the kind outlined in Esposito. At the same time, one must recognise that consistently with those principles there is scope for variation of approach, from judge to judge and from case to case. The principles are important, but in the end the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
I have read the transcript of the questions about which Mr Griffin complains. The Judge’s interventions are relatively short. In fact, quite short. In each instance the subject matter of the questions was material to the case. The questions dealt with matters that might have assisted the jury. There is nothing in the transcript that suggests that the manner in which the questions were asked was inappropriate. The fact that the prosecutor had not elicited the relevant evidence is not critical. If a judge is not permitted to enquire into a matter into which counsel choose not to enquire, there would seem to be little scope left for judicial questions.
In my opinion no complaint at all can be made about the questions that the Judge asked. I can identify no basis for a suggestion that the questions made the trial unfair.
I turn to the complaint about the Judge’s comments in the summing up.
The law and practice in this State has been summarised fairly, I consider, by Cox J in R v D (1997) 68 SASR 571 at 578-585. I agree with the approach taken by Cox J. It may be that these days judges are less inclined to express a view about the facts or about an issue than they were in the past. No doubt, there are variations from judge to judge. But I consider that the approach taken by Cox J is soundly based.
It is open to a trial judge to comment on the facts of a case, and to draw particular points or issues to the jury’s attention. It may be that in doing so (although not necessarily), the Judge will indicate or suggest a view of the facts or of an issue or of an aspect of the case. A judge may do so. In doing so the judge must not misrepresent the evidence. It is also important that, taking the summing up as a whole, the Judge has made it clear to the jury that the decision on the facts is theirs, and that any comment or any suggestion made by the Judge is no more than that, and may be adopted or discarded as the jury see fit. It is also essential that the Judge puts the defence case fairly before the jury. Comments or suggestions by the Judge must not overawe the jury, or be of a kind that might deter the jury from exercising their function as the deciders of fact.
In other words, and once again, a complaint of the kind now under consideration has to be considered in the context of the summing up as a whole. If the Judge’s approach, taking the summing up as a whole, might have deterred the jury from performing its function, or might have left the jury thinking that they should follow the views of the Judge, there will have been a miscarriage of justice. But the fact that the Judge makes a comment, or raises a hypothesis for consideration, is not of itself problematical, provided of course that the matter is fairly raised on the evidence, and that the Judge’s manner does not convey a meaning or suggestion not apparent from the Judge’s words.
I turn now to the matters the subject of complaint.
I refer to my summary of the circumstances surrounding count 4, count 5 and count 6. The Judge asked Mr MacBeth some questions about why he paid for the motel accommodation in cash rather than using a credit card. This was at the end of the prosecutor’s cross-examination, and before defence counsel re‑examined. At the end of his summary of the evidence relating to these counts, the Judge referred to an argument by defence counsel that if Mr MacBeth had taken DP away for the weekend to engage in sexual activity, it would hardly be the case that he would have told Mrs MacBeth when he returned home that he and DP had stayed in motels. Mrs MacBeth had given evidence that her husband told her this, and it was not suggested to her that she was lying. The Judge referred to this argument, but then invited the jury to ask themselves why Mr MacBeth had paid cash for the rooms, why did he not use his credit card, and whether it was because he wanted to keep the motel a secret from his wife. He also invited them to consider why he had not rung her to advise her about staying at the motels, telling her about this only when he got home.

Mr Griffin makes the point that the prosecutor had not put to Mr MacBeth that he had planned to conceal from his wife the fact that he and DP stayed at motels, but in his summing up the Judge had raised the possibility with the jury for the first time. I must say that it is not clear just what the Judge was getting at, because Mrs MacBeth was not challenged on her evidence that Mr MacBeth did tell her about the motels when he got home.
With all respect to the Judge, there is some force in the point that Mr Griffin makes. The Judge raised with the jury an issue that was not put fairly and squarely to Mr MacBeth, although the general topic was raised by the Judge’s questions to Mr MacBeth, and defence counsel had the opportunity to re-examine on the matter if she saw fit.
Mr Griffin also complains about an issue that the Judge raised relating to the ring that DP said Mr MacBeth had given him. I refer to this above in my summary relating to count 1. Mr MacBeth denied giving DP a ring. He and his wife said that he did not wear jewellery. When summarising the relevant evidence the Judge said that Mr MacBeth’s evidence that he did not wear jewellery was not necessarily inconsistent with him secretly acquiring the ring and giving it to DP. Mr Griffin complains that this is not a point made by the prosecutor. However, the point is an obvious one, and in my opinion it was open to the Judge to make it.
During the re-examination of DP, the prosecutor asked some questions of him about the reason for delay in making a complaint against Mr MacBeth. DP became distressed, and began to cry. In the course of the answer that he gave he referred (not surprisingly) to the embarrassment that would follow from the exposure of what had happened between him and Mr MacBeth. In addressing the jury the prosecutor made the point that DP had given evidence over five days, suggested that his demeanour was impressive, referred to him becoming emotional right at the end of his evidence, and said that the jury might conclude that this was one of those “… moments in a trial when you know you have seen and heard the truth and you might think that that was one of those”. The prosecutor’s point was made with some force, but it was a legitimate comment. The Judge reminded the jury of these events in his summing up. There is no basis for criticising what he said. He reminded the jury of the arguments of counsel. But towards the end of the summing up the Judge returned to the topic, reminding the jury of what the prosecutor said in his address about DP’s distress, and then reminded the jury that defence counsel had argued that DP’s distress was “scripted” (this is what defence counsel had said), meaning “feigned and rehearsed”. The Judge then made the point that DP broke down during re-examination, that there was no guarantee that the prosecutor would re-examine, and had he not done so “the so-called scripted distress would never have happened”. That was a fairly telling point, if the submission by defence counsel is taken literally. Mr Griffin says this was unfair. He rightly points out that the Judge did not remind the jury that the distress exhibited by DP could be due to exhaustion or emotion or a number of factors. The Judge did not invite the jury to be careful in attaching weight to the distress, because of difficulty in deciding what caused it. The Judge had taken too literally the submission by defence counsel, and should have treated it as a submission merely that the distress was not genuine. He submitted that the Judge had, in effect, built on the prosecution submission and had gone too far.
There is force in this point. The Judge should have made the balancing remarks suggested. On the other hand, the Judge was dealing with a particular submission made by defence counsel, which did suggest an element of planning by DP. Other Judges might well have let the matter lie, rather than possibly elevating the importance of the incident.
There is, therefore, force in two of the complaints that Mr Griffin makes. However, I do not agree that these blemishes made the summing up unbalanced as a whole. Taken as a whole the summing up was conspicuously careful and fair. It was clear and to the point. I do not agree that these two blemishes would have led the jury to think that the Judge had identified himself with the prosecution case. Nor is there any basis for a suggestion that the effect of the Judge’s comments (that I have criticised) was to overawe the jury, or to take away from them in any sense their role in deciding whether DP’s evidence was credible or not. I have not overlooked the fact that one of the blemishes relates to the credit of Mr MacBeth, and the other to the credit of DP. My conclusion is that the blemishes that I have identified would not have been productive of unfairness, did not make the summing up unbalanced, and do not give rise to a risk of a miscarriage of justice.
Conclusion
For all those reasons I would dismiss the appeal against conviction.
Application for permission to appeal against sentence
Mr MacBeth applied for permission to appeal against his sentence after his appeal against conviction had been set down for hearing. The application for permission was referred to the court hearing the appeal against conviction.
Each of the offences for which Mr MacBeth was convicted attracted a maximum punishment of eight years’ imprisonment. The Judge imposed a single sentence of imprisonment for three years nine months, and fixed a non-parole period of two years three months. The Judge declined to suspend the sentence.
The application for permission to appeal raises the question of whether it was open to the Judge to sentence on the factual basis upon which he sentenced, having regard to the not guilty verdicts returned by the jury.
In sentencing Mr MacBeth the Judge put to one side the incidents the subject of charges on which Mr MacBeth was acquitted. The Judge said that he was satisfied that the explanation for the acquittal on count 6 was the lack of any evidence that Mr MacBeth procured DP to commit the act in question.
The Judge rejected a submission that he should sentence Mr MacBeth on the basis that count 4 and count 5 were isolated acts. To the contrary, the Judge sentenced Mr MacBeth on the basis that those offences were committed in the context of an ongoing sexual relationship. As the Judge said, Mr MacBeth was not to be punished for the uncharged acts. But the existence of the ongoing sexual relationship meant that Mr MacBeth could not claim the leniency to which he might be entitled if count 4 and count 5 were isolated acts.
The Judge found that DP was truthful, and that what he said about the uncharged acts was “a substantially truthful account”. Clearly enough, he sentenced on the basis that DP’s evidence as to them should be accepted, although he acknowledged that the uncharged acts might not have occurred as frequently as DP said.
The Judge accepted that Mr MacBeth was “a dedicated and highly regarded teacher and sports coach”. He acknowledged the time that Mr MacBeth had spent, voluntarily, assisting children. He accepted that he had been highly regarded by other teachers, by students and their parents. He noted that prior to the commission of the offences in question, Mr MacBeth had not committed any offences of any kind. He acknowledged the impact that imprisonment would have on Mr MacBeth’s wife and family, and on Mr MacBeth himself. He accepted that imprisonment would be difficult for Mr MacBeth, because it was likely that he would be in protective custody.
Nevertheless, the Judge said that the offences were serious. The Judge rightly pointed out that they involved a grave breach of trust.
The Judge referred to the Victim Impact Statements, and noted that the offending conduct had had a serious effect on DP and on his family.
The Judge noted that by s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) a primary policy of the criminal law is to “protect children from sexual predators”, and that he was required to give primary consideration to the need for deterrence.
Mr Griffin submits that it was not open to the Judge to sentence on the factual basis on which he sentenced Mr MacBeth. He relies on the well established principle that a judge cannot sentence on a basis inconsistent with the verdicts of the jury.
Mr Griffin further submits that the Judge’s finding that the offences were committed in the context of an ongoing sexual relationship is inconsistent with the jury verdicts, and accordingly was not open to the Judge. He submits that the not guilty verdicts meant that the Judge should ignore the allegations the subject of those counts. The Judge did so. But he submits further that the jury must have rejected DP’s evidence of uncharged acts, because if they had accepted that evidence they would have convicted Mr MacBeth on the counts on which they acquitted him.
I do not accept this submission. My conclusion that the guilty verdicts on count 4 and on count 5 were reasonably open to the jury despite the not guilty verdicts on the other counts rests on the hypothesis that the jury might reasonably and rationally have decided that they should acquit on all but count 4 and count 5. That conclusion rests on the circumstances of the counts on which the jury returned not guilty verdicts. It does not involve a conclusion that the jury did not accept DP’s evidence about the uncharged acts.
Acceptance of the verdicts of the jury as a whole does not lead to the conclusion that the jury must have rejected DP’s evidence about the uncharged acts.
To the contrary, the jury verdicts are consistent with substantial acceptance of DP’s evidence as to the uncharged acts. It was open to the Judge to make the finding that DP’s evidence about the uncharged acts was substantially truthful, without undermining the jury verdicts and without making a finding inconsistent with those verdicts.
In short, it was open to the Judge to make the findings of fact that he made.
Mr Griffin further submits that the result of the Judge’s finding is that Mr MacBeth has been found to have committed unspecified acts on unspecified occasions. That is correct. But just as it was open to the jury to have regard to the evidence of the uncharged acts as circumstantial evidence supporting a finding of guilt, so it was open to the Judge to find that the same evidence led to a conclusion that Mr MacBeth had committed the uncharged acts described by DP. The result of this is to deny Mr MacBeth the benefit of a claim to be sentenced on the basis that the offences were isolated unlawful acts. On this point I agree generally with the observations by Mullighan J in R v Liddy(No. 2) [2002] SASC 306; (2002) 84 SASR 231 at [67]–[69].
Not only were the findings that the Judge made open to be made as a matter of law, but those findings were also open to be made as a matter of fact. Assuming that the findings are not inconsistent with the jury verdicts, it cannot be said that it was not open to the Judge to reach the conclusion that he reached.
If the Judge’s findings of fact stand, the sentence is well within an appropriate range. I did not understand Mr Griffin to argue to the contrary.
Even if the offences were to be regarded as isolated acts, as Mr Griffin submits, it is not obvious that the sentence is manifestly excessive. The offences the subject of count 4 and of count 5 are serious offences, considered in isolation. Standing alone they involve a serious breach of the relationship of trust as between teacher and pupil, and a betrayal of the trust of DP’s parents. The offences, while occurring on one weekend, occurred on separate occasions 24 hours apart. The circumstances suggest a degree of planning by Mr MacBeth. Bearing in mind that the maximum punishment on each count was imprisonment for eight years, I am not persuaded that the Judge’s sentence is excessive, even on the hypothesis advanced by Mr Griffin.
I would grant permission to appeal. The point raised by Mr Griffin is reasonably arguable, however, I would dismiss the appeal against sentence.
Orders
I would dismiss the appeal against the convictions. I would grant permission to appeal against sentence, but would dismiss the appeal against sentence.
BLEBY J. I agree with the orders proposed by the Chief Justice and with his reasons. I have nothing to add to those reasons.
GRAY J. I agree with the reasons of Doyle CJ and with the orders he has proposed