R v Markuleski

[2001] NSWCCA 290

Reported Decision: 52 NSWLR 82
125 A Crim R 186

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v MARKULESKI [2001] NSWCCA 290 revised - 19/02/2002
FILE NUMBER(S):	CCA 60678/00
HEARING DATE(S):	27 February 2001 1 May 2001
JUDGMENT DATE:	1 August 2001
PARTIES :	Regina Tomislav Markuleski
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 201; Grove J at 269; Simpson J at 285; Carruthers AJ at 344

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0367
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	P Byrne SC / P J D Hamill (Appellant) L M B Lamprati (Crown)
SOLICITORS:	Graham Howe & Co (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - sexual offences - appeal against conviction - whether five verdicts of guilty returned by the jury unreasonable having regard to one verdict of not guilty - Jones v The Queen (1997) 191 CLR 439 - CRIMINAL LAW - sexual offences - appeal against conviction - directions of trial judge to jury - whether adequate direction relating to relevance of delay in complaint to credibility of complainant - where significant delay between commission of offences and complaint - whether adequate direction given relating to relevance of acquittal on any count to credibility of complainant on all counts - CRIMINAL LAW - sexual offences - appeal against conviction - whether question asked by jury about complainant’s motivation for complaint suggested impermissible process of reasoning - where significant delay between commission of offences and complaint - whether trial judge’s response to question was adequate.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Mental Health (Criminal Proceedings) Act 1990
CASES CITED:	Asplin v The Queen (WASCA 26 August 1999 unreported) Balaam v The Queen [2000] WASCA 292 Blight v The Queen [2001] WASCA 122 Crampton v The Queen (2000) 75 ALJR 133 [2000] HCA 60 Crofts v The Queen (1996) 186 CLR 427 Duniam v R (TASSC 22 September 1997 unreported) Eastough v The Queen (WASCA 12 March 1998 unreported) Ellis v The Queen (WASCA 26 September 1997 unreported) Farrell v R (TASSC 7 June 1996 unreported) Farrell v The Queen (1998) 194 CLR 286 Fleming v The Queen (1999) 197 CLR 250 Jaensch v The Queen [2000] WASCA 212 Jones v The Queen (1997) 191 CLR 439 KBT v The Queen (1997) 191 CLR 417 Kilby v The Queen (1973) 129 CLR 460 King Bull and Marotta v The Queen (WASCA 19 January 1998 unreported) Koury v The Queen (1964) 43 DLR (2d) 637 KRM v The Queen (2001) 75 ALJR 550 [2001] HCA 11 Lajciak v The Queen [1999] NTSC 82 Longman v The Queen (1987) 168 CLR 79 Lucas v The Queen (1970) 120 CLR 171 M (1998) 104 A Crim R 154 M v The Queen (1984) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 Miles v The Queen (WASCA 21 December 1998 unreported) Miles v The Queen [2000] WASCA 364 Osland v The Queen (1998) 197 CLR 316 Palmer v The Queen (1998) 193 CLR 1 R v A [2000] QCA 520 R v ACK [2000] NSWCCA 180 R v AG & RJM [2000] NSWCCA 86 R v AM (NSWCCA 2 April 1998 unreported) R v ARD [2000] NSWCCA 443 R v AT [2000] NSWCCA 342 R v Barnett [2000] NSWCCA 283 R v Bell (UKCA 15 May 1997 unreported) R v Britton (UKCA 5 October 2000 unreported) R v C [2000] QCA 385 R v Carbone [2000] NSWCCA 387 R v Cilgram [1994] Crim LR 861 R v Clarke & Fletcher (UKCA 30 July 1997 unreported) R v Crisologo (1997) 99 A Crim R 178 R v Cox [1999] NSWCCA 62 R v D [2000] QCA 417 R v Davies (1985) 3 NSWLR 276 R v Dixon [2001] NSWCCA 39 R v DJK (1997) 96 A Crim R 443 R v DSA [1999] NSWCCA 35 R v E (1996) 39 NSWLR 450 R v F (1995) 83 A Crim R 502 R v G [1998] Crim LR 483 R v Giam (1999) 104 A Crim R 416 R v Girgines (VSCA 26 March 1996 unreported) R v GWB [2000] NSWCCA 410 R v GWM [2001] NSWCCA 267 R v H [2000] 2 NZLR 581 R v Henman [2001] NSWCCA 4 R v Hilsley [1998] VSCA 143 R v Hunt [1968] 2 QB 433 R v Irvine [1976] 1 NZLR 96 R v J (1994) 75 A Crim R 522 R v J (No 2) [1998] 3 VR 602 R v James [1999] NSWCCA 191 R v JGVR [2001] VSCA 8 R v JJT (NSWCCA 3 December 1997 unreported) R v Johnstone (2000) 112 A Crim R 405 R v Jovanovic (1997) 42 NSWLR 520 R v KCW [1999] NSWCCA 112 R v Kenward [2000] QCA 482 R v KET [1998] VSCA 73 R v Kino and Mete [1997] 3 NZLR 24 R v Kirkman (1987) 44 SASR 591 R v Kiskarpati (NSWCCA 4 November 1998 unreported) R v Knuth (QCA 23 June 1998 unreported) R v KWG [2000] SASC 398 R v Maddox (QCA 4 December 1998 unreported) R v McNamara (QCA 1 December 1998 unreported) R v Meola [1999] NSWCCA 388 R v MFA [2001] NSWCCA 71 R v Miletic [1997] 1 VR 593 R v Mills [2001] NSWCCA 48 R v Murray (1987) 11 NSWLR 12 R v O (No. 2) [1999] 1 NZLR 326 R v OGD (No. 2) [2000] NSWCCA 404 R v Omarjee (1995) 79 A Crim R 355 R v P [2000] 2 Qd R 401 R v Petterwood (QCA 11 August 1998 unreported) R v PLV [2001] NSWCCA 282 R v RAT (2000) 111 A Crim R 360 R v Ritchie [2001] QCA 142 R v Robinson (2000) 111 A Crim R 388 R v R [2000] QCA 27 R v R (D) (1996) 136 DLR (4th) 525 R v RJB [1999] VSCA 188 R v Robinson (2000) 111 A Crim R 388 R v Russell (QCA 24 March 1999 unreported) R v S [2001] NSWCCA 204 R v SAW [2001] NSWCCA 222 R v Steenson [2000] NSWCCA 143 R v T (1999) 74 SASR 486 R v Tee [1999] SASC 352 R v VRJ (NSWCCA 22 November 1996 unreported) R v W (UKCA 30 March 1999 unreported) R v W (1999) 109 A Crim R 51 R v Warner (UKCA 17 February 1997 unreported) R v Watson (1997) 95 A Crim R 98 R v Wells (NSWCCA 17 June 1998 unreported) R v Whitehead [2000] NSWCCA 400 Reppas v The Queen (WASCA 9 December 1998 unreported) RM v The Queen (WASCA 23 February 1999 unreported) Spiteri v The Queen [2001] WASCA 82 Strickland v The Queen [2000] WASCA 68 Wheeler v The Queen (WASCA 20 April 1998 unreported) Williams v R [2000] TASSC 182 Wimbridge v The Queen [2000] WASCA 117
DECISION:	1. Appeal allowed; 2. Convictions quashed; 3. New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60678/00

SPIGELMAN CJ

WOOD CJ at CL

GROVE J

SIMPSON J

CARRUTHERS AJ

Wednesday 1 August 2001

REGINA v Tomislav Markuleski

The appellant was charged with six sexual offences (comprising four counts of indecent assault on a person under the age of 16 years and two counts of sexual intercourse without consent with a person under the age of 16 years) against a young girl. On 23 August 2000, the jury returned five verdicts of guilty and one verdict of not guilty (on one of the counts of sexual intercourse). The case was largely one of the word of the complainant against the word of the appellant. The offences were said to have occurred in 1981 and 1982.

Held
A. Unreasonable Verdicts
per Spigelman CJ, Grove J and Carruthers AJ agreeing;
Wood CJ at CL

The jury’s differentiation between verdicts was justified in the circumstances of the case. Jones v The Queen (1997) 191 CLR 439 distinguished. M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; Osland v The Queen (1998) 197 CLR 316; Farrell v The Queen (1998) 194 CLR 286 referred to. R v RAT (2000) 111 A Crim R 360 disapproved. R v Barnett [2000] NSWCCA 283; R v Carbone [2000] NSWCCA 387; R v Dickson [2001] NSWCCA 39; R v S [2001] NSWCCA 204 not followed.

per Simpson J (dissenting)

The jury’s doubt about the complainant’s evidence on the one count on which it returned a verdict of not guilty meant that that doubt should have been translated to the complainant’s credibility in general. Jones v The Queen applied.

B. Direction Relating to Delay in Complaint
per Spigelman CJ, Carruthers AJ agreeing; Wood CJ at CL;
Simpson J

A direction should have been given by the trial judge to the jury that the complainant’s delay in complaint may be taken into account in its assessment of the complainant’s credibility. Crofts v The Queen (1996) 186 CLR 427; Kilby v The Queen (1973) 129 CLR 460 applied. R v Davies (1985) 3 NSWLR 276 referred to.

per Grove J (dissenting)

The trial judge’s directions, in the context of the conduct of the trial, were adequate.

C. Question from Jury about Complainant’s motivation for Complaint
per Spigelman CJ, Carruthers AJ agreeing; Grove J

The fact that the jury asked a question as to why the complainant had come forward after such a passage of time did not suggest an impermissible process of reasoning. Palmer v The Queen (1998) 193 CLR; R v Jovanovic (1997) 42 NSWLR 520 referred to. The trial judge’s response to the question was adequate in the circumstances.

per Simpson J (dissenting)

The question from the jury raised the danger that the jury would reason that in the absence of evidence of a motive for the complainant to lie, her credibility would be enhanced. This impermissible process of reasoning required an explicit direction from the trial judge prohibiting it.

D. Direction Relating to Relevance of Acquittal on Any Count
to Jury’s Assessment of all Counts
per Spigelman CJ, Carruthers AJ agreeing; Wood CJ at CL

As a general rule the trial judge should direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count, ought to be taken into account in its assessment of the complainant’s credibility generally. R v Robinson (2000) 111 A Crim R 388; R v ARD [2000] NSWCCA 441 referred to; R v RAT overruled. The trial judge did not give an adequate direction of this nature in this case.

per Grove J (dissenting)

Whilst in some circumstances a direction of the kind envisaged may be appropriate, this is a matter for trial judges and the giving of the direction should not be referred to as ‘crucial’. In the circumstances of the case, no further direction of this nature was required.

Orders

1. Appeal allowed;

2. Convictions quashed;

3. New trial ordered.

- 108 -

IN THE COURT OF
CRIMINAL APPEAL

60678/00

SPIGELMAN CJ

WOOD CJ at CL

GROVE J

SIMPSON J

CARRUTHERS AJ

Wednesday 1 August 2001

REGINA v Tomislav Markuleski
JUDGMENT

1    SPIGELMAN CJ: Tomislav Markuleski (“the appellant” or “TM”) appeals against his conviction in the District Court on 23 August 2000 in respect of five offences of a sexual nature against B P (“the complainant”). The appellant was arraigned in relation to six offences against the complainant alleged to have occurred between 29 January 1981 (count 1) and 4 February 1982 (count 6). There were four counts pursuant to s76 of the Crimes Act 1900 alleging indecent assaults of a person under 16 years (counts 1-4) and two counts pursuant to s61D(1), alleging sexual intercourse without consent with a person under 16 years (counts 5-6).

2    The case, as is usual in these situations, was in large measure one of word against word, i.e. that of the complainant against that of the appellant. The verdicts of the jury were guilty in relation to the first five counts and not guilty in relation to the sixth count. The course of the trial and the issues on the appeal are set out in the judgment of Simpson J, which I have read in draft.

Unreasonable Verdicts

3 The first ground of appeal is that the verdicts of guilty in relation to counts 1-5 are “unreasonable and cannot be supported” in terms of s6 of the Criminal Appeal Act 1912, in the light of the not guilty verdict in relation to count 6. Reliance was placed on the High Court’s decision in Jones v the Queen (1997) 191 CLR 439.

4 The test of whether a jury verdict is “unreasonable or cannot be supported” within the meaning of s6 of the Criminal Appeal Act 1912 is as established by the joint judgment of the High Court in M v The Queen (1984) 181 CLR 487 at 494-495:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displayed inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” [references omitted]

5    The application of this test in a case of alleged inconsistency between a verdict or verdicts of acquittal and of conviction received an authoritative exposition in the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen esp at 453-455. Their Honours quoted extensively from the judgment in M.

6    The general principles with respect to inconsistent verdicts had been set out in authorities before Jones, particularly MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 per Gaudron, Gummow and Kirby JJ. The threshold proposition, relevant for present purpose, enunciated by their Honours in MacKenzie at 366 was:

“Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.”

7    The reasoning of the joint judgment in Jones, where there was nothing illogical about the divergent verdicts, represents a particular application of this test of “reasonableness”.

8    The reasoning in MacKenzie at 367 is pertinent to the present case:

“… 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.” [references omitted]

9    The respect which the Court pays to the constitutional role of the jury was emphasised in M at 493, in a passage referred to with approval in Jones at 451:

“… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to these considerations.” [references omitted]

10    It is against this background, that the test for an unreasonable verdict - whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty - must be applied to the whole of the facts and circumstances of a particular case.

11    I do not understand there to be any relevant difference between a ‘no reasonable jury test’ (MacKenzie at 366 quoting Lord Devlin) and a ‘not open to the jury’ test (Jones at 450-452 adopting M).

12    In Jones, especially at 453-455, passages of which I will set out below, the joint judgment referred to three matters in detail. First, the effect on the credibility of the complainant of the acquittal on one count. Second, the absence of corroboration. Third, the difficulties occasioned to the defence by the unexplained long delay in making a complaint. The joint judgment concluded at 455:

“When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.”

13    As to the first matter, their Honours analysed the effect of the acquittal on one count upon the credibility of the complainant. I will refer to this passage in detail below.

14    As to the second matter the joint judgment referred at 453 to:

“the lack of any corroborative evidence, in particular, the absence of any medical evidence” [reference omitted]

as a factor which:

“made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care”.

15    As to the third matter, their Honours said at 454:

“The unexplained absence of a complaint for four years is a matter that made it essential for a reasonable jury to scrutinise the complainant’s evidence with great care.”

And continued:

“Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person’s right to defend him or herself.”

The joint judgment at 454-455 referred to the specific difficulties which delay had posed for the defence in the particular circumstances of the case.

16    Accordingly, it was the combined operation of three factors - credibility, absence of corroboration and the effect of a lengthy and unexplained delay - which led the court to conclude that it was not open to the jury to convict. Two of these factors - credibility and effect of delay - involve matters of fact and degree the significance of which turned on the particular circumstances of the case.

17    A noteworthy feature of Jones was the fact that the trial judge did not give a warning to the jury about the adverse effects of delay upon the ability of the accused to defend himself. There was no warning in accordance with the decision in Longman v The Queen (1987) 168 CLR 79 (reaffirmed in Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60).

18    In Jones the Court of Criminal Appeal rejected leave under r 4 of the Criminal Appeal Rules to raise this issue. Leave was required because no application had been made to the trial judge after his summing-up for a relevant redirection. See R v VRJ (NSWCCA, 22 November 1996, unreported).

19    In the High Court the fourth member of the majority, Brennan CJ, at 445-446, expressly referred to the absence of a Longman warning as a relevant factor in his Honour’s conclusion that the verdict on one count was unsafe and unsatisfactory. Although the joint judgment does not explicitly refer to the absence of a Longman warning, the significant emphasis that their Honours gave to the adverse effects of delay in concluding that the verdicts were unsafe, may also have been affected by the fact that the jury was not instructed about the adverse effects of delay.

20    The absence of a Longman warning in Jones, was not raised directly in the High Court. It appears to have been subsumed (expressly in the judgment of Brennan CJ and implicitly in the joint judgment) under the “unsafe and unsatisfactory” ground. The apparent inconsistency of the verdicts in Jones may have appeared to have been of lesser force if a full Longman warning had been given. The element of delay, which the joint judgment mentioned as one of the factors which led their Honours to conclude that it was not open to the jury to convict, would have appeared in a quite different light.

21    This aspect of Jones has not received appropriate emphasis in subsequent cases. In the case law since Jones, as in the present case, attention has focused on the consideration of the “credibility factor” in the joint judgment.

22    Australian jurisprudence on inconsistent verdicts has developed a much higher degree of intolerance to inconsistency than appears to be the case in some other jurisdictions.

23    In England, save in exceptional cases, “logical inconsistency is an essential prerequisite for success on this ground”. (R v W, Court of Appeal (Criminal Division) 30 March 1999, unreported, per Lord Bingham of Cornhill CJ). The fact that different counts all depended on the uncorroborated evidence of the same witness does not render different verdicts inconsistent. (See the following cases decided in the Court of Appeal (Criminal Division): R v Cilgram [1994] Crim LR 861; R v Warner (17 February 1997, unreported); R v Bell (15 May 1997, unreported); R v Clarke & Fletcher (30 July 1997, unreported); R v Britton (5 October 2000, unreported)). In R v Guest (23 January 1998) partially reported as R v G [1998] Crim LR 483, the court was referred to Jones but concluded:

“… the mere fact that credibility of the complainant is in issue and her evidence is acted upon in some counts and not in others does not constitute a logical inconsistency.”

24    New Zealand courts also apply a “no reasonable jury” test. (See R v Irvine [1976] 1 NZLR 96 at 99; R v Kino and Mete [1997] 3 NZLR 24 at 27). The position appears to be broadly similar to the approach in Australia. (See R v O (No. 2) [1999] 1 NZLR 326; R v H [2000] 2 NZLR 581).

25    Canadian courts are prepared to inquire whether the error was in the acquittal rather than in the conviction (Koury v The Queen (1964) 43 DLR (2d) 637 at 652). A diversity of approach is apparent in R v R (D) (1996) 136 DLR (4th) 525 which is of limited assistance as it was an appeal following a trial by judge alone.

26    In the United States most jurisdictions do not intervene even with logically inconsistent verdicts (see E. L. Muller “The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts” (1998) 111 Harvard Law Review 77).

Application of the Reasoning in Jones

27    Since the High Court decided Jones there have been numerous decisions by courts of criminal appeal where a complete acquittal has been obtained by an appellant who had been found guilty of some, but not all, sexual assault counts. These include:

New South Wales

R v Crisologo (1997) 99 A Crim R 178 (New trial ordered)
R v AM (NSWCCA, 2 April 1998, unreported)
R v Wells (NSWCCA, 17 June 1998, unreported)
R v DSA [1999] NSWCCA 35
R v Cox [1999] NSWCCA 62
R v James [1999] NSWCCA 191
R v Meola [1999] NSWCCA 388
R v RAT (2000) 111 A Crim R 360
R v Robinson (2000) 111 A Crim R 388 (New trial ordered)
R v Barnett [2000] NSWCCA 283
R v AT [2000] NSWCCA 342
R v Carbone [2000] NSWCCA 387
R v Whitehead [2000] NSWCCA 400
R v GWB [2000] NSWCCA 410
R v Mills [2001] NSWCCA 48
R v S [2001] NSWCCA 204
R v SAW [2001] NSWCCA 222
R v GWM [2001] NSWCCA 267

Victoria

R v JGVR [2001] VSCA 8

Queensland

R v Watson (1997) 95 A Crim R 98
R v Russell (QCA, 24 March 1999, unreported)
R v P [2000] 2 Qd R 401
R v D [2000] QCA 417
R v Kenward [2000] QCA 482
R v Ritchie [2001] QCA 142

Western Australia

Wheeler v The Queen (WASCA, 20 April 1998, unreported)
M (1998) 104 A Crim R 154
Eastough v The Queen (WASCA, 12 March 1998, unreported)

Northern Territory

Lajciak v The Queen [1999] NTSC 82

28    As can be seen, the application of the reasoning in Jones has had a substantial impact on the administration of criminal justice, particularly in this State.

29    Cases in which an appeal on the grounds of inconsistent verdicts has not been allowed include:

New South Wales

R v DJK (1997) 96 A Crim R 443
R v JJT (NSWCCA, 3 December 1997, unreported)
R v Kiskarpati (NSWCCA, 4 November 1998, unreported)
R v W (1999) 109 A Crim R 51
R v AG & RJM [2000] NSWCCA 86
R v Steenson [2000] NSWCCA 143
R v ACK [2000] NSWCCA 180
R v OGD (No. 2) [2000] NSWCCA 404
R v ARD [2000] NSWCCA 443
R v Henman [2001] NSWCCA 4
R v MFA [2001] NSWCCA 71
R v PLV [2001] NSWCCA 282

Victoria

R v KET [1998] VSCA 73
R v Hilsley [1998] VSCA 143
R v J (No 2) [1998] 3 VR 602

Queensland

R v Knuth (QCA, 23 June 1998, unreported)
R v Petterwood (QCA, 11 August 1998, unreported)
R v McNamara (QCA, 1 December 1998, unreported)
R v Maddox (QCA, 4 December 1998, unreported)
R v R [2000] QCA 27
R v C [2000] QCA 385
R v A [2000] QCA 520

Western Australia

Ellis v The Queen (WASCA, 26 September 1997, unreported)
King, Bull and Marotta v The Queen (WASCA, 19 January 1998, unreported)
Reppas v The Queen (WASCA, 9 December 1998, unreported)
Miles v The Queen (WASCA, 21 December 1998, unreported)
RM v The Queen (WASCA, 23 February 1999, unreported)
Asplin v The Queen (WASCA, 26 August 1999, unreported)
Strickland v The Queen [2000] WASCA 68
Wimbridge v The Queen [2000] WASCA 117
Jaensch v The Queen [2000] WASCA 212
Balaam v The Queen [2000] WASCA 292
Miles v The Queen [2000] WASCA 364
Spiteri v The Queen [2001] WASCA 82
Blight v The Queen [2001] WASCA 122

South Australia

R v T (1999) 74 SASR 486
R v Tee [1999] SASC 352
R v KWG [2000] SASC 398

Tasmania

Duniam v R (TASSC, 22 September 1997, unreported)
Williams v R [2000] TASSC 182

30    Differences in approach are apparent within this Court and between judgments of this Court and of courts of criminal appeal in other states. In these circumstances, the Court has convened a bench of five.

The Duty of the Jury to Consider Charges Separately

31    Nothing in Jones casts any doubt on the appropriateness of a jury accepting a witness’ evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness.

32    Indeed, in a case handed down by the High Court exactly one week after Jones (KBT v The Queen (1997) 191 CLR 417) Brennan CJ, Toohey, Gaudron and Gummow JJ at 424 emphasised the importance of the instruction traditionally given in this respect:

“As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M’s evidence and to reject others.”

33    The appropriateness of the direction traditionally given has also recently been confirmed by McHugh J in KRM v The Queen (2001) 75 ALJR 550; [2001] HCA 11 where his Honour said:

“[36] It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a “separate consideration warning”). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside [60] … [60] cf Jones v The Queen (1997) 191 CLR 439.”

34    In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M, MacKenzie and Jones quoted above.

The Centrality of the Facts of a Particular Case

35    Several aspects of the reasoning in Jones pertinent to the issue of credibility of the complainant in that case, often arise in other cases. These include:

· Absence of corroboration in a word against word case.

· Delay in making complaint,

· Lack of apparent difference in the quality of the complainant’s evidence amongst the different incidents.

· Availability of contradictory evidence with respect to some, but not all, incidents.

36    Although the specific aspects of a case may be characterised in this way - including in the specific language, quoted below, of the reasoning in Jones - each such matter raises questions of fact and degree which may affect the ultimate assessment of the effect upon the credibility of the complainant in the particular case before the Court when the complainant’s evidence is not accepted to the criminal standard on some counts. The fact that the High Court found in Jones that the effect on credibility was such that, together with other factors, it was not open to the jury to convict, does not determine the outcome of other cases. The variation in fact and degree will differ from case to case.

37    The proposition that these cases turn on their particular facts is confirmed by High Court authority, both before and after Jones.

38    In MacKenzie the joint judgment relevantly concluded at 368:

“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. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case .’” [Emphasis added; reference omitted]

39    In Osland v The Queen (1998) 197 CLR 316, inconsistency of verdicts was raised in the context of allegations that the appellant Osland and her son had murdered the appellant’s husband, the son’s stepfather. At trial the mother was convicted, but the jury was unable to reach a verdict with respect to the son. The son was later tried again and acquitted. The assertion that the verdicts were inconsistent was raised for the first time in the High Court.

40    The appeal was dismissed by majority. Each of the majority judgments gave careful attention to the particular facts and issues raised in the course of the proceedings. I do not understand either Kirby J or Callinan J to disagree with the general thrust of the following reasoning of McHugh J:

“[120] When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory.
[121] In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. … An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues, evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury.” [references omitted]

41    The central significance of the facts of a particular case is also emphasised in the High Court judgment in Farrell v The Queen (1998) 194 CLR 286. The appellant had been charged with eight counts of rape, two counts of aggravated sexual assault and two counts of assault. He was found guilty of one count of assault, one count of aggravated sexual assault (by majority) and four counts of rape (three by majority). The jury returned verdicts of not guilty on five counts and on one count there was a verdict of not guilty by direction. All of the offences had occurred in the course of one night on which the complainant said that he had been sexually assaulted and beaten by two men. Two of the five counts of which the appellant was acquitted were those in which the principal offender was alleged to be the other person, with the appellant being charged with aiding and abetting that person.

42    Hayne J noted at [64] that there was very little evidence of the appellant encouraging the other person by his alleged presence. His Honour concluded at [65]:

“In those circumstances I attach no weight to the different verdicts given by the jury to the various counts charged. The verdicts are entirely consistent with the jury not reaching the requisite degree of satisfaction that the appellant had aided and abetted Frank in his assaults on the complainant.”

McHugh and Gaudron JJ agreed with Hayne J.

43    Both Kirby J at [25] and Callinan J at [99] referred to the differentiation that Cox CJ had made in the Court of Criminal Appeal. Cox CJ had said (Farrell v R (TASSC, 7 June 1996, unreported)):

“[The jury] did not, in fact, convict on any counts proof of which required a finding of the commission of a crime by the third man. … There was no corroborative evidence in respect of such counts - no corroborative evidence even of the existence, let alone presence, of that person; but as there was, in my view, significant corroborative evidence in the form of the tie which linked the appellant to the complainant not only earlier in the evening but up until shortly before the complainant’s arrival at his brother’s home with his hands bound, it seems likely that the jury were fully alive to the deficiencies in the complainant’s credibility and were only prepared to convict where his evidence was in fact corroborated.”

44    Callinan J said at [99]:

“In the Court of Criminal Appeal, Cox CJ explained this differentiation in the verdicts. The evidence concerning the distinctive tie was logically corroborative of much of the complainant’s evidence and capable clearly of linking the appellant with the commission of the offences of which he was charged. There was no similar corroboration of the offences involving the second man. The position may simply have been that the jury were left in a state of doubt about those offences. It cannot be said that there is no rational basis for the respective verdicts of guilty and not guilty.”

45    Only two of the five counts on which the appellant was found to be not guilty were aiding and abetting counts. He was also found not guilty of one of the six counts of anal penetration, one count of fellatio and one count of assault (see [98] in the judgment of Callinan J). It does not appear that the presence or absence of the third man was relevant to these counts. Nevertheless, no fatal inconsistency was found to exist on the facts of this case, although no separate consideration was given to the three counts not involving the third man for which an acquittal was found.

46    In my opinion, Osland and Farrell support the proposition that the reasoning in Jones is directed to the facts of that case.

The Reasoning in Jones

47    There are three key passages in the reasoning of the joint judgment in Jones on the issue of credibility.

(i) “The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count.” (453)
(ii) “It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.” (453)
(iii) “In our opinion, the proper application of the test formulated by the majority of this court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury’s findings on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect to the second count.” (455)

48    These considerations operated in a, frequently occurring, context of delay in complaint and absence of corroboration which, as the joint judgment emphasised, required the jury “to scrutinise the complainant’s evidence with considerable care” (453.9).

49    In each of passage (ii) and (iii), the joint judgment notes that there was no reason to believe that the complainant’s evidence with respect to those counts on which a conviction was recorded was either “more reliable” (453.8) or of a “higher quality” (455.8). However, I do not understand their Honours to be propounding a proposition that unless a finding of that character can be made, then in a word against word case where the complainant’s version is uncorroborated, the only conclusion is that it was not open to the jury to convict. This appears from the addition of the words “or the surrounding circumstances” [emphasis added] in passage (ii).

50    In passage (iii), their Honours said that the count on which an acquittal was entered was the only count on which, given the delay, the complainant’s evidence “could be set against other reliable evidence” (455.7). Again, I do not understand that their Honours were propounding a proposition that in any word against word case, where such a characterisation can be made, the only conclusion is that it was not open to the jury to convict.

51    Both of these considerations are, of course, important and often critical, but their significance gives rise to questions of fact and degree which will vary from case to case. The reasoning has not always been treated in this way.

Application of the Reasoning in Jones

52    The reasoning in Jones appears to have been treated as determinative of any analogous case by Dunford J in R v RAT [2000] 111 A Crim R 360 when his Honour said:

“[44] The fact remains that all counts depended on the evidence of the complainant being accepted as true beyond reasonable doubt and on the only two counts where her evidence could be set against other apparently or potentially reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof in the eyes of the jury. There is nothing in her evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to the first three counts where it could not be tested than it was in relation to the other counts where it could be, and was, tested. On the two counts where on the complainant’s evidence, corroboration was available, such corroboration was not forthcoming. The very matters which justify a finding that the verdicts are not inconsistent in the sense of being a compromise are matters which call into question the complainant’s credibility in respect of the counts on which the appellant was acquitted.

[45] In those circumstances, notwithstanding the fact that her evidence as transcribed carries conviction, that it does not, in my opinion, contain discrepancies or inconsistencies such as were apparent in M and the trial judge who like the jury had the opportunity of seeing the complainant and other witnesses was satisfied she was telling the truth, I consider that in accordance with Jones the convictions on counts 1-3 must be regarded as unreasonable and cannot be supported, and must be set aside and judgments of acquittal entered.” [Emphasis added]

53    The matters emphasised in par [44] of Dunford J’s judgment paraphrase the terminology in the majority judgment in Jones which his Honour had earlier set out. His Honour’s recitation of countervailing facts in par [45] are, in my opinion, facts and matters relevant to a conclusion in that, or any analogous case, that the result in Jones should not apply on the facts in that case. Nevertheless his Honour considered that “in accordance with Jones”, the court should set aside the convictions in the case before the court. In my opinion, it is wrong to approach the authority of Jones on the basis that whenever facts of a similar character are found to those set out in the passages of the joint judgment to which I have referred above, the finding must be the same as in Jones. Whether or not such a conclusion is appropriate depends on all of the circumstances of the case.

54    Dunford J went on to reiterate his understanding of the effect of Jones as a precedent in the context of formulating a direction which he concluded ought to be given in such cases. His Honour said:

“[46] If I am correct in my understanding of the effect of Jones, then I believe consideration needs to be given to the directions regularly given to juries in such trials. Juries are constantly told that they should consider each count in the indictment separately and also that they may accept part of a witness’ evidence and not accept other parts of the evidence of that same witness. But Jones appears to establish a qualification to these directions to the effect that in sexual cases, where the only direct evidence of the commission of the offences is that of the complainant, if they are for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that she (or he) is telling the truth in relation to any other count; and therefore in such cases (that is, where there is no independent evidence of the commission of the offences) if they find an accused not guilty on one count, they must also find him not guilty on all counts. They should also be warned specifically that if they return different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside.”

55    His Honour’s statement that, in the identified circumstances, the jury “must … find” the accused “not guilty on all counts” elevates the conclusion in Jones to a proposition of law. In my opinion, this approach is wrong. The appropriateness of the suggested direction will be discussed below.

56    In R v Barnett [2000] NSWCCA 283, Dunford J applied the approach he had adopted in RAT. In Barnett the counts on which the appellant was convicted were distinguished by the fact that there was independent evidence of opportunity to commit the offences. His Honour found that, applying MacKenzie, the different verdicts were not “an affront to logic and commonsense” but, nevertheless, applying Jones:

“[28] The independent evidence of opportunity of them being alone … did not render her evidence more credible on those counts than on the others.”

57    In R v Carbone [2000] NSWCCA 387, Wood CJ at CL referred to the decisions in this Court applying Jones and to Dunford J’s analysis of the cases in RAT. Wood CJ at CL added:

“[56] … In summary those decisions give recognition to the circumstance that,where in sexual assault cases with multiple counts involving a single complainant and a single accused, the only direct evidence of the commission of the offences is that of the complainant, then acquittal on any one of the charges will in the absence of an acceptable explanation, normally require acquittal on the remainder.
[57] This follows from the circumstance that, in such a case, the rejection of the complainant’s evidence will involve a diminution in his or her overall credibility which cannot be overcome, in the absence of some circumstance that might restore that credibility for the other counts. This requires identification of some fact or surrounding circumstance that would provide a rational basis for accepting the complainant’s evidence upon the other counts, ie something which would justify the conclusion that the evidence, on those other counts, was more reliable, or stronger, than it was for the count upon which it was rejected.”

58    Similarly, in R v Dixon [2001] NSWCCA 39, Whealy J said at [52]:

“In R v RAT (2000) NSWCCA 77 Dunford J (with whom Barr J agreed) at (46) held that Jones v The Queen (1997) 191 CLR 439 appears to have established that in sexual assault cases where the only direct evidence of the commission of the offences is that of the complainant, if the jury is for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that the complainant is telling the truth in relation to any other count. Therefore, in such cases, if the jury finds an accused not guilty on one count it must also find him not guilty on all counts.”

59    To similar effect is the conclusion of Sully J in R v S [2001] NSWCCA 204. In that case the appellant had been convicted on three counts and acquitted on three counts. With respect to the latter the complainant’s evidence about the surrounding circumstances of the alleged incidents had been successfully challenged. Sully J, with whom Dowd J agreed, referred to Jones at 453 and added at [14]:

“ … whilever that reasoning remains on foot with the authority of the High Court of Australia then this applicant would, given the facts of the present case seem to me to entail necessarily that the convictions on counts 1, 2 and 3 cannot stand.”

60    The approach to the reasoning in Jones reflected in RAT, Barnett, Carbone, Dixon and S has not been universally applied in this Court. If it had been adhered to, it is likely that a number of decisions would have been different (e.g. R v JJT (NSWCCA, 3 December 1997, unreported); R v Kiskarpati (NSWCCA, 4 November 1998, unreported); R v W (1999) 109 A Crim R 51; R v AG & RJM [2000] NSWCCA 86; R v ACK [2000] NSWCCA 180; R v AT [2000] NSWCCA 342 (as to the first count at [79]); R v ARD [2000] NSWCCA 443; R v MFA [2001] NSWCCA 71).

61    Furthermore, the approach does not appear to have been adopted by courts of criminal appeal in other States. (See e.g. R v J (No 2) [1998] 3 VR 602 esp at 628; R v KET [1998] VSCA 73 at [29]; R v Hilsley [1998] VSCA 143 at [60] and [78]; R v Maddox (QCA, 4 December 1998, unreported); R v Petterwood (QCA ,11 August 1998, unreported); R v Knuth (QCA, 23 June 1998, unreported); R v R [2000] QCA 27 at [26]-[28]; R v C [2000] QCA 385 at [47]; R v KWG [2000] SASC 398 at [65]-[67], [77]-[83]; RM v The Queen (WASCA, 23 February 1999, unreported); Ellis v The Queen (WASCA, 26 September 1997, unreported); Williams v R [2000] TASSC 182 at [6]; Asplin v The Queen, (WASCA, 26 August 1999, unreported) at [26] and [39]; Balaam v The Queen [2000] WASCA 292 at [17]; Spiteri v The Queen [2001] WASCA 82 at [6]).

62    There are, however, cases which appear to be consistent with the approach in the line of New South Wales authorities to which I have referred (see e.g. R v Kenward [2000] QCA 482 at [6], [8] and [149]-[150]; R v Ritchie [2001] QCA 142).

63    In these circumstances it is appropriate that prior authority in this Court should be reviewed by a bench of five.

64    The reasoning in RAT, Barnett, Carbone, Dixon and S suggests that Jones established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence.

65    In my opinion this is not what the High Court intended. Whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led to the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case unless the Court is positively satisfied that there is some relevant difference in the quality of the complainant’s evidence.

66    I repeat, with my emphasis, a sentence from the joint judgment in Jones at 453:

“There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.”

The reference to “the surrounding circumstances” requires an appellate court to consider all the facts of the case.

67    I agree with the reasoning of Winneke P in R v KET [1998] VSCA 73:

“[28] … Jones’s case, in my view, is a case which has to be looked at in the light of its own particular facts, as indeed all cases where this issue raised must be. In Jones’s case three discrete acts of sexual penetration were alleged and the jury convicted the accused on two and acquitted on one, in circumstances where the acquittal, as the judgments made clear, must necessarily on the facts of that case have reflected upon the credibility of the complainant’s evidence on the other two counts. Furthermore, it would seem from the judgments in Jones’ case that special emphasis was laid on the prejudice flowing to the accused from the delay in complaint because it was apparent from the special facts of the case that there was a real risk that the delay had deprived the accused of what the majority judges had called ‘a cast iron alibi’.
[29] However, in my view, it would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.”

(See also R v KWG [2000] SASC 398 at [79] per Martin J).

68    There have, of course, been cases since Jones in which the Court was able to detect from the transcript that there were relevant differences in the way the complainant gave evidence on the matters which led to an acquittal when compared to those which led to a conviction (see e.g. R v RJB [1999] VSCA 188 at [26]; R v Tee [1999] SASC 352 at [70]; R v A [2000] QCA 520 at [23] and [106]; Jaensch v The Queen [2000] WASCA 212 at [37]; Miles v The Queen [2000] WASCA 364 at [66]; R v OGD(No. 2) [2000] NSWCCA 404 at [126]; Strickland v The Queen [2000] WASCA 68 at [65]-[70], [74]; Duniam v R (TASSC, 22 September 1997, unreported).

69    The absence of any relevant difference in the complainant’s evidence was emphasised in Jones, as it had been in M (at 494 quoted at para 4 above). It is not, however, in my opinion, the case that the reasoning in Jones requires a court of criminal appeal to quash a conviction in a pure word against word case, unless the differences between or amongst the verdicts can be explained in this way.

70    Indeed, the courts’ respect for the constitutional role of the jury, affirmed in Jones itself, is such that a court of criminal appeal could conclude that subtle differences in the way evidence was presented - differences not apparent from the transcript available on appeal - may explain what appear to be, at first sight, inconsistent verdicts.

71    In R v J (1994) 75 A Crim R 522 at 540, Brooking J referred to “the inability of the transcript to record pauses or other indications of indecision”. In R v Robinson (2000) 111 A Crim R 388 at [61] Barr J referred to the possibility that the jury may make an assessment of reliability “… by the way he gave his evidence rather than by what he said”. Adams J made similar observations in ARD supra at [201] and [203]. See also Spiteri v The Queen [2001] WASCA 82 at [34].

72    Furthermore, in a number of cases a court of criminal appeal has expressed its conclusion in terms of what a jury “may” have done, which suggests that some form of differentiation about the character of the complainant’s evidence was accepted by the jury, although it was not apparent to the appellate court. (See e.g. Miles v The Queen (WASCA, 21 December 1998, unreported); R v Hilsley [1998] VSCA 143 at [78]; R v C [2000] QCA 385 at [47]; R v Knuth (QCA, 23 June 1998, unreported); Balaam v The Queen [2000] WASCA 292 at [9], [14], [17]; Spiteri v The Queen [2001] WASCA 82 at [22], [32] and [37]).

73    The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.

74    It is not, however, easy to formulate principles as to when a jury should conclude that a reasonable doubt on one count, notwithstanding the complainant’s evidence on that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant.

When is Partial Rejection of the Complainant’s Evidence Acceptable?

75    The joint judgment in MacKenzie supra at 367-8 quoted with approval from the judgment of King CJ in R v Kirkman (1987) 44 SASR 591 at 593:

“Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

76    This particular application of the principle that an appellate court should respect the constitutional role of the jury, must be given careful consideration in cases alleging inconsistency in verdicts. There are often a number of possible explanations for divergent verdicts that do not necessarily give rise to a doubt about the complainant’s credibility on all counts. For example, where there is contradictory evidence on one count but not on others, the jury may well have taken the view that there was no point in adding yet another verdict of guilty, so that it was unnecessary to fully consider the conflicting evidence.

77    Considerations of this character appear to lie behind this Court’s judgment in R v Kiskarpati (NSWCCA, 4 November 1998, unreported) in which three counts of sexual intercourse without consent and one count of common assault were alleged to have occurred on the same occasion. The allegations relating to the sexual offences involved digital penetration, cunnilingus and vaginal intercourse. The appellant was convicted of the count of vaginal intercourse and acquitted of the other two sexual offences. Hidden J with whom McInerney and Ireland JJ agreed concluded:

“… I think it sufficient to say that the jury may have taken a practical view of the whole encounter and decided that those two verdicts of guilty, that is, in relation to one charge of sexual intercourse without consent and in relation to the charge of common assault, were sufficient to reflect the appellant’s culpability.”

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

79    Difficult issues arise when a reason for differentiating between the verdicts does exist but that reason relates to the credibility - whether in terms of veracity or reliability - of an uncorroborated complainant. The case law since Jones has frequently concluded that a jury was not obliged to have a reasonable doubt about the complainant’s credibility in general, when it did not accept her (it usually is a “her”) version of events to the criminal standard in some respect or respects. The distinction has been variously expressed:

· “accepted the complainant as truthful but admitted the possibility of faulty recollection in some cases” R v J (1994) 75 A Crim R 522 at 540 referred to with approval in R v J (No 2) [1998] 3 VR 602 at 628.

· distinguish a case in which the jury “rejected as unreliable the substance of the complainant’s evidence” from a case in which it was “cautious about some details” (R v Maddox (QCA, 4 December 1998, unreported) at [1] per McPherson JA) and “doubts” about “details” (per Thomas JA at [21] and White J at [2]).

· “still accept the basic story at less than the full alleged detail” (R v Russell (QCA, 24 March 1999, unreported)).

· “generally truthful, even if she might have been exaggerating in this part of her evidence” (R v ACK [2000] NSWCCA 180 at [53]).

· whether the jury found the complainant’s evidence “dishonest rather than unpersuasive in the circumstances” (R v C [2000] QCA 385 at [47]).

· “the jury did not disbelieve the complainant but they thought her evidence lacked the requisite particularity as to time, place or circumstance to justify conviction” (Duniam v R (TASSC, 22 September 1997, unreported)).

80    In a number of other cases, courts of criminal appeal have concluded that in the circumstances of the case, an acquittal contrary to the complainant’s evidence did not necessarily mean that the complainant’s general credit was undermined (see e.g. R v KET supra at [29]; R v Hilsley [1998] VCSA 143 at [78]; R v Maddox supra at [1]; R v R [2000] QCA 27 at [28]; R v AT [2000] NSWCCA 342 at [18]; R v AG & RJM [2000] NSWCCA 86 at [51]; Williams v R [2000] TASSC 182 at [4]; R v McNamara (QCA, 1 December 1998, unreported)).

81    It is usual in such cases to give a strong warning about the dangers of acting on the uncorroborated evidence of the complainant. Where the jury accepts and implements such a direction, it does not necessarily mean that the jury ought to have had a doubt about the complainant’s credibility generally.

82    In a number of cases the presence or absence of corroboration has been accepted as a relevant point of differentiation. The jury convicted in cases where there was corroboration, but not otherwise (see e.g. King, Bull and Marotta v The Queen (WASCA, 19 January 1998, unreported) (an appeal to the High Court was successful on other grounds - Bull v The Queen (2000) 201 CLR 443); R v Petterwood (QCA, 11 August 1998, unreported); R v Hilsley [1998] VSCA 43 at [60] and [78]; R v KCW [1999] NSWCCA 112 at [95]-[106]; R v ARD [2000] NSWCCA 443 at [23], [121]-[124] and [201]; R v PLV [2001] NSWCCA 282 at [21]-[34].

83    In some cases a jury has acquitted on counts which were not the subject of the original complaint. Although such a discrepancy is capable of affecting credit, it has not been found to require an acquittal on other counts.

84    In R v JJT (NSWCCA, 3 December 1997, unreported) a factor distinguishing the acquittal and the conviction was that the day after the alleged incidents, the complainant went to the police but lodged a complaint only in terms of the count on which the jury convicted but not in terms of the other count. Gleeson CJ said:

“True it is, as the jury were instructed, that the complaint did not amount to corroboration. Nevertheless, the question of consistency was one which the jury were entitled to regard as important and they were entitled to regard the complaint that was made on the day following the events as inconsistent with the evidence in relation to count 3, but as consistent with the evidence in relation to count 2.”

85    In R v ACK [2000] NSWCCA 180 a similar discrepancy arose. The original complaint did not include reference to the incident on which the jury acquitted. No relevant inconsistency arose ([51]-[53]).

86    In Asplin v The Queen (WASCA, 26 August 1999, unreported) a number of not guilty verdicts were distinguished on the basis that they had not been included in the original complaint ([26] and [34]).

87    In Williams v R [2000] TASSC 182 the appellant was charged with six sexual offences committed within one three and a half hour period in the complainant’s home. The jury returned unanimous guilty verdicts on the first count (indecent assault) and the sixth count (vaginal rape). The jury acquitted on the remaining counts (digital penetration, oral rape, and two counts of vaginal rape). The acquittal on the count involving oral rape was a unanimous acquittal, the other three acquittals were by majority. The appellant had admitted the event comprising the alleged indecent assault but denied an absence of consent. He said that none of the other events occurred at all.

88    Cox CJ, with whom Crawford and Blow JJ agreed, noted that this was a word against word case at [3] and said:

“[4] The jury was rightly told to examine each count and not to convict the appellant thereon unless satisfied beyond reasonable doubt of his guilt on that count. The findings they made are consistent with their having been satisfied that the acts comprising counts 1 and 6 occurred without her consent, but that they were not satisfied to the requisite degree that the acts comprising the other four counts had occurred. In the circumstances, it would be remarkable had they been satisfied she had consented to some acts but not to others, two of which were of precisely the same kind, that is, vaginal intercourse, as that on which they had convicted. Indeed, had the only issue been one of consent, then having regard to the close link in time and nature of the alleged conduct, an acquittal on one or more counts would almost certainly have carried an acquittal on the others (see R v Whelan [1973] VR 268, R v Kelly (1985) 38 SASR 561). However, this was not a case where the conduct complained of, other than in respect of count 1, was admitted and the issue therefore confined to consent. The more likely explanation for the differentiation is absence of satisfaction as to the occurrence of all the acts themselves. Disbelief of the complainant’s claims on some of these matters did not logically require them to disbelieve her on all her claims. The doing of the acts comprising count 1 is common ground, consent being the only issue. There was no evidence of recent complaint in respect of digital penetration or the penetration of her mouth, and her complaint that she had been raped did not extend to a complaint of having been raped on several occasions. The verdict is consistent with a jury having been satisfied beyond reasonable doubt that without her consent the complainant had been sexually assaulted and raped at least once. The presence of semen, confirmed by the medical evidence, was capable of corroborating her claim that the appellant had ejaculated inside her on the last occasion she said vaginal penetration had occurred. In my view, there is nothing inconsistent in the jury, satisfied that counts 1 and 6 had occurred in the absence of any evidence other than her own, failing to be satisfied that all the other incidents had occurred, as she had described and giving to the appellant the benefit of such doubt as they had on the matter. There is no affront to logic and commonsense in their verdicts.” [Emphasis added]

89    One of the factors emphasised in the majority joint judgment in Jones was the proposition that the complainant’s evidence “failed to carry sufficient conviction” in the circumstances where, “her evidence could be set against other reliable evidence” (455). This proposition has been applied, e.g. R v Russell (QCA, 24 March 1999, unreported); R v D [2000] QCA 417 at [12]; R v James [1999] NSWCCA 191 at [64] cf [10]; Eastough v The Queen (WASCA, 12 March 1998, unreported).

90    However, there are a number of cases where the existence of contrasting or contradictory evidence has been referred to as providing a rational basis for the jury bringing in different verdicts, but the court of criminal appeal concluded that it was open to the jury to convict. This line of authority emphasises the significance of the facts of a particular case.

91    An express differentiation in this respect was made by this Court in R v AT [2000] NSWCCA 342. In the case of an acquittal on one count on which there was contradictory evidence this was found to be an acceptable basis for differentiation at [79]. (The appeal was successful because of an acquittal on another count which relied solely on her credit ([83]).

92    Similarly in R v J (No 2) [1998] 3 VR 602 at 628 Winneke P and Charles JA concluded:

“… the jury was prepared to give the applicant the benefit of the doubt in respect of particular offences alleged on the presentment where there was acceptable evidence from independent sources pointing to the possibility that the offence had not occurred at the time or in the circumstances particularised in the relevant count. The verdicts, so viewed, do not in our opinion demonstrate inconsistency, nor do they demonstrate that the jury regarded the complainant, on matters of substance , as other than a witness of truth.” [Emphasis added]

93    The issue in each case may well turn on what, in the circumstances of the case, should be regarded as a “matter of substance”. In a word against word case, cross-examination on surrounding contextual detail is often essential for the defence case. Some surrounding circumstances are of sufficient significance that the Court will conclude that the jury ought to have had a doubt about the complainant’s evidence with respect to other incidents. Not all surrounding circumstances are of such significance.

94    In Jones, on the count on which the jury acquitted, the appellant’s wife and daughter gave evidence that they were always present at weeknight training sessions and always travelled home with him. On this basis the complainant and the appellant could not have been alone when, as she alleged, he had given her a lift home and the sexual assault allegedly occurred. This was a matter of substance on which the jury did not accept the complainant.

95    In Jones, the first count of which the appellant had been convicted was alleged, in the end, to have occurred on a Saturday. An assistant coach had said that the appellant drove her home after each such session, but she conceded in cross-examination that it was possible that she had travelled home by train on occasions during the relevant period. This, of course, was precisely the kind of detail affected by the four year delay in the complaint. The jury were not given a Longman warning about the adverse effects of delay, which was particularly pertinent to the evidence of the assistant coach, as emphasised by Brennan CJ, the other member of the majority at 445-446.

96    The third count, being one of two of which the appellant was convicted, occurred in circumstances where, at least after the delay, no suggestion of third party presence arose and was, accordingly, entirely word against word.

97    It is important to recognise the significance of the evidence in Jones which contradicted the complainant’s evidence. That evidence was to the effect that no sexual assault of any kind could have happened because the complainant and the appellant were not alone at the relevant time. On the first count the evidence could well have had, but for the delay, the same certainty and would then have been of the same quality as the evidence which led the jury to entertain a doubt about the second count, on which it acquitted. Jones did not involve a conflict over some circumstantial aspect of an alleged assault, cross examination about which could have an effect on whether the complainant’s evidence should be believed, but which did not directly challenge the central allegation of sexual assault.

98    The case law since Jones indicates that it is not always the case that the jury ought to have had a doubt about the complainant’s evidence with respect to all counts, whenever the relevant distinction between the verdicts of guilty and of acquittal is explicable on the basis that, in the case of the former there was not, and in the case of the latter there was, evidence contradicting or calling into question the version given by the complainant.

99    It is not desirable to lay down any general principle to determine when the impact of contradictory evidence which appears to have led the jury to entertain a reasonable doubt on one or more counts, ought to have so undermined the credibility of the complainant that the jury should have felt such a doubt about other counts, with respect to which there was no contradictory evidence. This court and other courts have reached different conclusions when faced with such a situation, the result turning on the particular facts of the case.

100    In R v James [1999] NSWCCA 191 the appellant was found guilty of three counts of indecent assault on a female under the age of sixteen, not guilty on a fourth count, with the jury unable to reach an unanimous verdict on a fifth count. Some twenty-one years had elapsed between the date of the alleged incidents and the trial.

101    With respect to the count of which the appellant was acquitted, the complainant had given detailed evidence about the nature of a house that was on the property at which the incident was said to have occurred. Notwithstanding the lapse of twenty-one years, the appellant was able to testify that there was no building on the property at that time and to call an independent witness to confirm that proposition. With respect to the count on which the jury was unable to agree there was an odd feature of a most improbable statement which the complainant had attributed to the appellant. Simpson J, with whom Bell J agreed, referred to Jones and said that there was “no relevant distinction between Jones and the present case” [64]. Referring to the matters which led the jury to reach different conclusions her Honour said at [64]:

“All that can be drawn from these is that, where there was any positive material to contradict, or create a doubt about, the complainant’s claims, the jury doubted her credibility. As in Jones , if they had a doubt about her credibility on the fourth count (and some, at least obviously had doubts about her credibility on the third as well) then, axiomatically, they must (or ought) to have doubted her credibility generally.”

102    Simpson J referred at [65] to the passage from MacKenzie at 367 specifically the sentence:

“But, 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.”

103    Her Honour said, with respect to MacKenzie and Jones:

“[66] The key to reconciling the two High Court judgments lies in the opening words of the second sentence in the passage from MacKenzie extracted above. An appellate court will not interfere with a verdict of guilty if there is a proper way of reconciling the different verdicts. In Jones the only reasonable explanation for the differing verdicts was doubt about the complainant’s credibility. That does not provide a proper way of reconciling the verdicts.”

104    Beazley JA dissented. Her Honour referred to the passage at 366 in MacKenzie with respect to inconsistency, saying “the test is one of logic and reasonableness”. Beazley JA added:

“[7] In determining whether verdicts are logical and reasonable, the court is also required to ascertain whether the verdicts can be reconciled or explained in some way. ... . Gaudron, Gummow and Kirby JJ provide a number of examples of how apparently inconsistent verdicts are explainable. Thus, if there is some evidence to support the inconsistent verdict, the appellate court is not to substitute its own view of the facts ... . Another explanation for the verdicts may be that the appellate court considers: ‘… that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count …’.”

105    With respect to the count on which the appellant was acquitted her Honour noted the contrary evidence about the existence of a building on the property at the relevant time. Her Honour indicated that she agreed that the jury must have had doubts about this and added:

“[10] …A number of possibilities of course present themselves as to the complainant’s version. She may, for example, have made up the incident. Her recollection may have been seriously awry as to the condition of the property. There may have been some such incident which she confused or perhaps even merged different incidents. Whatever be the correct position, there is no doubt that the complainant was not believed on her oath in respect of the incident alleged. This, of course, is a matter which affects her credit. However, the jury had the benefit of seeing and hearing both the appellant and the complainant and clearly believed the complainant on the count in respect of which they returned a guilty verdict. A logical and reasonable explanation of the differences in the verdict is that the jury obeyed, as they were bound to do, the directive that each charge had to be considered on its own and they had to be satisfied of the guilt of the accused beyond a reasonable doubt before being able to come to a guilty verdict.”

106    With respect to the count on which the jury could not agree, her Honour indicated that a question of credit also arose, although there was no independent evidence contradicting the complainant’s version. Her Honour then said:

“[12] … the question arises whether the doubt as to the complainant’s credit in respect of the third and fourth counts so infected her evidence generally that there should have been a reasonable doubt as to the guilt of the appellant on all counts.”

Beazley JA referred to Jones and concluded that the case was not directly governed by Jones and in her opinion the verdict was not unsafe and unsatisfactory.

107    In R v W (1999) 109 A Crim R 51 the appellant was convicted of two sexual offences and acquitted of one sexual offence against the same child during the same period. The Crown case was entirely dependant on the evidence of the complainant (p53). Greg James J, with whom Newman and Sperling JJ agreed, rejected the ground of appeal based on the reasoning in Jones. The count upon which the appellant was acquitted was said by the complainant to have occurred in the presence of the appellant’s then nine year old daughter. That daughter was called to give evidence and denied the happening of the events in count 2 (on which the appellant had been acquitted). She could not recall any circumstances consistent with the allegations comprising count 3. This established a rational basis for the decision of the jury. Greg James J concluded at p58:

“True it was that the complainant’s evidence was challenged, not only by that of the appellant but also by the evidence of the appellant’s daughter on count three also … but in my view the evidence of the complainant was not such that her credibility should be considered so tainted that there should be acquittals entered. I do not consider the verdicts were not supported by the evidence or that the evidence was insufficient: Fleming (1998) 103 A Crim R 121. Nor do I consider that the convictions were unreasonable applying the test in James [1999] NSWCCA 191 …”

108    In R v AG & RJM [2000] NSWCCA 86 one of two appellants was found guilty of three counts, acquitted on one, with the jury unable to reach a verdict on two counts. The other appellant was indicted on four counts and found guilty on all four. One of the counts upon which the jury were unable to agree was said to have occurred on an oval near what the complainant said was a toilet block. The count on which the appellant was acquitted was said to have occurred in that toilet block. Other evidence showed that at the relevant time there was no toilet block.

109    Simpson J with whom Spigelman CJ and Ireland J agreed said:

“[29] The existence of a toilet block was of fundamental importance to proof of the charge in count 8. Its existence was not fundamental to proof of the charge in count 1, but was of some significance as a collateral matter in the assessment of C’s evidence in relation to that count.
[30] It is a reasonable inference that the doubts created about the existence of the toilet block were the reason for the doubts in the minds of those jurors who were not satisfied of RM’s guilt on count 1, and the reason for the doubt in the minds of all the jurors in relation to count 8.”

110 With respect to the other charge on which the jury was unable to reach a verdict, there was other evidence suggesting the presence of other persons at the time and the place where the offence was alleged to have occurred “rendering the description of the events given by [the complainant] unlikely” [35].

111    Simpson J concluded:

“[38] The three charges on which the jury did not convict can be explained by reference to particular objective circumstances I have mentioned - the absence of the toilet block in 1978-1979, and the public nature of the Prospect County Council at the time of the events alleged to constitute count 5. True it is that, in accordance with Jones , it is necessary carefully to scrutinise the jury verdicts, having regard to the possibility that the acquittal and the disagreements are properly to be seen as representing a doubt in the jury’s minds about C’s credibility, a doubt that would necessarily apply to his credibility on other counts as well. I do not think this is such a case.”

112    Similar issues arose in RM v The Queen (WASCA, 23 February 1999, unreported). The case involved three counts. With respect to one there was a verdict of acquittal by direction by reason of the absence of evidence. The jury convicted on one count and acquitted on the other.

113    Murray J, with whom Malcolm CJ and White J agreed, referred to Jones in the following terms:

“In the circumstances of that case the High Court found it impossible to discern any distinguishing factual features logically capable of explaining the different outcomes. Indeed, in relevant respects it appeared that the evidence was substantially the same and so their Honours concluded that once the jury found that the complainant’s evidence, which was uncorroborated, lacked sufficient cogency to convict of the offence of which the jury acquitted the appellant, it was impossible to see how they could have arrived at a different conclusion with respect to the counts upon which they convicted.”

309    The photographs show beyond doubt that, if these were the beds in the Warren Road apartment, the complainant’s account of count 6 could not be accepted. Nor could she be accepted in relation to the uncharged earlier incident involving the bed. One principal issue for the jury, and for this court, was whether the Crown had established beyond reasonable doubt that neither of the beds in Ex E was the bed in the appellant’s bedroom in 1981 and 1982. If it had not, it could not succeed on that count.

310    The appellant’s evidence was supported by his wife. She said that the queen sized bed was bought in 1980, and that was when the double bed was given to Jimi. Although in examination in chief and cross-examination of the appellant and his wife a great deal of attention was paid to when the new bed was bought, that hardly matters. If the two beds shown in Ex E were the beds in the apartment at the relevant time then the complainant’s story could not have been true. Indeed, it is accurate to say that if the jury thought there was any reasonable possibility that the two beds shown in Ex E were the beds in the apartment at the relevant time, then they had to have a doubt about the complainant’s evidence on that count. The consequences of such a finding are those stated in R v Jones (1997) 191 CLR 439. That is, the doubt would have to be translated to a doubt about the complainant’s reliability in general, and the appellant would be entitled to an acquittal.

311    The photographs in Ex E were shown to the complainant. She denied that the beds shown in the photographs were the beds in the apartment. She said that an ensemble bed, of the kind shown in the photographs, was in Jimi’s room, but that the bed in the appellant’s bedroom was a bed of a different kind, without a bed base. She said she could not recall what sort of legs the bed had because it was covered by blankets.

312    It is of very considerable significance that it was on the count, and only on the count, that involved allegations that the sexual misconduct had taken place under the bed, that the appellant was acquitted. The only possible inference is that the jury were not satisfied beyond reasonable doubt that the events described by the complainant had occurred. In other words, they had a reasonable doubt about the reliability of her evidence in relation to this allegation.

313    On behalf of the Crown it was suggested that the explanation for the acquittal on this count might lie in a confusion that emerged about the date of the event alleged. It is necessary to refer to some of the specific evidence the complainant gave. In her evidence in chief she was asked:

“Was 4 February 1982 the first day of the new school term?”

She assented to this proposition. No further attention was paid, in examination in chief, to the date of the incident. The complainant was extensively cross-examined about the bed which featured in her evidence of this incident. Towards the end of a long cross-examination defence counsel asked her about the date of the incident. She accepted that in a statement to police she had said:

“I remember another time when I was at Tommy’s house. It was Thursday 4 February 1992 this was the first day of the new school term.”

314    She said, however, that the school term that year started on a Wednesday, and that she did not go to the appellant’s home on a Wednesday but on Thursday. By clear implication, therefore, she was claiming in her evidence that the incident occurred on the second day of term, not the first. This was different to what she had said to police, and different to what she accepted in the questions asked by the Crown Prosecutor.

315    The Crown’s submission was that the jury might have found itself unable to accept that this charge had been proven beyond reasonable doubt because of the discrepancy in the complainant’s description of when it had occurred.

316    I am unable to accept this as a reasonable possibility. The discrepancy is minor. Whether the event occurred on the first or second day of the school term had no bearing on whether the complainant’s evidence in this regard should be believed. More significantly, no mention was made in the summing up of any argument put by defence counsel to the effect that the discrepancy as to the date of the event seriously affected the probability that it had occurred. The addresses of counsel were not put before this court, and were probably not recorded, but the absence of any reference in the summing-up to such an argument, and the absence of any request for a direction in this regard, suggest that, despite the cross-examination, the date never emerged as an issue. In my view, the uncertainty in the complainant’s evidence as to the timing of the event the subject of count 6 cannot explain the different verdict on that count.

317    Part but not all of the significance to be attributed to the acquittal on this count derives from the fact that it was only in relation to this count that the appellant was able to adduce any positive evidence. In this respect it is obvious that the lapse of eighteen years between the time the offences were alleged to have been committed and the first notice the appellant was given of the allegations at least potentially prejudiced his capacity to answer them.

The appeal

318    The principal ground of appeal advanced by the appellant was made in reliance upon the decision of the High Court in Jones. That case, in my view, cannot relevantly be distinguished from the present. There the complainant alleged that the appellant had sexually assaulted her on three occasions. She had made no complaint for four years. Her evidence as to the acts was uncorroborated.

319    The majority in the High Court said:

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant’s wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant’s guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances given rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant’s account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant’s confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.
Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence.” (p 453, internal references omitted.).
At p455 their Honours said:

“In our opinion, the proper application of the test formulated by the majority of this Court in M [(1994) 181 CLR 487] required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury’s finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.”

320    These observations apply with equal force to the present case.

321    R v James [1999] NSWCCA 191 was a majority decision of this court. The case had significant parallels with the present. There the appellant had been charged with five counts of indecent assault. He was convicted of three, acquitted of one, and the jury was unable to agree on one. Although, almost a year after the date on which the last offence was alleged to have been committed, a diary kept by the complainant had been found in which statements consistent with her later allegations appeared, the complainant made no report or complaint until (coincidentally) eighteen years later. She was thirteen and fourteen at the times the offences were alleged to have been committed. In that case, like the present, the appellant had borne the obvious disability in the presentation of a factual defence by the lengthy lapse of time. He was, however, like the present appellant, able to adduce evidence that one of the incidents described by the complainant simply could not have occurred as described by her. This, in that case, was because he was able to call evidence that a building in which the complainant claimed one of the offences had been committed simply did not exist in the relevant location. It was on the count related to this allegation that the jury acquitted. The jury plainly had a doubt about the reliability of the complainant’s evidence on this count. There being nothing in the evidence to show that the complainant’s evidence on the other counts was more reliable, the doubt had to affect her evidence on both counts also.

322    The same reasoning must apply in this case. Once it could be seen that the jury experienced a doubt about the complainant’s credibility in relation to the sixth count, the count on which the appellant was able to produce some positive evidence in response to the complainant’s assertions, her reliability suffered an irremediable blow. The circumstances did not permit the jury reasonably to doubt her credibility or reliability on the one count which the appellant was in a position to answer, and not the other counts.

323    On the Jones principles alone, in my view, the appeal must succeed. For this reason, I propose that the appeal be allowed, the convictions quashed and a judgment of acquittal entered.

324    Since dictating the above, I have had the opportunity of reading in draft the judgments of Spigelman CJ, Wood CJ at CL and Grove J. I do not in any respect dissent from the exposition of the law, nor the analysis of the decision in Jones and subsequent cases in which that decision has been considered or applied, undertaken by the Chief Justice and further explored by Wood CJ at CL. Those analyses have caused me to consider again the approach I have taken above.

325    Applying those analyses to the facts of this case, I remain of the view that the question as to the complainant’s reliability created by reason of the acquittal on the last count is necessarily so significant as to require its translation to the other counts. The most substantial factor that leads me to this conclusion is the length of time between the dates of the alleged offences and the charging of the appellant. This put the appellant at a substantial disadvantage. It is of considerable significance that it was only in relation to the single charge in which he was able to adduce positive evidence that he was acquitted.

326    Notwithstanding the qualification which, by reason of the expositions of the Chief Justice and Wood CJ at CL, are now placed upon the previous approach to the application of Jones, I remain of the view that the acquittal on the last count entitles the appellant to an acquittal on each of the remaining counts.

327    Since other members of the bench take a different view on the principal ground of appeal, it is necessary to deal with two remaining grounds. These were expressed as follows:

Ground 2 The trial miscarried due to the failure of the learned trial judge to direct the jury that the delay in complaint, or failure of the complainant to make a complaint, was a matter to be taken into account in its assessment of the credibility of the complainant.
Ground 3 The trial miscarried as a result of the failure of the learned trial judge to direct the jury, once a question on the subject was asked in the course of its deliberations, that it was not for the appellant to establish a motive in the complainant to lie or that a failure to establish a ‘reason for coming forward and report the evidence that occurred some twenty years ago’ assisted or supported the case against the appellant and that such a reasoning process was erroneous and inverted or reversed the onus of proof.

Ground 2

328    So far as I am able to ascertain from the evidence, the complainant first made her allegations to police in or about October 1998. The appellant was arrested on 19 May 1999. There is nothing to suggest that he had previously been made aware of the complainant’s allegations. His first awareness of what he had to answer, therefore, came more than seventeen years after the date the last incident was alleged to have occurred. The handicap the delay imposed on his capacity to defend the charges is obvious.

329    In relation to delay the judge directed the jury in the following terms:

“There is another direction that I will give you, a legal direction, and that is this: that it is about nineteen years - eighteen, nineteen years - since these events are alleged to have taken place. The result of that is that it can make it very difficult for an accused person to adequately test the evidence. There has been criticism, for example, in this case that the police did not even get the manufacturer’s name of that Queen bed; if that sort of material had been looked at in due time perhaps an accurate date of manufacture could be worked out and that could be very material. It is quite plain, I think, if these ensembles, that is a mattress on top of a padded base were in use as at the time of these alleged events, then it is almost impossible to get under it; it is not even clear that someone’s head could or could not go under them. That is the sort of thing that does come into play when there has been a very great delay.
If you are of the view it was difficult to test the complainant’s evidence because of the passage of almost twenty years, then you are entitled to take the view that it would be dangerous to convict on that evidence alone unless, scrutinising the evidence with great care considering the circumstances relevant to its evaluation and paying heed to the warning I have given you, you are satisfied of its truth and accuracy. That is really a draft of what I have told you already about the scrutiny of the complainant’s evidence.”

330    A little later, after giving some other directions, his Honour said:

“There is a legal direction I should have given you; I will do that now. There has been some reference to the fact that she did not complain when Mr Young put to her that she never attempted to say anything to Mrs Markuleski. She said she was afraid. The law requires me to give you a direction that an absence of complaint in respect of the commission of an alleged offence by the person on whom the offence is alleged to have been committed, or delay by the complainant in making such a complaint, does not necessarily indicate that the allegation was false.
I am directed to tell you that there may be good reason why the victim of a sexual assault would delay in making or refrain from making a complaint about the assault. The complaint, presumably, was made about October 1998, presumably before or at the time of the first police statement. You remember the evidence the complainant gave about it. Firstly, she said she was frightened of being smacked by her mum and also she was frightened because of the accused saying ‘shush’ and making the motion across the throat sign. That was the reason she gave.”

331 This last direction was required by s 107 of the Criminal Procedure Act 1986, and is not challenged. The complaint now made is that it was not “counterbalanced” by a direction drawing attention to the impact of the delay on the complainant’s credibility.

332    That delay in complaint is relevant to the jury’s assessment of the credibility of the complainant, and that a jury should, ordinarily, be expressly be so directed, was established in the decision of the High Court in R v Kilby (1973) 129 CLR 460. The decision in Kilby pre-dated the enactment of s 405B of the Crimes Act 1900 (the forerunner of s 107 of the Criminal Procedure Act) but was unaffected by that enactment: R v Davies (1985) 3 NSWLR 276. Davies was, in turn, approved in Crofts v R (1996) 186 CLR 427. As I read these decisions, the focus of the direction they required was on the credibility of the complainant in the light of a failure to make an early complaint.

333    A more recent development in the approach of the High Court to the directions to be given in relation to delay in complaint when allegations of sexual misconduct are made is to be found in R v Crampton [2000] HCA 60; 75 ALJR 133. There the High Court, adopting what had earlier been said in R v Longman (1989) 168 CLR 79, held that what is required is an explicit direction, not only as to the impact of delay of itself on the complainant’s credibility, but drawing the attention of the jury to the impact of delay on an accused’s ability to make a factual response to the complainant’s allegations, and to challenge detail or factual matters included in the complainant’s evidence, so as to raise a doubt about the accuracy of the prosecution case. What is required by Crampton goes beyond what is required by Kilby, or Crofts, or Davies; the focus is not simply upon whether the mere fact of delay affects the complainant’s credibility; it is upon the practical difficulties that that creates for the accused. An obvious example of what the High Court had in mind (in Longman as well as in Crampton) would be alibi evidence that might be completely lost after a substantial lapse of time. No doubt there would, in individual cases, be particular matters that should be drawn to the attention of the jury. The precise direction required will vary from case to case, depending upon the factual matters raised.

334    Indeed, the present case presents a very good illustration of the need for such a direction. The appellant was able to produce evidence sufficient to cast a doubt upon the complainant’s description of the events the subject of the sixth count, and this resulted in his acquittal on that count. In relation to some of the other counts, the complainant had been quite specific as to dates and other circumstances surrounding the events she described. But it could hardly be expected that, after seventeen years, the appellant would be able to produce any concrete response to that evidence. This is precisely the kind of difficulty that should, in compliance with Longman and Crampton, be drawn to the jury’s attention.

335    I am persuaded that the directions given were not sufficient and that this ground should succeed. Standing alone, it would entitle the appellant to a new trial.

Ground 3

336    It appears that, immediately upon their retirement, the jury requested access to various documents that had been referred to in evidence but not tendered as part of the evidence. As read onto the transcript, their note continued:

“We would also like to propose a question to [the complainant] as to the reason for coming forward and reporting the evidence that occurred some twenty years ago.”

337    After discussion with counsel, his Honour responded to that part of the jury request in the following terms:

“As to your final enquiry that you would like to propose a question to [the complainant] as to the reason for coming forward and reporting an incident that occurred twenty years ago, I have given you a bit of a direction that we are required to go in in that respect. Again, the difficulty is that [the complainant] is not here and the whole of the evidence in the case is finished. We are, in effect, stuck with that situation. The Crown is not in a position to call her back and certainly would not want to call her and it is not for me to put her back in the witness box after the case is finished insofar as the evidence is concerned.
So I am sorry to be so negative, members of the jury, but that is about all I can say.”

338    In the past it has not infrequently happened that the Crown has, either in cross-examination of the accused, or in final address, posed the rhetorical question “why would the complainant lie?”. Whether expressly raised by the Crown or not that is a question that “hovers over cases of this nature” (R v F (1995) 83 A Crim R 502). It is now firmly established that such a question should not be asked of an accused who gives evidence, nor posited to the jury by way of submission by the Crown: Palmer v R (1998) 193 CLR 1; R v F (above); R v E (1996) 39 NSWLR 450; R v Jovanovic (1997) 42 NSWLR 502. The reasons that it is so are fully explained in the cases cited.

339    That, of course, is not precisely what happened here. Firstly, it was the jury who, of its own volition, raised the question.. Secondly, the question was not expressly framed in terms of “why would the complainant lie?”

340    Indeed, the question is not easy to interpret. On its face it conveys a degree of scepticism about the complainant’s credibility which must have operated to the appellant’s advantage. However, it also indicates that the jury was interested in exploring the reasons for her delay in coming forward. There was a danger that, unless given an explicit direction, the jury would reason that, in the absence of evidence of a motive in the complainant to lie, her credibility was enhanced. It therefore became necessary to deal with a matter that was obviously of concern to the jury, and potentially leading them on a false train of enquiry. In these circumstances, the response should have recognised the potential for an impermissible reasoning process, and headed off that danger. The jury should have been told that , while evidence of a motive in the complainant to lie could be a very material factor in assessing her credibility, the absence of evidence of such a motive (as distinct from established absence of such a motive) was neutral, and did nothing to advance the Crown case. (A positive claim of the absence of a motive to lie would be quite different, but, apart from a complainant’s own assertions, could rarely be the subject of evidence.)

341    The direction that should have been given was to the effect that, firstly, there was no evidence of the complainant’s reasons for the delay in coming forward, and, secondly, that they ought not speculate about what those reasons might be. Most importantly, they should have been told that the absence of evidence of a motive to concoct a false story about the appellant did not enhance the complainant’s credibility or strengthen the Crown case against the appellant.

342    I have hesitated over the question of whether this ground of appeal, alone, would have warranted the quashing of the conviction and the ordering of a new trial. However, having concluded that there was a danger of impermissible reasoning, I must also conclude that the absence of an appropriate direction gave rise to the real possibility that a miscarriage of justice has occurred. Accordingly, on this ground also I would quash the conviction and order a new trial.

343    The orders I propose are that, on each count on which the appellant was convicted, the conviction be set aside and a judgment of acquittal entered.

344    CARRUTHERS AJ: I have had the benefit of reading the judgment of the Chief Justice in draft form. I am in complete agreement with the orders which he proposes and his reasons therefor.

**********