R v RCC - [2002] NSWCCA 347

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v RCC [2002] NSWCCA 347

FILE NUMBER(S):
60838/00

HEARING DATE(S): 6 February 2002

JUDGMENT DATE: 25/09/2002

PARTIES:
Regina
v
RCC

JUDGMENT OF: Wood CJ at CL Sully J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0259

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL:
DML Woodburne - Crown
AP Cook - Appellant

SOLICITORS:
SE O'Connor - Crown
DJ Humphreys - Appellant

CATCHWORDS:
Inconsistent verdicts - absence of obvious reason for jury to convict on one and not other counts - danger of compromise and wrongful conviction.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1906 (W.A.)

DECISION:
(1) The first ground of appeal upheld (2) Appeal allowed (3) Conviction of the appellant upon ground 6 of the indictment be quashed and entered in lieu judgment of acquittal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60838/00

WOOD CJ
SULLY J
DOWD J

Wednesday 25 September 2002

Regina v RCC

Judgment

WOOD CJ at CL: I have read in draft the judgments of Sully J and Dowd J in this matter. For the reasons expressed by Mr Justice Sully, I am of the view that the appeal should be allowed, the conviction of the appellant on count 6 of the indictment quashed, and in lieu a judgment of acquittal entered.
SULLY J: I have read the draft judgment of Dowd J. There is nothing that I wish to add to what his Honour has written respecting the essential facts, the essential principles of law, or the second ground of appeal.

I have reached, however, and for the reasons following, a conclusion different from that of his Honour upon the first ground of appeal.

The complainant's allegations which gave rise to counts 3, 4 and 5 of the indictment were clear, uncomplicated and vivid. The nature of the allegations was such that, in my opinion, there was no room for a supposition that the complainant was honestly mistaken in her recollection of the incidents of which she gave her relevant evidence. The allegations were of an unbroken continuum of violence on a particular date, namely 12 June 1999. The allegations were uncorroborated save for the evidence of bruising allegedly sustained by the complainant as a result of the incidents. The allegations were denied, simply and comprehensively, by the appellant.

That the jury found the appellant not guilty on all of counts 3, 4 and 5 is, in my opinion, explicable upon either of two bases. The first possibility is that the jury viewed with positive disfavour the relevant evidence of the complainant. The second possibility is that the jury did not so regard the complainant's own evidence, but could see no reason to exclude a reasonable possibility that the sworn denials of the appellant were true. On either approach, the jury had a reasonable doubt overall as to the guilt of the appellant as charged in counts 3, 4 and 5.

Much the same analysis can be made of the verdict of the jury that the appellant was not guilty beyond reasonable doubt as charged in count 2 of the indictment, a count alleging conduct even more clear, uncomplicated and vivid than the conduct foundational to counts 3, 4 and 5.

Count 6 of the indictment alleged, once again, an episode of violent conduct, the incidents of which were clear, uncomplicated and vivid. Once again, there was, in my opinion, no room for a supposition that the complainant was honestly mistaken in her recollection of, and in her recounting of, the incidents particular to the count. Once again, the complainant's allegations were uncorroborated save for the evidence of bruising, and, once again, the appellant gave evidence in which he denied, simply and comprehensively, the allegations made against him. The allegations relevant to count 6 extended the continuum of violence alleged by counts 3, 4 and 5 to have occurred on 12 June 1999.

If the verdict of guilty on count 6 is now to be sustained, there must be demonstrated, in my opinion, something in the evidence relevant to that count which is additional to the evidence relevant to counts 3, 4 and 5, and which, if accepted by the jury, could explain why the jury returned verdicts of not guilty on counts 3, 4 and 5, but a verdict of guilty on count 6.

I cannot see in the evidence at trial anything apt to make that kind of difference, save only the evidence of bruising.

Once again, there is in my opinion no room for a reasonable supposition that the complainant was honestly mistaken in her description of the relevant bruising. That description does not tally precisely with the descriptions given at trial by the other witnesses who gave evidence about observed bruising. There was no contemporaneous medical or hospital or other professional eyewitness evidence that did in fact corroborate the precise extent of the alleged bruising.

The dating of the observations of the witnesses who were called by the Crown on the matter of the alleged bruising, also, was anything but exact. Two of the witnesses had previously made affidavits in which they dated their observations of bruising as having been made on 13 April 1999. The evidence at trial of those two witnesses does not seem to me to give any clear and convincing explanation of their respective prior errors in dating, assuming, of course, that their prior dating was in fact erroneous. The evidence of the complainant's parents was not open to that particular criticism, but it was evidence that fell short, in my opinion, of clear corroboration of the complainant's own allegations as to the nature, the extent and the dating of the bruising.

It is, in my opinion, an additional relevant consideration that part of the complainant's own evidence as to the bruising alleged in clear terms that part of the bruising had been caused incidentally to the sexual assaults of which the jury found the appellant not guilty. This should have raised in the mind of the jury, in my opinion, a real doubt as to the corroborative value of the balance of the Crown evidence about bruising.

I accept as of course the constitutional standing of the jury at trial; the real standing of the jury's verdict of guilty on count 6; and the need for this Court to interfere with that verdict, if at all, with appropriate circumspection. I have to say, however, that the present case seems to me to be one in which it is appropriate to find that it falls into that category of case which was described as follows in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] 181 CLR 487 at 494:
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
In my opinion, then, the first ground of appeal should be upheld. The appeal should be allowed; the conviction of the appellant upon ground 6 of the indictment should be quashed; and there should be entered in lieu a judgment of acquittal.
DOWD J: The appellant, now aged twenty five appealed against his conviction for Assault Occasioning Actual Bodily Harm contrary to s59 of the Crimes Act 1900 (“The Act”), for which he was found guilty by a jury and sentenced, by Kirkham DCJ at Tamworth, on 1 December 2000, to a good behaviour bond on certain terms and conditions for four years from 1 December 2000 under s9(1) of the Crimes (Sentencing Procedure) Act 1999.
The appellant had been charged on 16 October 2000, with three counts of Assault Occasioning Actual Bodily Harm, which offence carries a penalty of five years, one count of Attempted Sexual Intercourse Without Consent (contrary to ss1I and 61P of the Act: penalty fourteen years), and two counts of Sexual Intercourse without Consent (contrary to s56I of the Act: penalty fourteen years). The appellant pleaded not guilty to all counts and was acquitted by a jury on five of those counts, but found guilty of the sixth count, being an Assault Occasioning Actual Bodily Harm, the events of which occurred on 12 June 1999.
The appellant had been arrested on 10 March 2000, and refused bail but was released on bail on 27 March 2000. He remained on bail until 20 August 2000, but was then refused bail and remained in custody until sentence on 1 December 2000, being a total of one hundred and twenty two days in custody.
The Facts for the Several Offences
The appellant and the complainant in counts 1 and 3 – 6, a casually employed nurse, MJS, had lived together in a de facto relationship since August 1998. The complainant’s daughters, CS (the alleged victim in count 2) and JL were also living with the couple. They were aged three and seven respectively.
Count one concerned events which were alleged to have occurred on 21 March 1999, following the return of the appellant and MJS from cutting wood together. MJS alleged that the appellant was drunk and pushed her away from him following an altercation between them, as a result of which she hit her head against a cupboard door, which caused a shooting sharp pain to her head and a burst blood vessel in her right eye.
MJS attended Coonabarabran Hospital on 24 March 1999, as a result of the injury, and was attended by Dr Ianuzzi, whom she told the injury was caused by her sneezing. Dr Ianuzzi observed a subconjunctival haemorrhage of the right eye. On 26 March 1999, MJS attended Dr Devine for review of the injury, as she was experiencing bad headaches. She repeated to Dr Devine that the injury was not caused by a blow or injury to the head.
In evidence Dr Devine stated that two typical causes of such an injury are straining, such as a woman pushing in labour or a severe cough and external pressure usually sustained through a sport injury or through an assault. He said it was possible, but unlikely, that such an injury could be caused by a blow to the back of the head.
On about 23 March 1999, MJS told a colleague, Leanne Roberts who had observed the bloodshot eye, that the injury was the result of her sneezing. In cross-examination in the trial, MJS asserted that she had told Roberts that the appellant caused the injury.
MJS reported the first assault to the Police on 20 April 2000, the complaint being made in a statement to a Det Hughes.
The second count involved an allegation of assault on MJS’s daughter. On 11 June 1999, the appellant and MJS were visiting the appellant’s parents where MJS’s daughter, CS, was being minded by the appellant’s parents. MJS sat on the lounge watching television whilst waiting for the appellant to finish his beer, so that they could go home. Whilst there, an altercation broke out between MJS and the appellant concerning her daughter’s behaviour. The appellant swore at CS and when MJS endeavoured to excuse the child the appellant swore at her as well.
As a result of CS’s whinging, the appellant hit CS on the back with a game board with which the child had been playing. The appellant was then alleged to have picked the child up, kicked her on the tailbone and thrown her by the arm approximately three to four metres into the corner of the kitchen area. The incident was alleged to have occurred in the presence of the appellant’s mother, Doreen Clarke, who in evidence denied that she witnessed any of these events. She was sitting in the lounge room at the time of this alleged incident.
Immediately following this, MJS told the appellant that their relationship was over and left the house with her two children. The appellant’s mother requested that MJS wait as the appellant was getting the children’s bags out of his utility. The appellant then sat down in the car alongside MJS who demanded that he get out.
The appellant finally left the car, slammed the door, kicked the left panel of the car, went around to the front of the car and kicked the right headlight. The appellant’s father took the appellant back into the house.
MJS did not seek medical assistance for her daughter as a result of this incident, even though she did observe bruising over the child’s coccyx and red marks on her upper arm, giving in evidence as a reason that she was frightened of the appellant as he had threatened both herself and her children. The incident was not reported to the police until 10 February 2000.
The third, fourth and fifth counts related to events alleged to have occurred on 14 June 1999. The conduct charged in the third count occurred when the appellant let himself into MJS’s house. On meeting MJS in the lounge room she demanded that he return her keys. The appellant allegedly responded by grabbing MJS, pinning her to the floor. It was alleged that he then began to fondle and suck her breasts, whilst she was struggling to get away. He allegedly sat on her face and attempted to place his erect penis in her mouth.
The appellant then got off MJS after she threatened to bite him and proceeded to put his hand down her pants, pushing two fingers into her vagina. This was count four.
The conduct charged in the fifth count occurred when the appellant then allegedly forced his penis into MJS’s vagina. MJS was constantly struggling during this act and managed to push the appellant off her and again demanded that the appellant return her keys.
MJS reported the sexual assault by the appellant to the police in a statement made by her on 10 February 2000, in which statement MJS only complained of the conduct stated in count four, that is, the placing of his hand down her pants and the forcing of his fingers into her vagina. There was no complaint made to any authority in relation to the full conduct complained of by MJS in counts three and five, until the day the matter came to trial on 16 October 2000.
On 9 February 2000, when making inquiries about obtaining a restraining order, MJS had spoken to a Detective Fraser alluding generally to some acts of violence but never mentioned any acts of sexual assault by the appellant on her.
It was count six on which the jury found the appellant guilty. The facts of this incident occurred shortly after the facts giving rise to counts 3, 4 and 5 and after MJS fixed her clothing when she said to the appellant that he should give her the keys and get out. He picked up a broken piece of green rope from the floor near the front door and wrapped it around MJS’s neck. He pulled it tight and said:
“It would be easy to kill you, only take one pull of this rope”.
MJS said that at the time she could not breathe and was shaking and felt she was going to faint when she was released. MJS sat on the bed in her bedroom following the incident, when the appellant entered the room annoyed and agitated that MJS had walked away from him. Following an exchange of hostile words he punched her in the eye, which caused her to fall back onto the bed.
MJS went to the bathroom to put a cold compress onto her eye and was followed by the appellant who pushed and punched her repeatedly in the chest area. This caused her to fall backwards into the bathtub, which caused her to hit her head on the wall and on the edge of the bathtub and her arms and legs to hit the edge of the bathtub, causing pain to the back of her calf muscle and to her left elbow and the back of her right arm.
MJS told the Court that the bruises she had received went very black and after a week went yellow and then went away. She said that the backs of her legs were swollen and then went black and yellow. The bruises to her legs were an inch in thickness across her leg and lower towards her ankle she had a bruise that wasn’t quite an inch in width. She also had bruising to both her thighs leaving marks which were about the size of tennis balls, and bruises where the appellants knees dug into her legs, the last of the bruises lasting two weeks, being those on the backs of her legs and her arms.

Relationship Evidence

In the trial of the six counts, relationship evidence was admitted as to other events on 14 June 1999, involving the appellant smashing the telephone and answering machine, kicking MJS and holding her down with his foot. The appellant also came towards MJS with a knife. The appellant had also kicked in the back door. The appellant gave the knife to his mother who subsequently arrived. The appellant’s mother pleaded with MJS not to call the police.
The witness Roberts gave evidence that when she went to MJS’s home, at about that time, the back door had been pushed in and smashed.
Evidence was also admitted that the appellant came to the hairdresser’s shop were MJS had an appointment. She then walked out to the front of the shop to speak to him to avoid a confrontation in the shop. The appellant said to her that he was going to go home and smash the house. MJS rang the appellant’s mother but the call was taken by his sister-in-law who said that she would take care of it and that MJS was not to bring the police into it.
MJS gave evidence that the appellant would knock on the door of her home and would also drive past and yell out, asking MJS to take the appellant back and saying that he wouldn’t do it again. He did not come back into the house.
In August 1999 MJS commenced civil proceedings in the Local Court against the appellant concerning the damage caused by the appellant to MJS’s car during the incident which had occurred on 11 June 1999.
Evidence of Bruising
Roberts gave evidence that she had observed bruising on the back of the legs of MJS, on her arm and near her neck whilst they were on a journey to Gilgandra which she remembered because the vehicle in which they travelled had struck a kangaroo. She said that the journey had taken place on the 15 June 1999, that is three days after the alleged bathroom incident. However, she agreed in cross-examination that she had sworn in an affidavit that the collision with the kangaroo had been on the 13 April 1999.
Another friend of MJS also observed bruising on MJS during the Gilgandra kangaroo trip, describing the bruising as being:
“Down her left side, the right side of her face and on the top of her arm”.
She also agreed that she had said previously the day in question was the 13 April 1999.
The mother of MJS said that she saw bruising on MJS’s right leg on 16 June 1999, but that two days earlier she agreed that she had not been shown any bruising. The father of MJS gave evidence that he observed bruises on MJS on the afternoon of 14 June 1999.
Complaints to Police
On 14 June 1999, MJS spoke to a Const Boltie about a hypothetical assault but when asked if she wanted to lay charges against anyone she asked whether she would receive twenty four hours protection. She was told that this was not possible and this was the reason she did not proceed to lay charges.
On 9 February 2000, MJS spoke to a Const Frazer concerning a restraining order against the appellant.
On 10 February 2000, MJS made a statement to the police, detailing the incident relating to count 2. MJS also reported in that statement the details relating to count 3. On 20 April 2000, MJS gave a further statement to a Det Hughes outlining the assault in count 1.
The Appellant’s Case
The incident concerning the board game was on 11 June 1999 and occurred when MJS was sitting on the lounge, and the appellant asked MJS about what was happening concerning dinner as the two children were cranky and hungry. The appellant said that MJS had said that she had eaten at work and that she did not want to buy dinner and the girls would eat when they arrived at home.
The appellant’s evidence was that MJS became cranky and walked out to the backdoor with the two girls, putting the children in the back seat while the appellant was leaning against the left hand guard of the car, and that MJS told him she was going home and that she had “the shits”. The appellant said that MJS walked passed him and pushed the appellant, and that he fell onto the car causing a little dent, and that that night he stayed at his parents’ place. The appellant said that while MJS was present at his parents’ home, the children had been fighting and crying over the board game, and that he had taken it away from them and that the girls had cried a little.

The appellant’s evidence was that, the following day Saturday 12 June 1999, when he had attended MJS’s house to get his clothes, he had knocked on the door and that MJS had given him work clothes that he had asked for and that he and his father left, having been there for five minutes and said that he did not return to MJS’s house at any time later that day. He did, in cross-examination agree that he had spoken about the dent in the car and that he had said that it could be fixed.
The appellant’s evidence was that on the Wednesday the following week, that is five days after 11 June 1999, he returned to the premises of MJS to pick up a television set during the morning and that when he knocked on the door there was no answer and that he went around to the back door and because he had no keys, he pushed in the door with his shoulder, he not expecting MJS to be at home. He then found MJS sitting on the lounge.
MJS told the appellant that she had just called his mother to come and get him and the appellant told her that he had just come to pick up the rest of his clothes and his television, and that his mother came up the steps as he was carrying the television out the front door and that he went back to the bedroom to get his clothes and left. In cross-examination, the appellant agreed that this event occurred on 14 June 1999.
The appellant’s further evidence was that he found a letter from MJS in his mailbox, which he said, in cross-examination, was either on the 14 or 15 June 1999. In the letter MJS asked him to meet with her, as she wanted to speak to him. They had Chinese food and talked about their relationship and that he had spent the night with MJS, and that sexual intercourse had occurred but that the following morning MJS told him that the relationship wouldn’t work. The appellant said that he would pick up the rest of his things the following weekend, which he did, in the presence of his father.
The appellant said as to the facts, which were the basis for count number 1, that he did recall an occasion where he and MJS had had an argument relating to MJS not being paid for wood cutting but he denied assaulting her.
MJS denied sending a letter to the appellant inviting him over for dinner and also denied engaging in consensual sexual intercourse.

Grounds of Appeal
Ground One: The verdict of guilty is unreasonable and cannot be supported by the evidence.

The onus is on the appellant to demonstrate that the verdict of guilty, in relation to count 6 is “unreasonable and cannot be supported” in terms of s6(1) of the Criminal Appeal Act 1912, the test for which was laid down in the joint judgment of the High Court in M v The Queen (1994) 181 CLR 487 at 492.
The appellant, in support of this ground, sought to rely on the High Court decision of Jones v The Queen (1997) 191 CLR 439 the relevant passage being at 453:
“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 giving 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.
…
It is difficult then to see how it was open to the jury to be convinced beyond 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”.
The court in Jones went on further to discuss the application of the test formulated in M v The Queen at 455:
“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 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 the 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”.
It was submitted by Mr Cook, counsel for the appellant, that recent decisions in this Court which applied Jones upheld the proposition that in cases where the only direct evidence comes from the complainant and the jury are not satisfied beyond reasonable doubt as to the complainant’s evidence in one or more of the counts, it is not then open to them to be satisfied beyond reasonable doubt that the complainant’s evidence is reliable on any count: R v RAT [2000] 111 A Crim R 360, R v Carbone [2000] NSWCCA 387, R v Dixon [2001] NSWCCA 39 and R v S [2001] NSWCCA 204.

It was submitted by the Crown, that this Court’s position in relation to Jones was clarified in R v Markuleski [2001] NSWCCA 290, 1 August 2001, where the majority, Spigelman CJ, Wood CJ at CL, Grove J and Carruthers AJ, held that the correct result of Jones was not as axiomatic as implied in the above cases, but rather differing verdicts may be a pointer to unreasonable verdicts, therefore, a thorough analysis of the evidence supporting each count is required.
The Crown thus submitted that the question for determination by an Appellate Court as held in M at 494-495, is:
“… 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”.
The relevant test was elaborated in Markuleski by Spigelman CJ who applied M at para 4:
“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 allowances 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”.
Spigelman CJ further elaborated the test at para 6 of Markuleski, in relation to the appeals relying upon alleged inconsistencies between a verdict or verdicts of acquittal and of conviction:
“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”.
The reasoning of the joint judgement of Jones, where there was nothing illogical about the divergent verdicts, represents a particular application of this test of “reasonableness”.
The reasoning in MacKenzie at 367 is pertinent to the present case:
“…the respect for the function which the law assigns to juries (and 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 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 apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.
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”.
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.
The Chief Justice in Markuleski, at para 16, outlined the three matters referred to in Jones, the combination of which led the court to conclude that it was not open to the jury to convict, these being, credibility, absence of corroboration and the effect of delay upon the accused.
The issue for this Court is one of fact. In MacKenzie at 367, per Gaudron, Gummow and Kirby JJ, the Court held that it was necessary to draw a distinction between legal inconsistencies in cases which are deemed to have factual inconsistencies. With legal inconsistencies, once identified, the impugned verdict must be set aside as inferring perhaps a misunderstanding of the judge’s directions, a compromised dispute amongst the jury or through some other unidentifiable error. However, where the inconsistency arises in verdicts upon different counts of the originating process in a criminal trial the test as stated above is one of reasonableness and logic.
When examining the surrounding circumstances, the court is required to consider all of the facts of the particular case, and come to a conclusion, as to the credibility of the witness by reference only to those facts, rather than through some universal proposition (or a rebuttable presumption) that if the jury did not believe the witness in relation to the counts upon which it returned a verdict of not guilty, then it must necessarily be inferred that they could not have possibly believed her in relation to the count for which they returned a verdict of guilty.
Wood CJ at CL in relation to “unreasonableness” said in Markuleski at paras 233-234:
“For the reasons already stated, I consider this approach to be incorrect so far as it would elevate the conclusion in Jones either to a principle of law, or a rebuttal presumption. Rather, I am of the view that the fact of differing verdicts is but one aspect of the review which an appellate court must conduct, and that it should take place alongside all the circumstances of the case.
There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness. This may arise , for example, where:
(a) verdicts of not guilty were returned on a preponderance of the counts in an indictment;
(b) there was positive evidence in the defence case to establish that the version of events offered by the complainant or central witness was fabricated in relation to the counts upon which the accused was acquitted;
(c) where the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable (R v W (1999) 109 A Crim R 51 provides a possible example); or
(d) where the complainant or central witness has given versions, in relation to the count or counts upon which the accused was acquitted, were significantly inconsistent.”
Also relevant is the importance of the constitutional role of the jury which has the advantage of hearing and seeing the witnesses. Because the Appellate Court is unable to apply logic to the jury’s verdict on the face of the transcript, it is not a fait accompli that the jury acted unreasonably.
The Crown submitted that, because there were acquittals in relation to counts 1 - 5 it did not follow, in this case, that the jury “looked with real disfavour” upon the credibility of the complainant, such that the verdict for count 6 should be considered unsound and unreasonable. It should be noted that the trial judge had directed the jury to treat each count distinctively upon the evidence available for each. His Honour had also directed the jury that they could accept part of a witness’s evidence.
The Crown further pointed out that the jury did not have to find the accused innocent before acquitting him, pointing out that if they were unable to decide on the truth of the evidence, the appellant was entitled to the benefit of the doubt. The trial judge had also directed the jury to take care when considering the delay by the complainant in reporting the assaults and the possible disadvantage that this could cause the appellant.
Further, it was pointed out, that the jury had been directed that special relationships with other witnesses were relevant when assessing the credibility of a particular witness in terms of their impartiality, objectivity or indeed in terms of protecting someone. All these particular directions, it was submitted by the Crown, could adequately explain why it was that the jury had come to the decision to acquit the appellant on the first five counts in the indictment, notwithstanding a conviction on the sixth.
It was submitted by the appellant that a jury, which had reasonable doubt as to MJS’s evidence on counts 1 - 5, must rationally have a doubt about count 6. It was submitted that the evidence of MJS was uncorroborated in all counts except for possibly the evidence related to the bruising, and that the events alleged in counts 3, 4 and 5 were closely linked with the events charged in count 6.

I do not read Markuleski to support that reasoning. Rather Markuleski marks a shift away from the authority often suggested in Jones that when differing verdicts arose in a case where there is uncorroborated evidence and lengthy, unexplained delays in making the complaint, then such verdicts must be automatically declared unsafe, to a reasoning which must instead examine all the circumstances of that individual case which gave rise to the different verdicts.
Certainly, this case does pose some problems in terms of inconsistencies of verdicts, notwithstanding that there was more evidence available in terms of the bruising relevant for count 6, as compared to the relatively uncorroborated evidence in relation to counts 1 - 5. Some of the evidence of the appellant corroborated aspects of the Crown case.

It is obviously difficult to reconcile the evidence, which was presented before the jury. The complainant stated that she received injuries as a result of the assault in the bathroom, which caused bruising to her calf area of both legs. None of the witnesses, who saw her following the incident on 12 June 1999, mentioned the bruising to the lower part of her legs. The bruising described by all of the witnesses, including her parents and nursing colleagues, as to her legs, was confined to bruising to MJS’s right thigh area.
It was submitted by the appellant, that the evidence as to bruising, contradicted the evidence given by the complainant. The bruising that the witnesses saw on her thigh occurred, according to MJS, whilst the appellant was holding her down during the alleged sexual assaults in counts 4 and 5.
There was also some discrepancy over dates, with MJS’s nursing colleagues giving evidence that they had witnessed the bruising on MJS in April rather than in June. Counsel for the Appellant argued in submissions that, even if the time could be fixed to some time after June 12, the evidence of the bruising witnessed by the complainant’s nursing colleagues was inconsistent with that described by the complainant herself.
It was further submitted that it must be noted there was no medical or forensic evidence provided during the trial concerning the bruising and its pathology, particularly in relation to how soon it would appear following the assault and the likely time that it would last.
The appellant submitted that the fact relevant to the credibility of MJS was that, although MJS had attended the police station on 14 June 1999 (two days after the alleged assault) on an unrelated matter, she had not raised any of these complaints with the police.
The Crown submitted that the explanation for this lay in the fact that on the date the appellant had kicked in the door of MJS’s house to gain uninvited access to the house, and had smashed the phone and the answering machine and threatened MJS with a knife, that MJS had visited the police station that morning and made the enquiry, as referred to earlier, as to what protection she would be offered. It was for that reason, it was submitted, that it was understandable that no complaint was made at this time.
In the course of argument, Counsel for the appellant conceded that it is a common experience of life that people who are subjected to domestic violence attribute other causes to it.
Counsel for the appellant also conceded that the evidence as to the dates of a collision with a kangaroo, the dates of the assaults, were not “fixed in stone”, there being no evidence as to the actual date that the door was broken.
The Crown submitted that there were a number of explanations available for the differentiation in verdicts and there were explanations consistent with the jury acting in accordance with the directions given.

It was submitted in this respect that there were swellings and bruises close to MJS’s knees and near her ankles. This evidence, the Crown submitted, was capable of supporting the complainant’s evidence. It was submitted that the evidence of Roberts, set out above, was capable of supporting the evidence of MJS as well as the other witnesses.
The Crown suggested that the jury could well have accepted the complainant’s account of her argument over the money and not accepted that the subconjunctival haemorrhage of the right eye was related to that incident.
Interestingly, the only person asked about the bruises and their appearances and any issue of length of time for them to emerge and disappear was the complainant herself, who was a trainee nurse.
The jury had been directed by the Learned Trial Judge that they had to deal with the evidence in respect of each allegation independently and had then been told they were entitled to accept part only of the evidence of a witness.
The jury were directed that they were entitled to note in respect of count 2 that there was an absence of medical attention for CS and thus no corroborative evidence available in circumstances where it might be expected that there would be.

In the circumstance of the assault on CS, that is, count 2, it can not necessarily be inferred that for the jury to acquit, that the jury did not believe the complainant but rather, that they may not have been able to say beyond reasonable doubt where the truth lay.

On the count on which the jury convicted, there was independent evidence some few days after the assault and it is significant that the evidence of Roberts was called for by the jury and replayed to the jury and the verdicts were returned some half hour later.
It is the appellant’s onus to establish inconsistency of verdicts in order to conclude that the jury verdicts are irreconcilable and require intervention.
On the whole of the facts and particular circumstances of this case, I find that it was open to the jury to be satisfied beyond reasonable doubt on count 6 that the appellant was guilty of the offence of Assault Occasioning Actual Bodily Harm and that there is no basis for relying on the acquittals on the first five counts for setting aside the conviction on that count. The delay in complaint for the uncorroborated facts alleged in counts 1 – 5, was obviously a significant matter.
On examination of the whole of the evidence in respect of the five acquittal counts and the count on which the appellant was convicted, there are clearly explanations available as to the basis upon which a jury might acquit on five counts and nonetheless convict on the sixth count.

I do not consider that the conviction appealed against is, therefore, unreasonable nor is it unsupported by the evidence. In my view, therefore, Ground 1 is not made out.

Ground Two - The Learned Trial Judge erred in failing to adequately direct the jury as to the danger of convicting on the evidence of the complainant; alternatively, the Learned Trial Judge erred in failing to direct the jury that they should scrutinise the evidence of the complainant with great care.

The appellant submitted that there was a failure to properly warn the jury as to the possible danger of convicting on the complainant’s evidence and that his Honour’s direction:
“The pivotal issue for you to determine is whether or not you can rely upon the evidence of the complainant. If you have a reasonable doubt about her evidence then you must find the accused not guilty because she is the person who the Crown relies upon for the proof of the charges against the accused”.
was not an adequate direction and that a direction in accordance with Longman v The Queen (1989) 168 CLR 79 at 86 or R v Murray (1987) 11 NSWLR 11 at 19 was required. In answer to that, the Crown submitted that the jury could not have been in any doubt as to the vital importance of the evidence of the complainant in the Crown case.
In the summing up his Honour said of MJS:
“… you should, therefore, examine and scrutinise her evidence with great care before you decide that a verdict of guilty or any verdict of guilty in any of the six counts before you should be brought in if at all and you should only find him guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of … (MJS)”.
His Honour then later warned of the importance of the effects of an absence of complaint on the ability of the appellant to test prosecution evidence or adduce evidence in his own case and of the difficulties of determining the appellant’s whereabouts at certain dates and at certain times on certain dates. His Honour went on to direct:
“By reason of these difficulties, additional care or caution is required in the way you approach the prosecution evidence”.
His Honour further went on that delay can make it difficult for medical or scientific examination of a person or the clothing worn by that person or the complainant and thus inhibit the appellant’s capacity to raise a reasonable doubt.

Towards the end of the summing up counsel for the appellant sought a warning that goes beyond that required by R v Murray and sought a Longman warning and then went on to say:
“If your Honour isn’t disposed to put it in terms of dangerous to convict, a warning that at least draws to their attention her account is uncorroborated, it’s open to you to find that in fact it’s contradicted in important respects and because of that it is an additional reason to take great care”.
His Honour declined to give any further direction in that respect. In Longman it was held, in respect of the Evidence Act 1906 (W.A.) dealing with corroboration, that the Act dispensed with a requirement for corroboration of victims of sexual offences as a class but did not remove the requirement that a warning should be given whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

Since, in the trial there were three offences involving sexual offences where there was a considerable delay in complaint, a conviction on any one or more of those grounds would have correctly raised the issue as to whether an appropriate Longman direction should have been given in terms of affording the appellant a fair trial.

The only matter on which he was convicted, however, was an offence of Assault Occasioning Actual Bodily Harm and, as indicated in what I have said earlier on Ground 1, there was evidence which the jury might reasonably have treated as corroboration in respect of that offence, it being noted that non-sexual assault matters have no requirement that there be corroboration.

To suggest that there is a need on an appeal relating to a non-sexual offence whilst at the same time a jury is dealing with sexual matters would be to extend, without warrant, the application of Longman inappropriately. The jury disposed of the sex related offence.

I do not see that there is any warning, therefore, required in terms of Longman or otherwise in respect of the offence for which he was convicted and that his Honour’s directions were appropriate for the jury to properly evaluate the evidence in respect of the assault matter on which they convicted the appellant. This ground, in my view, is therefore not made out and I would, therefore, dismiss this ground of appeal.

The orders, therefore, that I would propose are as follows:
That leave to appeal be granted;
That the appeal be dismissed.

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LAST UPDATED: 26/09/2002