R v RGG

[1999] NSWCCA 81

CITATION:	R v RGG [1999] NSWCCA 81
FILE NUMBER(S):	CCA 60341/98
HEARING DATE(S):	14/4/99
JUDGMENT DATE:	28 April 1999
PARTIES :	Crown RGG
JUDGMENT OF:	Wood CJ at CL; Hidden J; Smart AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/31/0378
LOWER COURT JUDICIAL OFFICER:	Job DCJ

COUNSEL:	C.K. Maxwell QC for Crown S. Norrish QC for Appellant
SOLICITORS:	R. Gray (DPP) T.A. Murphy (Legal Aid)
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - whether verdict should be set aside on ground that it was unreasonable or could not be supported having regard to the evidence - matters taken into account - whether verdict of acquittal should be entered in lieu.
ACTS CITED:	Crimes Act 1900 (NSW) s 61D
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

No. 60341/98
NSWCCA 81

WOOD CJ at CL
HIDDEN J
SMART AJ

WEDNESDAY 28 APRIL 1998

REGINA v RGG

The appellant was convicted of two counts of sexual intercourse with a girl under sixteen, without her consent, contrary to s 61D(1) Crimes Act 1900 (NSW) . He was sentenced to concurrent terms of 12 months penal servitude, and to additional terms of 4 months penal servitude, in relation to the two offences.

His case was essentially that the verdicts should be set aside on the ground that they were unreasonable, or could not be supported, having regard to the evidence, and that in lieu a verdict of acquittal should be entered.

HELD (allowing the appeal):

(1) The Court must examine independently the nature and quality of all the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused.
Morris (1987) 163 CLR 454; Chidiac (1991) 171 CLR 432, followed.

(2) If the Court concludes that notwithstanding the existence of evidence sufficient to entitle a jury to convict, the jury ought nevertheless to have entertained a reasonable doubt, then the ground is made out.
M (1994) 181 CLR 487; Jones (1997) 191 CLR 439, followed.

(3) In undertaking this exercise, the Court should respect the advantage that the jury had in seeing and hearing the evidence, where that is capable of resolving any doubt experienced by the Court.
Chidiac (above), M (above) followed.

(4) Notwithstanding the trial judge’s impeccable directions to the jury, the combination of circumstances identified by counsel for the appellant were such that the jury ought to have entertained a reasonable doubt. They were:
(i) the complainant’s tender age at the time of the alleged incidents, and the extent of her claimed recollection some 13 years later;
(ii) the apparent absence of any signs of physical injury or of distress of the complainant immediately following an allegedly forceful incident;
(iii) uncertainty as to the year in which the conduct alleged took place;
(iv) the circumstance that not only the appellant, but also three other persons said to have been present when the offences took place denied any such event;
(v) the improbability of the occurrence taking place in a household where there were other persons immediately present;
(vi) the lengthy delay in complaint capable of weakening her credibility;
(vii) the somewhat inexplicable correction of the account initially given to police, so as to substitute the appellant’s daughter for another girl as the victim of a sexual assault by the appellant’s son, allegedly occurring at the same time, and in the same room as that alleged by the complainant;
(viii) the fact that the account of the layout of the appellant’s house was contradicted by other evidence.

(5) The weaknesses identified above cannot be satisfactorily explained by the manner in which the evidence was given, or by the advantage that the jury had in seeing and hearing the witnesses. A doubt arises of a positive kind leading to the conclusion that the convictions and sentences should be set aside and verdicts of acquittal substituted.
RJC (NSWCCA, 1 October 1998); Williams (NSWCCA, 23 February 1999); Harvey (NSWCCA, 9 April 1998), considered.

(6) It is emphasised that this does not involve a finding that the complainant lied. It simply means that having regard to the special circumstances of the case and the requirements of criminal proof, the jury should have had a reasonable doubt.

IN THE COURT OF
CRIMINAL APPEAL

No. 60341/98
NSWCCA 81

WOOD CJ T CL
HIDDEN J
SMART AJ

WEDNESDAY 28TH APRIL 1999

Regina v RGG

JUDGMENT

1 THE COURT: The appellant was convicted, following trial in the District Court at Newcastle of two counts of sexual intercourse with SP, a girl then under the age of 16 years, without her consent, knowing she was not consenting thereto (S 61D(1) Crimes Act 1900). He was sentenced to concurrent terms of twelve months penal servitude, and to additional terms of 4 months penal servitude, in relation to the two offences.
2 He appealed against the convictions upon the basis that the verdicts were unsafe and unsatisfactory. Properly formulated, his case was that the verdicts should be set aside on the ground that they were unreasonable, or could not be supported, having regard to the evidence, and that in lieu a verdict of acquittal should be entered.
3 The appeal came on for hearing on 14 April 1999. The Court having reached the conclusion that it should be allowed, and being concerned at the delays in the listing of the appeal, attributable to problems experienced in the preparation and release of the transcript, announced its conclusion and made the necessary orders that day, for reasons that would be later published. Those reasons are now published.
4 The test to be applied in a case such as the present is well recognised. It requires this Court to undertake an independent examination of the nature and quality of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused: Morris (1987) 163 CLR 454 at 472/3 and Chidiac (1991) 171 CLR 432 at 442/3.
5 It is not enough that there was evidence sufficient to entitle a jury to convict, because a verdict may be unsafe or unsatisfactory even when there is a sufficiency of evidence for the purpose: Chidiac at 443 and at 445. If the Court concludes that notwithstanding the existence of evidence of that kind the jury ought nevertheless to have entertained a reasonable doubt then the ground is made out: M (1994) 181 CLR 487 at 493-5 and Jones (1997) 191 CLR 439.
6 In undertaking this exercise it is appropriate for the Court to respect the advantage that the jury, which is the body entrusted with the primary responsibility of determining guilt or innocence, had in seeing and hearing the evidence, (Chidiac at 443-4, 453 and 462) and M at 493, where that is capable of resolving any doubt experienced by the Court. Otherwise, as was said in M at 494:
“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 will be one which a reasonable jury ought to have experienced. 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.”

The Crown Case

7 The complainant gave evidence that the incidents charged occurred on the same day, at the home of the appellant, at Stanford Merthyr, in late 1982. These premises were situated near the home of her grandparents with whom she was living. Her parents had divorced and her mother was living in Queensland. She dated the incident by reference to the circumstance that it occurred while she was in kindergarten at Stanford Merthyr, towards the end of the year in which her brother was born (2 February 1982), and after her mother had left to go to Queensland (six months after his birth). She also dated it by her recollection that in the following year she began 1st class at Stanford Merthyr school, and met another girl, RS, who lived a few doors down from the appellant. That girl, she said, she knew for two years before moving to Queensland, in 1984. She recalled that she had been petrified when walking past the appellant’s home to this girl’s house to play.
8 She said that she was five years old when the offences occurred. She was friendly with the appellant’s daughter, P, who was in the same class as her. As a result she often visited the appellant’s home to play.
9 The appellant had three children - a son aged about 8 years, P who was the same age as the complainant and another daughter who was about three.
10 The complainant said that one afternoon while she was visiting her friend, they and another girl, LG were sitting in the lounge room watching TV. The appellant, she said, entered the room, grabbed her by the wrists, and dragged her down to the floor. He took hold of her wrists with one hand and with the other hand rubbed her genital area and removed her underpants. He tried to separate her legs. She screamed and kicked continually. He inserted his finger in her vagina. She said that this was painful and the incident lasted less than half a minute. She yelled at him repeatedly to stop. He repeatedly told her to “shut up”.
11 She said that, contemporaneously with this occurrence, the appellant’s eight year old son, who had come into the lounge room with him, behaved in the same manner as he had, with her friend (his sister) P. She was not sure of the whereabouts of the other girl LG, nor of the appellant’s wife, whom she had earlier seen in the kitchen. We interpolate that when the complainant first spoke to police she said that it was LG who was the victim of the assault by the appellant’s son. However, after reflection she realised that she had been mistaken and that it was his sister who was assaulted. She corrected this detail, and a diagram that she had drawn of the positions in which the girls had been sitting on the lounge, a week after first speaking to police.
12 The incident in the lounge room gave rise to the first count. It was followed, the complainant said, by the appellant dragging her to her feet by her wrists, and then down the hall to the bedroom. There he sat her on a double or queen size bed. He pulled her legs apart and put his head between them. She felt his tongue over and then inside her vagina. She tried to get up but was held down. He removed his clothing and pulled her hand toward his erect penis demonstrating that he wanted her to masturbate him. She kept pulling her hand away. The appellant, she said, raised his voice and told her that she had to do what he wanted. He dragged her off the bed onto the floor , and with his arm dangling over the side placed his finger in her vagina. This alleged conduct gave rise to the second count.
13 The appellant, she said, told her that she should not tell anyone what happened because he knew where she lived. She got up and ran from the room out the front door. She went directly home. She did not say anything to her grandmother. She said that, after this, she did not return to the appellant’s home or play with his daughter, although she may have spoken to her at school. She could not recall what happened to the underpants that the appellant had removed, nor could she recall whether she had suffered any bruising or swelling to her wrists, any carpet burns to her body, or any bleeding or pain after the incidents.
14 In October 1995, the complainant became engaged. While playing with her fiancee she reacted badly when he held her by the wrists. He questioned her at length as to the reason for this. In the course of this discussion she disclosed the matters mentioned above. She did not make any complaint to police until February 1996, following further discussions with her fiancee and with a “friend” about the matter.
15 In the course of her evidence, the complainant was positive that she had been at the Stanford Merthyr Infant School between 1982 and 1984 and that there was no period of absence from the school while she went to Queensland. The school records, however, disclose that she was enrolled on 4 February 1982 and on 15 September 1982 transferred to a school in Queensland. She returned to Stanford Merthyr on 22 November 1982, before leaving again for Queensland on 16 December 1982. She came back to Stanford Merthyr school on 15 March 1983, and remained there until 13 December 1984.
16 The complainant said that the school records were incorrect, as were the records for her friend RS, which showed that she had not enrolled at the school until 1984, a year after that suggested by the complainant.
17 The complainant gave evidence of opening the front door by using the door handle. There was no deadlock that she recalled. She agreed that there were errors in the markings she had placed on a plan of the loungeroom, particularly concerning the relationship of the hallway to that room and the existence of walls between these areas of the house.
18 She denied that the appellant’s children had swum in her grandparents pool after the incidents.
The defence case
19 When interviewed by police, the appellant denied the allegations. He gave sworn evidence at the trial, denying the events alleged, both so far as they related to himself and to his son. He gave evidence to the effect that the doors to the front of the house were of a security type. The front door had a dead lock and the screen door was a security door. Each was kept closed. A key was left in the deadlock which was about 4 feet above the floor, and the security door had a barrel lock that was kept engaged.
20 He said that his children swam in the pool at the complainant’s home after the date of the alleged incident, ie in 1984, when P had learned to swim. They were not allowed to do so until they had learned to swim. That did not occur until the end of 1983 or the beginning of 1984. A swim certificate of proficiency that P obtained, issued in 1984, was tendered as was another certificate obtained the following year. He denied being aware of any animosity between himself and the appellant or her family. He had never engaged in playful conduct with the complainant, nor did he ever have any physical contact with her.
21 The appellant’s wife gave evidence that the complainant attended at their house until the girls left infant school. She denied any incident of the kind alleged, and corroborated the evidence of the appellant, in relation to the time at which the children learned to swim.
22 PG denied ever being in the presence of the complainant when she was sexually assaulted by the appellant. She also denied that she had herself been sexually assaulted by her brother in the presence of the complainant and her father. She said that she attended the complainant’s home, and that the complainant attended her home, during 1983 and 1984.
23 The appellant’s son similarly denied the events alleged by the complainant, as did LG, who was called in the prosecution case.
24 The appellant’s wife and his two children agreed that they had discussed the case with him and were aware of the contents of his ERISP. They denied however covering up for him.
25 The matter came on for hearing as a retrial, the jury at an earlier trial having failed to agree on a verdict.

Were the verdicts unsafe and unsatisfactory?
26 The facts of the case are, on any view, unusual. The directions given by his Honour were impeccable. All relevant warnings concerning the possible unreliability of the complainant’s evidence by reason of her age; concerning the care with which the jury should approach her evidence, since the Crown Case rested solely upon it; and concerning the delay in complaint, both so far as it may have affected the complainant’s credibility, and the ability of the appellant to defend himself, were given.
27 The question on appeal accordingly comes down to the question whether, after an independent assessment of the evidence, and after giving due regard to the advantage that the jury had in seeing the witnesses, this Court reaches the view that they ought to have entertained a reasonable doubt as to the appellant’s guilt.
28 We are of the view that the concatenation of circumstance identified by Senior Counsel for the Appellant were such that a jury ought to have entertained a reasonable doubt. Individually they would not have been enough, but when considered in combination there is in our view, a very real risk that the appellant was wrongly convicted.
29 The matters that lead us to this conclusion are the following:

(a) the tender age of the complainant at the time of the alleged incidents, and the extent of the recollection that she claimed to have had some thirteen years later;
(b) the apparent absence of any signs of physical injury to the complainant or of distress on her part immediately following an incident, which if true, was one involving a degree of force;
(c) the uncertainty that arose, upon the evidence, as to the year in which the conduct alleged took place. Her recollection of the events was somewhat inconsistent with the school records, although it must be conceded, they would not have excluded the opportunity of contact between the appellant and herself for much of the year 1982, including a short period towards the end of the year. Her evidence was also inconsistent with the school records for RS, at least in some respects, and with the evidence of the appellant’s family as to whether PG went to her grandparents’ home after the alleged incident. Having regard to the course which the trial took, it is not necessary to decide whether the period charged in the indictment was of the essence of the offence (cf VHP (Court of Criminal Appeal New South Wales 7 July 1997 unreported)). The inconsistency identified, and the strength with which the complainant insisted that the school records were wrong, are matters that properly went to the reliability of her evidence.
(d) the circumstance that the appellant gave sworn evidence, denying the complainant’s version, and that the other persons said to have been present, or to have been involved in similar conduct, also denied her version. The case was not simply one of conflicting evidence given by a complainant and by an accused, but one in which the complainant was also contradicted on oath by three other persons who, on her account, were present and able to corroborate her. While the appellant’s children, and his wife, for that matter, may have had an interest to serve in protecting him, their evidence was not weakened in cross examination and they were adamant that they were not trying to cover up for him. Furthermore, there was no reason to suppose that LG was other than an independent, and hence impartial witness.
(e) the improbability of such an occurrence taking place within a household where there were other persons immediately present, including the appellant’s wife who, if the appellant was correct, not only ignored, but was unaware of what would have to have been a determined attack, accompanied by a good deal of screaming and resistance on the complainant’s part;
(f) the lengthy delay in complaint which was capable of weakening the complainant’s credibility, particularly when it is recalled that any fear that she may have held , arising out of the appellant’s caution that he knew where she lived, should have abated once she moved to Queensland.
(g) the somewhat inexplicable correction of the account initially given to police, so as to substitute the appellant’s daughter for the other girl. The explanation offered, that the complainant had been carefully thinking about the matter for a week, is not a readily acceptable answer when it was her evidence that she had been thinking about, and discussing, the incidents for a period of four months or so before going to the police.
(h) the correction she made to the plan to accommodate this change in recollection, and the fact that her account of the layout of the appellant’s house was contradicted both by physical evidence and by the oral evidence of the inhabitants of those premises.

30 The case is accordingly one where there are some very obvious weaknesses in the complainant’s evidence, along with the powerful feature that witnesses who, on her account, should have been able to corroborate her if her account was true, said, on oath that the matters alleged did not occur.
31 While we recognise that considerable weight needs to be given to the circumstance that the jury accepted the complainant’s evidence, after having been given all of the warnings relevant to this case, including the warning that they carefully scrutinise what she said, we do not consider the weaknesses identified can be satisfactorily explained by the manner in which the evidence was given, or that any doubt in that regard can be resolved by reference to the advantage the jury had in seeing and hearing the witnesses.
32 A doubt does in our view arise of a positive kind, which leads us to the view that the present case is one where unlike RJC (Court of Criminal Appeal New South Wales, 1 October 1998) or Williams (Court of Criminal Appeal New South Wales 23 February 1999) but like Harvey (Court of Criminal Appeal New South Wales 9 April 1998) the line was crossed, so that the convictions and sentences should be set aside and verdicts of acquittal substituted.
33 We emphasise that this does not involve a finding that the complainant lied. Rather, having regard to the special circumstances of the case, and the requirements of criminal proof, it means that the jury ought to have had a reasonable doubt. As was explained in Chidiac (at 444) when the Court intervenes on this basis:
“it is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury’s apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused’s guilt according to the criminal standard of proof.”

**********