R v Smart
[2009] SASC 335
•5 November 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMART
[2009] SASC 335
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice White)
5 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
Appellant acquitted of two counts of indecent assault and convicted of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 - appealed conviction - whether guilty verdict unsafe and unsatisfactory - whether verdict was against the weight of the evidence - whether it was open to jury on whole of evidence to find appellant guilty beyond reasonable doubt - whether verdicts inconsistent - whether conviction on one count can be logically explained against acquittals on other two counts - whether miscarriage of justice - whether trial judge erred in directing jury that there was limited evidence supporting complainant's evidence.
Held: It was open to the jury on whole of evidence to find appellant guilty beyond reasonable doubt - verdict not against the weight of the evidence - conviction on one count can be logically explained against acquittals on other two counts - verdicts not inconsistent - guilty verdict not unsafe and unsatisfactory - trial judge did not err in directing jury - no miscarriage of justice - permission to appeal granted by majority - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
M v R (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487; R v Smart [2009] SASC 155; R v Stone (unreported, CCA Eng, 13 December 1954; R v Klamo (2008) 18 VR 644, applied.
MFA v The Queen (2002) 213 CLR 606; MacKenzie v The Queen (1996) 190 CLR 348; Libke v The Queen (2007) 230 CLR 559; R v Gbojueh [2009] SASC 104; (2009) 103 SASR 545, discussed.
R v SMART
[2009] SASC 335Court of Criminal Appeal: Gray, Anderson and White JJ
GRAY J.
This is a renewed application for permission to appeal against conviction.
On 27 February 2009, Allan Leslie Smart, the defendant and applicant, was convicted by jury verdict, following a trial in the District Court, of one count of indecent assault in respect of a complainant, KC. On 8 April 2009, the defendant was sentenced to a suspended term of imprisonment of two years. A non-parole period of 14 months was fixed.
The defendant was originally charged on Information with three counts of indecent assault against the complainant, KC, and two counts of indecent assault against her sister, LC.
On 10 December 2007, following an initial refusal of an application for severance, the trial commenced on the Information with respect to both complainants on all counts. During the leading of evidence, events occurred that led to the renewal and granting of the severance application. A mistrial was declared.
Ultimately, following a retrial with respect to the complaints of LC, the defendant was acquitted by jury verdict on both counts. On the retrial of the three counts in respect of KC the jury was discharged after it was unable to reach a verdict.
On 23 February 2009, the further retrial of the three counts with respect to KC commenced. On 27 February 2009, verdicts of not guilty were returned in regard to the first two counts and a verdict of guilty was returned in regard to the third count. This renewed application for permission to appeal is from that guilty verdict.
On 1 June 2009, permission to appeal was refused by a Judge of this Court. The Judge outlined her reasons for refusal:[1]
Contrary to [counsel for the applicant’s] submissions I do not consider the evidence in support of counts 1, 2 and 3 was identical. The trial judge quite properly directed the jury as to the availability of the limited evidence capable of supporting the complainant’s account in relation to count 3.
Moreover, in the course of the summing up the trial judge directed the jury that they were to consider the evidence in relation to each count separately and were entitled to find the accused guilty of one or more counts and not guilty of others.
In these circumstances, I cannot accept that there is even an arguable case that the verdict of the jury on count 3 is unsafe, unreliable or unreasonable.
In my view, jury verdicts, particularly in cases like this involving allegations of sexual misconduct over a long period of time, are not to be regarded as inconsistent because juries faithfully follow instructions given to them by trial judges and do in fact consider each charge separately on its own merits. In this case there is nothing at all which causes me any concern that the jury did other than that.
[1] R v Smart [2009] SASC 155 at [12]-[15].
On the hearing of the renewed application, it was submitted that the guilty verdict returned on the third count of indecent assault with respect to KC was unsafe and unsatisfactory. It was contended that the verdict was against the weight of the evidence and was inconsistent with the verdicts of not guilty reached by the jury in regard to the other two counts.
The Trial
The counts relating to the retrial the subject of this appeal were as follows:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Allan Leslie Smart between the 1st day of January 1978 and the 31st day of December 1979 at Salisbury North, indecently assaulted [KC], a person under the age of 10 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Allan Leslie Smart between the 1st day of January 1981 and the 31st day of December 1982 at Salisbury North, indecently assaulted [KC], a person under the age of 13 years.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Allan Leslie Smart between the 1st day of January 1983 and the 31st day of December 1983 at Para Hills, indecently assaulted [KC], a person under the age of 14 years.
The alleged offences of indecent assault were said to have occurred in the context of a close friendship between the defendant and his spouse and the complainant and her family. The complainant, in addition to giving evidence in relation to each count, gave evidence of many uncharged acts of sexual misconduct between1978 and 1982, by the defendant.
Two related issues arose on the application. Could the verdict of guilty on count three be reconciled with the verdicts of not guilty on counts one and two and was the verdict of guilty on count three unsafe or unsatisfactory in that it was against the weight of the evidence? A third issue arising during the course of submissions was whether the evidence in relation to count three was capable of supporting the complainant’s account that the defendant had indecently assaulted her, or whether the evidence merely confirmed that an opportunity existed to do so.
Inconsistent Verdicts
The principles relating to the determination of this complaint are well known.
In MacKenzie,[2] Gaudron, Gummow and Kirby JJ discussed the role of the appellate court in assessing verdicts said to be inconsistent:[3]
Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.
[footnotes omitted]
[2] MacKenzie v The Queen (1996) 190 CLR 348 at 367.
[3] MacKenzie v The Queen (1996) 190 CLR 348 at 367.
Their Honours adopted a test of logic and reasonableness and approved the observations of Devlin J in Stone:[4]
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. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
[footnotes omitted]
[4] MacKenzie v The Queen (1996) 190 CLR 348 at 366 citing R v Stone (unreported, CCA Eng, 13 December 1954).
The approach to assessing the reasonableness of the jury’s decision was further discussed by the High Court in MFA.[5] Gleeson CJ, Hayne and Callinan JJ observed:[6]
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. ... In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
[5] MFA v The Queen (2002) 213 CLR 606.
[6] MFA v The Queen (2002) 213 CLR 606 at [34]. (footnotes omitted).
The evidence with respect to count one raised serious doubts about when the alleged incident occurred. Given that the complainant on her account was aged seven or eight years at the time, it is unsurprising that there might be some vagueness about the alleged date. However, against this background, it was apparent that there was an inconsistency with the complainant’s evidence and the date of the commencement of the social relationship between the defendant, his wife and the complainant’s parents. Although the jury were informed that the date of the offence was not an element, the inconsistencies may well have left some doubt in the jury’s mind about the reliability of the complainant’s evidence with respect to this count. This topic was the subject of detailed discussion by trial counsel during their final addresses.
The evidence with respect to the timing of count two suffered from a similar but less significant difficulty. The evidence led with respect to count two also potentially allowed for doubt as to the identity of the perpetrator.
The evidence led in regard to counts one and two was vague and non-specific and lacked any degree of detail. Again, having regard to the complainant’s age, it is unsurprising that she would be unable to articulate with any clarity or substance anything beyond the essential aspects of the alleged incidents. These matters were the subject of considerable comment and emphasis in the course of trial counsel’s submissions.
By contrast, the complainant’s account with respect to count three provided more detailed evidence about the circumstances surrounding the indecent assault. The evidence centred on a unique and identifiable occasion in the course of a visit to the defendant’s home. The earlier counts were said to have taken place at the complainant’s home. At trial, there was no dispute that the complainant’s family had visited the defendant at or about the time at which it was said that the incident the subject of the third count occurred, and that during one such visit, as described by the complainant, she and some of the other children had gone to sleep on the lounge floor.
There was an absence of evidence supporting the complainant’s evidence with respect to counts one and two. The only evidence that could be said to support the complainant came from her sister - that it was possible for the defendant to have had access to the complainant’s bedroom in circumstances in which the alleged offences could have been committed. However, this evidence was of limited use.
By contrast, the supporting evidence with respect to count three was more substantial. Both the complainant’s sister and her mother gave evidence of the defendant’s opportunity to commit the act the subject of count three, supporting the complainant’s account. Both gave evidence to the effect that the defendant, who had been playing cards with the complainant’s parents, her sister and the defendant’s wife in an adjoining room, left the game for some time. The complainant’s mother described observing the defendant lying in close proximity to the complainant on the lounge room floor. It was at this time that the indecent assault was said to have occurred. Although the independent supporting evidence in relation to count three was limited, no equivalent supporting evidence was available with respect to counts one and two.
When consideration is given to the multiplicity of distinctions across the evidence relating to the three counts, and the issues that were focused upon by trial counsel, the complaint that the verdicts are inconsistent cannot be sustained.
The differentiation of evidence and issues, presented the jury with a rational and logical route to different verdicts. The significance, if any, of the points of distinction that did, in the Director’s submission, exist, were a matter for the jury, who of course had the undeniable advantage of first hand exposure to the witnesses at trial.
Additionally, the jury were required to contemplate the points of distinction in the evidence against the background of the Judge’s directions on three important topics: that it was for the jury to determine whether they accepted all or part of any witnesses’ evidence; that the jury were to consider each count separately and that a conclusion with respect to one count did not mandate the same or a different result with respect to any other count; and the connected direction that the jury must not substitute satisfaction of general sexual misconduct by the defendant for specific verdicts on each of the counts.
Unsafe and Unsatisfactory – The Whole of the Evidence
The principles that inform the exercise of review to be undertaken by an appellate court where it is suggested that a verdict is not available having regard to the whole of the evidence, are well established. Those principles derive from the common law’s approach to the overarching question of whether, by virtue of particular features of a trial, a verdict of guilty is unsafe and unsatisfactory.[7] The general test finds expression in M,[8] and is set out by Hayne J in Libke[9] in the following way:
… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[original emphasis]
[7] MFA v The Queen (2002) 213 CLR 606.
[8] M v The Queen (1994) 181 CLR 487.
[9] Libke v The Queen (2007) 230 CLR 559 at 596-597.
There are two matters to be resolved by an appellate court when invited to interfere with a jury’s verdict on the ground that it is unsafe and unsatisfactory. The question to be asked is whether, upon the whole of the evidence led at the trial, it was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt. The resolution of this question requires the court to give deference not only to the jury’s exclusive imperative to determine guilt or innocence, but also to the advantage that a jury has had by virtue of their exposure to the witnesses. If a doubt exists about whether it was open to the jury to be satisfied of the defendant’s guilt, the court is to assess whether that doubt can be discarded by reference to the jury’s advantage in seeing the witnesses and watching the evidence unfold.[10]
[10] R v Klamo (2008) 18 VR 644 at 653-654 (Maxwell P).
On the hearing of the renewed application, the defendant supported this ground of appeal by what was said to be the inherent implausibility of the complainant’s account, together with material inconsistencies said to arise between the evidence of the complainant and of other witnesses. It was further contended that when properly analysed, the suggested supporting evidence from the complainant’s mother was objectively improbable.
As earlier observed, the complainant gave evidence with respect to the third count that the defendant, who had been playing cards with the complainant’s parents, her sister and the defendant’s wife in an adjoining room, left the game and spent some five to ten minutes lying on the lounge room floor next to the complainant. It was at this time that the indecent assault allegedly occurred.
Counsel for the defendant pointed out that at this time the defendant’s young son was also lying on the floor and the complainant’s parents, sister and the defendant’s wife were only metres away. It was asserted that it was inherently unlikely that any alleged offending would have taken place in these circumstances.
The complainant gave evidence that on the occasion during which the incident occurred, the movie “Extra Terrestrial” was shown on video. Other evidence indicated that the date of the alleged incident was some five years before the movies’ official release on video in Australia. Counsel submitted that the linking of the incident to the showing of a movie, “Extra Terrestrial” five years before its official release on video in Australia, resulted in a highly improbable account and that the explanation as to how the complainant came to be watching the video at this time was implausible and inconsistent with the evidence of other witnesses. Attention was drawn to the absence of this allegation in the witnesses’ early police statements.
Counsel asserted that the evidence of the complainant’s mother - that she was able to see into the lounge room from her position in the adjoining dining room and observe the defendant laying on the floor with the complainant - was objectively improbable. This assertion relied on the defendant and his wife’s recollection of the physical layout of the home, contrary to that of the complainant’s mother.
It is to be observed that all of the above matters were advanced by defence counsel at the trial. The witnesses were challenged on these topics. Each criticism was the subject of comment during counsel’s final address to the jury. The Judge addressed each of these matters during the course of the summing up. Subject to one matter raised by counsel during the course of the appeal, there was no challenge to the adequacy of the summing up with respect to any of these matters.
It was open to the jury to accept the complainant’s evidence with respect to the incident the subject of count three. The complainant’s evidence was supported in a material respect. The complainant’s mother gave evidence of her observation of the defendant lying by the complainant on the lounge room floor. It was open to the jury to accept this evidence. It was open to the jury to conclude that the complainant was truthful and reliable, notwithstanding the criticisms levelled at her evidence and at the other evidence led by the prosecution.
As outlined above, there was a lack of supporting evidence with respect to the first two counts. The jury may well have considered that they were left with some doubt about the first two counts because of the lack of supporting evidence, but prepared to reach their conclusion of guilt beyond reasonable doubt on count three having regard to all of the evidence relevant to that count. It is instructive to note that the Judge directed the jury as follows:
Now, in this matter the accused is charged with three separate counts. Each count, because it charges a separate offence, must be treated by you separately and upon its merits. When ultimately you return your verdicts, you will be asked successively, in relation to each count, whether you find the accused guilty or not guilty of that charge. It does not follow that where an accused is charged with more than one count, simply because you may be satisfied of guilt on one offence, that the accused is also guilty of any other offence. They do not stand or fall together.
If separate charges are tried together on the one information, as in this case, it becomes necessary to take special care to see that the method by which the guilt of the accused on any count may be established, is by only considering the evidence which is offered in relation to that count, and not the evidence in relation to any other count. …
So you may find the accused guilty of one our [sic] more counts, and not guilty of others. You may find him not guilty of any count. You may find him guilty of all counts. These are matters that you have to determine
Having regard to the trial Judge’s warnings to the jury about the care to be taken in their consideration of the facts and their obligation to consider each count separately, the jury’s verdicts are explicable.
In regards to the additional ground of appeal arising during submissions, counsel for the defence contended that the evidence led in respect of count three was only capable of confirming an opportunity to offend, rather than corroboration of the complainant’s account that the indecent assault occurred. Counsel submitted that the jury should have been directed accordingly. I consider there is no substance to this contention. The evidence led in respect of count three was capable of providing corroboration of the complainant’s account. In addition, the Judge appropriately directed the jury in relation to the weight of that evidence.
Conclusion
These reasons expand on the reasons provided by the Judge who initially refused permission to appeal. However, in essence the reasons are the same. I would refuse permission to appeal.
ANDERSON J.
Introduction
Allan Lesley Smart was charged on information with three counts of indecent assault. Indecent assault is a crime contrary to the provisions of s 56 of the Criminal Law Consolidation Act 1935.
The information alleges the following particulars:
1.Between 1 January 1978 and 31 December 1979 at Salisbury North Mr Smart indecently assaulted the complainant who at that time was under the age of 10 years.
2.Between 1 January 1981 and 31 December 1982 at Salisbury North Mr Smart assaulted the complainant who was then a person under the age of 13 years.
3.Between 1 January 1983 and 31 December 1983 at Para Hills Mr Smart assaulted the complainant who was then a person under the age of 14 years.
Each count involved the same complainant.
In this appeal Mr Smart (the appellant) complains of his conviction under count 3. He was acquitted by a jury of counts 1 and 2.
An earlier information alleged three counts of indecent assault by the appellant against the complainant and two counts against her younger sister. At a proposed joint hearing involving both the complainant and her sister there was an application for severance which was refused. After the commencement of the trial it became necessary for the judge to declare a mis-trial.
Following the mistrial the counts were severed and the counts relating to the complainant were heard by another judge. The jury was unable to reach a verdict and the appellant was discharged.
There then followed a separate trial in relation to the complainant’s sister, which again was declared a mis-trial after it had commenced. The subsequent trial of the counts relating to the complainant’s sister resulted in the appellant being acquitted on all counts.
This appeal follows from a separate trial before another judge of the District Court sitting with a jury, which, by majority, acquitted the appellant of counts 1 and 2 but convicted him of count 3.
Grounds of appeal
This matter comes before the Court as an application for permission to appeal. It was decided that the Court would hear full argument on the merits and decide both the question of permission to appeal and, if permission were to be granted, the result of the appeal.
Originally there were only two grounds of appeal but a third was added during the hearing of the appeal. The first is that the verdict of the jury was unsafe and unsatisfactory in that it was against the weight of evidence. The second is that the verdict of the jury was unsafe and unsatisfactory because the verdict on count 3 was inconsistent with the verdicts of acquittal reached by the jury on the other two counts. The third ground reads:
The learned trial Judge erred in directing the jury that there was limited independent evidence supporting the complainant’s account on count 3.
Particulars
(a)The evidence to which the learned trial Judge referred was only supportive of the complainant’s account of the circumstances surrounding count 3 and not the offence itself.
(b)The jury should have been directed that this evidence was not capable of supporting the complainant’s account that the applicant had indecently assaulted her but was evidence confirming the applicant’s opportunity to commit the offence.
Background facts
The complainant was born on 8 October 1970. She moved with her family to an address at Salisbury North when she was approximately 6 years of age. She had an older brother, a younger sister and a younger brother. The complainant and her family became friendly with the appellant and his family sometime after moving into the home at Salisbury North. The appellant and his family lived next door. Both the complainant’s parents and the appellant and his wife socialised with each other, and in particular played cards at either the complainant’s parents’ home or the appellant’s home. The complainant gave evidence of a course of conduct in which she alleges that the appellant came into her bedroom and indecently interfered with her when the adults were playing cards.
Later the appellant and his family moved to an address at Para Hills. The first two counts and a series of uncharged acts are alleged to have taken place at Salisbury North, whereas the allegations relating to count 3 are alleged to have taken place at Para Hills.
Count 1
The complainant gave evidence which put count 1 as occurring prior to Christmas in approximately 1978. At that time she was approximately 8 or 9 years old. She said an incident occurred in the bedroom which she shared with her younger sister who was 6 or 7 at the time. She said that the appellant walked into the bedroom and woke her up. The complainant described how the appellant touched her first on her chest and then by moving to her vagina and inserting his fingers. She said that there was no light on in the bedroom at the time but there was a hallway light which was shining. She described the features of her attacker which she said were those of the appellant. She gave a general description of his size and appearance. That was the extent of her evidence on this count. Her sister did not give any evidence in support of the complainant. There were inconsistencies related to the timing of the incident from the complainant’s family mainly relating to the age of the appellant’s son at the time. In her final address Ms Fuller, for the appellant, stressed the inconsistencies related to the timing of count 1.
The uncharged acts
The complainant gave evidence which was non-specific about various uncharged acts occurring between the years 1978 and 1981. She said that it was the same thing but they all rolled into one because it was just so many times and it was the same sort of scenario.
Count 2
The complainant said that an incident similar to that alleged in count 1 occurred in about 1981. This again took place in her bedroom while her sister was present. She believed that it was a time when the appellant was still living next door to her house at Salisbury North. On this occasion a family friend she referred to as her “uncle” was also present in the house when she alleges that she was indecently assaulted by the appellant. She said that she heard her door open and the light was on in the hallway. She remembered the appellant coming straight into her room and she said that he again touched her chest area and her vagina and inserted his fingers into her vagina. She said on this occasion that she pushed the perpetrator’s hands away.
The complainant also said that her “uncle” did come into her bedroom either to say hello or give her a kiss goodnight. She also gave a description of the “uncle”. She was cross-examined in detail about the “uncle” and his visits to her house and in particular to her bedroom. The topic of the “uncle” became the focus of considerable attention in cross-examination and submissions before the jury. There was evidence that both the appellant and the “uncle” were in the house at the same time. The evidence is unclear but it seems that there was one occasion when both the appellant and the “uncle” may have been in the complainant’s bedroom at the same time. However, that was probably at a later time and not related to the time of the incident alleged in count 2.
The complainant’s sister gave no evidence in support of this incident.
Count 3
Whilst the complainant’s evidence of what occurred in relation to both counts 1 and 2 and the uncharged acts was relatively brief and occupied only a small part of her evidence, her evidence regarding count 3 was much more detailed. She said that her family had visited the appellant’s family at their new home at Para Hills. She said that there was only one incident which occurred at Para Hills. She said she was approximately 12 years old when the incident occurred and that it was in about 1983.
The complainant said on this occasion that they all watched the movie ET on video at the appellant’s home. Later she and her sister and the appellant’s son lay down on the floor of the lounge room to go to sleep. She said that her parents and the appellant and his wife were going to play cards around a table which she described as being in the kitchen/dining area. That area was adjacent to but separated from the lounge area by a wall and a doorway. She said that she did go to sleep and woke up to see the appellant lying next to her and his son on the floor. She said that her sister was not there when she woke up. She described how the appellant was lying next to her when he sexually touched her. She said:
I can’t remember, it was a little bit different this time, he was a lot rougher, I had someone laying next to me, which I thought was my security blanket … I just – just that he was touching my – all over my body, my breasts, my vagina – but it was just very rough.
She said that she saw her sister playing cards with the adults in the kitchen/dining area at the time when she says the appellant assaulted her. I will now deal with the evidence led on count 3 in some detail.
The evidence led in relation to count 3
(i) The complainant
In relation to count 3, the complainant said that although she had been to the appellant’s house at Para Hills on more than one occasion, there was only the one instance there when she was sexually assaulted. She said that she was about 12 years of age and it happened in about 1983. She said that she went to the appellant’s house with her parents and that her sister was also present. She also believed that her younger brother who would have been about 7 at the time may have been there but she was not sure about her older brother who would have been about 15. The complainant gave evidence of watching the movie ET on video on this occasion. She related the incident in count 3 to the same occasion on which she said that she watched the ET video at the appellant’s house.
The important aspects of her evidence in relation to the viewing of that video is that she told the police that at the time she watched it, it had just been released on video. She said that she believed her parents had obtained it from a Rugby Club with which her father was associated. She believed that she had watched it at the Club at some stage. Later evidence shows that although the video was released in cinemas in 1982, it was not released on video until October 1988, whereas it was released in cinemas in 1982.
The complainant said that it was after watching the ET video that she went to sleep on the lounge room floor on a couple of blankets. She said that her sister was with her and the appellant’s son was also there. She described how she saw the adults playing cards in the kitchen/dining area. She said that it was while she could see the cards being played that the appellant came into the room and touched her sexually. She said that this went on for four to ten minutes.
(ii) The complainant’s sister
Her sister said that she recalled an occasion at Para Hills when she went into the kitchen, or dining area, and the adults were playing cards. It was on that occasion that the appellant asked her to take over his hand. She said she did take over playing his hand and played quite a few hands and won a bit of money. She said that it seemed quite a long time that she was playing and thought she was able to play at least ten hands. They were playing poker.
In relation to the ET video, the complainant’s sister said she did recall seeing it at the appellant’s house at Para Hills and she related it to the same night that she was given the money in relation to the playing cards. She said that her sister, brother, mother and the appellant’s wife and son also watched the film.
In all, the complainant’s sister made five statements to the police, spread out between 2001 and 2007. The fourth of those statements was made on 11 December 2007. That was the first occasion she told the police that she had watched the ET video at the appellant’s home at Para Hills. She was not told that it was a “pirate” or black market copy of the video and she had not watched it at the Rugby Club.
(iii) The complainant’s mother
The complainant’s mother recalled one occasion at the appellant’s house at Para Hills when they did watch the ET video. She thought there were a few couples present but was not able to say who they were. She said that she had previously seen ET at the movies. She said that the version she saw at the appellant’s house at Para Hills was a pirate copy. She said she was told this by the complainant’s wife. She recalled an occasion when her younger daughter played cards for the appellant when he left the card table to put his son to bed. She said that the card playing took place in the dining area and the children were put to sleep in the lounge room. She said she could see into the lounge room from her position playing cards if she leaned back on her chair, which she did to check on the children. She said that while her daughter played the appellant’s hand, she did see the appellant go into the lounge room and she then saw him lying on the floor with the complainant and his son.
The complainant’s mother had also given five statements to the police between 2003 and 2007. In the last of those statements she told the police for the first time that she watched the video ET on the occasion in question.
(iv) The complainant’s older brother
The complainant’s brother said he had been to the appellant’s home at Para Hills on perhaps six occasions. He remembered seeing the film ET and another film called The Warriors at the appellant’s house at Para Hills. He guessed that it might have been in the early 1980s. He said he was certain that he had watched ET at the appellant’s house but was unsure whether the video was hired from the video store or was a pirated copy. He said that although he had previously seen a bootleg copy of ET the copy he watched at the appellant’s home was not obviously pirated. In 2005 when he gave a statement to the police he did not tell the police that he had watched ET or any other film at the appellant’s house.
(v) The complainant’s father
The complainant’s father said he went to the appellant’s house at Para Hills three to five times after the appellant moved there. He did not recall the children playing cards on any of those occasions. Likewise, he did not recall the sleeping arrangements at the appellant’s house. He said he had seen the move ET, but had watched it on Foxtel at his own house. He did not recall ever seeing it at any place at which the appellant lived.
(vi) The complainant’s younger brother
The complainant’s younger brother recalled watching a movie about spiders at the appellant’s home. He had seen the movie ET but did not recall seeing it at any place at which the appellant lived.
(vii) The official release date of ET on video
An investigating officer was called to establish the details of the release of the movie ET. He provided evidence that the movie was officially released in 1982 in cinemas but not until October 1988 on video. He also gave evidence proving that the appellant’s property at Salisbury North had been transferred to the appellant and his wife on 7 September 1977 and that they had then transferred that to another owner on 28 November 1980.
(viii) The appellant
The appellant gave evidence that after moving out of the house at Salisbury, which was established to be in November 1980, the family moved to an address at Para Hills where they lived with the appellant’s mother-in-law for about one and a half years. He said that the complainant and her family did not visit them during this time. They then moved to some rental premises in Para Hills in 1982 and again he gave evidence that there were no visits by the complainant or her family.
The appellant gave evidence that it was in September 1982 that he purchased the house at Para Hills. He said there was a fold-up card table in the lounge room. There was an 8-ball table in the dining room and there was no room left for a card table. He said that he injured his foot in a work accident in 1982 and throughout 1982 and 1983 he remained home and used crutches for most of that time.
He remembered an occasion around Christmas in 1982 when the complainant and her family visited but he said they only stayed for a couple of hours. Some six months later they visited again and played cards but the appellant said he could not do that for more than an hour or so because of the pain in his foot.
He said that on this occasion the children were in the lounge room while cards were being played. In other words, his evidence was that the card table was in the same room where the children slept and only about four metres away from where the children were sleeping. He said that between 1983 and 1985 he did not own or rent the movie ET and he had never had a pirate copy of it in his possession. He said that no person ever brought the movie ET to his house to play.
He said that sometime later he had received a phone call from the complainant late one night in which she asked him if he had molested any other children yet. He said he answered “No” to that question and said if she wanted any money he did not have any and he said he then hung up. The complainant had earlier given evidence of this phone call which she said took place when she was approximately 16 years of age, so therefore about 4 years after the incident alleged in count 3.
The appellant agreed that there was a night in 1983 when the complainant, her sister and her brother and the appellant’s son slept on the floor in the lounge. He agreed that on that occasion he did take a break from playing cards and went and lay on the lounge, but denied that he lay on the floor at any stage. He denied that the complainant’s sister played his hand of cards on any occasion at Para Hills. He also claimed that it was not possible for the complainant’s mother to be able to look through from the kitchen area to the lounge room from any position in the kitchen/dining room area.
(ix) The appellant’s wife
The final witness in relation to the alleged events at Para Hills was the appellant’s wife. She said that when they moved into the house the 8-ball table was put in the family room which was just off the galley kitchen. She drew a plan of the house. She confirmed her husband’s accident at work.
She said that in 1983 they did have a video recorder and that she obtained videos from a video shop either at Ingle Farm or Para Hills. She said she had seen the ET movie on video and thought that it was at the Para Hills address. She said she probably got it from the video shop. She said she did not recall the complainant’s family being present when she watched the video. She said she had never had a conversation with the complainant’s mother in which she discussed the video being a pirate copy. She confirmed that the video of ET that she saw was from the video shop.
She said it was possible that the complainant and her sister and brother might have watched the video ET in 1983 at her house. She said she did not recall any card night after her husband had his accident. She said she had no recollection of any occasion when the children, including the complainant, were asleep or lying on the floor of the lounge room at Para Hills. She specifically did not see her husband lying on the floor and said he would have been unable to get up if he had laid down because of his injured leg.
It is quite clear from Ms Fuller’s comprehensive written outline, her summary of the evidence and her oral submissions that she relies very much on the circumstances surrounding the timing of the ET video for her argument. This is at the centre of both her argument on the weight of evidence and also the inconsistent verdicts. I will deal first with the argument on inconsistent verdicts.
Inconsistent verdicts
Ms Fuller submitted that the conviction on count 3 cannot logically be explained against the acquittals on counts 1 and 2. The dates of the alleged offences were not put forward as essential elements of the offences. She argued that there were deficiencies in the evidence given by the complainant in relation to all counts and that the timing of the events could not have been a significant point of distinction for count 3.
There was no evidence to identify the occasions by reference to some other event other than that the allegations all related to occasions when the complainant’s parents and the appellant and his wife were playing cards.
Ms Fuller referred to MFA v R (2002) 213 CLR 606. Gleeson CJ, Hayne & Callinan JJ said at [34]:
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
Footnotes omitted
In MacKenzie v The Queen (1996) 190 CLR 348 at 367, Gaudron, Gummow and Kirby JJ, in discussing the role of the appeal court in dealing with inconsistent verdicts, said:
4Nevertheless, 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.
Footnotes omitted
Ms Fuller submitted that, whereas the decision in MFA was explicable because there was evidence which corroborated the actual sexual conduct, in this matter there was only evidence which, at best, supported the opportunity as distinct from the actual conduct.
Ms Fuller dealt with the evidence relating to the “uncle” in relation to the second count. She submitted that any suggestion that he was the perpetrator, as distinct from the appellant, could not explain the acquittal on count 2. She submitted that the suggestion was linked to a remark made by the complainant in her first statement to the police. The complainant did say in her evidence that her “uncle” did come into her room, and had done so on one occasion in company with the appellant. The timing of that occasion is uncertain, as I have indicated earlier. Ms Fuller contends that no jury, properly instructed, could use the ‘uncle hypothesis” in the way the respondent suggests, namely, as an alternative hypothesis consistent with the innocence of the appellant.
The “uncle hypothesis”, however, may have had an impact on the jury. He was painted into the picture to the extent that it was suggested that the complainant might have been confused between which of two people was the perpetrator. The complainant was cross-examined about the occasions her “uncle” went into her bedroom. She was cross-examined on the same topic about what she had said when giving evidence in an earlier trial. She was specifically cross-examined as to whether it was in fact her “uncle” “who really did those things to you”.
Ms Fuller submitted that the acquittals on counts 1 and 2 could only have been because of a lack of cogent evidence. She submitted that it was no different for count 3.
The judge, however, did make it clear to the jury that there were differences by his reference to the limited independent evidence on count 3. Ms Fuller maintained that all counts suffered from the same deficiency, namely, the lack of confirmatory evidence as distinct from evidence simply of opportunity which was not disputed by the appellant. She submitted that the quality of the complainant’s evidence was no different on count 3.
The judge’s directions
The judge’s directions on independent evidence are relevant to both the ground of appeal relating to inconsistent verdicts and the new ground added at trial.
The relevant directions are set out in His Honour’s summing up at [33]-[36] inclusive:
[33]Having said that, let me say these things: first, there is some, but limited, independent evidence supporting [the complainant’s] account. That evidence that has the capacity to support her account is her mother’s evidence that she, on the evening the cards were played at Para hills, saw the accused leave the dining room table and, later, lying on the lounge room floor near [the complainant].
[34]There is also evidence from [the complainant’s sister] that the accused left the room for a time that night.
[35]Other evidence as to the video ET being shown that night does not directly support [the complainant’s] account of the incident. It may assist you in evaluating her credibility and that of her mother, her sister and her brother.
[36]So, as I say, there is limited independent evidence supporting [the complainant’s] account, and it goes to that third count.
His Honour is clearly instructing the jury that there is a difference in count 3. He said that this was because of what he terms “limited independent evidence” in support of the complainant’s version of events.
On the basis of the summing up, it is my view that the jury had a clear path to follow if they wished to compare and contrast the evidence led in respect of count 3 as distinct from the other two counts. As to the summing up, it is my view that the judge was correct in what he told the jury. There was limited independent evidence on count 3.
On count 1 the jury may well have found that a reasonable doubt existed because of the timing of the incident related to the evidence of the age or existence of the appellant’s son. Count 2, as I have indicated, was capable of being looked at from the point of view that there was a reasonable doubt as to the identity of the perpetrator.
It is easy to see why the jury could choose a different course in considering count 3 as compared to counts 1 and 2. I will analyse the circumstances of count 3 further when considering the ground of appeal relating to the verdict being against the weight of evidence. It is sufficient in dealing with the ground of appeal relating to inconsistent verdicts to say that the direction was fair and balanced, and represented the state of the evidence.
This is not a case, in my view, of which it can be said that the jury’s verdicts are “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”: see MacKenzie v The Queen at page 368. I would therefore dismiss the appeal on the basis of inconsistent verdicts.
The additional ground of appeal
As I have indicated it was as a result of that part of the summing up set out earlier that Ms Fuller amended the grounds of appeal to argue that the jury should have been directed that the independent evidence was evidence only supportive of the complainant’s account of the surrounding circumstances of count 3 and not evidence which could corroborate the alleged indecent assault. She argued that the jury should have been directed accordingly.
The judge’s direction was that there was limited independent evidence supporting the complainant’s account. As I have said, that is correct. His Honour then explains the evidence of the complainant’s mother and sister in that context. In my view there is nothing wrong with the direction.
The complainant said that the appellant moved from the card table and lay on the floor beside her. Her mother confirmed that. Her sister said that the appellant left the card table. The appellant agrees that he left the table and went into the lounge room. The evidence therefore extends beyond a general opportunity in that the jury had evidence that the appellant left the card table and was seen lying on the floor alongside the complainant which of course gave him a specific opportunity. He denied that he lay down on the floor.
It was a question for the jury as to how to evaluate that evidence, bearing in mind the limitations placed on it by the judge. I do not consider that it was necessary to direct the jury specifically as suggested in the amended ground of appeal. The nature of the evidence would have been clear to the jury, and the jury would have realised without specific direction that the evidence did not go to the detail of the actual offence as distinct from the surrounding circumstances.
I would therefore dismiss the ground of appeal added at the hearing of the appeal.
The weight of the evidence on count 3
In relation to this ground, the appellant must establish that it was not open to the jury on the whole of the evidence led for count 3 to be satisfied beyond reasonable doubt that the appellant was guilty of the offence: see M v The Queen (1994) 181 CLR 487 at 493. See also Jones v The Queen (1997) 191 CLR 439 at 443 per Brennan J.
In Libke v The Queen (2007) 230 CLR 559 Hayne J (Gleeson CJ and Heydon J agreeing) set out the test again at [113] as follows:
[113]… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
Ms Fuller referred to the evidence of the uncharged acts. She submitted that the acquittals on counts 1 and 2 require a conclusion that the jury was not satisfied beyond reasonable doubt of the uncharged offending and that it therefore did not play any part in its deliberations on count 3. Therefore, she submitted, count 3 must be dealt with in isolation from the other alleged offending.
Mr Hinton QC, for the respondent, disputed this proposition. He submitted that the apparent rejection of the evidence of uncharged acts does not mean there is no evidence which can be relied on for count 3. He instanced the relationship between the families, the regular card games, the children sleeping together, knowledge of the layout of the house and what parental vigilance there was, all amounting to an ability for the appellant to assess any risk involved.
There was a discrepancy as to the layout of the house at Para Hills. It was submitted to the jury that the appellant and his wife would have the best recall of the layout of their house. On that basis it was submitted that there was an inherent improbability of the complainant’s mother having the ability to see what she described. The jury had the plans drawn by the witnesses and heard their evidence. It really was a jury question. All the arguments now urged in this Court were put fairly and squarely to the jury.
The appellant gave evidence that in September 1982 he was involved in a work place accident in which his right foot was crushed by an 8 tonne frame. The appellant required hospitalisation for the injury and was incapacitated for approximately 18 months, for the remainder of 1982 and the whole of 1983. During this time, the appellant said that he spent most of his time lying on a couch in his home, with his foot elevated. He was given crutches to assist his mobility, and was unable to put weight on his foot.
The appellant’s evidence of his injury was supported by his wife’s testimony, and by his medical records that were tendered at the trial. The contents of these medical records were agreed facts. According to the appellant, at the time that count 3 was alleged to have occurred, he was still on crutches and was in considerable pain. The complainant was unable to recall the appellant being on crutches or appearing to have an injury to his foot or leg. The appellant’s wife said that he would have been unable to lie down on the ground next to the complainant because he would have been unable to get up due to his injury.
Ms Fuller submitted that the objective evidence of the appellant’s injury indicated that the inherent improbability of the conduct alleged in count 3 was actually greater than for counts 1 and 2, as it cast further doubt on the quality of the complainant’s evidence. Accordingly, in her submission the jury’s verdict on count 3 was against the weight of the evidence. Whilst this evidence does muddy the waters to an extent, the appellant did give evidence to the effect that he was off his crutches for approximately six weeks in around July 1983, and that the complainant and her family came around to his house at Para Hills to play cards approximately half way through 1983. It is possible that the jury came to the conclusion that the appellant was off crutches when count 3 occurred, or accepted the complainant’s evidence that she did not see the appellant walk around much, possibly because he was in pain.
In any event, I find that it was still open to the jury despite this evidence to conclude that the appellant was guilty. Again, it was a classic jury question.
Aside from her arguments on the uncharged acts, the details of the layout of the home at Para Hills and the injury to the appellant, the argument by Ms Fuller as to the weight of the evidence is almost entirely reliant on the inconsistencies about the ET video evidence, because, as Ms Fuller put it, the complainant made ET “such an essential part of her narrative”.
In addition Ms Fuller submitted that it was inherently unlikely that such an incident could take place where it did, over five to 10 minutes, and in the circumstances of the other three adults playing cards almost alongside the area where the complainant alleges the incident occurred.
Analysis of appellant’s wife’s evidence on ET
In relation to the ET video and the timing, it is clear that there are discrepancies and contradictions in the evidence. Mr Hinton says that the answer to the inconsistencies relied upon by the appellant is contained in the evidence of the appellant’s wife. I have re-read that evidence carefully. It is equivocal, in my view. Although I have given an overview of that evidence earlier, I will now set out a more detailed analysis because of Mr Hinton’s submission on the topic. He submitted that the appellant’s wife’s evidence showed that she watched ET on video at Para Hills prior to 1988. That is, she had access to it before it was officially released on video.
Mrs Smart was asked if she had ever seen the movie ET and she replied that she had and that she had seen it on video. When asked where she was when she watched the video she thought it was at the address at Para Hills. She said that she moved out of that address around September 1985.
She said she got the video from the video shop. She said that she had not seen ET at the movies. She was then asked again, “Did you watch ET on a video at Para Hills?” and she answered, “Yes”. She was asked whether the complainant’s family were at her house when she watched it and she said not that she could recall. She said she had never had a conversation with the complainant’s mother about having a copy of ET that was a pirate copy.
She said she understood what a pirate copy was and that the copy of ET that she watched at her house was not a pirate copy and that it was from the video shop. In cross-examination she confirmed that she got the video from the shop. She was asked whether it was a possibility that ET the film was played on a video cassette at her home in 1983 when the complainant’s family were there, and she answered, “No”. She repeated that she had only seen the movie once. She was asked again whether there was a possibility that it was played on another occasion and she had just forgotten about it and she said that she doubted that as she had only seen the movie once.
She then said that she supposed it was a possibility that the complainant’s family’s children came to her house in 1983 and that the children might have watched a video. She was asked whether it was a possibility that that video was ET and she answered that she supposed there was always a possibility.
It was put to her specifically that the video was played in 1983 at her home and that the complainant’s mother was there on that occasion, and she answered that the only time that the complainant’s parents came was when the appellant had his accident and she did not remember watching any videos on that occasion. She denied telling the complainant’s mother that she had a copy of the film. She denied saying it was a pirate copy. It was put to her that it was a dark copy and she said it was fine. It was put to her that she apologised to the complainant’s mother for how dark the film was, and she denied that.
As I have said, the evidence is equivocal. It may lend some support for the complainant’s version of watching ET on video at Para Hills when the complainant was present. It was however, clearly a matter for the jury.
Ms Fuller emphasised the release date of the video, the possibility of collusion between the complainant and her mother, the other evidence from the complainant’s sister, brother and father, and the failure to mention it in early statements to the police. These were matters which were emphasised to the jury.
I am not convinced that Mr Hinton is correct in submitting that the evidence of the appellant’s wife clears up all the inconsistencies surrounding the evidence on the topic. It does, however, as I have said, give some limited support for the complainant’s version. I do not believe that the evidence “neutralises” the position as suggested by Mr Hinton. Ms Fuller submitted in reply that the complainant only said she thought it was at the Para Hills address and denied seeing the video as a pirate copy or in company with the complainant’s family.
Conclusion
The evidence regarding the video is confusing and inconsistent in some respects. There is, however, some support for the complainant’s version, even though the dates cannot be explained. On the basis of the whole of the evidence on the video it is not possible to say that it was not open to the jury to find the count proved beyond reasonable doubt.
I remind myself of the words of the High Court in Libke, set out earlier in these reasons. I have concluded that it was open to the jury to be satisfied of guilt beyond reasonable doubt. In my view this is a case where, although there was material which might have caused the jury to hesitate, it was nevertheless not “sufficient to preclude satisfaction of guilt to the requisite standard”. Not without some hesitation, I would therefore dismiss the appeal on this ground.
I have concluded that permission to appeal should be granted on all grounds but I would then dismiss the appeal on each ground for the reasons stated.
WHITE J. I agree that the appeal should be dismissed. While the matters to which the appellant has pointed would have made a verdict of “not guilty” on Count 3 understandable, they are not, in my opinion, such as to indicate that the jury must have entertained a reasonable doubt about his guilt. I agree with the reasons of Anderson J.
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