21 IN THE COURT OF
CRIMINAL APPEAL
60387/98
SPIGELMAN CJ
WOOD CJ at CL
McINERNEY J
Wednesday, 24 February 1999
REGINA v DJT
JUDGMENT 1 McINERNEY J: The appellant appeals his conviction by a jury of three out of five charges with which he was indicted. The charges were: (1) indecent assault of a female under sixteen years between 1 November 1978 and 31 December 1978; (2) indecent assault of a female under sixteen years between 1 January 1980 and 15 January 1980; (3) use offensive weapon, a firearm, with intent to commit assault; (4) carnal knowledge of a stepdaughter between 1 January 1983 and 31 December 1983; and (5) indecent assault between 1 January 1984 and 31 December 1984 of a female under the age of sixteen years.
2 The jury convicted the appellant of counts 1, 2 and 5 and found him not guilty of counts 3 and 4.
3 The facts shortly are that the complainant, a young girl at the time, was born on 13 February 1970. Her mother and father separated when she was about two years old, and her mother then began a relationship with the appellant. When the complainant was five years old she and her mother and the appellant moved to an address at Holmesville.
4 The evidence from the complainant was that when she was about five years old the appellant began to enter her room late at night. Sometimes he would touch her on the vagina, sometimes he would lie naked on top of her and rub his body against her body and ejaculate and on other occasions she would have to perform fellatio.
5 The complainant gave evidence that such events took place close to four or five times a week. She also gave evidence that the appellant told her not to tell anybody, he threatened to kill her or her mother, she would be taken away and she would be in trouble. The appellant owned a shotgun, and the complainant gave evidence that he used the gun to scare her. He was found not guilty of that charge.
6 Count 1 related to an incident which occurred when the complainant was eight years old. The appellant had won a scooter in a Christmas raffle and he gave it to her as a present. That night the appellant entered her room and stood beside her bed. He was naked, and asked the complainant to kiss his penis. When the complainant complied with his request he grabbed the back of her head, inserted his penis into her mouth, and eventually apparently ejaculated. He told her not to say anything and that if she did he would kill her.
7 Count 2 related to an incident which occurred in January 1980. At the time the complainant’s mother was in hospital giving birth to the appellant's child who was born on 9 January 1980. The complainant was to be taken to stay with her grandmother, but, before she went, a further incident took place. It is very similar to the first count, and I do not think it is necessary to refer to it in detail.
8 The appellant was acquitted of the next count which related to an incident which the complainant said took place in 1982 when she was twelve years old. She was in a bedroom, the appellant called her into his room, he grabbed the complainant by the arm and threw her onto his bed. The appellant took a firearm from the top of a cupboard and put the barrel of it at the complainant's face. He asked her had she told anyone what he had done. She denied having told anyone. The appellant told the complainant that he was not afraid to use the gun and that he would kill her and her mother if she told anyone.
9 The fourth count, on which the appellant was acquitted, related to an incident which was alleged to have occurred during 1983. The appellant picked the complainant up after she had attended a ballet lesson at the Holmesville Community Hall. The appellant told the complainant that he was taking her for a driving lesson and drove to a back road which ran behind the West Wallsend Golf Course. The complainant sat on the appellant’s lap and steered the vehicle while the appellant operated the pedals. As the complainant was driving, the appellant touched her vagina. The appellant stopped the car and pulled his pants down to his knees. He sat the complainant back on his lap and resumed driving. The appellant pulled the leotard which the complainant was wearing to one side. He then pulled the complainant down onto his lap so that his penis was inside her vagina. The complainant gave evidence that she was in pain and that she was crying and screaming. She said that that was the only occasion on which the appellant had put his penis inside her vagina.
10 The last incident occurred in 1984 when the complainant’s mother was attending cooking classes at TAFE. She was absent from the house. The appellant played pornographic videos to the complainant, and again a similar incident took place.
11 The complainant, her mother and the appellant moved from the premises in 1985, and after a short time the complainant's mother asked the appellant to leave. The complainant gave evidence that she thought the appellant stopped touching her shortly before her mother asked him to leave. The appellant lived away from the complainant's mother for a period of about six months, during which time she moved out of the home.
12 The appellant denied on oath any impropriety with the complainant.
13 In respect to the fifth count it becomes clear that that related to an indecent assault, found by the jury to be established, on the complainant between 1 January 1984 and 31 December 1984, and was brought pursuant to the provisions of s 61E(1) of the Crimes Act. At the time of the alleged offence s 78 of the Crimes Act, which was subsequently repealed in 1992, provided that prosecutions for such an offence must commence within twelve months of the date of the offence if the female was aged between fourteen and sixteen. The prosecution in this case, of course, commenced many years later.
14 It appears from the Crown submissions that the Director of Public Prosecutions has a policy that notwithstanding the repeal of s 78 an accused should remain entitled to the twelve month limitation period where the offence had been committed prior to the repeal of the section. The jury were asked to consider a period, for a large part of which the complainant would have been fourteen years of age. At the time, s 78 of the Crimes Act, as I have said, required the charge to be laid within a period of twelve months from the commission of the offence and it could have occurred any time in 1984.
15 At any rate, the parties did not become aware of this, nor did the trial judge, until after the trial had completed and the jury had found the appellant guilty of this offence. It is now conceded that this charge will have to be quashed. See also Rodway v The Queen 169 CLR 515 at 518.
16 The second ground of appeal relates to counts 1 and 2 which occurred twenty and eighteen years ago respectively. No complaint was made until 1988. It is submitted that the complaint was the result of pressure and persistent questioning. It was common ground that such evidence was inadmissible as complaint but it was received as a prior consistent statement under s 108(3)(b) of the Evidence Act on the authority of R v BD (1997) 94 ACR 131.
17 There being no corroboration of the complainant's evidence, coupled with the appellant's difficulties in meeting such old allegations, it is submitted that the evidence should have been excluded under s 137 of the Act.
18 What occurred in this case was that before the trial proper commenced there was a discussion between counsel and the trial judge as to whether complaints that were subsequently made to the complainant’s husband in 1988 should be admitted pursuant to s 108(3)(b) of the Evidence Act.
19 The Crown submitted that in accordance with the terms of that section, it enabled the Crown to lead that evidence in chief if there was going to be an allegation that the evidence of the complainant was fabricated or reconstructed, deliberately or otherwise. The following is recorded at AB27:
"Crown Prosecutor: Clearly, your Honour, this is a case, and I think my friend would confirm this, that the defence will be that the allegations are fabrications or concoctions.
Mr. Graham: Yes, your Honour, I do confirm that.
Crown Prosecutor: And that in my submission leaves it open to the Crown, subject of course to your Honour giving me leave which is required under the section to lead evidence of a prior consistent statement which doesn’t have with it your Honour the requirement that it be a statement that was made when the event was fresh in the memory of the person who made the representation.”
20 His Honour then referred to the case of BD and indicated that he proposed to allow that evidence to be led. The evidence was in fact led in chief. The earliest of the charges occurred in 1978, and consequently any statement made years later cannot be evidence of complaint.
21 The complainant gave evidence in chief that when she left home she met a Mr Baxter, whom she subsequently married, and in about 1988 she told Mr Baxter certain things about the appellant. However, it was not until 1996 that she complained officially to the police about the offences.
22 Mr Graham, on behalf of the appellant, put to the complainant that she had fabricated the evidence for the purpose of monetary gain in that she had owed money to a building society and had been unable to repay that money and she made up these allegations of sexual interference in order to make a claim for victim’s compensation. In short, it was put to her that at about the time she made the statements to the police she was in financial trouble. She agreed she did have a loan, that she defaulted on the loan, and that she then made an application for victim’s compensation. She, however, maintained that it was after she had made her statement to the police, when she was egged on by her solicitor, that she then decided to make the application. She was asked (AB65):
"Q. Well, can you just tell us when it was amongst these statements? Was it after the statement of February '98?
A. February '98?
A. I don't know, I'm not sure, I think it was in '97, I'm not sure when it was put in.
Q. See, what I am suggesting to you is this, that the reason for your making these statements and the reason for your being here today is money?
A. Money, I owed the Newcastle Permanent $1000 or something. I'm not going to go through this for $1000. He is driving a kid’s school bus, that’s what made me go and see the police, my daughter’s school bus”.
23 The Crown then sought and was granted leave pursuant to the provisions of the section to lead evidence from the complainant’s ex-husband of the complaints that she made to him about what had happened to her and what offences had been committed on her by the appellant.
24 It is submitted by Mr Graham that this evidence was inadmissible and that it should not have been admitted pursuant to s 108(3)(b).
25 Hunt CJ at CL in BD considered the application of this particular section. He concluded that such material can be admitted in chief if, as the section says:
"The credibility rule does not apply to evidence of a prior consistent statement of a witness if
(a) (not relied on)
(b) it is or will be suggested, either expressly or by implication, that evidence given by the witness has been fabricated or reconstructed, whether deliberately or otherwise, or is the result of a suggestion and the Court gives leave to adduce the evidence of the prior consistent statement."
His Honour said:
"Leave is not required under subs 1 as it is under subs 3. It is, however, unnecessary to determine the admissibility pursuant to s 108(1) of the complainant's version.”
He then discussed certain matters that are not relevant.
"Thirdly, s 108(3) provides yet another basis upon which the evidence of complaint would have been admissible in any event. This time it is para (b) of the subsection which is relevant. The subsection was referred to in passing in this Court's decision in H. Such is the difficulty which the whole legal profession is still having in understanding fully the interaction between the various provisions of the Evidence Act, the full extent of the operation of s 108(3) was neither argued nor perceived in that case. It certainly requires a patient search to elucidate the various ways in which those various provisions do operate."
He said:
"Section 108 carries a subheading, 'Exception: Re-establishing credibility'. Subsection 1 expressly refers to evidence in re-examination. Subsection 2, however, does not refer to evidence in re-examination; it refers to evidence led to explain or contradict evidence which the other party has led attacking the credit of a person whose out-of-court statement has been admitted as first-hand hearsay but who has not given evidence. It would not therefore usually be evidence given in the re-examination of a witness. Nor does subs 3 expressly refer to re-examination. There is therefore no warrant for interpreting that section as relating only to the re-examination of a witness. To the extent that anything which was said in H has been understood as suggesting the contrary, it is necessary to make it clear that any such suggestion is wrong."
His Honour went on:
"The significant words in para (b) are 'will be' in the phrase 'if...it is or will be suggested'. Thus, if it is going to be suggested that the complainant has fabricated or deliberately or otherwise reconstructed her evidence of the sexual assault or that her evidence has been the result of suggestion, evidence of complaint which she made becomes admissible during her evidence-in-chief - subject only to the grant of leave. The need to rely upon s 108(3)(b) would arise only where the complaint was not already admissible pursuant to s 66. The grant of leave may perhaps in some cases depend upon the extent to which the evidence had failed to meet the requirements of s 66, but it should be unusual that leave would be refused."
26 Quite clearly, that is authority for the fact that if there is a suggestion that evidence is fabricated evidence can be led in-chief of a prior consistent statement.
27 Mr. Graham referred the Court to the High Court decision of Graham v The Queen delivered on 30 September 1998 and submitted that where there has been a delay in complaint, as there was here, consistent statements should not be admitted under s 108(3).
28 That case, however, is completely different to the present case. In any event, even if it would have been better if his Honour had not permitted this evidence to be led in-chief, in my view it was quite clearly admissible in reply in the Crown case to rebut the suggestion put squarely to the complainant in cross-examination that at about the time that she spoke to the police she had fabricated evidence in the circumstances to which I have referred.
29 The majority judgment of Gaudron, Gummow and Haine JJ noted in Graham (at 9):
"Although trial counsel for the appellant suggested to the complainant by his last question in cross-examination that she was making it all up, the allegation of fabrication of evidence did not loom large in the trial. No question was put and no answer was given from which the time of alleged fabrication could be identified."
Quite clearly that is a different set of circumstances to the circumstances with which we are dealing.
30 In my view, on the authority of BD, the evidence was clearly admissible in reply by the calling of Mr Baxter in relation to what the complainant had said to him some eight or nine years before she complained to the police. In my view therefore this ground must fail.
31 I should point out that in his directions to the jury the trial Judge made it quite clear that this was not evidence on which they could rely as to the truth of the statement. His Honour quite clearly directed the jury that they could not use it that way and there could have been no doubt in the minds of the jury as to the manner in which they could use such evidence.
32 The next ground of appeal is that the jury, having acquitted the appellant of the two counts to which I have referred, the verdicts are inconsistent and are clear evidence of compromise amongst the jurors. It is submitted that there is a clear inconsistency in the verdicts, that there was no discernible reason for this inconsistency, and that therefore there was a compromise and this Court should quash these convictions.
33 Whilst it is conceded that both the Crown and the defence submitted to the jury that their verdicts would be the same - either accept the complainant’s evidence or reject her evidence, be satisfied beyond reasonable doubt or reject it - his Honour nevertheless went on to direct the jury that in fact they were dealing with five separate cases. His Honour said (AB128):
"Each of these charges is being separately tried, but because the evidence is so similar or so connected that we are hearing them at the one time. As I said to you, though, that does not relieve you from the responsibility of giving each of those charges your independent consideration and making a determination in respect of each one, and that that determination must be unanimous before you can deliver a verdict on each of those charges."
His Honour went on:
"Both the Crown and the accused have addressed you on the basis that your verdicts will be the same, that you will either accept the complainant beyond reasonable doubt or that you will reject her evidence or not be satisfied beyond reasonable doubt. Technically, that is not true. You can, as I have said to you, determine in relation to any witness that that witness is either reliable or honest in respect of one part of the evidence, but is not honest or is not reliable in respect of another part. It may be in this case that you are generally satisfied that the complainant is telling you the truth beyond reasonable doubt. But it may be that you have a doubt about a particular incident, or a particular circumstance, or whether one of the particular allegations she makes in the indictment has been satisfied beyond reasonable doubt.
There is no legal requirement that you find all verdicts the same, even though counsel have both addressed you on that basis. Of course, if you have some doubt as to whether the complainant is generally telling you the truth, and therefore some doubt as to whether the accused did sexually assault her in the way she says that he did, then all verdicts would be the same, and you would find him not guilty."
Importantly, he said (AB130):
"Really this trial all depends upon the credit of the complainant. In other words, are you satisfied that, beyond reasonable doubt, that she was endeavouring to tell you the truth in relation to what she says happened to her? It really cannot be the case that she is mistaken."
Further:
"She may be mistaken about some particular incident, about some of the surrounding circumstances; she might be mistaken about when it happened, what year it happened; she may even be mistaken, I suppose, about when it was that the gun was produced, even though she says that she has some definite recollection of the time." 34 So the jury were enjoined to consider the case on that basis.
35 The allegation in respect to the assault with the gun was said to have taken place over a very wide period of time between 1 January 1982 and 31 December 1982 at Barnsley. It was put to the complainant (AB46):
"Q. Now you started going to the West Wallsend High School in 1982, is that right?
A. (no verbal reply).
Q. I think you made friends with a particular young lady, Kelly McGregor?
A. Yes, that's right, Kelly McGregor.
Q. Around about that period of time did you have any reason, or was there any occasion that you saw this firearm that the accused owned? I'm talking around about this period of time, that is?
A. Yes.
Q. Where were you when you saw the firearm?
A. In the - he pulled me into his, like his room.
Q. How did he get you into the room?
A. He called me in a couple of times and I sort of didn’t respond and then he got really angry so I went in there.
Q. Was your mother home?
A. No.
Q. Could you tell us now whether this was during the day or during the evening?
A. I think it was during the day.
Q. During the day?
A. Yeah.
Q. When you got into the bedroom what happened when you got in there?
A. He grabbed me by the arm and chucked me down on to the bed.
Q. Chucked you on to the bed?
A. And pulled his gun down from the top of the cupboard, his cupboard.
Q. Yes?
A. And put it in my face.
Q. And put it in your face?
A. Yep.
Q. Now what part of the gun did he put in your face?
A. The barrel.
Q. How was he holding the thing when he put it at your face?
A. How you hold a gun, like, he had a gun at me face.
….
Q. How close to your face was the gun?
A. It was right in my face, right in my face.
Q. Can you recall now whether this had a single barrel or whether it had two barrels?
A. I’m not sure.
Q. Did he say anything to you when he brought it down off the wardrobe?
A. He asked me who I’d been telling, you know, what he’d done and what I’d been saying.
Q. Yes?
A. And I tried to tell him, ‘Nothing I haven’t been telling anyone. I haven’t said anything to anybody’.
Q. Yes?
A. And he said that I knew he had the gun and he wasn’t afraid to use it and he would use it, to know that he’d use it, he would kill me and he’d kill my mum if I told anybody.
Q. How did you feel when he was pointing this thing at you - and saying those things?
A. Terrified.
Q. You were then, what, 12 years old?
A. Yeah. Can I please have a tissue?”
36 It is clear that the complaint was unsure when this incident occurred.
37 In cross-examination it was put to her that there was no occasion when a gun was pointed at her. She disagreed with that. She was asked (AB62):
"Q. He did have a shotgun, I suggest, but he had got rid of that before 1982?
A. So he tells you, and even if he did get rid of his gun, that doesn't mean he didn't have another gun in the house. He used to go shooting all the time."
The appellant gave evidence about this particular weapon (AB104):
"Q. Did you own a shotgun?
A. I did at one stage, yes.
Q. When did you get it and when did you--
A. I'm not sure of exact date I bought it. I got me licence in '77, that was about a fortnight after those two young policemen were shot out at Toronto at that time.
Q. Yes?
A. And I got rid of that particular gun, so I didn't have it very long, it was only a single shot, and then I bought a Winchester slide action from Hunter Sports Stores at Mayfield.
Q. Do you know which one?
A. Hunter Sports Stores.
Q. Did you keep that for a while?
A. I don’t know exactly when I sold it. I only know who I sold it to.
His Honour: Q. When did you purchase that weapon, do you know?
A. That particular weapon I’m not sure.
Graham: Q. Who did you sell it to?
A. I sold it to Hunter Sports Stores, but the bloke who bought it off me on behalf of Hunter Sports Store was named Phil Mosner.”
38 It turns out that the name of the person was Phillip Mason who swore an affidavit that was read to the jury (AB105). Mr. Mason agreed he was employed by the Hunter Sports Supplies store as a sales manager in about 1971. Hunter Sports Supplies was a large sports store that dealt with sporting goods, fishing, shooting and archery. He was a sales manager. He said in his capacity he bought and sold guns on behalf of Hunter Sports Supplies. He left Hunter Sports Supplies in either 1979 or 1980 and went to work for Highway Ford at Rutherford. During the time he worked there he sold between ten and fifteen guns per week. He said:
"I have no recollection, no specific recollection of purchasing a gun from DT, but I may have done so."
39 The trial judge directed the jury that they may have doubts as to when some of these incidents took place because of the vagueness of the evidence of the complainant. When one allies that with the fact that the appellant said he had sold the weapon well before this incident is alleged to have occurred, the jury could have had a doubt about when this incident took place. In my view, it was clearly open to the jury, even accepting the truth of the complainant’s assertion that the incident took place, to have had a reasonable doubt about when it took place and thus be not satisfied that the Crown had proved the charge.
40 In those circumstances, whilst they could have been satisfied that a weapon was pointed at the complainant at some time, they could not have been satisfied that it was at the time alleged by the complainant.
41 The second matter argued by Mr Graham relates to the charge of carnal knowledge of the complainant whilst she was under the age of sixteen years. Mr. Graham submitted that the complainant gave very precise evidence and that the jury, in finding the appellant not guilty of that charge, must have rejected her version and so damaged her credibility that the only conclusion is that this was a compromise verdict and the other counts should be quashed.
42 This incident stands in stark contrast to the other charges alleged against the appellant. This was the only occasion when the complainant alleged there was penetration of her vagina by the penis of the appellant. It took place in rather strange circumstances where she had been attending ballet lessons and the appellant took her for a drive, giving her what was described as a driving lesson, when she was seated on his lap steering the car whilst he was operating the foot controls. She said she was wearing a ballet leotard and he was touching her “on the outside for a little while”. She said (AB43):
"A. We pulled over, I got out, and I thought that I was going to get to go and sit in the passenger seat, and he told me just to hold on a minute, and he pulled his pants down to his knees and sat me back onto his lap and we started driving again.
Q. Was he wearing underpants?
A. No.
Q. After pulling his pants down and sitting you on his lap where were your legs in relation to his legs?
A. I suppose I was sort of in the middle of his - on his lap with my legs sort of down the middle of his legs. He had a leg either side.
Q. Were you actually sitting on his lap or on the seat?
A. On his lap.
Q. On his lap okay. And did you feel anything when you were sitting in that position?
A. Yeah I could feel his penis getting hard.
Q. Where did you feel his penis, whereabouts?
A. In me bottom.
…
A. We pulled over again and he sort of picked me up around my waist and he pulled me hard down on to his penis so his penis was inside my vagina.
Q. What state was his penis in then?
A. It was hard. And it - it hurt really really hurt.
Q. Did you have your back to him then?
A. Yeah.
Q. And it really hurt. I think I know what you mean by that, but where were you feeling the pain?
A. In my vagina, it hurt.
Q. How long, if you can say, was his penis in your vagina?
A. A couple of seconds."
43 Mr Graham also referred to the fact that the complainant said that later on when she pulled her leotard off and she put her hand underneath her vagina there was some blood on it. It is submitted that she was quite definite about the fact that there had been penetration of her vagina by the appellant. Further, Mr Graham referred to the fact that she was an adult at the time she gave evidence. It should be remembered, however, that at the time the incident occurred the complainant was thirteen years of age.
44 In my view, despite her belief at the time that there was penetration of her vagina by the appellant, having regard to her age, it was open to the jury, whilst accepting that an incident took place, to be not satisfied beyond reasonable doubt that there was penetration of the vagina. It is common experience that young girls do make mistakes about whether actual penetration has taken place. I note it was not left to the jury that if they were not satisfied that penetration had occurred they could find the appellant guilty of a lesser offence.
45 It is for the appellant to satisfy this Court that the verdicts cannot stand together and that no reasonable jury, properly applying its collective mind to the facts, could have arrived at those verdicts: R v Hunt (1968) 2 QBD 433 at 438.
46 An appellate court will only interfere in such a case where there is no way to properly reconcile the verdicts said to be inconsistent. The caution which this Court should adopt before ordering a new trial on this ground has been stated as follows:
"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."
(See McKenzie v The Queen 71 ALJR 91 at 100.)
47 An alternative approach is for the appellant to show that there is no rational distinction between the acceptability of the evidence on counts 1 and 2 and that of the evidence on counts 3 and 4. See R v Crisologo (unreported, NSW CCA, 12 December 1997) at 9.
48 As I noted earlier, his Honour directed the jury that each count must be considered separately. He directed the jury that they may be generally satisfied that the complainant was telling the truth but that they may have a doubt about a particular circumstance or allegation and when the incident occurred. In particular, I have referred to his Honour’s comments at SU9.5 and to the evidence of the appellant.
49 I am of the opinion that the jury, in respect to the charge of carnal knowledge, could have had had a doubt about the question of penetration.
50 An examination of the material in this case has not led me to conclude that the verdicts are inconsistent. In my view, there was a rational explanation for the manner in which the jury delivered its verdicts.
51 In the circumstances therefore I would propose that the appeal should be dismissed. Because of the situation that I have referred to, I would propose that count 5 should be quashed but that the appeal in respect to counts 1 and 2 be dismissed.
52 SPIGELMAN CJ: I agree.
53 WOOD CJ at CL: I also agree.
54 SPIGELMAN CJ: The orders of the Court are that the conviction with respect to count 5 is quashed, otherwise the appeal is dismissed. |