Regina v Watkins
[2000] NSWCCA 76
•29 March 2000
CITATION: REGINA v WATKINS [2000] NSWCCA 76 FILE NUMBER(S): CCA 60429/99 HEARING DATE(S): 16 March 2000 JUDGMENT DATE:
29 March 2000PARTIES :
Kenneth William Watkins - Appellant
Crown - RespondentJUDGMENT OF: Sheller JA at 1; Hulme J at 33; Dowd J at 34
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/61/0156 LOWER COURT JUDICIAL
OFFICER :Latham DCJ
COUNSEL : W Washington - Appellant
M C Marien - CrownSOLICITORS: Mark Rumore - Appellant
S E O'Connor - CrownCATCHWORDS: CRIMINAL LAW - Miscarriage of justice - Verdict unreasonable and unsupported by evidence - Where complainant's evidence wrong in relation to when offences committed and where significant feature of occasion in which offences committe wrong - Where trial Judge directed jury to return same verdict on every count - No direction that each count could only relate to one event - Possibility of conviction for matter not charged LEGISLATION CITED: Crimes Act 1900 CASES CITED: M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439DECISION: 1. Appeal allowed; 2. Sentences quashed; 3. Direct that a judgment and verdict of acquittal be entered in respect of each count of the indictment.
IN THE COURT OF
CRIMINAL APPEAL
60429/99
SHELLER JA
HULME J
DOWD JWednesday, 29 March 2000
REGINA v Kenneth William WATKINSREASONS FOR JUDGMENT1 SHELLER JA: This appeal was heard on 16 March 2000. At the end of the argument, the Court made orders allowing the appeal and quashing the convictions and directed that a judgment and verdict of acquittal be entered in respect of each count in the indictment.
2 The appellant was indicted on six counts under s61D of the Crimes Act 1900 of sexual intercourse with a person under 16 years without her consent knowing she was not consenting thereto. In respect of each charge the complainant was the same person. The offences were charged in the indictment as having occurred between 1 May 1983 and 31 October 1984 when the complainant was aged between 10 and 12. The appellant was tried before Latham DCJ and a jury of twelve at Mudgee District Court. The trial began on 24 March 1999. On 25 March the jury returned verdicts of guilty on all six counts. On 23 July 1999, Judge Latham sentenced the appellant on each count to a concurrent sentence of two years penal servitude comprising a minimum term of 18 months and an additional term of six months. The minimum term began on 23 July 1999. The appellant has been in continuous custody since that date.
3 The appellant appealed against all six convictions. The ground of appeal was that the verdicts were unreasonable and could not be supported having regard to the evidence.
4 The test to be applied by this Court in determining this appeal on the ground relied on is whether the Court thinks, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty; see M v The Queen (1994) 181 CLR 487 at 492-4 and Jones v The Queen (1997) 191 CLR 439 at 450.
5 To that statement of principle the High Court has added in those cases important pre-requisites. The question posed is not to be answered “merely by examining the transcript of evidence and the exhibits” (Jones at 451). The Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations. In Jones at 451 reference was made to M v The Queen at 494 and the explanation given of the test:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
6 Not surprisingly the Crown’s only witness of the commission of the offences was the complainant. She described the move her family, which consisted of her mother, a brother and a sister, made from Narrabri to Mudgee in 1983. In her evidence in chief, given nearly 16 years after the event, she said that the move took place in about May. The family went to live in a flat in Horatio Street. A few weeks after the move, the complainant was enrolled at Mudgee Public School in year 5. The Crown evidence established beyond any doubt from school records that the complainant first attended at Mudgee Public School on 15 August 1983.
7 Once at the school, the complainant made friends with Michelle Watkins, the daughter of the appellant. As well he had two sons. The appellant and his family lived in a house directly across Horatio Street from the flat in which the complainant and her family lived. According to the complainant, the friendship was formed within a few days of her starting at Mudgee Public School. About a month later, she stayed over night at the Watkins’ house and came to know Michelle’s parents, the appellant and his wife. Thereafter she stayed on more than six occasions.
8 When she stayed at the Watkins’ house, she slept in the same bedroom as Michelle which was next to Mr and Mrs Watkins’ bedroom. In Michelle’s bedroom were double bunks. Michelle occupied the lower bunk, the complainant the upper bunk, which was at right angles to Michelle’s.
9 The complainant gave evidence about the occasion of the first offence charged as follows:10 The complainant then gave evidence about the next two occasions she stayed but in reverse order. The evidence was as follows:
“Q. You say you stayed there for the first time about a month after you started school, is that right? A. That’s right.
Q. Did you stay there on another occasion after that? A. A couple of weeks later I stayed. We were going to soccer, it was a Friday night.
Q. Now could you just tell the court what you remember about your visit on that second occasion? A. On the second occasion?
Q. Yes? A. It was a Friday night. I remember this because we go to soccer on the Saturdays with the Watkins family. We had - we just did normal things, we had dinner, watched TV, went to Michelle’s room. Mrs Watkins would come in about 8.30, 9 o’clock, we’d have to turn the light off, it was bedtime. During the middle of the night - do you want --?
Q. Yes, just tell us what happened? A. During the middle of the night Mr Watkins came in. I guess it’s the middle of the night because I’d been asleep. Now, the room was dimly lit, we think it was a street light because there was no light in the room so I could see the outline of his face, he’s got a - he had beard which you could see the outline of, he smelled of very strong tobacco smoke. I woke up because he had - I woke up with his - had his hand down the front of my flannelette pyjama pants, he was rubbing my vagina. He then told me to be quiet or he’d hurt me which he told me over and over. He put one or two fingers in my vagina which hurt. It seemed to go on for about 20 minutes or it just seemed like a long time. He then, when he was finished would pull the blankets up around my neck and leave the room and in the mornings he would come into the kitchen and say, on every occasion, he would say ‘I had to come in and pull the blankets up on you last night’ and I guess he just did this.”
The complainant said that the following morning she went to the soccer.
11 The complainant was then asked about the occasion of a fourth offence after the goldpanning weekend.
“Q. Did you go and stay with Michelle after that? A. Yes.
Q. And how long after that occasion? A. Sometime later, I can’t - could have been 2 or 3 weeks, it wasn’t that long.
Q. And do you remember what night it was? A. Saturday night.
Q. And what happened on that occasion? A. We stayed on a Saturday night because we were going goldpanning at Hill End on the Sunday. We just did normal things, we were just kids, we watched TV, we had dinner, we went into Michelle’s room. Her mother came in about half past 8, 9 o’clock and told us - we turned the light off, it was bedtime and during the middle of the night Mr Watkins came in. He - I felt his hand down the front of my flannelette pyjama pants, he was rubbing my vagina, he put one or two fingers inside me which hurt. He frightened me. He told me to be quiet. He told me I couldn’t say anything or he’d hurt me. When he was finished he left. He pulled the blankets up. The next morning he’d come into the kitchen and say ‘I had to pull the blankets up on you last night’. There was always someone in the kitchen.
Q. But in between the second occasion when you stayed there when you went to the soccer and the Hill End visit if I could call it that? A. Mmm mmm.
Q. Was there another occasion when you stayed in between those two? A. There was, there was another soccer occasion so it was a Friday night, which very much the same thing happened.
Q. As you’ve described--? A. Yes.
Q. --on the other two occasions? A. Yes.
HER HONOUR: Q. I’m sorry, was this in between --? A. The first and the second.
Q. So in between the first time it occurred and the time that you just related when you were going goldpanning at Hill End there was an occasion in between those two was there? A. That’s right.
CROWN PROSECUTOR: Q. And was that in between occasion on a Friday or a Saturday? A. Yes, in between was a Friday.
Q. Take your time about the matters. Now if we could go back, you’ve just given some evidence about the weekend that you went goldpanning? A. Goldpanning, yeah.”
12 The complainant described the occasion of the fifth charge as follows:
“Q. Did you stay again after that time? A. After goldpanning?
Q. Yes. A. Yes.
Q. And do you remember how long after that? A. That’s sometime later.
Q. And what makes you remember that, was there a particular activity you were going to do? A. We went to Dubbo because we were going to soccer.
Q. And do you remember whether you stayed over on a Friday or a Saturday on that occasion? A. Friday night.
Q. And what happened on that occasion? A. That occasion, very much the same, we watched TV, we had dinner, we went to bed, it was during the middle of the night, he came in the room, dimly lit. I know it’s - I mean I know it’s him because of his - you could see his face, because I was on the top bunk. He smelt of strong tobacco smoke. I could feel his hand down the front of my pyjama pants. He was rubbing my vagina, he put one or two fingers, he’s threatening to - he hurt me if I told anyone and to be quiet.
Q. And how long did that incident go on for? A. It seemed like 20 minutes - but it could have been longer and I was very sore inside.
Q. And did anything happen the following morning? A. The same, he came into the kitchen. He said he had to come and cover me up last night. There was always someone in the kitchen.
Q. Did you end up going to the soccer in Dubbo on the following day? A. Yes that’s right, I went to the soccer and then went home as usual. I didn’t say anything, I didn’t tell anyone. I thought it was my fault.”
13 The occasion of the sixth offence was described as follows:
Q. And did you go back and stay with them, Michelle, after that? A. Yes.
Q. And when was that? A. It was on a Saturday night. I remember this because we had Sunday lunch.
Q. And do you know how long that was after the Dubbo soccer? A. A few weeks - it wouldn’t have been - a few weeks, like 2 to 3 weeks.
Q. So this time it was a Saturday night? A. Mmm mmm.
Q. And what happened on that occasion? A. The same. We had dinner, watched TV, went to Michelle’s room, the lights were turned off at 8.30, 9 o’clock, Mr Watkins came in during the night. I’d been asleep. He had his hand down the front of my pyjama pants and rubbed my vagina, he put his fingers inside me. He told me to be quiet or he’d hurt me and frightened me.
Q. And did anything happen the following morning? A. The same in the kitchen. He’d come in, told me he had to come and cover me up last night and there was always someone there when he said it.
Q. So that was the Sunday lunch incident? A. Mmm mmm.
Q. Was that the first time you’d been there for Sunday lunch or had you been there before? A. Yes, that I remember, yes. That’s the first time I’d stayed and then had Sunday lunch.”
“Q. Now, after that, after that Sunday lunch incident, did you go and stay again? A. Yes, I went and stayed on another Saturday night, a few weeks later, for Sunday lunch. Exactly the same happened again. We watched - do you want me to say it again?
Q. Well, it was in almost identical terms to the previous occasion, is that right? A. Yes, that’s right, yes.
Q. And what about the following morning? A. The following morning he came into the kitchen, said he had to come and cover me up last night. There was always someone in the kitchen and that he’d, [sic] why he’d been in to me.
Q. And in fact on all those occasions that you’ve just given evidence about, did he cover you up with the blankets when he came in? A. I remember him covering me up a couple of times. I don’t - I just - I was probably that frightened that I couldn’t remember him covering me up every time.
Q. Now on all of those occasions that you’ve given evidence about him touching you in this way, was Michelle there in the bedroom? A. Yes.
Q. And where was she? A. On the bottom bunk.
Q. Did you ever speak to her either immediately before or immediately after this happened? A. No.
Q. Did you notice whether she appeared to be awake or asleep? A. I didn’t look. She slept up the other end of the double bunks. She slept on the bottom, head up this end - I had my head up this end so I didn’t look.”
14 According to the complainant’s evidence and using the date she enrolled at Mudgee Public School as the starting point, the first offence was committed in the later part of September 1983, a couple of weeks after the first occasion she stayed in the Watkins’ house, which was about a month after she started school. She said that the third offence on the goldpanning weekend occurred two or three weeks after the first offence. The second offence occurred in between the first and the goldpanning weekend and was another soccer occasion. The fourth offence was “some time later”. The complainant remembered it because there was “a particular activity” she was going to do. They were going to Dubbo to the soccer. The fifth offence occurred “like” two or three weeks “after the Dubbo soccer”, that being the Sunday lunch weekend, and the sixth offence a few weeks after that.
15 The complainant was asked whether after these six specific occasions she had gone to stay at the Watkins again. The complainant gave the following evidence:
“Q. Now, after those specific occasions that you’ve given evidence about, did you go and stay at the Watkins again after that? A. Only, only during the day time, I became very frightened of Mr Watkins. I’d stay in the daytime when Mrs Watkins was home and--
Q. Well could I just go back a bit. You’ve given evidence of six specific times when Mr Watkins touched you? A. Yes.
Q. Did you continue to stay overnight after that for a short period of time? A. Yes I did.
Q. Or for any period? A. I did but I can’t give dates and specifics because it all become very much the same after that so yes, I did stay after that until the point where I did get very frightened and not go back.
Q. Now on these other occasions after that did anything happen with Mr Watkins? A. The same. Exactly the same as what has happened the first six times.
Q. And is that on every occasion that you stayed? A. Yes.
Q. Now you say there came a point when you stopped going to stay? A. Yes. I was older.
Q. Can you fix that in terms of a month that it might have occurred or anything that would bring to your recollection? A. I think it was 1984.
Q. Any particular month? A. In the October, because I was 12.
Q. And is there any reason why you remember October? A. My birthday, it’s my birthday.
Q. Now, 1984, was that your last year of primary school at Mudgee? A. Yes. Yes, year 6 I was in.
Q. And you were still friendly with Michelle were you, at that point? A. Yes
Q. And did you keep friendly with Michelle during High School? A. Yes.
Q. Did she go to the same High School as you? A. Yes.
Q. And was that in 1985? A. Yes.
Q. Did you ever go and stay at Michelle’s place in 1985 when you were in High School? A. No.”
The complainant did not tell anyone about the appellant’s conduct until 1996.
16 The evidence was of six specific occasions, which the complainant described as “the first six times”. These six occasions were the occasions of the six offences charged in the indictment beginning in late September 1983 and continuing at intervals described as two or three weeks later or some time later or a few weeks later. The occasions of the first, second and fourth offences were soccer weekends, the first and second at no specified place, the fourth at Dubbo. The time of the fifth occasion was related back to the Dubbo soccer. The evidence was that, after those six specific occasions, on each occasion that the complainant visited the house over night the same thing happened as had happened the first six times until she stopped going to stay there in October 1984.
17 The appellant gave evidence denying the charges and denying sexually interfering with the complainant in any way. The appellant tendered the proposed 1983 competition schedule for Central Orana Junior Soccer according to which the first round was on 26 March and the grand finals on 20 August 1983. He said that 1983 was his first year as coach of Central Orana Junior Soccer at Dubbo. In accordance with the schedule, the competition finished on 20 August 1983 just before the school holidays began. He was involved with a team called the Mudgee Bulldogs in Mudgee which played in the Central Orana Junior Soccer competition. The team used to travel to Dubbo every other weekend and the Dubbo teams travelled to Mudgee every other weekend. The competition was controlled from Dubbo. The appellant gave the following evidence:
“Q. So by 1984 both your sons were playing soccer, is that right? A. That’s correct.
Q. So, the Mudgee Bulldogs? A. Yes.
Q. And they were in the Central Orana Junior soccer competition? A. That’s quite correct.
Q. And was that similar to the ’83 competition schedule, going from March through to the end of August? A. Sometimes, yeah. Unfortunately, these days, they don’t stick by the winter and summer competition times. In those days winter competition started on 1 April and finished on 31 September and summer started on 1 October and finished on 31 March. Now they do anything.
Q. Now in 1983 and 1984, did you and other members of your family - were you in the habit of going to the soccer quite frequently, every week or thereabouts? A. Well I had to, I was the coach.
Q. And did Michelle go along as well? A. Not in 1983. Michelle played netball in 1983.
Q. What time of day were the soccer matches in 1983? A. The soccer was always played at 1 o’clock on a Saturday afternoon.
HER HONOUR: Q. Mr Watkins, can I just clarify something. A minute ago you said the winter competition was between 1 April and 31 September, is that right? A. Yes, that’s what it used to be.
Q. And there was a summer competition as well? A. No, no. The summer sport, which was cricket, started on 1 October and went through to 31 March.
Q. I see, what, so did your sons play cricket did they, in the summer? A. No, no, no. They went swimming.
Q. So you’re just saying that there was some other summer sport? A. Well I’m just saying as the year used to be split up. Now they play football at Christmas time and all the rest of it.
Q. I just thought you said that it was a summer competition. I thought you were talking about soccer but you weren’t talking about soccer? A. No no, just as the years split up your Honour.”
18 At no stage did the prosecution suggest to Mr Watkins or to any other witness that his family took part in soccer either as players or spectators after the competition finished on 20 August 1983 and before it resumed after March 1984.
19 As well as giving evidence himself, the appellant called as witnesses his wife, Mary Watkins, and his daughter, married by the time of the trial, Michelle Roberts. They gave evidence that Michelle was a “light sleeper”. Mrs Watkins said that she did not sleep much at all at night because she was a chronic asthmatic: “…..when I’m on prednisone you can’t sleep.” She gave the following evidence:
“Q. Was a medication that you were taking to assist you in the treatment --? A. --- One of the medications, yes.
Q. And accordingly you didn’t sleep very well? A. No, no.
Q. Now Michelle’s room was next door to your room? A. Yes.
Q. And could you hear, for instance, Michelle walking in her room at night? A. Yes, it’s floorboards, wood.
Q. And what sort of wall between you and her room? A. I’ve forgotten the name of it, it’s like that chalky stuff.
Q. Gyprock? A. Gyprock, yeah.
Q. Well, in 1983 and 1984, did you hear anything - any strange noises emanating from your daughter’s room? A. No.”
20 As counsel for the appellant, Mr Washington, pointed out in his submissions, three of the occasions on which the complainant said an offence was committed were linked by her to soccer the next day, on one occasion at Dubbo. Pressed in cross-examination about this, the complainant said that she knew the sexual assaults took place between 1983 and 1984. “I can’t remember a month, that was what I thought it was, so yes, I remember incidents rather than dates” and later in cross-examination “I don’t have any trouble recalling details of what he did. I have trouble with what month it was.”
21 In the indictment, each of the six offences charged was alleged to have occurred between 1 May 1983 and 31 October 1984. The complainant, when she first gave evidence, linked all the offences to May 1983 when she said the family had moved to Mudgee shortly after which she had started at Mudgee Public School. When she gave evidence, the complainant’s mother, who said the move to Mudgee was in July or August 1983, confirmed that the complainant had started school “fairly shortly” after they arrived in Mudgee. The complainant, from the starting point in May 1983, gave her evidence about the occasions of the six offences charged. Had that remained her evidence, it was consistent with the evidence about the Central Orana Junior Soccer competition season for 1983. On the weekends of three of these occasions, members of the Watkins’ family could have been taking part as coach, player, or supporters. But once it was incontrovertibly established that the complainant did not start school in Mudgee until 15 August 1983, there was no reason to suppose that, on the occasions that she described, any member of the Watkins family would have been so engaged. The complainant’s evidence was shown to be wrong not only as to the time of year when the offences were committed, but also as to a significant feature of the occasion as she remembered it.
22 Moreover, the way the prosecution case was presented resulted in confusion which, no doubt, led the trial Judge, when sentencing, to say:
“There was some confusion as to the dates upon which these incidents were said to have occurred. On the complainant’s evidence, the first incident after which she attended the soccer match with the Watkins family would have occurred about six weeks after she started school. This would be some time around the middle of October 1983. However, there was clear evidence that the final soccer match for 1983 in the Central Orana Junior Soccer competition, the competition in which the prisoner’s sons participated, was played on 20 August 1983. …
I can only conclude that the jury accepted that the incidents prior to soccer the next morning occurred within the scope of the dates encompassed by the indictment, but not at the time identified by the complainant. To put it another way, the jury must have accepted that the incidents prior to soccer attendance occurred some time after March 1984 when the new competition had started, but before 31 October 1984.”
23 I would comment that on the evidence the first incident would have been late September 1983 rather than mid-October but that does not detract from the significance of what the Judge said.
24 The complainant gave evidence of the six offences charged in chronological order. That was the Crown case on the evidence. If the jury convicted the appellant on the first charge for an offence committed, not when the complainant said the offence charged occurred, that is, when members of the Watkins family were taking part in soccer at the weekends and within a matter of some six weeks after the complainant started at Mudgee Public School, but on some other occasion after March 1984 and presumably after, or possibly after, other offences, such as those on the goldpanning weekend and the Sunday lunch weekend, this could only be on the basis that the jury entirely rejected the complainant’s evidence about when the first offence charged was committed. The same can be said of the three other offences which the complainant related temporally to soccer.
25 The trial Judge gave no assistance to the jury in summing up about these possibilities. Her Honour said this about the six counts in summing up:26 Later in the summing up, Judge Latham said:
“Now I remind you that there are six counts in the indictment and that you must consider each count separately. You will recall that at the beginning of the trial I said that if you should find the accused guilty of one count it did not necessarily follow that you would find him guilty of all counts and vice-versa. However, it is clear that the Crown case relies entirely upon your acceptance of the complainant as a witness of truth so that I would suggest that if you were to reach a particular verdict on one count your verdicts would be the same on every count. I say that because there is nothing to distinguish one count from another in that there is nothing independent of the complainant’s evidence in respect of each count so as I said you might think that the Crown case stands or falls, that is the whole of the Crown case as to the six offences, stands or falls on your assessment of the complainant as a witness of truth.”
“Before I leave that just let me say something about the time and the place. Each count in the indictment is expressed to be between 1 May 1983 and 31 October 1984 at Mudgee. Now I know that Mr Dalton has said certain things to you about the span of dates in the indictment but what I would suggest to you is that the accused’s case here is, ‘well look this did not happen at all, it just never happened.’ It is not really a matter of any great moment that it occurred, according to the Crown, between 1 May 1983 and 31 October 1984 at Mudgee. We know it was at Mudgee but as to the dates the accused is simply saying ‘well look it just didn’t happen at all’.”
27 Her Honour did not mention that the complainant’s evidence that the offences charged were committed some weeks after her arrival in Mudgee in May 1983 was incontrovertibly shown to be wrong, and that even if the time frame was changed to a date beginning in August 1983, there was uncontested and compelling evidence that the complainant was wrong when she said that on three of the occasions she identified, she and members of the Watkins family went to the soccer. Bearing in mind the degree to which the complainant’s evidence of the offences was linked to weekend soccer, that threw doubt on her account of the commission of those three offences and the offence next after the Dubbo soccer weekend. Yet the trial Judge suggested to the jury that if they reached a particular verdict on one count, their verdicts would be the same on every count.
28 Nor did her Honour’s instruction to the jury direct attention to the legal requirement that each count could only relate to one specified event. However that event was described, it had to be identifiable as separate from the other occasions on which the complainant alleged sexual misconduct by the appellant. No particulars as such of the various charges seem to have been supplied but the complainant’s evidence that the occasions she described as “two or three” or a “few” weeks or “sometime” apart were “the first six times” was sufficient particularisation to satisfy this legal requirement.
29 However, the complainant’s evidence of occasions when soccer was played the next day was not, on the evidence, of these incidents. Furthermore, to take the first charge by way of example, there was nothing in her Honour’s directions to preclude some jurors accepting the complainant’s evidence to the effect that this event had occurred at about the end of September 1983 and rejecting her evidence that it was on a night before soccer and other jurors accepting that it occurred on a night before soccer and thus rejecting the complainant’s evidence to the effect that it occurred at about the end of September 1983.
30 Indeed given that her Honour’s directions did not advert to the matter, all the jurors may have convicted the appellant on the latter basis. As the passage I have quoted from the trial Judge’s remarks on sentence makes clear, this seems to have been her Honour’s view. If the jury did adopt this approach, the appellant was convicted on the first count on a matter with which he was not charged. Both this possibility and that adverted to in the immediately preceding paragraph are unacceptable in law
31 At the conclusion of the summing up, no re-direction was sought by counsel for the appellant or by the Crown prosecutor. However, in my opinion, the trial Judge was bound, in summing up, to point out to the jury that the Crown case was of six offences which occurred sequentially, the first some six weeks after the complainant started at Mudgee Public School which was shown to have been on 15 August 1983. What the complainant remembered about the circumstances surrounding the commission of the offences differed. Notably it differed because on three of the weekends and not on the others she referred to going to the soccer. There was uncontested and compelling evidence that there would have been no soccer to go to on those occasions. That threw doubt upon her evidence about those occasions. Even more doubt was thrown upon her account if it was open to say that the first occasion, for example, did not occur some six weeks after she started at school but some time after March 1984. The jury was given no guidance about this and in the result, in my opinion, there was a risk of significant confusion leading to a serious miscarriage of justice, the substance of which was acknowledged in her Honour’s remarks on sentence.
32 Initially, the complainant’s evidence was not expressed temporally in general terms namely that over the period of time stated in the indictment she remembered six individual occasions when the appellant had sexual intercourse with her in the manner she described. She gave her evidence about times with some particularity and related the offences to particular events. It may be that this was a process of reconstruction consequent upon her original recollection that she moved to Mudgee in May 1983. But that explanation does not make her evidence any more credible. Her evidence was about the first six occasions on which she alleges she was sexually abused by the appellant. The time frame for all six is linked with the three soccer weekends. It follows that there must have been considerable doubt about the complainant’s account of what happened on each occasion of an alleged offence. That doubt was not resolved by Judge Latham’s suggestion that, since the appellant’s defence was a denial, it was not a matter of any great moment when the offences were alleged to have occurred. This came close to shifting the onus to the appellant when the onus remained with the prosecution to prove the six offences charged beyond reasonable doubt. In my opinion, the prosecution’s presentation of the case and the lack of any appropriate summing up about the complainant’s evidence resulted in a miscarriage of justice. Further, to my mind, it was not open to the jury, properly instructed, to be satisfied beyond reasonable doubt that the appellant was guilty of any of the offences charged.
33 There are other considerations which go to this question. First, the difficulty for the appellant in meeting the charges caused by the delay between the date of the alleged offences in 1983, the first complaint in 1996 and the date of the trial in 1999, becomes particularly significant. Secondly, the offences were alleged to have been committed by a man whom the complainant had recently met, in a bedroom in which the complainant said his daughter was sleeping at the time. Thirdly, the offences were alleged to have been committed in a room which the complainant said was next to Mr and Mrs Watkins’ bedroom in which, at the time, presumably the offender’s wife was sleeping. Fourthly, the appellant, his wife and his daughter all gave evidence which, if accepted, was consistent with the appellant’s denial. But the decisive considerations, separate from any of these other matters, are the way in which the prosecution case was presented and dealt with in the summing up and the doubt about the credibility of the complainant’s evidence of the six offences charged.
34 At the conclusion of the hearing of the appeal, the Court made the following orders:
1. Appeal allowed;
2. Sentences quashed;
3. Direct that a judgment and verdict of acquittal be entered in respect of each count of the indictment.35 HULME J: I agree with the reasons of Sheller JA.
36 DOWD J: I concur with the reasons given by Sheller JA for the orders made by the Court on 16 March 2000.******
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