Si v R

[2007] NSWCCA 181

New South Wales
Court of Criminal Appeal

CITATION:	SI v R [2007] NSWCCA 181
HEARING DATE(S):	16 May 2007
JUDGMENT DATE:	27 June 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 57; Price J at 58
DECISION:	Non-publication order in relation to the name of the complainant and any matter that can identify the complainant 1. Appeal upheld; 2. Conviction quashed and a verdict of acquittal entered.
CATCHWORDS:	CRIMINAL LAW - four counts sexual intercourse and one count aggravated indecent assault - child complainant - inconsistency in evidence of complainant’s grandmother and father - reliability of complainant’s evidence - whether jury verdict unreasonable and inconsistent - whether error in admitting hearsay evidence - directions on use of video evidence
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 (NSW) Crimes Act 1958 (VIC)
CASES CITED:	R v Sloane (2001) 126 A Crim R 188, [2001] NSWCCA 421 R v Ahmet (1996) 86 A Crim R 316 R v Garofalo [1998] VSCA 145 R v JMV [2001] VSCA 219 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Habib [2005] NSWCCA 223 Mackenzie v The Queen (1996) 190 CLR 348 Jones v The Queen (1997) 191 CLR 439 R v Markuleski (2001) 52 NSWLR 82 R v Marziale (unreported, VCA, 18 April 1996)
PARTIES:	SI (appl) The Crown
FILE NUMBER(S):	CCA 2007/578
COUNSEL:	M C Ramage QC (Appl) P Barrett (Crown)
SOLICITORS:	J Krajcik (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3185
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	2 August 2006

2007/578

McCLELLAN CJ at CL
HIDDEN J
PRICE J

WEDNESDAY 27 JUNE 2007

SI v R

Judgment

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant

1 McCLELLAN CJ at CL: The appellant was tried in relation to four counts of sexual intercourse without consent in circumstances of aggravation and one count of aggravated indecent assault. He was acquitted in relation to the sexual intercourse charges but was convicted in relation to the count of aggravated indecent assault. The circumstances of aggravation were that the complainant was under the age of 16 years, namely 11 years of age.

2 The maximum penalty for the offence of aggravated indecent assault is provided by s 61M(1) of the Crimes Act 1900, being 7 years imprisonment with a standard non-parole period of 5 years.

3 The appellant was sentenced to a total term of 2 years and 9 months with a non-parole period of 1 year and 9 months.

Relevant evidence

4 The Crown case was that the aggravated indecent assault count, which was the fourth count on the indictment, and the fifth count, which alleged sexual intercourse by digital penetration of the complainant, all occurred on the same day. The appellant had been married to, but has since separated from, the complainant’s grandmother (CI). However, he maintained living arrangements with her.

5 On 22 December 2004 the complainant was staying at her grandmother’s house. The appellant was in the house alone with the complainant. Her grandmother returned home, walked into the kitchen and looked into the lounge room. She said that she saw her granddaughter seated on a lounge chair with her trousers and underpants around her ankles.

6 There is a fundamental inconsistency between the evidence of the grandmother and the complainant’s father (TC) as to whether the appellant was first seen kneeling or standing. The grandmother gave evidence that she saw the appellant standing in front of the chair where the child was sitting. She said that he had his pants around his ankles.

7 The complainant’s father said that he saw the appellant “kneeling down in between my daughter’s legs with his pants off and her pants off.” He said the appellant came up from a kneeling position “when he realised we were there.” When cross-examined CI said for the first time that both the appellant’s pants and underpants were off. This was inconsistent with the complainant’s evidence. She said the appellant’s underpants were on all the time and never down but his pants were down.

8 The appellant said he was not wearing a belt. TC said nothing about a belt and CI said nothing about a belt in her evidence in chief or in her statement to the police. However, for the first time in cross-examination CI said she heard the clanging of the appellant’s belt when she entered the lounge room.

9 The Crown case was that, when she saw the complainant and the appellant, the grandmother screamed, the appellant pulled up his trousers and the complainant ran to her grandmother. It was after this had happened that the complainant’s father entered the room. Very shortly thereafter he contacted the police by phoning 000. He reported that his daughter had been “raped.” Only after reporting the matter did the complainant’s father question the complainant as to whether the appellant had touched her. She replied “he was trying to but I put my hand there.”

10 Sometime later, but on the same day, the complainant was taken to the local hospital where she was examined by Dr Young. Dr Young took a history from the complainant of the appellant taking down his trousers, although leaving his underpants on, and then pulling down the complainant’s pants and underpants before putting his hand down where “her rude part is” and putting his finger “inside.” The complainant said it hurt her, “it felt like a severe pain inside my rude parts.”

11 Dr Young carried out a physical examination of the complainant. She observed a “darkening bruise which was rather large on the upper right leg at the back” which she understood was caused by an incident when the complainant was playing at school. The bruise was 25 cm in length and varied between 4 and 2 cm in width.

12 Dr Young carried out an examination of the complainant’s genitalia. However, she was unable to complete the examination. When she retracted the labia “very gently”, she described it as “very very angry and it was very very red, but the most important thing it was extremely painful, it was exquisitely painful so just a light touch would cause intense pain.”

13 The doctor was of the opinion that the pain that she would inflict by a thorough and meticulous examination of the complainant would be unbearable. The doctor also concluded that the inflammation was due to an infection to which, by reason of her physical condition (including high blood sugar levels), the complainant was susceptible. She was of the opinion that the complainant’s infection would have caused her pain on urination.

14 When first interviewed by the police on 23 December 2004 the complainant did not say anything about pain. In fact when asked what she could feel when the appellant’s hand was on her private part she said “nothing.” When cross-examined she said there was “a little bit of pain” when the appellant put his finger into her vagina but not when he touched her in her “private area.” During cross-examination she denied that she had a painful condition in her genital area or that she knew she had an infection at that time.

15 The complainant was examined by Dr Nittis on 24 December 2004 and again on 17 May 2005, but there were no significant findings. The complainant’s hymen was found to be within normal limits.

16 The circumstances of the other three alleged counts (counts 1, 2 and 3) of sexual intercourse were not disclosed when the complainant reported the incident alleged to have occurred on 22 December 2004. The Crown case was that these earlier incidents were first complained of to the grandmother two nights after the incident on 22 December 2004. An account was later given in an interview with an officer of the Department of Youth and Community Services in February 2005. In that interview the complainant told the officer about another occasion on which she said the appellant had done something to her. The complainant said that, some months before 22 December 2004, the appellant had put his private part into her mouth (count 1), then into her private part (count 2) and then he put his finger in her private part (count 3).

17 The complainant said that when these events happened she was in Year 6 or going into Year 6 in school. She said that she had been sitting in the lounge room of her grandmother’s house with her grandmother and the appellant. Her grandmother left the room to have a shower or to help the complainant’s aunt, who was intellectually handicapped, providing the opportunity for the appellant to commit the offences.

18 The appellant’s account of the relevant events on 22 December 2004 differed from the prosecution evidence in critical respects. He said that he had never lowered his pants. He said the complainant had asked him to inspect the bruise on her leg and he was manoeuvring to do this when interrupted by CI and TC. As I have already indicated the complainant did have a large bruise on the rear of the thigh of her right leg. The appellant denied touching or in any way sexually interfering with the complainant.

The report by the trial judge

19 The trial judge provided a report to this Court in relation to the trial and in particular count 4. It reads as follows:

“REPORT OF THE JUDGE
1. I have read the remarks of Wood CJ at CL in Sloane [2001] NSWCCA 201 esp at [9] et seq.
2. I should explain why I did not certify the verdict of the jury in respect of count 4 as unsafe and unsatisfactory.
3. The evidence in relation to this count, was, like the evidence in relation to the other counts, largely that of the complainant and her grandmother (who was the estranged wife of the accused).
4. There was evidence that the complainant, her grandmother and her father had deliberately told lies in the past to officials and I directed the jury on this.
5. The jury rejected this evidence in respect of all counts on the indictment except count 4.
6. I gave a Markuleski direction. This case was one in which such a direction was highly appropriate, as, the evidence in respect of each count came primarily from the same witnesses and was remarkably similar.
7. Given the jury’s verdicts on all counts, except count 4, I would have been prepared, in light of the above considerations, to certify that the verdict on count 4 was unsafe and unsatisfactory, but I was not asked to do so.
Dated this 26th day of March 2007.
John Goldring
Judge”

20 Section 11 of the Criminal Appeal Act 1912 (NSW) provides for a report from the trial judge to this Court. The section is in the following terms:

“The judge of the court of trial may, and, if requested to do so by the Chief Justice, shall, in case of any appeal or application for leave to appeal, furnish to the registrar the judge’s notes of the trial, and also a report, giving the judge’s opinion upon the case, or upon any point arising in the case ……. (emphases added)

21 Wood CJ at CL considered the nature and purpose of a report under the section in R v Sloane (2001) 126 A Crim R 188, [2001] NSWCCA 421. His Honour said at [9]-[13]:

“The purpose of a Report to the Court of Criminal Appeal is not to justify or to explain why a Judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious:
(a) the Reasons for Sentence are the published statement of the Court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way;
(b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the Judge, whose decision has been appealed, is seeking to justify or to support it.
An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.
Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.
A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.
Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.”
(See also Vos v Regina [2006] NSWCCA 234 at [25])

22 Section 573 of the Crimes Act 1958 (VIC) is a similar provision to s 11. It is in the following terms:

“The judge of the Trial Division of the Supreme Court or the County Court before whom a person is convicted shall in the case of an appeal under this Part against the conviction or against the sentence or in the case of an application for leave to appeal under this Part furnish to the Registrar in accordance with Rules of Court his notes of the trial and may also be required to furnish to the Registrar in accordance with Rules of Court a report giving his opinion upon the case or upon any point arising in the case . (emphases added)

23 In R v Marziale (unreported, VCA, 18 April 1996) Winneke P, Brooking JA and Southwell AJA discussed the role of a trial judge's report and the weight to be given to it [at p 34]:

"The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness -- for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, as in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory."
(R v Marziale was applied in R v Frank (1999) 105 A Crim R 377, [1999] VSCA 39 at [40] per Charles JA with whom Winneke P and Callaway JA agreed).

24 In R v Ahmet (1996) 86 A Crim R 316 Winneke P said at 323:

“On some occasions the reports are of value in the disposition of appeals, if only because they provide the opportunity (to which I have referred) to express views upon matters that may not be readily apparent from a perusal of the written record (see, for example, R v Paxton [1983] 1 VR 178, particularly at 187-188). However such reports are not, are not intended to be, and should not be treated as documents in and through which the trial judge is being called upon to defend the course which he or she may have taken .” ( emphases added )

25 In R v Garofalo [1998] VSCA 145 Ormiston JA said at [44]:

“Of all situations where a report will be of use, it is in cases which raise the significance of a particular witness and his credit, such as that of Kokkinos, where the judge's assessment will provide invaluable assistance to an appeal court. There were a number of issues in the present trial, or at least there could have been a number of issues, but the manner in which the case was fought and the significance of each witness is a matter upon which a trial judge can give direct assistance, albeit not conclusive of the merits of an application. Here one of the arguments has been that there was a considerable body of other evidence which was more than sufficient to justify the conviction of the accused and indeed it was asserted that there was here sufficient evidence to make the applicant's conviction certain without the need to rely on Kokkinos's evidence. One might hope, therefore, that in the future trial judges will comply with their obligation to provide a report and, in cases such as the present, attempt to provide some estimate of the significance of the impugned witness.”

26 In R v JMV [2001] VSCA 219, the applicant had been convicted on only one of 29 counts of sexual assault. The verdict was found to be unsafe. The trial judge stated in his report:

“I was surprised at the verdict, bearing in mind the whole of the evidence, and I am concerned that a grave injustice may have occurred.”

27 Winneke P (Brooking JA and Buchanan JA agreeing) discussed the relevance of the report at [6]:

“Of course, this Court, as it has frequently said, is not bound by reports to it of trial judges, but, none the less, it calls for such reports for the purposes of having revealed to it matters which may in the circumstances have been relevant to the trial judge, familiar with the atmosphere at the trial, and not as easily discernible from the transcript of material before this Court. (See R v Franks). The report in this case, as it seems to me, is a factor which we would do well to take into account in disposing of this application.”

28 In my opinion the report provided by the trial judge is significant in the resolution of this appeal. As I discuss below, the fundamental thrust of the appellant’s submission is that the credibility of critical Crown witnesses was so damaged at the trial that the conviction on count 4 was unreasonable. The trial judge’s observations are directly relevant to the resolution of that issue.

The grounds of appeal

29 There are four grounds of appeal.

Ground 1 – the verdict of conviction on the fourth count is unreasonable

Ground 2 – the jury verdicts were inconsistent.

Ground 3 – the trial judge erred in admitting hearsay evidence.

Ground 4 – the trial judge failed to properly or adequately direct the jury in respect of the use of video evidence.

30 Grounds 1 and 2 may be considered together.

31 The approach which an appellate court should follow when it is submitted that a jury’s verdict is unreasonable was authoritatively considered in M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606. I endeavoured to summarise the principles in R v Habib [2005] NSWCCA 223 in which I said:

“Section 6(1) of the Criminal Appeal Act provides as follows:
The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493.

There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
As the High Court emphasised in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 it is important to appreciate that the role of the Court of Appeal is to decide a question of fact. "It is supervising or reviewing the findings of a tribunal of fact" (see Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643; R v R (1989) 18 NSWLR 74).
In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].
In MFA , McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.
Embracing the test adopted by the majority of the court in M the joint judgment stated:
Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' " [55].
The joint judgment offered the following by way of guidance:
The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
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'[56].
In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

32 The difficulties raised in this case of inconsistent jury verdicts are commonly considered by appeal courts. The problem was considered by the High Court in Mackenzie v The Queen (1996) 190 CLR 348 from which the following principles are found in the joint judgment of Gaudron, Gummow and Kirby JJ.

· For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law. (at 365)

· Sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict, which is impugned is unsafe or unsatisfactory. (at 365)

· Appellate courts should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. (at 368)

· It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case." (at 368)

33 Further consideration of these issues was undertaken by the High Court in Jones v The Queen (1997) 191 CLR 439, MFA v The Queen (2002) 213 CLR 606 and by this Court in R v Markuleski (2001) 52 NSWLR 82. The majority decision in Markuleski was approved in MFA where Jones was reconsidered and its future utility largely confined to a decision dependent on its own facts, rather than providing binding principles.

The appellant’s submission

34 The appellant submitted that the verdict of guilty on the charge of indecent assault was unreasonable because the jury must have rejected the complainant’s evidence on the other counts as either false or otherwise unreliable. Although he accepted that the Crown case was stronger in relation to the last two counts, it was submitted that each of them relied upon the complainant’s credibility and reliability. Apart from the fact that the jury acquitted on the other counts, it was submitted that here were many aspects of the complainant’s evidence which so damaged her credit that it was unsafe for the jury to rely upon her evidence. The matters to which the appellant adverted were:

§ When asked by her father “did anything happen, did he touch you?” the complainant answered “no, he tried to, but I had my hand there.” This was entirely inconsistent with her later allegations of touching and penetration.

§ The complainant asserted that the two assaults occurred while she was seated in a chair and the appellant had pulled both her pants and underpants off and was kneeling in front of her with his pants down to his knees – but his underpants on. The appellant submitted that this sequence of events was improbable.

§ When interviewed by police on 23 December 2004 the complainant gave a number of versions of the events. She indicated that the appellant had placed his hand on the top or outside her vagina and nothing further had happened. However, later in the same interview the complainant told the police that she had lied and then claimed that the appellant had, in fact, put his finger in her “private part” with the finger moving around inside her “private part.” She then said that the complainant had not done anything like that to her before.

§ This last comment, made in her interview of 23 December 2004, was at odds with the interview she gave in February 2005 where she related the events which allegedly occurred in 2004 and which formed the basis for counts 1, 2 and 3. Later in July 2005 the complainant suggested for the first time that the appellant had also tried to choke her and that she was frightened of him.

§ Evidence was admitted at the trial that the complainant had previously made allegations against the appellant, in 2001, to the effect that he had kissed her and touched her on the chest, but very soon after she said that she had been lying. However, when giving evidence she said that what she had initially told the police was true and, when she said that the accused did not do it, the latter statement was a lie. Further evidence was given by CI that the complainant had been laughing about the matter and that she took the complainant to the police station after she was told by her that she had made it up and had been encouraged to do so by her intellectually handicapped aunt. There was other evidence that the assertions made by the complainant in 2001 were false.

§ The complainant told the police in the first interview that the main reason that she had moved into her grandmother’s house was that it was safe there, they were all nice there and they did not let anything happen to her. She also told the police in her first interview of her feelings of being frozen and shocked that the appellant would do these things to her. This was said to be inconsistent with her allegation in the second interview that the appellant had previously assaulted her. When this was pointed out to the complainant she again alleged that she had previously lied to the police.

§ The complainant said she had lied to the police in her first interview when she told them that she would have told officers of the Department of Community Services or a school counsellor that someone touched her in a private place. The complainant and her family were receiving counselling in 2004 at the time at which the alleged earlier incident occurred but no complaint was made to the DOCS officer.

§ The complainant was demonstrated to be a liar in respect of a number of collateral issues. This is reflected in the judge’s comments during the sentencing proceedings and in his remarks on sentence where he commented that he intended to refer the papers to the Director of Public Prosecutions to consider whether perjury charges should be brought. The trial judge when reviewing submissions in relation to sentence said:

“In the course of these proceedings, it seems to me that there is a prima facie case that at least 3 of the Crown witnesses may have committed perjury and for that reason I will be referring the transcript of evidence and the exhibits or copies of the exhibits to the Director of Public Prosecutions on that basis.”
In his remarks on sentence he said:
“I have already indicated that I intend to refer the evidence in this matter to the Director of Public Prosecutions to consider whether any charges of perjury should be brought against certain Crown witnesses.
The apparent cases of perjury were things that those witnesses said, not relating to any matter directly in issue in the trail that was an essential element of any of the offences, but the credit of the Crown witnesses and particularly of the complainant, was directly in issue.
I have concerns about the reliability of one witness, the complainant. I have particular concerns about the inconsistency in her evidence between what she said to her father immediately after the incident and what she subsequently said.”

· The expert medical evidence made it highly unlikely that any penetration or touching at all had occurred on 22 December 2004. Although the complainant was questioned at length in her first interview as to what she had felt when she said that the complainant had placed his hand on her private part and placed his finger in it and moved it around, she made no allegation at all of being hurt or feeling any pain. By contrast, in her second interview she claimed that it had hurt and felt sore when the appellant had placed his finger inside her. The appellant emphasised that the complainant’s evidence was entirely inconsistent with the evidence of Dr Young. It was submitted that it was also inconsistent with the evidence of Dr Nittis. The evidence of Dr Nittis was as follows:

“Q: So you agree that in the state of her genital area was in on 22 December, do you agree that one would expect her to cry out or make a statement that it hurt if she was to be touched in the vaginal area?
A. Yes I think that’s quite reasonable.

Q. And certainly if a finger was actually placed inside her vagina?
A. I think that’s reasonable.”

· The complainant’s versions as to how the assaults occurred was inherently unlikely. This was particularly with respect to how her pants had been removed and her legs parted. However, this submission was not developed and can be put to one side.

35 The appellant further submitted that the jury’s findings of not guilty on four counts fatally damaged the credibility of the complainant in relation to all counts in the indictment. Implicit in the appellant’s acquittal on the fifth count was a rejection of the complainant’s account of the events which were said to give rise to that count. It was submitted that no distinction can properly be drawn between the complainant’s evidence in respect of any of the counts but particularly between the 4th and 5th count. There was no reason to think that her evidence in relation to the 4th count was of greater veracity than her evidence in relation to the 5th count. It was submitted that if the jury was acting logically and reasonably, having rejected the complainant’s evidence in relation to counts 1, 2, 3 and 5, it should have rejected her evidence in relation to the 4th count: (see Jones v the Queen (1997) 191 CLR 439 and R v Markuleski (2001) 52 NSWLR 82).

36 Finally it was submitted that, because there was evidence that the appellant was found in a compromising position, this may have aroused suspicion in the minds of some of the jurors who concluded that the appellant “was probably up to no good.” Accordingly, it was submitted there was a real likelihood of an impermissible compromise on part of the jury in reaching their verdict.

The respondent’s submissions

37 The Crown submitted that the jury verdicts were not relevantly inconsistent. It was submitted that the verdicts of acquittal in relation to the first three counts could readily be explained because of the late complaint by the complainant and because there was no corroborating evidence. This could be contrasted with counts 4 and 5 where there was evidence from the complainant’s father and grandmother which was capable of supporting the complainant’s allegations. Because of the evidence of the doctors which indicated that the complainant had an infection of her vagina which made the labia exceptionally sensitive, the jury could have concluded that they were not satisfied that count 5 occurred but, were satisfied that the appellant had touched the complainant externally.

38 It was submitted that just because verdicts are inconsistent they should not be set aside. If the “apparent” inconsistency is explicable on a rational basis there is no reason for this Court to intervene. It was submitted that the verdicts of not guilty to the charges of sexual intercourse and the verdict of guilty to the charge of indecent assault do not represent an affront to logic and common sense and do not indicate that there has been any compromise of the performance of the jury’s duty. It was submitted that there is no basis for this Court to intervene. MacKenzie v The Queen (1996) 190 CLR 348 at 365; see also Jones v The Queen (1997) 191 CLR 439 and R v Makuleski (2001) 52 NSWLR 82.

Decision

39 I am satisfied that the not guilty verdicts in relation to counts 1, 2 and 3 can be satisfactorily explained. The lateness of the complaint is relevant but not of great significance. Given the admission by the complainant that, on various occasions, she had lied in relation to complaints which she had made against the appellant the jury would inevitably have sought corroborative evidence before deciding to convict.

40 Counts 4 and 5 present significantly greater difficulties. At one level the evidence of the grandmother and father is corroborative. Their evidence suggests that they discovered the appellant in compromising circumstances. However, they did not give evidence of observing any of the acts of which complaint is made. Furthermore, there are significant problems in their evidence. They differed as to whether the appellant was kneeling or standing. CI said the appellant’s underpants were off, but this was not consistent with the complainant’s account. The complainant did not say that the appellant’s underpants were down.

41 The complainant said in the first police interview that after she saw the appellant undo his belt and pants and the pants fall down to his knees, she then saw his underwear. The history which the complainant gave Dr Young also states that the complainant “observed the appellant wearing black underpants … [the appellant] did not expose his penis or his testicles.”

42 The evidence of the complainant raises a number of difficulties. The medical evidence was clear that her vagina was so sensitive that if touched or penetrated she would have cried out or made some statement that it hurt. There is no suggestion that during the sequence of events she was heard to call out in distress or pain. This may be because her grandmother and father were not sufficiently proximate to hear her, but given their evidence as to the position in which they observed the complainant and the appellant this would seem unlikely. Apart from there being no evidence of such a response from the complainant, when asked in the first interview with the police what she could feel when the appellant’s hand was on her private area and when he digitally penetrated her, she made no allegation that she had felt any pain. This response was quite inconsistent with the allegation that the appellant penetrated her but is also inconsistent with the allegation that he touched her.

43 When cross-examined she continued to assert that there was no pain from the touching although she said there “was a little bit of pain” when digitally penetrated. In light of the medical evidence this evidence seems to me to be entirely unreliable, seriously diminishing her credit, and leaving me with considerable disquiet about her evidence in relation to count 4.

44 The complainant continued to deny that her genital area had been severely infected and denied having a painful condition at the time. She denied that if touched she would have been likely to have screamed out, all of which is entirely inconsistent with the evidence of Dr Young and Dr Nettis.

45 During her first interview with police on 23 December 2004 the complainant did not mention any events prior to 22 December 2004 which were the subject of counts 1 to 3. Those allegations were only ventilated on 2 February 2005 when the complainant was interviewed by an officer of the Department of Community Services.

46 Although these matters require consideration, the evidence of the complainant’s response when asked about the events raises greater concerns. When her father gave evidence he said that he had asked the complainant “Did he touch you?” This question was asked after the appellant had left the house and after the father had called 000. The father said the complainant responded by saying “He was trying to, but I had my hand there … .”

47 When the complainant gave evidence she denied making this response. She said that her father asked “Has he done anything to you?” and she replied “Yes.” She said this exchange occurred as her father was phoning the police. Of course she later makes specific allegations against the appellant to the doctors.

48 To my mind there is no reason for the appellant’s father to have given untruthful evidence about this conversation. After all it was he who responded to the situation by telephoning 000 and reporting a “rape.” His evidence with respect to his daughter’s response to his question made plain that this had not occurred. There is no reason, unless it be true, for the father to provide evidence which suggested that his action in ringing the emergency number may not have been justified. It must also be remembered that the complainant’s response to her father was made after the commotion resulting in the telephone call had occurred.

49 I would have expected the atmosphere which must have prevailed to make it difficult for the complainant to say that she had not been assaulted making it highly likely that her response to her father was a statement of the true situation.

50 The complaint about the events of 22 December 2004 was not initiated by the complainant but rather by the reaction of the grandmother to the scene which she said she witnessed when she looked into the living room. The father’s reaction was to phone the police before any attempt was made to obtain a coherent account of the events from the complainant.

51 There were other unsatisfactory features of the complainant’s evidence. In 2001 she alleged that the appellant had to put his hand down her chest and said to her that he would show her how “boyfriend and girlfriend kiss.” The complainant later retracted that allegation admitting that her intellectually handicapped aunt (JC) had told her to make it up. The complainant’s uncle also confirmed that the allegation was false. He had been present during the entire time when the complainant was in the appellant’s presence and said that the appellant had not done what the complainant alleged. This evidence demonstrated a capacity in the complainant to make false allegations of a sexual nature against the appellant.

52 The appellant said that the reason he was found in a position on his knees with the complainant sitting on the chair with her pants down was because she had asked him to inspect a bruise on her leg. That bruise was subsequently confirmed and was a large bruise on the back of her right leg which she had obtained in a previous accident. Because the complainant was sitting on the chair and the bruise was located on the back of her leg it would have been necessary, if the appellant was to inspect the bruise, for him to lower himself as in fact occurred.

53 At the trial the complainant sought to sustain her complaints of touching and penetration on 22 December 2004. No doubt the jury had little trouble in rejecting the allegation of penetration but in my view the matters to which I have referred should have caused the jury to have a serious doubt as to whether she was touched. By rejecting her allegation of penetration the jury must have formed an adverse view of the complainant’s credit. They must have rejected her evidence as to some of the events which she alleged occurred on 22 December 2004. There is nothing in the evidence relating to the allegation of touching which would justify accepting her evidence on that count but rejecting it on count 5. This was not a case where there was evidence capable of supporting count 4 but not count 5.

54 There are two other significant matters which support the appellant’s case. Firstly, the complainant was shown to have been untruthful on previous occasions when she had made allegations of sexual misconduct against the appellant. Secondly, and of considerable significance is that the trial judge having observed her give evidence maintained very serious reservations about her credit. He reflected those reservations in his report to this Court and in his remarks on sentence. If I had any reservations about upholding the appeal the report of the trial judge dispels them.

55 Because I am satisfied that it was not open to the jury to convict the appellant on count 4 it is unnecessary to consider the further grounds of appeal.

56 In my opinion the appeal should be upheld, the conviction should be quashed and a verdict of acquittal entered.

57 HIDDEN J: I agree with McClellan CJ at CL.

58 PRICE J: In this appeal the trial judge, a very experienced judge, has provided to this Court a report in which he expressed the opinion that the verdict of the jury on count 4 was unsafe and unsatisfactory. For the reasons given by McClellan CJ at CL the trial judge was plainly correct. It was not upon the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the charge of aggravated indecent assault. I agree with McClellan CJ at CL.

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