Thow v The Queen - [2003] TASSC 137

[2003] TASSC 137

CITATION: Thow v R [2003] TASSC 137

PARTIES:  THOW, Phillip George
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 37/2003
DELIVERED ON:  15 December 2003
DELIVERED AT:  Hobart
HEARING DATE:  4 November 2003
JUDGMENT OF:  Cox CJ, Crawford and Blow JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or insupportable verdict – Where appeal dismissed – Inconsistent verdicts – Sexual offences – Whether verdicts reconcilable.

MacKenzie v R (1996) 190 CLR 348, applied.
Aust Dig Criminal Law [969]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  M A Stoddart
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 137
Number of paragraphs: 82

Serial No 137/2003
File No CCA 37/2003

PHILLIP GEORGE THOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ (DISSENTING)
CRAWFORD J
BLOW J
15 December 2003

Orders of the Court:

Appeal dismissed.

Serial No 137/2003
File No CCA 37/2003

PHILLIP GEORGE THOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
15 December 2003

The appellant was convicted of three counts of indecent assault and one count of rape committed in the loungeroom of his home on the evening of Saturday, 5 May 2001. The sole ground of appeal is that the verdict was unsafe and unsatisfactory in all the circumstances of the case.

The appellant was charged with sexual offences on nine counts. The first alleged an indecent assault at Devonport in a bus on the appellant's property on a day in April 2001. The assault was particularised as one of "pushing (the complainant) in the chest with both hands, causing her to fall on to her back and then lying on top of her". The jury failed to reach a verdict on this count. The second, third and fifth counts alleged the three indecent assaults and the fourth the rape on Saturday, 5 May 2001, of which he was convicted, and the remaining counts alleged four offences on the morning of Sunday, 6 May 2001 in the same room. These offences were almost identical to those charged in counts 2 to 5, but whereas count 3 alleged an indecent assault by stroking the complainant's vagina with his fingers, count 7 alleged aggravated sexual assault in that in addition to stroking her vagina, he had penetrated it with his finger. Otherwise, the offences alleged in each May incident were identical in that the sequence was an indecent assault by touching her breasts (counts 2 and 6), the acts of stroking her vagina (count 3) and in addition penetrating it with his finger (count 7), vaginal rape (counts 4 and 9) and indecent assault by placing her hand on his penis and moving her hand up and down his penis (counts 5 and 8). Although the last-mentioned offence was numbered 8 on the indictment, it was not therein alleged to have occurred prior to the rape charged in count 9 and the complainant gave evidence that in relation to each May incident, the acts followed the sequence I have mentioned.

The complainant was aged 14 years at the time of the three incidents and 16 years at the time of the trial in April 2003. The appellant gave his age as 42 years when interviewed by police on 9 May 2001. He and his homosexual partner, one E, lived together at Devonport up until late April 2001, close to the complainant and her mother, younger sister, brother and de facto stepfather. At some time after the first incident, the complainant and her family had moved to Rosebery.

As to the first incident, the complainant gave evidence-in-chief that she went to the bus on the appellant's property with the purpose of cleaning it. She said the appellant followed her inside the bus and shut the door. He then "pushed me on to the seat and then he sat on my knee and then he kissed me on the neck". She said she told him to stop and that he did "eventually". He then "got off and walked out of the bus". In cross-examination she initially repeated that account and denied making a statement to the police that she had told them that "he pushed me back, he sat down, he pulled me down so I was just leaning across his knee". Confronted with a document which she agreed was her statement to police, she acknowledged that she had said what had been put to her. She explained the discrepancy by saying she was confused when she gave her evidence-in-chief and that the version therein was a mistake. She claimed the version given to police was the correct one. There was a brief reference to this incident in the evidence of her mother who gave evidence of complaint made on the evening of Monday, 7 May 2001 in respect of the second and third incidents on the preceding two days. The reference was "She mentioned something about (inaudible) in April when she was (inaudible – query cleaning) a bus out. She mentioned an incident". When interviewed by police, the appellant admitted that he had a bus and had given the complainant $5 for cleaning it out. It was put to him that the complainant had said:

"When I was in the bus he come up and came inside and closed the door, he pushed me back and sat, sat down and pulled me down so I was leaning across his knee and my face towards he, his. He then kissed me on the neck and kissed me, he just kissed me the once and let me go"

and asked whether it happened, he replied:
"I always give the kids a cuddle and actually I even give em, I give M (that is, the younger sister) a cuddle. I give her mother a cuddle and everything so that's no crime give a person a cuddle."

The only other evidence on this count was that of one B, an associate of the appellant, sharing an interest with him in motor racing. B gave evidence that the appellant owed him money and in April 2002, B said he put some pressure on him for its return. The appellant had broken down and said he could not return the money as he needed it for a lawyer. B said they had been discussing a court case which he identified as "this matter today" and that the appellant had said words, along the lines of, "as close as I can remember 'I did what I've been accused of'". It was a very equivocal admission capable of being interpreted by the jury as an admission of some wrongdoing of a sexual nature in respect of the complainant, but it was of little value as corroborative evidence in respect of this count.

Despite what the appellant was alleged to have done to her on the bus and the reluctance, she agreed in cross-examination that she had to thereafter have contact with him, the complainant, when the appellant had visited her family at Rosebery, accepted his invitation to return to Devonport and to spend the night with him and his partner at his home. Her younger sister, M, accompanied them. An arrangement was made that the girls' family would pick them up the following day. They drove with the appellant and his partner to his home, arriving at about 10pm and after a short trip to acquire beer and chips, they settled in front of the television set in the loungeroom. M went to bed in another room and the complainant, having changed into a nightdress and nightgown while retaining her knickers, sat on a couch with E watching the television.

The complainant gave evidence that the appellant lay on a mattress on the floor in the line of sight from the couch to the television set wearing only a towel. He then patted the mattress and she went over to it and lay down. She said:

"He took my knickers and my nightie off and touched my boobs and put his fingers in my vagina and then he put his penis in my vagina."

She said she did not know what he did with her nightgown and nightdress, but the knickers were on the floor. She then repeated the sequence, saying that the first thing that happened was "He rubbed me boobs softly", for "seemed like a long time" (sic). He had then touched her vagina, "First he put his fingers in there and then he put his penis in there". Asked how many fingers he had inserted, she said "about two". Then "He got me hand and rubbed it up and down … on his penis … he was holding on to my hand and making me do it". His penis was hard, but she did not feel any pain when he inserted it, nor did she that night feel any wetness or stickiness on any part of her body. At the conclusion of these acts, she said she went to another room, taking her nightdress with her. She changed into another nightie. In cross-examination, however, she agreed that she put the same nightie back on.

Not long after retiring, she had a bad dream and woke up. The dream was about her father, who "was going to break my heart". She then went into the loungeroom and sat on E's knee and told him about the dream. E was dressed in boxer shorts. To distract her, he suggested they weigh themselves, which they did. She then went back to bed.

In the morning, she went into the loungeroom and found the appellant clad in boxer shorts on the mattress. He sent M down to the shop for some provisions and she was absent about 20 minutes. E was not in the room. Again, the appellant, according to the complainant, "patted the bed" and she went and sat on it. "Then he took all me nightie and that off and me knickers off and threw me knickers on the floor and I don't know where the nightie was." Then "he just touched me boobs again softly for same amount of time and he repeated the same from the night before". She said he touched her vagina with his fingers and subsequently his penis. Thereafter he made her rub his penis. She did not feel any stickiness or wetness on her body. She said that sperm cells came out of his penis, but she did not see that, and in cross-examination it emerged that she asserted this to be the case after having learnt of forensic investigations which had been carried out on her nightie. When he put his penis inside her, she said she did not feel anything. Thereafter, she went to her room and changed and her sister returned.

The girls spent the rest of the Sunday at the appellant's home and enjoyed a barbeque there in the evening. The complainant said she was happy and did not tell anyone at the barbeque about what had happened, although the guests included good friends of hers. Her mother and her partner arrived in the evening and they returned to Rosebery "after tea", whereupon she went to bed.

The following day she went to school, but returned home early because she had a heavy period. She had an argument with her brother, became angry and decided to leave home. She packed her bags and took them and a guitar with her. Her mother and two siblings tried to stop her, but failed. Shortly thereafter her mother's partner came in pursuit and he took her back home. She unpacked and spoke again to her brother, making a complaint to him that the appellant had had sex with her. She repeated the complaint to her mother and the police were summoned. She was examined at 12.10am on Tuesday, 8 May 2001 by Dr Catherine Broun, a medical practitioner with considerable experience in examining alleged victims of sexual assault.

Dr Broun gave evidence that she found no trauma on the complainant's body, but found evidence of penetration to the vaginal entrance. There was no tenderness and the vagina would admit only one finger. She observed the hymen ring and found the ring was present as healed remnants. This was consistent with penetration on one or two occasions "and no more beyond that point". She said in respect of the healed remnants of hymen that it would take approximately one week for the remnants to heal. In her opinion, they could not have healed within a period of 48 – 70 hours.

Forensic evidence was given that the complainant's nightdress had revealed the presence on its back of semen. Other parts of the nightdress reacted positively to the screening test, but only the stain on the back was examined and confirmed to be semen. This was analysed for DNA and tested against that of the appellant. The chance of another person unrelated to the appellant having the same DNA profile as that of the stain on the nightdress was one in one hundred million.

The appellant was interviewed by police on 9 May 2001 and the tape of it was tendered by the Crown through one of the interviewing officers who was not cross-examined. In it the appellant acknowledged that the complainant and her sister had come with him to his home from Rosebery the previous Saturday and had stayed the night. He denied sexually interfering with her and said that he was "bisexual gay". He denied that she had been on his bed with him. He confirmed that after the complainant retired on the Saturday night, she had woken up complaining of a nightmare about her father "killing me in the heart", that she had sat on E's knee and that they had thereafter weighed themselves.

The complainant's mother gave evidence that on the Saturday afternoon the two girls had been allowed to go to Devonport with the appellant and E and had been collected the following evening. The complainant had been quiet when they got back to Rosebery that night, but earlier at Devonport had been happy and her normal self. She had told her mother that she was unhappy at Rosebery and wished to return to Devonport to the house they had occupied close to that of the appellant. On the Monday she had come home early from school because of her period and after an argument with her brother, had packed her bags and gone. After the mother's partner had returned with the complainant, she seemed very upset and told her mother that the appellant had "made me take off my clothes and he got on top of me and rooted me". She said this had happened on the Saturday night and that Sunday morning on the bed in the loungeroom.

The complainant's de facto stepfather also gave evidence of picking the girls up at Devonport on the Sunday night and of the complainant expressing a desire on the way home to Rosebery for the family to move back to Devonport. On the Monday, he had seen her after she left the house with her bags, darting behind a tree when he came by car in search of her. He told her not to be silly and to get in the car. Back at home, he heard the complaint made to her mother. The defence had foreshadowed cross-examination of the complainant to the effect that she had on two separate occasions before the weekend complained to the appellant that her stepfather had raped her. The learned trial judge ruled that this would infringe the Evidence Act 2001, s194M (see [2003] TASSC 16). The defence likewise wished to put to the stepfather an allegation that he had recently raped the complainant. This, too, was disallowed by the learned trial judge, but the defence were told that cross-examination as to assault by him upon the complainant would be permitted. The Crown led from the witness the fact that he had a previous conviction for indecent assault upon his own daughter and had been gaoled for it about 17 years previously. He was asked in evidence-in-chief if he had ever later sexually assaulted a young girl and denied doing so. In cross-examination it was put to him that he had assaulted the complainant and that he had an argument about having done so with the appellant. This was denied.

The appellant did not give evidence, but called E to give evidence on his behalf. E claimed that on the Saturday night after M had gone to bed, the complainant and he had sat on the couch in the loungeroom while the appellant lay on the bed and that all of them had watched television. Nothing of a sexual nature occurred. Specifically, none of the acts sworn to by the complainant had occurred. Eventually the complainant had gone to bed and he had got into the appellant's bed with him. Both men were naked and had engaged in sexual relations which culminated in the appellant ejaculating onto E's stomach. Shortly after this, the complainant was heard running and E jumped out of bed and donned boxer shorts. The complainant entered the room, saying that she had had a bad dream in which her father had tried to stab or kill her in the heart. E asked her to sit on his knee. He put his arms around her to comfort her and because she was heavy, in order to distract her, he suggested that they weigh themselves, which they did. Soon after this she returned to bed. In the morning she brought him a cup of coffee in his own bedroom to which he had retired after they weighed themselves. She seemed perfectly normal throughout the rest of the day. He confirmed that there had been disagreements between the appellant and Mr B, to whom he allegedly made the admission to which I have already referred.

There were several discrepancies in the complainant's evidence which are relied upon to support the ground that the verdict was unsafe and unsatisfactory. I have already adverted to those in respect of count 1, the incident in the bus. In relation to the events of the weekend, the appellant points to the fact that after the alleged assault in the bus some weeks earlier, the complainant chose to put herself in his company and expressed a desire on the return to Rosebery after the weekend incidents to return to live in Devonport in a house near his. Reliance is placed on her cheerfulness and failure to complain either at the barbeque where friends of hers were present or on the way home, choosing only to do so on the Monday night after an argument with her brother and her frustrated attempt to leave home. The appellant's counsel also argues that the description given of each incident on the weekend was so identical in sequence and other detail as to be incredible, as was her evidence that E, who was watching the television, did not see the appellant's sexual assaults upon her on the bed which must have been in his line of vision. It is also submitted that the medical evidence is inconsistent with her account. The complainant also denied telling her mother she wanted to return to live in Devonport, but then changed her evidence and agreed that she had told her. Asked why she had told her mother "a bit of a lie", about her wishes, she said she was starting to get upset and did not understand what happened. It was then put to her that if she were confronted with something which might seem strange or odd, or an unusual thing to do for a person who was sexually assaulted, she would give the answer "I didn't know what was happening". She agreed that that was so and that she "just thought, well if I said it I'll just protect myself". She also admitted in cross-examination that she had not run away in Rosebery because she had been arguing with her brother, but because she wanted to get away from her stepfather who, she said, had yelled at her and assaulted her by striking her when she did anything wrong. She also varied her account of how her knickers had been removed. Initially she said that on the Saturday night, the appellant had taken her knickers off when the assaults began, and likewise on the Sunday. In cross-examination she said that the appellant had told her to take her knickers off on the Saturday night and again on the Sunday, and that she had removed them herself on each occasion. A further piece of evidence relevant to her credibility was that she claimed not only that on the Saturday night when the complainant had patted the bed and invited her to it she had gone over to it not understanding what was going on, but that the following morning, notwithstanding the events of the previous night, when he repeated the gesture she walked over and sat on the bed and did not know what was going to happen. Even after he told her again to take her nightie and knickers off, she said she did not know what was going to happen, nor when, as on the previous night he had parted her legs, did she know what was going to happen.

The sole ground of appeal pleaded is that the verdicts of guilty were unsafe and unsatisfactory. The principles applicable to this ground were set out in Morris v R (1987) 163 CLR 454 by Mason CJ at 461 – 462, where he said:

"… it is now well settled that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v The Queen (1983) 152 CLR 657, at pp 660, 686; Chamberlain v The Queen [No 2] (1984) 153 CLR, at pp 532, 604 et seq, 618 et seq. In Chamberlain Gibbs CJ and I, after noting that it was unnecessary to consider whether the jurisdiction exercised by the Court of Criminal Appeal in Australia is precisely the same as that exercised by the Court of Criminal Appeal in England, said (at p 534):
'... the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt.'"

In M v R (1994) 181 CLR 487, the following dicta appear in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ:
"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 (See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen (No 2) (1984) 153 CLR at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505, 511) . 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." (at 493)

and
"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." (at 494)

In the present case, there is an additional factor urged as rendering the verdicts unsafe and unsatisfactory, namely that they are inconsistent with the disagreement of the jury in respect of the bus incident in April and the verdicts of acquittal of the events of the Sunday morning. The principles in respect of this aspect are stated in the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 at 366 – 368:
"From a review of the cases, a number of general propositions can be stated:
1    A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. …
2    Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. …
3    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. …
4    Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. … In R v Kirkman (1987) 44 SASR 591 at 593, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore 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.'
We agree with these practical and sensible remarks.
5    Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. …
6    The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders."

It is convenient to consider first the question of inconsistency of verdict. The fact that the jury disagreed in respect of the bus incident but convicted on the charges laid in respect of the Saturday night, is not inconsistent with their finding of guilt on the latter charges. The incident in the bus, as particularised in the indictment and as deposed to (variously) by the complainant, was an assault with little overt sexuality. The learned trial judge in his summing up contrasted that act with the acts of touching the complainant on the breast and vagina and of placing her hand on the appellant's penis, which were alleged to have occurred on the Saturday night in May. He invited them to consider the possibility that the incident in the bus may have been a case of playful wrestling with a child. It could well be that whatever view the jury took of the complainant's credibility, some were not satisfied beyond reasonable doubt that the incident involved indecency or was any more sinister than the innocent "cuddles" he admitted to police he occasionally engaged in with children. Furthermore, without a finding that the complainant's evidence was not worthy of belief, some could have been reluctant to convict on her virtually uncorroborated evidence in respect of count 1. It will be recalled that the alleged admission to B did not specify what the appellant was accused of at the time he made it in April 2002 and there was no evidence of what charges had by that time been laid. The indictment was dated 24 December 2002. The jury may well not have been prepared to infer that the admission, if made, embraced count 1. In respect of the other incidents, however, B's evidence was stronger and there was evidence that the appellant's semen was found on the complainant's nightie in circumstances suggesting it had been deposited there on the weekend in May. In addition, the complaint to her mother was not recent nor was it very specific.

Different verdicts in respect of the incidents of the Saturday night and those of the following morning are more difficult to reconcile. The unexplained presence of the applicant's semen on the complainant's nightie was strongly corroborative of some sexual encounter between them at some time on the Saturday night or the Sunday morning. Although E's denial of any sexual activity between the appellant and the complainant in his admitted presence on the Saturday night was clearly rejected by the jury in reaching a verdict of guilty, it does not necessarily follow that they rejected his explanation of how the semen got on to the nightie. It was not, in any event, an implausible explanation. He and the appellant were homosexual lovers, it was common ground that when the complainant came into the room after her nightmare both men were there and E was clad only in boxer shorts, while the appellant claimed to police he slept naked and the complainant had left him in this state when she went to bed in another room. It was again common ground that the complainant had sat on E's knee while he was still clad thus, and there was clearly an opportunity, if the appellant's semen was still on his body, for it to have been transferred to the complainant's nightie. If the jury did accept this explanation, there was nothing to corroborate the complainant's story, save the admissions said to have been made to B, and these were no stronger in respect of the Saturday night than of the Sunday morning. Assuming the jury rejected not only E's denials but also the explanation he offered, there was also nothing making it more probable that the semen was deposited on one occasion rather than the other. In these circumstances, the possibility remains open that the jury may have adopted the approach adverted to by King CJ in R v Kirkman (supra) and, while satisfied that the offences of both occasions had been proven, felt that justice was sufficiently met by convicting the accused of less than the full number. However, it is to be noted that King CJ's remarks were made in the context of the verdicts under challenge being "adequately supported by the evidence".

In this case, the evidence of the complainant contained many internal discrepancies. In relation to the two weekend incidents, it was unsupported by the medical evidence and in some respects the medical evidence was inconsistent with it. The condition of the hymen did not exclude the possibility that intercourse had occurred over the weekend, but ruled out intercourse at that time as a cause of the ruptured remnants, they having been caused some time earlier. However, the doctor's finding that the vagina would only admit one finger was inconsistent with the complainant's evidence that the appellant had, without causing her any pain, inserted two fingers on each occasion. The delay in making a complaint, the happy condition of the complainant on the Sunday in the presence not only the appellant but of her friends and later of her mother, and the expressions on the way home of a desire to return to live in the house close to that of the appellant are all the reverse of behaviour consistent with her having been the victim of protracted sexual assaults. When to these deficiencies are added the verdicts of acquittal on the four virtually identical charges in respect of the Sunday morning, I am left with a doubt that the jury properly applied their minds in an unprejudiced way to the task before them, and with a strong impression that there is a significant possibility that the appellant has been wrongly convicted on the three charges of indecent assault and one of rape which allegedly occurred on the Saturday night. I do so while making due allowance for the advantages enjoyed by the jury in seeing and hearing the witnesses and for the fact that the complainant was young, had a learning disability of an unexplained nature and may well have become confused in the course of a lengthy and vigorous cross-examination by experienced counsel. Nevertheless, I regard these verdicts as unsafe and unsatisfactory. In the circumstances I find it unnecessary to determine whether the learned trial judge's ruling which prevented the cross-examination of the complainant and of her mother's partner on the issue of whether he had previously raped her was correct or not, or whether the way the Crown led evidence from him denying any sexual assault on the complainant unfairly impacted on the defence. I would allow the appeal, quash the convictions and sentence and enter verdicts of acquittal thereon.
File No CCA 37/2003

PHILLIP GEORGE THOW v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  15 December 2003

The appellant was found guilty by a jury of four counts and not guilty of four counts. The jury was unable to agree on its verdict on one count. He appealed on the ground that the verdicts of guilty were unsafe and unsatisfactory on two bases, that on the whole of the evidence it was not open to the jury to be satisfied that he was guilty and that the verdicts of not guilty on the one hand and guilty on the other hand, were inconsistent and illogical and represented an affront to logic and commonsense.

The nine counts were alleged to have taken place in the course of three separate incidents. Count 1, on which the jury could not reach a verdict, alleged that on a day during April 2001, in a bus at the appellant's home at Devonport, he indecently assaulted the complainant, who I will call C, by pushing her in the chest with his hands, causing her to fall onto her back, and then lying on top of her. The second incident concerned counts 2 to 5. He was found guilty of all of them. They included three indecent assaults and one rape on C in the appellant's lounge room on the night of 5 May 2001. Count 2 alleged an indecent assault by touching her breasts. Count 3 alleged an indecent assault by stroking her vagina with her fingers. Count 4 alleged rape by having vaginal sexual intercourse without her consent. Count 5 charged an indecent assault by placing her hand on his penis and moving her hand up and down it. Counts 6 – 9 concerned the third incident. The appellant was found not guilty of all of them. Charged were two indecent assaults, an aggravated sexual assault and a rape, once again in the appellant's lounge room, on the next morning, 6 May 2001. Count 6 alleged an indecent assault by touching C's breasts with his hands. Count 7 alleged an aggravated sexual assault by penetrating her vagina with his finger and stroking her vagina. Count 8 alleged an indecent assault by placing her hand on his penis and moving her hand up and down it. Count 9 alleged rape by having vaginal sexual intercourse without her consent.

At the time of the relevant events, C was 14 years of age and in grade 8 at school. She gave evidence that she had a learning disability. He was 42 years of age. He lived with E. The trial took place two years after the relevant events.

C's evidence concerning the first incident (count 1)

C and her family lived close to the appellant in Devonport. C's evidence was that in April 2001 she and her family were friendly with the appellant and E. On a day in April 2001, she was helping to clean out the appellant's bus. He came into the bus and shut the door. She said that "he pushed me onto the seat and then he sat on me knee and then he kissed me on the neck". She said that she told him to stop and eventually he did. He left the bus and she continued cleaning it out.

Initially in cross-examination, C's version of the events was the same, except that she described the kiss as being to the side of her cheek. However, it was put to her that in a statement to the police on 8 May 2001, she said that after the appellant closed the door of the appellant's bus, "he pushed me back and he sat down and pulled me down so I was leaning across his knee and my face was towards his". When pressed to explain the fact that her evidence of the incident was different than what she had told the police about it, she said that her evidence had been mistaken. Looking at her statement to the police had refreshed her memory, she added.

C's evidence concerning the second incident (counts 2 – 5)

It appears that shortly after the alleged incident in the bus, C and her family moved to Rosebery and were living there on Saturday, 5 May 2001. C gave evidence that on that day, the appellant and E came for tea. She agreed that she went out to their car to greet them but denied that she told the appellant that her mother's partner had assaulted her. The appellant invited her to go with him to his home, to stay the night. She asked her mother and step-father and was given permission. Her youngest sister went with her. According to C, that came about because her mother asked that her sister go with them. According to their mother, the sister wanted to go and she allowed them both to do so. The difference was of no consequence. She added that the appellant offered to pay her petrol money to pick the girls up from his home the next day. Her partner said that the offer was made when he complained that he could not afford to go up to Devonport to pick C up.

It was C's evidence that they arrived at the appellant's home at about 10pm, when it was dark. She went to a pub with him to buy some chips and a carton of Hahn Ice beer. They all ate the chips. Her sister went to bed in the appellant's bedroom. When C was sitting on the couch in the lounge, the appellant obtained some beer for her from a red cabinet, to which he had the key, near the kitchen. She drank 1½ cans of it, until she felt dizzy and sick. E was in a chair in the lounge room.

She said that there was a mattress made up as a bed on the floor near the fireplace, with a doona, sheets and pillows on it. She was sitting on the couch, watching television. E was watching it as well. The appellant patted the mattress and she went over to him. The only reason she could give for doing so was that he patted the bed. She said that she was wearing a nightie and knickers. The appellant had a towel around him. She said that he took her knickers and nightie off. In cross-examination she said that was a mistake and that he told her to take her knickers and nightie off and she did so. She lay on her back on the mattress. Nothing was said. He then "rubbed me boobs softly ... with his hand", for what seemed to her a long time. He then touched her "down the vagina". She said that "first he put his fingers in there and then he put his penis in there". Asked "how many fingers he put in there", she answered "about two". She described his penis as being hard when it was in her vagina. She did not feel any pain. It seemed like his penis was in her vagina for "a long time as well". Asked if anything was said, she responded that he said "ooh, ooh". She said that he took hold of her hand and rubbed it up and down on his penis. C remembered that at one point, she did not recall when, she said "stop, I don't like this anymore", but he did not listen. She also said that she told him to stop "because I didn't like it and I was getting dizzy, dizzy and I felt sick". She noticed no stickiness or wetness that would indicate he had ejaculated.

It was C's evidence that throughout the second incident, E was in the same room, sitting in a chair, watching football on television and drinking beer. She agreed that when watching television, he would probably have been looking over the top of the mattress on the floor. She did not ask him for help. She agreed in cross-examination that she told the police that he would not have been able to see what was going on. In evidence she explained that it was too dark. She said the light in the room was off, but accepted that the glow from the television partially lit the room, although not all of it. She said that she could see that he was watching television. "He couldn't see nothing, he was just only watching tv", she said.

C said that when the appellant took his penis from her vagina, he told her to get dressed. She said that she did not get dressed, but went to the bedroom allocated for her use, taking her nightie with her. She gave confused evidence as to whether she put the nightie back on, but in cross-examination she said that she was wearing the same nightie at the time of both the second and third incidents.

C said that she went to sleep in the bedroom, but woke up in the course of having a bad dream about her father. "He was going to break me heart", she said. She went to the lounge room and sat on E's knee, apparently for comfort. He was wearing boxer shorts only and was still watching television. She thought that the appellant was on the couch, also dressed in his boxer shorts. She told E about the dream. He comforted her. He commented about how heavy she was. They went into the kitchen area and weighed themselves. She then went back to bed.

C's evidence concerning the third incident (counts 6 – 9)

C said that the next morning she got up at the sound of the appellant putting a dog out of the house. E was still in bed (in a bedroom). The appellant told her sister to get dressed and to go to a shop down the street to purchase cream, milk, dog food and lollies. Her sister left. She agreed that the walk to and from the shop would have taken about 10 minutes. She and the appellant then went into the kitchen and had breakfast. She said that the third incident took place while her sister was away at the shop and that she was in the course of washing up when her sister returned. Her evidence was not clear as to the order of the events while her sister was away.

She described the third incident in the following way. She and the appellant were in the lounge. He was wearing boxer shorts. Once again, he patted the mattress and she went and sat on it. She continued: "And then he took all me nightie and that off and me knickers and ... he threw knickers on the floor and I don't know where the nightie." However, in cross-examination she said in regard to both the second and third incidents that he told her to take her nightie and knickers off and she did so.

Her evidence-in-chief of precisely what he then did to her and the order in which he did it, was confused, at least partly because of the way it was led by counsel. She described what happened but there is no need to repeat it. She mentioned that the appellant had done the same as the night before. In cross-examination she confirmed that everything had happened in the same way, without difference, as the night before. Counsel for the appellant then asked a series of leading questions, putting to her the version she had given of the events of the night before in the same order as she had given it, and as he did so she confirmed those events and the order.

It is appropriate to deal at this point with the fact that she added that the appellant's sperm went onto her nightie. Counsel for the appellant endeavoured to make some point out of that, but it is clear that she was only saying what she had later been told about the matter and it cannot assist the appellant's case on the appeal.

Evidence of complaint

In evidence-in-chief, C said that she went home later on the day of the third incident. The following day she left school early because she had her period. Later on her brother came home and they fought about "everything". She was upset and decided to leave home, she said. After packing some bags with clothes, and taking her guitar, she walked away from the house. She did not get very far. Her mother's partner, to whom she referred as her step-father, picked her up and took her back home. He asked why she had run away, but she did not tell him. Back at home she told her brother that the appellant had "rooted her", in response to him asking why she had run away. Her step-father overheard and on him asking her, she told him that the appellant had sex with her. She then told her mother and step-father about it, whereupon they called the police, who came and took her statement.

However, in cross-examination she agreed when it was put to her that her real reason for running away was to get away from her step-father, that she could not tell her mother that because it would have upset her, that she had to think of another reason when telling her brother why she had run away and so she told him about the appellant having sex with her. In re-examination she said that she wanted to get away from her step-father "because he was always yelling at me and he always smacks me on the bum when I do something wrong accidentally".

C's mother gave evidence that when she and her partner arrived at the appellant's home to collect C and her sister later on the day of the third incident, C was very excited. She expressed a wish to move back to live at their old home near to the appellant's home at Devonport, and said that she did not like living where they were on the West Coast. On the way home in the car she was "pretty quiet". Her mother's partner thought that C was a lot quieter than normal at the appellant's house. He said that on the way home she expressed a wish to return to live at Devonport instead of Rosebery.

It was the evidence of C's mother that next morning, C did not want to go to school, which was unusual for her. She was sent home from school early with a bad period. Later in the day she had a tiff with her brother when he got home and she packed and left home, saying that she had had enough of her brother picking on her. When C was brought back home she was quite upset. Shortly after that, her mother noticed that C was crying and C said that "Phillip has done something to me". Her mother asked what she meant and C said: "Phillip made me take off my clothes and he got on top of me and rooted me". On her mother asking whether she was sure, C said: "Yes I am mum, I'm not lying". In the course of a conversation, C said that it happened on the Saturday night and Sunday morning on the bed in the lounge room. She also mentioned the incident in the bus in April. The mother's partner corroborated generally the mother's evidence about C's complaint concerning what the appellant had done.

Semen on the nightdress

As a result of cross-examination, it was C's evidence that she was wearing the nightdress at the time of the commencement of both the second and third incidents. She had not been aware on either occasion that anything had happened that would indicate he had ejaculated. However, there was evidence of considerable weight and significance that the appellant's semen was on her nightdress following the incidents. The police had it forensically examined.

A screening test performed on the nightdress revealed four areas suggestive of the presence of semen, being two areas on the back of the garment and two areas on the front. A sample from only one of those areas was analysed. It was taken from the middle of the back of the garment. The presence of spermatozoa confirmed that it was in fact semen. Its DNA profile proved to be identical with that of the appellant, with a statistical improbability of it being from a person unrelated to the appellant of less than one in one hundred million. The defence did not challenge that the semen must have been the appellant's.

Medical examination of C

Evidence was given by Dr Catherine Broun, a general medical practitioner with particular experience of examining victims of sexual assault. She examined C at about 12.10am on Tuesday, 8 May 2001, a little over 48 hours after the second incident and probably about 40 hours after the third incident. She found evidence of penetration to the vaginal entrance. The entrance to the vagina, the hymen ring, would admit only one finger and not two fingers. There was no tenderness and no evidence of other injury anywhere on C's body. The hymen was present as healed remnants. Having given that evidence, she was asked in her evidence-in-chief: "Okay, and are you able to say if that, if the remnants where – of the hymen were consistent with penetration on one or two occasions, but no more beyond that point?" She answered: "I'm able to say that it would have been one or two, and no more beyond that point." I find it impossible to determine whether Dr Broun meant that it was her opinion that C had only been penetrated once or twice or that she had been penetrated at least once or twice and beyond that she could not say. I suspect the latter, if for no other reason than it appears that in the course of her examination of C, the doctor's finger penetrated the girl's vagina without causing injury.

In cross-examination, Dr Broun was asked: "What kind of time would you expect would need to pass before the remnants of a hymen would be healed?" She answered: "Approximately a week". In re-examination she was asked whether it was possible that the hymen could have healed within 72 or 48 hours. She answered "not in my opinion", adding that it would take longer than 72 hours.

Admissions by the appellant

Evidence was given by B that he had known the appellant for some years and they had been friends until a falling out over money owed to him by the appellant, for which he had asked a number of times. He said that on 15 April 2002, at the appellant's shed that was part of his house, he once again raised the matter and started to put pressure on the appellant about re-paying the money. B said: "He basically broke down and started tearing[sic], crying a bit how he needed, he couldn't give me the money, he needed the money for lawyer and whatnot ... He went on to say that he was brought up on in this matter. Went on to say that, basically admitted guilt to me, about what he'd done".

B said that he could not remember the conversation word for word, but they were discussing the court case, in other words the present case, that the appellant became upset about how he needed the money for legal representation, and he said words along the line of "I did what I've been accused of", as close as B could remember. That had shocked B, because they had spoken about the case a number of times before and on those occasions the appellant had protested his innocence and B had believed him.

The appellant gave no evidence denying that he made those admissions.

The defence case concerning the incidents

The appellant did not give evidence at all. However he was interviewed by the police on Wednesday, 9 May 2001, only three days after the third incident. He described E as his boyfriend. He said he was bisexual but was not into children. He said that during his visit with E to see his family on 5 May 2001, C asked if she and her sister could come to stay with him, and their mother gave them permission to do so. He agreed that he gave the mother's partner money for petrol to enable them to pick the girls up the following day.

The appellant said to the police that once they had arrived at his home, beer and chips were purchased. C's sister went to bed first in his bedroom and C followed her about half an hour later. he thought that earlier he had a bath. He could not remember whether he had a towel wrapped around him. He and E intended to sleep on the bed on the floor of the lounge room and they later did so, although E returned to his own bedroom before the two girls rose in the morning. The appellant denied that C drank beer. He said that only E did so. He said that C sat on the couch watching television before going to bed in his bedroom, joining her sister. He could not recall that he dropped a towel from around his waist so that he was naked. He agreed that the lights in the lounge room were off and that the television was on. He denied all of C's allegations of sexual contact.

The appellant confirmed to the police that after going to bed in his room, C returned to the lounge room. He said that she sat on E's knee for a while, that E commented to her that she was heavy and they weighed themselves on some scales.

Concerning the following morning, the appellant confirmed to the police that he sent C's sister to a shop, a walk there and back of about 10 minutes. He said that C was also going, but she was not dressed. He denied C's allegations of sexual contact at that time.

Upon being asked about the first incident in the bus, the appellant told the police that he gave her $5 to clean out the bus. C's version of what happened was put to him and he denied any impropriety, responding that "I always give the kids a cuddle ... so that's no crime give a person a cuddle".

E gave evidence for the defence. He said that he was the appellant's partner and that they had lived together in a relationship for about 13 years, following the breakdown of the appellant's marriage. He said that when he and the appellant arrived at C's home on 5 May 2001, she came out to the car. She was very agitated and complained to the appellant that her mother's partner had assaulted her.

Concerning what happened at the Devonport house later that night, E's evidence was as follows. The appellant and C went off to purchase chips, lollies and beer. E sat on a chair in the lounge room to watch football on television and C's sister went to bed in the appellant's bedroom. Only E drank beer. He agreed that beer was kept in a locked red cupboard. The appellant was on the mattress on the floor that was made up as a bed. C was on the couch, although she left it a couple of times to go to the toilet. The light was out but E was able to see. After some time, C went to bed in the appellant's bedroom. Football was still on the television. There was no sexual contact between C and the appellant.

E said that within two or three minutes he went to bed with the appellant and they had sexual relations, in the course of which the appellant ejaculated onto E's stomach. He was naked at the time. The next thing that E recalled was C yelling and he heard footsteps. He jumped out of bed, put on his boxer shorts and sat back in the chair. He said that he did not like to be caught by anybody in bed. The appellant remained in the bed on the floor. E described C as racing into the lounge, crying and agitated. He thought that she was wearing a nightie. She said that her father had tried to stab or kill her in the heart. He said to her to come over and sit on his knee and she did so. On being asked whether he had made any effort to get rid of the semen on his body, his response was: "Oh, you know, I had probably 20, 30 seconds. Probably not even that". He described C as sitting "sort of sideways ... turned around ... and put her arms around me". Asked if her back was against his chest or stomach, he said "it would have been a bit". He did not think that her front was towards his chest or stomach. He talked to her and tried to calm her down, pointing out that her father was dead. Then he commented that she was heavy and suggested that they weigh themselves, which they did. A short time after, she returned to bed and E returned to bed with the appellant. Asked in cross-examination whether he eventually got rid of the appellant's semen from his stomach, he said that he wiped it off with a shirt.

It was E's evidence that by the time others got up next morning, he was in his own bedroom. C brought him a cup of coffee there. He got dressed and spent the morning working on a car. C seemed to be normal.

Some aspects of the summing up

No ground of the appeal attacks the summing up of the trial judge and no criticism was made by the appellant's counsel.

The learned judge drew to the jury's attention, when dealing with the first incident, that even if the appellant had done what was particularised in count 1, it might not have been an indecent assault. The learned judge pointed out that a mere wrestling would not amount to indecent assault and his Honour commented on the difference in that regard between the particulars of count 1 and the particulars of the other counts, inferring that what was particularised in the other counts was plainly indecent.

The learned trial judge said to the jury that it seemed to him that if they accepted C's evidence they would find that she had been raped. Having explained that absence of consent had to be proved, his Honour pointed out that the Crown particularly relied on the provisions of the Criminal Code, s2A(2)(b), that "a consent is freely given where ... it is not procured by reason of the person being overborne by the nature or position of another person". His Honour reminded the jury that it was the Crown case that C was young and inexperienced; that the jury could assess for itself that she had a particular learning difficulty; and that her evidence was essentially of lying passively while the appellant had his way with her. The jury were accordingly instructed that the Crown case was that C was overborne by the appellant, a grown man and a fairly large one, in his house. At one point his Honour described the Crown case as being that C was compliant and passive, so that the appellant was able to have his way without resistance, and that C demonstrated as a witness that she was young and at times confused, with a tendency to agree with anything.

On the charges of rape, aggravated sexual assault was left as an alternative for the consideration of the jury, upon the basis that they might not be satisfied that there was penetration by the penis, rather than by a finger.

Whether there were inconsistent verdicts

It is the appellant's case that the verdicts of guilty on counts 2 – 5 were inconsistent with the jury's inability to reach a verdict on count 1 and that they were so inconsistent with the verdicts of not guilty on counts 6 – 9 that they represented an affront to logic and commonsense and strongly suggested an improper compromise by the jury. It was submitted by the appellant's counsel that the evidence of the appellant's semen on C's nightdress and of his admissions to B could not be confined as relating only to the second incident and not to the third incident. It was also submitted that given the presence of E in the room at the time of the second incident and his evidence that nothing untoward took place in his presence, the evidence supported verdicts of guilty in relation to the third incident more than it supported such verdicts in relation to the second incident.

In MacKenzie v R (1996) 190 CLR 348 at 365 – 368, Gaudron, Gummow and Kirby JJ extracted a number of general propositions from a review of cases concerned with the question of inconsistent verdicts. They included the following. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. Their Honours noted that in a criminal appeal, the view may be taken that the jury simply followed the judge's instructions to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. In this case, the learned judge instructed the jury that as there were nine separate charges, there were effectively nine trials and each charge required separate consideration and a separate verdict.

When determining whether the verdict should be one of guilty or not guilty, there is one test for a jury to apply, that being whether the evidence has proved beyond reasonable doubt that the accused is guilty of the count being considered by the jury. The law does not recognise shades of being satisfied beyond reasonable doubt, nor shades of not being so satisfied. If the jury concludes that guilt has been proved beyond reasonable doubt, the verdict should be one of guilty, but if it finds that it cannot come to that conclusion, then the verdict should be one of not guilty. A very fine line may separate the making of a decision one way or the other. It cannot be inferred merely from a verdict of not guilty that the jury must necessarily have concluded positively that the credit of Crown witnesses was poor or that the innocence of the accused had been established.

In MacKenzie v R (supra) at 368, Gaudron, Gummow and Kirby JJ agreed with the dictum of King CJ in R v Kirkman (1987) 44 SASR 591 at 593, that appellate courts should not be too ready to reach a 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 must have acted unreasonably in arriving at the verdict of guilty. Their Honours accepted nevertheless, that a residue of cases will remain where the different verdicts returned by the jury represent an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.

Upon a review of the evidence, I am unpersuaded that the appellant has established that this is one of those cases. The jury was obliged to reach its verdict on each count upon a consideration of the evidence relevant to it. Some of the evidence may have been relevant to all of the counts, such as the evidence of C's complaints to her family and the evidence of the appellant's admissions to B. Some of the evidence related more specifically to one or more of the counts, but not to others. In that regard I refer to much of C's evidence. The substance and quality of her evidence relating to the second incident was not the same as the substance and quality of her evidence relating to the third incident, nor of her evidence relating to the first incident. It is possible that with regard to the third incident, the jury was troubled by some lack of clarity in her evidence or by some confusion or inconsistencies within it. The jury may have accepted that she was essentially a truthful witness, but at the same time found it difficult to understand how, on her version of the events, the crimes charged in counts 6 – 9 could have taken place and she could have had breakfast in the time it took her sister to return from the shop. The jury might have concluded that although it was highly likely that counts 6 – 9 were committed by the appellant, nevertheless because of a perceived weakness in an aspect of her evidence, it was better to be cautious. One discrete piece of her evidence might have tipped the scales in favour of the appellant with regard to those counts and I am unpersuaded that the different verdicts amount to an affront to logic or commonsense.

As to the inability of the jury to reach a verdict on count 1, which was also relied upon by the appellant, it has no value for the purpose of establishing that the verdicts were inconsistent. Some jurors thought that the guilt of the appellant on that count was proved beyond reasonable doubt. At least three jurors did not. It is possible that their doubt concerned whether, if the appellant did what was asserted by C in her evidence, it was indecent. I referred earlier to the comments made about it by the learned trial judge to the jury in his summing up.

Whether the guilty verdicts were open

It was submitted for the appellant that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 2 – 5, and that the verdicts of guilty were unsafe and unsatisfactory for that reason. Morris v R (1987) 163 CLR 451; M v R (1994) 181 CLR 487. Therefore, the Court should assess whether the jury, acting reasonably, ought to have entertained a reasonable doubt as to the guilt of the accused. Chamberlain v R(No 2) (1984) 153 CLR 521 at 534. Involved in that assessment is a consideration of both the sufficiency and quality of the evidence. However, as Gibbs CJ and Mason J pointed out in Chamberlain, the responsibility of deciding upon the verdict lies with the jury and there is no justification for an appellate court to usurp the function of the jury and disturb a verdict of guilty simply because it disagrees with the jury's conclusion.

There was clearly an abundance of evidence to support the guilty verdicts. The jury were entitled to consider that it was unlikely that C would have complained that the appellant sexually assaulted her in the presence of E, if it was untrue. The evidence of the appellant's semen on her nightdress was particularly damning. The jury was entitled to reject the defence case that it was deposited on the garment when C sat on E's knee. The jury may well have regarded it as too incredible a coincidence and one beyond belief, that on the very occasion about which C complained that she was sexually assaulted by the appellant, his semen was transferred to the back of her nightdress, and very likely to the front as well, because it so happened that the appellant and E had sexual relations during which the appellant ejaculated onto E, and shortly after C sat on E's knee. On first impressions, C's claim of the appellant's sexual assault on her in the presence of E might seem unlikely, but the jury were entitled to think that the unlikeliness of it made her evidence all the more credible. If the jury rejected E's explanation for the appellant's semen being on the nightdress as incredible and extremely unlikely, then C's evidence of E's presence in the room gained more credence.

The jury were also entitled to regard as having significant weight, the evidence given by B of the appellant's admissions, notwithstanding that he was unable to provide particularity as to the words used by the appellant. The jury could more confidently use B's evidence in the absence of evidence from the appellant refuting it.

Particular aspects of the evidence that may have assisted to persuade the jury to reach the guilty verdicts, included the fact that the appellant was willing to have the complainant stay overnight with him and to pay her family the cost of petrol for them to take her back home afterwards. The jury may have found support for C's credit in the evidence of her report of the appellant's crimes to her mother and the other members of her family on the day following the third incident, and the circumstances in which she came to report it.

It was submitted by the appellant's counsel that the jury ought to have had a reasonable doubt concerning guilt on counts 2 – 5 for a number of reasons. They included that C's description of the second and third incidents were identical, including the order in which the appellant actually dealt with her. I do not consider the point has great weight, although I acknowledge that it is possible that it may have been one of the reasons why the jury acquitted the appellant on counts 6 – 9. It is not surprising that what the appellant may have done with C during the third incident, in the form of the caressing of her breasts, digital and penile penetration of her vagina and masturbation of himself, was the same as what he did with her the previous night.

Counsel for the appellant also referred to C's statement that E could not have seen what was happening in the room, as harming her credit. I think that it can easily be explained as the statement of a naive 14-year-old girl, with a learning disability, who was at a loss to understand how E could have displayed no reaction whatever to the appellant's conduct with her, unless it was because he did not see what was going on.

Reliance was also placed by the appellant on a number of inconsistencies in C's evidence of the incidents, including some changes from her version of them in evidence-in-chief to her version in cross-examination. By way of example, some concerned whether her nightdress and knickers were taken off by the appellant or whether C took them off when he directed her to do so, and whether she put on fresh night clothes between the second and third incidents. There were also inconsistencies between what C told the police about the first incident and what she said about it in evidence. All such aspects of C's evidence deserved careful scrutiny by the jury in the course of their review of all of the evidence presented at the trial.

One advantage enjoyed by the jury but not by this Court, was of seeing and hearing C give her evidence. See M v R (supra) at 494. In the course of the summing up, the learned trial judge referred to her as being young and inexperienced and that the jury could assess for itself that she had a particular learning difficulty. Those aspects could be better understood by the jury, who had observed her give evidence. Counsel for the Crown asserted that without having seen C give evidence it is impossible for the Court to understand how simple she was and that she presented as a hesitant and biddable witness, one who could be turned in different directions in the course of a number of long series of virtually repetitive questions in a cross-examination which extended for a number of hours. I think it likely that there is some merit in that assertion in the circumstances of this case.

Counsel for the appellant also referred to statements made by C that, on their face, were inconsistent, concerning her reason for running away from home on the day following the third incident. Her statements included that she had argued with her brother, that she wanted to get away from her step-father because he was always yelling at her and smacking her and that the appellant had sexually assaulted her. I do not regard the apparent inconsistencies as being of great significance. There is no doubt that she did leave home immediately following an argument with her brother. It may well be that she was unhappy at home because of her step-father's treatment of her and it may well be that she gave as her reason that the appellant had sexually assaulted her, because she did not want to complain about her step-father to her mother or to him. That she had passively submitted to what the appellant had done with her may have been troubling her. That day she had come home from school early because of the onset of her period. She may have had emotional problems as a result. She was only 14 years of age. I think it likely that many children who run away from home do not do so for one reason only, and that many would have difficulty accurately articulating all of the reasons.

There was evidence that C expressed a desire to move from Rosebery back to where she had lived near to the appellant. That evidence was not inconsistent with her having engaged in sexual congress with the appellant. Indeed it was consistent with it. It was not the Crown case that the sexual assaults had been carried out violently, rather that she had accepted them passively and as I pointed out, absence of consent was left for the jury's consideration upon the basis that C may have been overborne by the nature and position of the appellant.

I have had difficulty concerning the evidence of Dr Broun. I think that a lot of my difficulty has arisen out of the failure of counsel to ask for more detail from the witness. For example, she was not asked whether or not a penis could have penetrated the hymen ring. No anatomical evidence was given to assist the jury concerning whether there may or may not have been penetration to the least degree of the vagina or genitalia required for rape and aggravated sexual assault. Essentially the jury were left to draw their own conclusions and arguably with little assistance from the doctor's evidence. That Dr Broun could insert only one finger suggested that the appellant could not have inserted two, but C's evidence of the number was "about two", indicating that she was uncertain.

Notwithstanding the arguments presented by the appellant's counsel that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 2 – 5, upon a review of the evidence I find that I keep returning to that of the appellant's semen on C's nightdress and of the appellant's admissions to B. In my view, the jury were entitled to find in those pieces of evidence substantial support for C's evidence and the Crown case. The verdicts of guilty were not unsafe or unsatisfactory.

At the trial, counsel for the appellant sought leave to put to C in the course of cross-examination that she had previously complained to the appellant that her step-father had sexually assaulted her. The learned judge allowed evidence to the effect that she had been assaulted but not that it was sexual. His Honour ruled that the proposed questions were prohibited by the operation of the Evidence Act 2001, s194M. Counsel for the appellant did not seek to argue at the hearing of the appeal that the ruling was wrong. Nevertheless, it is submitted that the ruling could be taken into account, along with all the other circumstances of the case about which he had made submissions, when coming to the conclusion that the verdicts of guilty were unsafe and unsatisfactory. In my view, if the evidence was in fact prohibited by statute, it cannot assist the appellant.

Conclusion

For the reasons I have expressed I would dismiss the appeal.
File No CCA 37/2003

PHILLIP GEORGE THOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
15 December 2003

I agree with Crawford J that the appeal should be dismissed, and agree substantially with the reasons stated by him. I think it was reasonably open to the jury to find the charges in relation to the Saturday night proven beyond a reasonable doubt, but those in relation to the Sunday morning not so proven, having regard to the following matters:

(a)As Crawford J has observed, the complainant's evidence-in-chief as to what the appellant did to her on the Sunday, and the order in which he did it, was confused. In fact her first account of the Sunday's sexual activity omitted any express reference to the insertion of the appellant's penis into her vagina, although she did say "… and he did the, repeated the same from the night before." I think it was reasonably open to the jury to regard the complainant's evidence as to the Sunday incident as less reliable than her evidence as to the Saturday incident having regard to the way in which she gave her evidence in relation to each incident.
(b)As Crawford J has pointed out, under cross-examination the complainant gave evidence to the effect that the events of the Sunday morning were identical to the events of the Saturday night. I think it was reasonably open to the jury to consider that an identical sequence of events was somewhat unlikely, and that the complainant's evidence as to the Sunday incident was therefore less reliable than her evidence as to the Saturday incident.
(c)The complainant's evidence was that on the Sunday morning, while her sister was absent on a trip to a shop, the appellant "rubbed me boobs for about 30 minutes", touched her vagina with his fingers, had vaginal sexual intercourse with her, and forced her to touch his penis with her hand. She said she then got up, went to her room, got changed, had breakfast, and was in the process of washing up when her sister got back from the shop. In her evidence-in-chief she said that her sister was out of the house for about 20 or 30 minutes, but under cross-examination she agreed that one could walk to the shop and back in 10 minutes at an average walking pace. I think it was reasonably open to the jury to conclude that the events said to have occurred during the sister's absence, ie, the sexual activity, dressing, breakfasting and washing up, could not all have occurred in the time available.
(d)The evidence of semen on the nightdress and the evidence of the admission to B were both capable of being regarded by the jury as damning corroborative evidence in relation to one act of rape, but not two, and not any particular alleged rape. The majority verdict on count 4 meant that 10 or 11 jurors were satisfied beyond reasonable doubt that the appellant committed the crime of rape on the Saturday night. The jury might well have reached its verdicts of guilty in relation to the Saturday charges before reaching its verdicts of not guilty in respect of the Sunday charges. If so, once the guilty verdicts were reached in respect of the Saturday charges, the evidence of semen on the nightdress and the evidence of the admission to B provided no support for the Crown case in respect of the Sunday charges.