W G G v The Queen
[2013] VSCA 109
•9 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0472
| WGG |
| v. |
| THE QUEEN |
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JUDGES: | ASHLEY, REDLICH and PRIEST JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 9 May 2013 | ||
DATE OF JUDGMENT: | 9 May 2013 | ||
MEDIUM NEUTRAL CITATION: | [2013] VSCA 109 | ||
JUDGMENT APPEALED FROM | R v WGG (Unreported, County Court of Victoria, | ||
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CRIMINAL LAW – Conviction – Appellant convicted on six charges of incest – Leave to appeal granted against conviction on one charge only – Renewal of application for leave to appeal against conviction on other charges – Renewal and appeal heard together - Possible significance of date of marriage between appellant and complainant’s mother and of legislative regime operative before commencement of the Crimes (Sexual Offences) Act 1981 only recognised late in course of trial – Whether verdict unsafe and unsatisfactory - Jury appropriately re-directed as to the law – Whether judge erred by not recapitulating summary of evidence after re-directing – Whether trial may have been differently conducted had the possible relevance of the two dates been apprehended earlier - Appeal dismissed and renewal application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G Hughan | Galbally & O’Bryan |
| For the Crown | Mr B Kissane | Office of Public Prosecutions |
ASHLEY JA:
In August 2010, WGG was found guilty after retrial in the County Court on six counts of incest. On the Crown case, the offences were committed in the course of five incidents which took place in a period of a few weeks in 1983. The victim was DB who, in 1983, was the appellant’s stepson.
On 19 November 2010, WGG (whom I will describe for convenience as the appellant although it is not wholly accurate), was sentenced to a total effective sentence of eight years’ imprisonment. The judge fixed a non‑parole period of five years.
The grounds
The appellant brought application for leave to appeal against conviction. After amendment, he relied upon these grounds:
Ground 1 -
There has been a substantial miscarriage of justice because the Appellant’s trial was not conducted on the basis that the prosecution had to prove beyond reasonable doubt that the alleged offences occurred on or after 13 September 1981 i.e. the date upon which the complainant became the step-son of the Appellant.
Ground 2 -
The trial Judge erred by failing to give the jury any assistance on how they could relate the facts of the case to the date from which it was necessary for the prosecution to establish an element of each of the charges of incest, namely that the complainant was the step-son of the Appellant.
Ground 3 -
The trial Judge erred by directing the jury that ‘[S’s] evidence only relates to Count 6’.
Leave application. Renewal
On 24 December 2012, Nettle JA granted the appellant leave to appeal only in respect of his conviction on Count 6. The appellant thereafter renewed his application for leave to appeal in respect of his conviction on Counts 1‑5.
Before this Court are the appeal and the renewal application; and, if the latter succeed, the appeal in respect of conviction on Counts 1‑5.
March and 18 September 1981.
Before 1 March 1981, the definition of incest by s 52(1) of the Crimes Act 1958, did not include acts with male children. The section was amended by s 5 of the Crimes (Sexual Offences) Act 1981.
Thus if any of the incidents alleged by the Crown had occurred before March 1981, the appellant could not have been convicted in respect of that incident.
The appellant married the complainant’s mother on 13 September 1981. Prior thereto, they had lived in a de facto relationship for some years. As the law then stood, a person could not be convicted of incest for an act done with the child of a de facto partner.[1]
[1]R v Umanski [1961] VR, 242, 245; Miller v R (2001) 127 A Crim R 344, 354-357.
Thus, if any of the incidents alleged by the Crown had occurred before 13 September 1981, the appellant could not have been convicted in respect to that incident.
The Crown case
Evidence of the Complainant
The presentment particularised each of the six counts as occurring between 19 April and 31 December 1983. Five were particularised as occurring at premises at Seaford where the complainant then lived with his mother, the appellant and at least one other child of the appellant. One charge was particularised as occurring at Bairnsdale.
Chronologically, the last count alleged that at Seaford the appellant introduced his penis into the mouth of the complainant.
The evidence of the complainant was that the offences occurred when he was aged 15, after he left school.[2]
[2]He was born on 19 April 1968, and left school either at the end of 1982 or in the early months of 1983.
He said that he was induced to participate in the various acts of anal and oral penetration by threats of different kinds made by the appellant.
Respecting the offence last in time, the complainant said that he was watching the television at home. The appellant called him into his bedroom. The complainant saw the appellant’s rifle there. The appellant made sexual demands and threatened that he would hurt the complainant’s family if he did not comply. In those circumstances, he sucked the appellant’s penis, the appellant standing and the complainant being on his knees.
The complainant gave evidence that a stepsister, S, came into the bedroom whilst this activity was going on. The appellant said to her words to the effect, ‘How dare you walk into this room without knocking.’
The complainant was cross‑examined. It was suggested to him that the incident took place in 1981. He agreed. He denied that the appellant was simply attending to an infection in his groin area because he, the complainant, was too embarrassed to seek medical assistance.
In re-examination, the complainant said that when his stepsister walked in, he was on his knees. In answer to the question, ‘Were you able to say whether it was 1981 or not that she walked in’, the complainant replied, ‘Not sure’. He also said that he was not at school when it happened.
The last answer was possibly equivocal but its purport, in context, was clear. The complainant was saying that he had left school at the time.
The evidence of S
S gave evidence that after school one day, then being aged 12 or 13, she came home. She walked about and eventually walked into her father’s bedroom. She saw her father and the complainant both with their pants down. As she walked in, the complainant was ‘standing on the side and [her father] grabs him’. The witness said that the complainant was standing. Then there were these questions and answers:
So he’s standing by the dressing table. What else did you observe at that point? Where was your dad?---Standing right in front of [DB]. Well, crouching down, he wasn’t standing.
What about clothing in relation to both of them?---[DB] had his pants around his ankles, and [WGG] was bending down.
What about his state of clothing?---I can’t remember, to be honest. I’m not too sure.
S gave evidence that, subsequent to this incident, the appellant said words to her to the effect:
I know what you seen and don’t ever repeat what you seen otherwise you’ll be sorry.
The witness, asked if she was able to say whether the complainant was at school or working at the time of this incident, said that the complainant ‘would have been at school. He ‘might have had a day off’. She could not recall.
The witness was cross‑examined about the configuration of the premises. The point of the cross-examination was that her description of the premises, particularly as to the room where, on her account, she had observed the incident, did not fit with other evidence adduced at trial, not least the evidence of the complainant.
S was asked when she had left the Seaford home. It was, she said, when she was aged 14-and-a-half. But then she said that it was ‘1983, 1984’ and then, ‘It was prior to ‘83 but I’m not sure when’. Thereafter, she had visited from time to time.
The incident which she observed, she said, occurred in the late afternoon or early evening.
It was put to her in cross‑examination that her father had never warned her as she alleged. She denied it.
The defence case
Always remembering that it was not for the appellant to establish anything, his case was that the alleged incidents did not occur. The complainant’s account was very late made and, for whatever reason, did not represent the truth of the situation.
Closing addresses
The prosecutor referred to the complainant’s acceptance in cross‑examination that the incident which S had observed had occurred in 1981, and to the evidence of S. He submitted that S’s evidence as to her age when she left home did not ‘gel’. If she left home in 1983, she was older than that. As to fixing the date of the incident, her evidence was unreliable. There was, counsel submitted, a plethora of evidence which fixed all the offences as having been committed in 1983.
Counsel drew attention to obvious variations in the account of the last incident given by the complainant and to the evidence of the incident as observed by S. His evidence was that he was sucking the appellant’s penis. S’s evidence implied the reverse.
Counsel forecast correctly that counsel for the appellant would rely upon this variation. He submitted, in effect, that S’s precise recollection was incorrect, but that she had witnessed the last alleged offence.
Counsel for the appellant submitted, by reference to evidence given by the complainant’s mother, that an assault upon her by the appellant, which the complainant related temporally to the commencement of the alleged offending, took place ‘as early as 1980, maybe as late as 1981 but certainly not 1983’.
This submission was evidently advanced to show that the complainant, to make his evidence believable, had ‘borrowed his mother’s black eye and says the first incident occurred’ the next day. But that made the complainant’s selection of 1983 wrong. It showed that his account was a fiction.
Another incident of allegedly wrong timing, counsel submitted, was the complainant’s identification of the vehicle in which he had travelled with the appellant to Lakes Entrance, this being the occasion of the alleged offending at Bairnsdale. The jury should conclude that the vehicle which the complainant described had not been acquired until late 1983. This was part, counsel submitted, of a constant theme of fiction.
Counsel addressed the evidence given by S. This is what he submitted:
What’s the relevance of the evidence of [S]? Just recapping her evidence very briefly, she said she was born in 1967 and on a school day when she was aged 12 and 13 – not 14 and a half – she didn’t say she was 14 and a half when she made the observations, the learned prosecutor twisted and tortured the material before him and told you that she could have been 14 and a half. There’s no evidence that she was 14 and a half when she made the observations. The evidence is that she was 12 or 13, and if she was born in 1967 that makes it 1979 or 1980, full stop.
She came home one school day with a girlfriend, looking for her father, found her way to the bedroom – that was referred to as the rumpus room – took one step in and then straight back. In what could only be regarded as the shortest while she said she saw [DB] standing and [WGG] crouching. [WGG] flung the complainant around so the complainant’s back was facing her.
The learned prosecutor took you to the transcript about what was said, and she did in evidence-in-chief initially state that she saw both Dad and [DB] with their pants down. But he didn’t go on to further – on the same page that he was on he didn’t further refer to other questions that was asked… Question by the learned prosecutor: ‘What about clothing in relation to both of them?’ Answer: ‘[DB] had his pants around his ankles and [WGG] was bending down.’ ‘What about his state of clothing?’ ‘I can’t remember to be honest, I’m not too sure.’ He forgot to mention that bit.
There are three issues that arise from that brief summary, and it’s just a brief summary of her evidence and you’ll have plenty of time to review the entirety of it. There are three issues: What did she see? Does it support the complainant’s evidence and what does it say about whether the complainant’s evidence is fact or fiction. What did she see? At it’s very highest, I suggest she saw the complainant standing with his pants down and [WGG] crouching. Given the twin answers about the state of [WGG’s] clothing around his waist, you cannot, I’d suggest, I’d submit to you, can’t find that he had his pants down. The evidence is equivocal.
What inferences can you draw from what she saw? Perhaps you’ll draw an inference that something improper was going on. Perhaps [WGG] was merely attending to an infection in the complainant’s groin area. Now, you’ve been told that there’s no evidence of that and that’s true. But do you accept the complainant’s denial, when it was put to him?
Now, was what [S] saw sinister or not? Remembering that the passage of time can, not always, but can distort memory. In determining that issue, you can refer, if it assists, to the evidence of her relationship, [S’s] relationship, with [WGG], after she walked into the room, what would you expect, if it was sinister? What would you expect if it wasn’t? Her evidence is that right up until 2002, what’s that, 19 years, after 1983 and 21 years after 1981, she had a good relationship; 2002, [WGG] resided with her for eight month, then he moved to Malden, then he moved to Kyneton, they were in phone contact, saw each other quite often, and over this time she was very close with him. What does that say about what she saw?
And you know for certain that what Mr – what the complainant was told at the police station was not what she saw. She did not give evidence that she saw the complainant sucking [WGG’s] dick. The highest that it gets is that, through the eyes of a 12 to 13 year old girl, in one step forward, then back, she saw the complainant with his pants down and saw [WGG] fling him around. Perhaps, just perhaps, he did that to hide the fact that the complainant was known for the steps he’s done.
Moving to the next issue; does her evidence support the evidence of the complainant in relation to Count 6? I’m going to leave aside the dates, just put them to one side. The learned prosecutor says that the comparison of the evidence, when you compare the evidence of the accounts given by the complainant and [S], they’re not dissimilar; that’s the word he used, not dissimilar, all right? But see, let’s test the accuracy of that comment.
The complainant said it happened on a weekend. [S] said it was a school day. The complainant said that he was on his knees. [S] said that the complainant was standing. The complainant says that [WGG] was standing. [S] says that [WGG] was crouching. The complainant says that [S] walked in whilst I was sucking his dick. [S] says, ‘He flung her around so his back – flung him around, so his back – so the complainant had his back to me.’ Commonsense dictates that on every level, they are entirely unrelated, separate allegations. If you agree, leaving aside the dates, if you agree, then there’s no supporting evidence in relation to Count 6.
In a desperate, and that’s my word, in a desperate bid to rescue their case, the prosecution throw a curly at you – she might’ve been 14 and a half, so it’s 1983, so it’s the same time, no evidence of that. They have a complainant who has given evidence who you might ultimately assess as being unreliable. So, as best they can, they bring in big sister to resuscitate the case.
But, in my submission, big sister doesn’t resuscitate the case. What she says she saw is at total odds with the allegations that have been made at every level. The prosecution can’t save its case using [S’s] evidence, but the defence rely on [S’s] evidence as crystallising the ultimate issue that I suggest to you is required to be decided, whether it’s fact or fiction, and her evidence crystallises it, because as I’ve said, not only is the complainant prompted by police, he’s told something that is absolutely at odds with what the witness says she saw, and from this misleading information a story is born, and…
The judge’s charge
When defining the elements of incest, the judge relevantly gave this direction:
The fourth element that the prosecution must prove is that the accused knew that the complainant was his step-child. The law says that in the absence of evidence to the contrary it can be presumed that the accused knew that they were related to the complainant in the way alleged.
In this case, as it has not been disputed that [WGG] knew that [DB] was his step-child it can therefore be presumed that he had such knowledge and that this fourth element has been satisfied.
The accused admits that as a result of his marriage to [DS] in September 1981, the complainant, [DB], was his step-son between the 19 April and the 31 December 1983. You should have no difficulty with this element.
The fifth element that the prosecution must prove is that the complainant was the step-child of the accused. The law says that in the absence of evidence to the contrary it can be presumed that people who are generally considered to be related to each other in the particular way are, in fact, related in that way. In this case, as there has been no challenge to the alleged relationship between [WGG] and [DB], it can therefore be presumed that they were step-father and step-child and that this fifth element has been satisfied.
So the real issue in this trial is whether these alleged acts took place.
But a little later, having been alerted to the legislative regime before 1 March 1981, the judge gave this direction:
You heard the prosecution submit yesterday that the date of the offence is not an element of the charge but that it is relevant to the credibility of the complainant. That is correct at law because it is the elements of the offence that the prosecution must prove beyond reasonable doubt.
Because of the evidence of some of the witnesses in this case that the alleged events may have occurred in 1981, I must give you this direction of law.
If you accept beyond reasonable doubt that any of the acts alleged in any of these counts occurred prior to 1 March 1981 you must find [WGG] not guilty of the charge of incest because prior to that date there was no crime of incest against a male child.
If you are satisfied beyond reasonable doubt of all of the elements of the offence of incest on any of the charges at a time after 1 March 1981 then you are entitled to return a verdict of guilty, in the event that you are satisfied all of the elements are made out.
This happened before the judge summarised the cross-examination of the complainant, or the evidence of S and other witnesses; and, obviously enough, before her Honour summarised counsel’s closing addresses.
With respect to the closing address of counsel for the appellant, her Honour said this:
The prosecution (sic) submitted that [S’s] evidence is ambiguous and does not support the evidence of [DB]. They submitted that you should consider her evidence closely, and also the inconsistencies between her account and the account of the complainant. They also submitted that what she had seen may not have been sinister, and that if it had been, it is inconsistent with her good relationship with her father, with whom she was close, and the fact that her father resided with her for 12 months in 2002.
The defence pointed out the dissimilarities between the accounts, namely S said the event occurred on a weekday, DB says on a weekend. S says DB was standing, DB says he was on his knees. S says the accused was crouching, DB says he was standing. S says DB was flung so that his back was facing her. The defence submitted that these differences in the evidence of the witnesses mean that the evidence of S does not support Count 6.
No exception was taken by appellant’s counsel to the charge as I have described it.
Pausing, by this stage in the trial the relevance of a conclusion by the jury that it could not be satisfied, with respect to any Count, that all the elements of the offence had been committed before 1 March 1981, had been made apparent. But nothing had yet been said about the potential relevance of 13 September 1981.
The jury questions
The jury, in the course of its deliberations, asked two questions:
Can you specify the relevance issue of dates by law again?
And:
[S’s] evidence occurred in 1981. On legal, that is still can support that the charge Count 6, which occurred in 1983?
Before the judge answered those questions, counsel made submissions as to how they should be answered. Counsel for the appellant submitted inter alia that -
I wouldn’t entirely dismiss any possibility that the jury are seeking assistance with respect to the March 1981 deadline, and I would also include that aspect in the direction, given that they’ve mentioned 1981 in question 2.
Later, referring to the first question, counsel submitted -
But my view is that this question relates to the March 1981, because that’s when Your Honour mentioned “as a matter of law”, or that’s when Your Honour used the word “law.”
The judge answered the jury’s questions as follows:
I am going now to these questions now that you have provided to me. The first one, and I will just repeat the question, was “Can you specify the relevance issue of dates by law again.” And I will just - that is question one.
I remind you that the prosecution bears the burden of proof at all times, and that the prosecution must prove all the elements of the offence of incest beyond reasonable doubt. I will repeat something that I said on Tuesday in order to correct part of it. The date of the offence is not an element of the charge, but is relevant to the credibility of the complainant. It is the elements of the offence that the prosecution must prove, beyond reasonable doubt.
Because the evidence of some of the witnesses in this case is that the alleged events may have occurred in 1981, I must give you this direction of law, because the law changed on 1 March 1981, and I correct this part of the direction: If you cannot exclude the possibility that any of the acts, alleged in any of these counts occurred prior to 1 March 1981, you must find [WGG] not guilty of the charge of incest, because prior to that date, there was no crime of incest against a male child.
I am correcting the remainder of the direction as to one minor matter as follows. If you are satisfied beyond reasonable doubt of all the elements of the offence of incest, on any of the charges, at any time, on or after 1 March 1981, and I had previously said “after 1 March 1981,” it should be “on or after 1 March 1981,” then you are entitled to return a verdict of guilty. It is a matter for you to determine the facts of this case, and what you make of the evidence of all of the witnesses in this trial.
So I hope that that gives you some assistance, and I will turn to the second question now. The second question is, “[S’s] evidence occurred in 1981 on legal that is still can support the charge Count 6, which occurred in 1983.” Now, in relation to Count 6, the entire prosecution case is that the offending occurs when DB has left school, and started working during 1983. It is a matter for you to assess S’s evidence, and for you to determine when and if the incident she described took place.
It is also a matter for you to determine whether the evidence of S supports the evidence of the complainant in respect of Count 6, and for you to determine what weight you give that evidence, should you accept it. And I remind you of what I said earlier, that you must consider each count separately and in the light of the evidence that relates to it. So each of those six counts must be considered individually and separately.
Following further submissions by appellant’s counsel respecting the date of his client’s marriage to the complainant’s mother, in the course of which he sought that a direction be given with ‘perhaps the addition of what evidence of what the evidence is and the impact of that evidence on the elements of the offence’, the judge gave this additional redirection:
I hope that you have a copy of the checklist that I gave you. Do you all have those checklists there? That checklist is headed “Incest checklist between 19 April and 31 December 1983” and it has the five elements listed. What I am about to direct you on relates to element no. 4 and 5 on that checklist.
Now, you have evidence in this case that [WGG] and [DS] were married on 13 September 1981. Therefore, in order to find [WGG] guilty of any of these charges, you must be satisfied beyond reasonable doubt of all of the elements of the offence of incest and that the offences occurred after the date of the marriage, which was 13 September 1981. This is because elements 4 and 5 are only admitted, and if you remember, I told you they were admitted, but they are only admitted between 19 April and 13 December 1983.
The evidence in this case is that [DB] was not the stepchild of the accused until the date of the marriage, which is 13 September 1981, so that date become a relevant date, 13 September 1981, and I just wanted you to be certain in relation to elements 4 and 5 that those are admitted as between the other dates, 19 April and 31 December 1983, and the evidence of this case is that [DB] was not the stepchild of the accused until the date of the marriage, 13 September 1981.
Grounds 1 and 2.
Counsel for the appellant submitted that the trial was conducted, up until the judge was part-way through her charge, in apparent ignorance, by both the parties and the judge, of the possible significance of both the legislative regime operative before 1 March 1981 and the date of the marriage.
He submitted that, the possible significance of the marriage in September 1981 having belatedly emerged, the judge had erred by not relating the relevant evidence to the re-direction given. He particularly referred to the evidence of S. It was necessary, counsel submitted, for her Honour to have explained the significance of that evidence, which bore not only upon Count 6 but, indirectly, upon all the other counts.
Counsel further submitted that there is a recognisable category of cases in which a verdict has been held to be unsafe or unsatisfactory because of some feature of the trial which raises a substantial possibility that the jury was mistaken or misled on some material matter. He cited R v Challoner[3], although there an apparent misapprehension by counsel and the judge as to the import of certain evidence remained undiscovered until trial’s end. Here, he submitted, what was done was too little, too late.
[3]Court of Appeal 28 July 1998, (Phillips CJ, Callaway and Kenny JJA agreeing), unreported.
In response to questions from the Court as to how the trial might have been differently conducted had the significance of the March and September dates been apprehended from the outset, counsel tentatively proposed that S might have been differently cross‑examined. Also, trial counsel might have sought a direction at the outset from the judge respecting the significance of the March and September dates.
In my opinion, there is no room to conclude that the jury was mistaken or misled on a material matter, and that its verdict was unsafe or unsatisfactory.
It is true that the trial was apparently conducted, until partway through the charge, on the basis that neither date in 1981 was of any significance so far as the elements of the offence were concerned. It is true also that the appellant admitted, as the judge noted in her charge, focussing upon the between dates of the counts, that the complainant was his stepson and that he knew it. But in the body of the charge, and before summarising the cross‑examination of the complainant, the evidence of S, the complainant’s mother and other witnesses, the judge directed the jury’s attention to the particular potential significance of 1 March 1981. It necessarily followed that the admissions by the appellant, to which the judge had earlier referred, were of limited effect, a matter which the judge later made crystal clear.
The summary of S’s evidence made reference to S’s date of birth and to her evidence that she was aged 12 or 13 when she witnessed the incident of which she gave evidence (as a matter of arithmetic, she turned 14 on 16 August 1981). The judge also recounted S’s evidence as to when she left the family home, and her age at that time. It is the fact, as the prosecutor submitted at trial, that some of what S said as to the years when events occurred, and her age at the time, did not fit together.
The judge’s direction as to the significance of 1 March 1981 also preceded her Honour’s summary of counsel’s closing arguments. There, the gist of the argument for the appellant had been that S’s evidence had nothing to do with any of the charged counts.
That last observation leads into counsel’s submission that the trial might have been differently conducted had the significance of the March and September dates been appreciated from the outset. I do not accept that submission.
The complainant was cross-examined to say that the incident the subject of Count 6 occurred in 1981. Having regard to his re-examination, the prospect that he could have been cross-examined into saying, believably, that it took place before a particular date in 1981 was non-existent.
What then of S? The last thing that trial counsel wanted the jury to accept was that the incident which she observed had anything to do with Count 6. To conduct a cross-examination along the lines that the incident had nothing to do with Count 6, but that, if it did, it happened before she turned 14 in August 1981, would have taxed the imagination of counsel and the credulity of the jury.
Next, the jury’s questions show that it was alive to the possible significance of S’s evidence with respect to the time of the Count 6 incident. Whilst, when the questions were asked, the jury had only been directed as to the possible significance of the March date, the judge’s answers, supplemented by her Honour’s re-direction, a little later, as to the significance of the date of the marriage, left it crystal clear that the jury could not convict on any count, not only Count 6, in respect of an offence committed before 13 September 1981.
Counsel’s submission that the judge was required to revisit the evidence should not, in my opinion, be accepted. The submission that her Honour should do so was not strongly advanced at trial. The jury was evidently alive to the potential significance of S’s evidence of her age when she witnessed the incident which she described. Not much earlier in the trial, the judge had summarised other evidence bearing upon the time when the alleged incidents had occurred. Further, had the judge embarked upon the task which counsel submitted before us was necessary, it was very likely to have been unhelpful to the appellant. Not only did the evidence strongly preponderate in favour of the offending having occurred in 1983, a summary would have tended to underline the fact that some of that evidence had been relied upon for a different purpose by the appellant’s counsel.
It is, I consider, significant that, evidently being aware of the direct potential importance of S’s evidence to Count 6, and after having been directed as to the significance of the March and September dates, the jury was satisfied of the appellant’s guilt to the criminal standard on that count. It appears that the jury considered, consistently with the closing address of the appellant’s counsel, that whatever S witnessed it was not the incident comprehended by Count 6; or else concluded that it was that incident but that the witness’s timing was well out. On the first of those alternatives, S’s evidence was of no consequence respecting Count 6; or, for that matter, any other count. On the second alternative, S’s evidence supported the evidence of the complainant respecting Count 6, albeit that the jury regarded the timing aspect of her evidence as being unreliable.
Ground 3
Counsel submitted that the judge had erred by directing the jury when discussing inferential evidence as follows:
It is going to be a matter for you to determine whether you accept the evidence at all of [S] and whether you accept the evidence of [S] in terms of whether that supports the evidence of the complainant that these events occurred on the day that she says that they occurred, on the day that [DB] says that they occurred. Now, that is a matter that you need to be satisfied of and what I am explaining to you here relates to the drawing of inferences about her evidence because you have to be satisfied that if you accept her evidence that she is talking about the same day that [DB] is talking about in his evidence for Count 6. Remember what I am telling you now is only in relation to Count 6, it is not in relation to any of the other counts because [S’s] evidence only relates to Count 6.
Counsel submitted that the import of S’s evidence was not so restricted. Count 6 was the last incident in point of time. If S’s evidence as to the time of that incident was accepted and if it was accepted that her evidence related to the incident described by the complainant, all the other offending must have occurred when S was aged 12 or 13 - that is, not later than mid August 1981.
Counsel submitted also that the jury’s second question implied that the jury might not have understood her evidence to be so restricted.
In my opinion there is no substance to this ground. The impugned direction focused upon what inference might be drawn with respect to the evidence of S and the allegation raised by Count 6. The subject matter of the direction was confined. Appellant’s counsel orally conceded that the direction itself was correct.
That being so, the submission that the jury may have understood from the inferential evidence direction that S’s evidence could only impact upon Ground 6 is, I consider, far fetched.
Again, the jury convicted the appellant on Count 6. For one or other of the reasons which I have previously mentioned, this necessarily meant that S’s evidence could not have cast any doubt upon findings of guilt on Counts 1‑5.
Conclusion
I would dismiss the appeal against conviction on Count 6 and refuse the renewed application for leave to appeal on Counts 1‑5.
REDLICH JA:
I agree with the presiding judge that the appeal should be dismissed and the reasons given.
I would add only these observations. The complainant was resolute in his account that the offences occurred at times after he had ceased attending school when he was 15 and was then working for the appellant. Counsel for the appellant, during the course of oral argument, was invited to demonstrate how a more careful examination of the evidence by the trial judge for the purpose of considering whether the events occurred in 1981 or 1983 might have raised a doubt the events occurred in 1983. He was, in my view, unable to point to any such evidence which may, upon such consideration, have that effect.
PRIEST JA:
I agree with the reasons of the learned presiding judge and with the further observations of Redlich JA.
ASHLEY JA:
The order of the Court is that the appeal against conviction on Count 6 is dismissed and the renewed application for leave to appeal on Counts 1‑5 is refused.
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