R v Hingst [1999] NSWCCA 335 (27 October 1999)

Last Updated: 27 October 1999

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v HINGST [1999] NSWCCA 335

FILE NUMBER(S):

60047/99

HEARING DATE(S): 01/07/99

JUDGMENT DATE: 27/10/1999

PARTIES:

Alan Raymond HINGST

Regina

JUDGMENT OF: Spigelman CJ Dunford J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

98/31/0229

LOWER COURT JUICIAL OFFICER: Mitchelmore DCJ

COUNSEL:

J V Agius SC (Appellant)

L M B Lamprati (Crown)

SOLICITORS:

Harris Wheeler (Appellant)

C K Smith (Crown)

CATCHWORDS:

CRIMINAL LAW

Verdict unreasonable or not supported by evidence

delay between alleged offence and proceedings

ACTS CITED:

Criminal Appeal Act 1912

DECISION:

Convictions quashed

Verdict of acquittal entered

JUDGMENT:

- 31 -

IN THE COURT OF

CRIMINAL APPEAL

60047/99

SPIGELMAN CJ

DUNFORD J

ADAMS J

Wednesday 27 October 1999

REGINA v Alan Kenneth HINGST

JUDGMENT

1 SPIGELMAN CJ: I agree with Adams J

2 DUNFORD J: I agree with Adams J.

3 ADAMS J: On 8 February 1999 the appellant was convicted by a jury in the District Court of five offences involving sexual interference with his step-daughter. The appellant appealed to this Court on a number of grounds, and seeks to have the verdict set aside as unreasonable or not supportable on the evidence under s 6(1) of the Criminal Appeal Act 1912. Following argument on 1 July 1999, the Court allowed the appeal and said that reasons would be given in due course. The following comprises the reasons for which I proposed the convictions be quashed.

4 Having regard to the nature of the grounds of appeal, it is convenient to set out first the salient evidence in the case. The first and second charges alleged carnal knowledge of the complainant between 1 May and 27 November 1976; the third count alleged anal intercourse with the complainant between 25 September and 26 October 1977; the fourth count alleged carnal knowledge of the complainant on or about 1 January 1980 and the fifth count, an indecent assault on the complainant on or about 1 January 1980. The complainant was born on 16 March 1969 so that in respect of the counts 1 and 2 she was then seven years old, in respect of count 3, ten years old and in respect of counts 4 and 5, ten years old. All the offences were alleged to have occurred in the bedroom used by the complainant at the family home. The only evidence that the alleged offences occurred came from the complainant who was then just short of her thirtieth birthday.

5 The complainant had three sisters of whom two were older and one younger than she. Their parents separated in 1976 and the girls, together with their mother and the accused, moved into the family home where the offences allegedly occurred. The accused had known the family for something like two years by this time. At the relevant time, the complainant and her younger sister (by four years) shared a bedroom whilst the other two sisters shared another bedroom. The complainant and her younger sister each had a single bed in their room, the complainant's bed being immediately adjacent to the wall and her sister's bed in the same position against the wall but on the other side of the room. As I read the plan of the house, which was tendered, it followed that the beds were perhaps two metres or so apart. The complainant said that her bed was adjacent to the door. However, the appellant and the complainant's younger sister (whom I shall refer to as "A") said that A's bed was adjacent to the door. A's evidence added convincing reasons for this.

6 The assault was placed by the complainant between the date of separation of her parents on 1 May 1976 and her first Holy Communion on 27 November 1976. The complainant said that she and her sister were in bed, having retired at about 7.30pm. The complainant was asleep and woke up on her name being called. It was dark, with the only light on being in the adjacent hallway. She sat up and saw the appellant standing in the doorway. He said to her, "Lie down" and put his hand on her shoulder and pushed her down onto the bed. She said that he grabbed the pillow from behind her head and with both hands, put it over her face so hard that she had to turn her head to the side in order to breathe. She felt the bedding being pulled off and something that felt like vaseline being rubbed on her thighs and vagina. Whilst he did this he said, "Your mother doesn't like you, I'm going to punish you. I'm allowed to punish you. Don't tell your sisters because they wont like you if you do. Don't even think of telling a policeman because they don't like dirty little girls like you. Nobody likes dirty little girls like you". He then climbed onto the bed and grabbed both ankles and separated her legs. He lay on top of her so that the complainant could not move and "it felt like he'd take all my breath out of me". She felt his penis pushing against her vagina, and a lot of pain in her vagina. She said that she thought he was going to kill her. He moved his penis in and out of her vagina for what seemed to be a long time. She said that after a while the accused pushed the pillow off her face and told her to look at him, her eyes being closed. She said she was too scared to answer and that the appellant said, "[complainant's name], look at me, look at me or I will hurt your sisters", so she did so. She said that he was smirking at her and said "You don't like this do you? You can't handle this, can you?" and then he laughed at her. The complainant said that she closed her eyes and looked away, that the accused was still moving on top of her and she could still feel his penis moving in and out of her vagina. She said that after a while the appellant pulled out and got off her and told her to get out of bed. She tried to cover herself with her hands because the appellant had removed her nightie after he had knocked the pillow off her face. The appellant then took the bottom sheet off the bed. The complainant said she closed her eyes and the appellant "poked his finger into my back and he did this all the way down the hallway until I got into the bathroom". The appellant said, "Clean yourself up you dirty little girl" and went out, closing the door. The complainant said that she took her hands away from where she had been covering herself to turn the tap on and noticed blood on her hand. As she was washing her hands she felt something cold running down her leg and saw blood coming from her vagina. She said that she got a face washer and wet it and held it onto her vagina. Although shocked, she did not call or cry out. A few minutes later, the appellant returned to the bathroom, told her to go back to bed and as she did so, with her eyes closed, he again poked his finger into her back all the way up the hallway, saying, "Go on get going" to the bedroom. She said that the appellant put another sheet on the bed and left the room. She got back into bed, curled up into a ball and tried to go to sleep. She said that the following morning she had pain in her lower stomach area and her vagina hurt when she went to the toilet. The pain subsided whilst she was at school that day.

7 The account which I have just set out was given substantially in uninterrupted narrative form. I have set it out almost in full to demonstrate its apparently convincing character. It is ordered, clearly visualised and evinced no uncertainties of recollection or failures of memory.

8 The complainant added that she had not made any sound because when she made some muffled whimpering noises under the pillow, when the appellant entered her, he said to her, "Don't scream, keep quiet and don't move." The assault occurred at about 11pm.

9 On the following morning, when the complainant awoke, her mother and three sisters were in the house. Her stepfather was still at home and the complainant denied that he had needed to leave before she woke up because he worked as an early morning cleaner and started at about 6.30am, with another job in the afternoon. She did not speak to her mother at all that morning because, she said, she was frightened that she was going to be taken away from her sisters if she ever told anybody and thought that she would also be punished. She did not tell her sisters, she said, because she was frightened that nobody would believe her. She had one good friend at school, a girl in her class who she did not tell about what had happened because she did not know, she said, how to explain it to people. She said she did not know what a penis was, she had never seen one and had never been told about men and their penises; she said she did not know what it actually was that the appellant was doing to her. She said that the appellant had entered the bedroom naked, which she noticed when he stood in the doorway.

10 The complainant said that she did not complain to her mother about the pain in her lower stomach area and vagina because, although she used to complain to her mother from time to time that she wanted the day off school because she had a pain, she did not do so on this occasion, even though she could have done so without mentioning any sexual interference. When it was pointed out that she did not complain on this occasion at all, the complainant responded that her mother used only to give her Panadol and, implicitly, that this would not have helped. Although the complainant in cross-examination said that the appellant had taken her nightie off, she was unable to say how it happened.

11 The offence giving rise to the second count in the indictment allegedly occurred the following night. Again, the complainant was in bed, asleep, wearing a nightie. Again, the appellant moved her onto her back and pulled her legs apart. She could see him in the hallway light, as the bedroom door was open. She said he placed her legs on either side of him near his hips, that he was kneeling and that her bottom was up off the bed. She felt him rub the vaseline over her thighs and vagina and again he pushed his penis into her vagina. He moved his penis in and out of her vagina for a while. The complainant could not look at him and kept her eyes closed and head turned to one side. After a while he removed himself and left the room. The complainant said that she had to get out of bed to pick up her sheet and blanket off the floor and tidied up her bed, got back into it and tried to go to sleep. She said on that night, the appellant had said nothing to her. Again, her younger sister in the other bed did not stir.

12 The complainant said that what the appellant did to her was painful on the second occasion also. As with the first incident, she said that she did not go to her mother immediately to tell her what had happened because the appellant told her that her mother did not like her and she was always frightened of her stepfather, the accused, because he was "very stern and strict and very controlling, telling us where to sleep, what to do, what we could do, what we couldn't do, what to wear and what not to wear". As to her relationship with her mother, the complainant said that she was "never very close" to her and never told her mother of the assaults.

13 The complainant said that the occasion giving rise to the third count happened in 1977 when her mother went into hospital to have bunions removed. She said that during this time she was asleep on her stomach with a pillow over the back of her head and awoke when the bedding was pulled off her bed. The appellant climbed onto the bed and knelt between her legs. He rubbed vaseline over her thighs, vagina and, lifting her stomach off the bed, pushed his penis into her anus. She felt a painful stretching sensation. After a while he left the room. The complainant then went to the toilet to try to clean herself up and could hear a tap running in the adjacent bathroom. She went back to bed and tried to go to sleep.

14 The occasion comprising the fourth charge in the indictment occurred on 1 January 1980, which the complainant could fix because she remembers watching a television program on Channel 3 presented by the NBN news team which was a special program looking back over the decade of the 1970s. The complainant said that she had checked this a few months before the trial by looking through microfilm at the Newcastle Regional Library and copied a TV guide which had been stored in this way. This was tendered by the prosecution. The complainant said that she was watching this program in the lounge room of the family home with her mother and stepfather. She said that she had wanted to watch the whole program but the appellant had told her to go to bed before it was ended. When she went to her bedroom, her younger sister was already asleep in her bed. The complainant says that this was about 8.30pm. After going to sleep, she was awakened by the appellant removing the bedding and climbing on the bed between her legs. She was lying on her stomach. The appellant rubbed vaseline over her thighs and vagina and pushed his penis into her vagina from behind, lifting her up off the bed for this purpose. After a while, he dropped her back onto the bed, rolled her over and told her to sit up. Holding her head, he knelt close to her and forced her to take his penis in her mouth and move backwards and forwards. The complainant said that she saw her sister stir in her bed and wake up, asking, "What's going on?" The complainant closed her eyes and felt herself falling backwards onto the bed and heard the appellant say, "Roll over and go back to sleep", which her sister did. However, her sister did not mention anything about this occasion at any time afterwards.

15 The complainant said that the hall light was left on every night because, according to her, her mother used to say that the appellant would get up in the middle of the night to have midnight snacks from left overs from dinner which she had left for him in the refrigerator. Also, the girls would often get up to go to the toilet. The bedroom occupied by the appellant and his wife was at the opposite end of the wing of the house containing the complainant's bedroom, separated by the bedroom occupied by the older sisters. The hallway, which I have mentioned, joined the appellant's bedroom with their doors at each end, a door in the centre giving entry to the other bedroom and on the other side, offset somewhat, a doorway into the hallway providing access to the toilet and bathroom and the living areas of the house. Accordingly, in order to walk from his bedroom to that occupied by the complainant the appellant would have walked past the door to the middle bedroom and the entrance immediately adjacent to the toilet and bathroom to the hallway giving access to the other living areas of the house, including the kitchen.

16 The complainant conceded that in the circumstances when the appellant came to her room naked and stood at the doorway, if her mother had come out of the bedroom to go to the bathroom or if any of her sisters had got up to go to the toilet, they must have seen him.

17 The accounts of these offences were given, so far as one can tell from the transcript, in much the same way as that of the first: mostly narrative, no prompting, ordered and clear. The complainant said, concerning the vaseline, that a large jar of it was kept in the bathroom.

18 The complainant said that the first occasion that she mentioned to anybody that her stepfather had sexually interfered with her was in about April 1991 to her elder sister when she was living in her house in Sydney.

19 The complainant said that when she was 16 and 17 the appellant would come into the bathroom every time she had a bath to wash her back and rub her breasts. When asked why she didn't mention it to her mother she said, "Well, she knew he was coming into the bathroom". The complainant said that the appellant would start off by washing her back, she would hunch over and try to keep her arms as tightly as she could close to her sides but he would force his hands under her arms and rub her on the breasts. She said that on one occasion, whilst he was doing this, he noticed that she had a lump on the left side of her chest and called the complainant's mother into the bathroom, as a result of which she made an arrangement for the complainant to see a doctor. As it happened, the lump was harmless. The complainant said that when her mother came into the bathroom, she was still sitting in the bathtub. The appellant gave evidence that occasionally he did wash the complainant's back whilst she was having a bath, but said this was at her request and no act of indecency ever occurred. He said his wife showed him the lump, which he said was above the complainant's breast, because she was worried about it.

20 The Crown also elicited from the complainant that when she was menstruating (from just before her thirteenth birthday) the appellant would approach her in the bedroom, fondle her body and masturbate to the point of ejaculation on her.

21 When the complainant was 14, the appellant bought her a horse at which time, according to the complainant, he said, "I bought you that horse, now you owe me, you're my girl, aren't you . . ." The complainant added that the appellant would often put his arms around her in front of other people, give her a squeeze and say, "You're my girl, aren't you . . ?"

22 The complainant said that she had an accident at the age of 17 resulting in unconsciousness with a fractured skull. She was admitted to hospital and the appellant said to her, "You're not going to tell are you [complainant's name], you not going to tell the doctors?" This happened a number of times. He would come to the bed just before her mother and younger sister came in to see her. and she would just look away. When she returned from hospital, the complainant said the appellant would open the bedroom door, wake her up and say, "You're not going to tell them are you [complainant's name]? You're not going to tell, are you?"

23 At the age of 17 the complainant left home. She said that the sexual intercourse occurred "nearly every night for ten years", that the appellant would wake her up and that he was naked when he came to her room. She said that the intercourse, including the anal intercourse, took about an hour. She said that he brought the vaseline jar with him to the bedroom and that vaseline was left on the sheets. For all but the last year, the complainant shared her bedroom with her younger sister but never complained to her about them or took any steps to bring them to her attention. It seems that her sister simply slept through them all and the appellant was completely confident that this would be the case. Although the appellant used no contraception (nor did the complainant) she never fell pregnant. When pressed on this in cross-examination, the complainant said that anal intercourse occurred more frequently than vaginal intercourse. There was no medical evidence.

24 The complainant said she had returned home for her eighteenth birthday in 1987 and then in 1988 and later conceded in cross-examination that she had also visited home in 1989, 1990 or 1991. A photograph taken in 1991 shows the complainant and the appellant standing together, the latter with his hand on the former's shoulder. They are both smiling. The complainant is holding a pet dog. She was asked -

"Q. How could you stand to be in that position with a man who for 10 years nightly had subjected you to the vile sort of behaviour you've described in your evidence?

A. Well this sort of behaviour carried on for some time."

25 At that time, however, the complainant had not lived at home for four years. In 1988 she had taken her boyfriend to meet her mother and step-father. The complainant said that when the appellant and his wife moved to another country town (after she left home), she had a horse there and that was the only reason for her visits. She would, however, have visited more often if she had a car because she was then living at Newcastle and the trip was too difficult. She said that she had left it so long to complain because she had felt embarrassed and dirty and was always very frightened of the appellant "because he was so controlling". She said, "It took me a long time to gain strength and believe that I am my own person." It was in 1997 that the complainant went to the police because she found that she could not forget about it and that "what he had done to me was in my mind every day and it's too much to just forget".

26 The complainant's mother (the appellant's wife), called by the defence, gave evidence that the last time she had any contact with her daughter was when she telephoned her at the end of August 1992 and had the following conversation -

"She said "Mum, I want some money"

I said, "[complainant's name], I haven't got any money to give you".

She said, "Well, Mum, I want some money and I want it now".

I said, "[Complainant's name], I haven't got any money to give you.

She said, "Well, if you don't give me the money that I want, I'm going to go to the police and tell them that [the appellant] raped me when I was a little girl.

I said "[Complainant's name], you can't do that. You know it's not true.

She said, "Ha, ha, see you in court."

There was no further conversation.

27 The complainant said that she did speak to her mother by telephone in 1992, but denied making any threat. She also denied that she had made a false claim for criminal compensation.

28 It will be recalled that the complainant alleged that she was assaulted by the appellant every night for many years. His wife, in effect, denied that this could have occurred as she would have been aware of his getting up. She never noticed the complainant express reluctance to be in the appellant's company whether with others or alone or express any ill-will towards him. She did not express reluctance to go to bed at night. She never told the girls to call the appellant "Dad" and the complainant came to calling him that after "quite a time". She claimed that her relationship with the complainant was a loving one and denied that she acted coldly towards her; to the contrary, she hugged and kissed all the girls. She said that the complainant, when a young girl of seven, eight, nine and ten demonstrated affection to her and she never rejected her.

29 A number of greeting cards from the complainant to the appellant and his wife were tendered. They contain words written by the complainant. Of particular interest are those created after the complainant left home in 1987. They are in conventional but undoubtedly affectionate terms. Of those addressed to her mother, the complainant said she was pretending "that I had a mother that loved me and cared." I mention just three examples. In 1989 the complainant wrote "To Mum [Happy birthday, printed] and best wishes for the rest of your life. Love [name] xxxooo". Pinned to the card, on a page torn from a diary appears -

"Dear Mum,

I love you mum very much. I'm so happy, and I feel very fortunate to have a loving and caring mother. Happy Birthday."

On Mother's Day, 1990, the complainant added to the printed words of the card. "Have a wonderful year, because you're a number 1 mum. Lots of Love". Either the previous or following year the complainant wrote in a card for Mother's Day -

"To my dearest mother, I love you very much and have always thought that you are the best. Have a Happy Mother's Day.

With love from [complainant]"

30 For Father's Day 1986, the complainant added to a card -

"I hope that you have a wonderful father's day. With lots of love from your favorite [sic] daughter. [name] xxx `86".

31 In 1987, the complainant (after she had left home) wrote in a birthday card for the appellant -

"Dear Dad,

I love you. Best wishes. Love from your favorite [sic] Daughter.

[name] xxxx '87.

The card itself said -

"Dads are here to stay -

Can't choose them,

Refuse them,

Or lend them for pay,

Can't sell them,

Expel them,

Or give them away,

The Dad you end up with just has to do -

I'm sure glad I was lucky and got one like you!!

Happy birthday, Dad".

The complainant said that she never voluntarily described herself as the appellant's "favourite". She said that if she did not he would question why. In 1989 another card containing terms of endearment was sent. In 1990 the complainant sent a birthday card addressed to "Dad", containing the printed message -

"Thanks for being the kind of father who helped me grow up knowing I could always count on you. Happy Birthday".

The complainant added -

"And best wishes for the coming year. With Love from [the complainant's name and her boyfriend's name]".

The complainant explained the apparently affectionate language used by her in the cards as inserted because otherwise "I would have been questioned and picked on and singled out as to why". No example of such an occasion was given. There were a number of cards which did not contain such expressions. There was no suggestion that any of the cards were bought for her.

32 The complainant's mother said that she was an in-patient at the hospital for an operation on her feet between 25 September and 6 October 1977. She said that she had arranged for her sister to come to their home to look after the children as the appellant was at work. One of the complainant's older sisters confirmed the complainant's evidence that there was no one looking after them at this time but a younger sister supported the defence case. Since she was not at school at the time and the appellant was in full-time employment, it seems unlikely that the children were left uncared for. The older sister thought, in fact, that the youngest was at school at the time, which seems to have been a mistake.

33 It was the defence case that the offences in the fourth and fifth counts of the indictment could not have occurred since the family was away camping at Hawks Nest and Mungo Brush in December and January of 1979-1980. The complainant said that Christmas Day was spent at home with her mother and stepfather.

34 The appellant said that whilst later the girls would usually spend Christmas Day with him and their mother and go to their father's place on Boxing Day, in the particular holidays 1979-1980 they went to Hawks Nest and then camped at Mungo Brush and did not return home.

35 Since it was a necessary implication of the Crown case that the appellant and the complainant's mother had conspired to invent contradictions of the complainant's evidence it is significant, I think, that the appellant admitted that, on a few occasions at the complainant's request, he washed her back whilst she was in the bath. In the circumstances of the case, this was a prejudicial admission. The appellant denied touching or playing with her breasts or finding a lump on her chest. He came to learn that the complainant did have a lump on her chest when it was pointed out to him by his wife. This was confirmed by her. Again, if the Crown case be right, the complainant's mother must have lied about this matter also. The lump was above the complainant's breast, not on it. The appellant said that between October 1984 until January or February 1986, the family moved to his mother's house. He said that his mother (who died before the commencement of proceedings) was senile and would wander around the house at night with a torch. Especially, at about midnight after she had had only an hour's sleep, she would wander around with a torch and come into the room and shine it on faces. He said that he wore pyjamas all his life and never walked around the house naked. It was agreed that the complainant was not at St Joseph's School at Toronto in 1977 and that her younger sister was not at school anywhere during that year.

36 The complainant's mother denied categorically that she was called in by her husband to see her daughter still in the bath on the occasion that the lump on her chest was discovered. She also confirmed that in the 1979-1980 holidays the family went to Hawks Nest and then to Mungo Brush. She said that they had gone about a week before Christmas in 1979 to Hawks Next and then they had to move on Boxing Day to Mungo Brush because the site was booked in the caravan park where they were staying at Hawks Nest. They then stayed there for a couple of weeks. A photograph at Mungo Brush was taken dated 26 December 1979 and tendered. She also denied the complainant's evidence that she at any time left midnight snacks for the appellant in the refrigerator from the evening meal and said she was never aware that he got out of bed either to eat or for any other reason. The complainant's mother said that she was a light sleeper. There were no baffles in the water bed which she shared with the appellant and it moved a lot when someone got out, so that she would wake up if her husband did so. She never saw the appellant walking naked around the house at night. Indeed, she said that he invariably wore pyjamas when he went to bed. She added that her daughter wore pyjamas when she was a young child and did not use a nightie until she was 12 or 13. She was emphatic that at the age of 7 or 8 the complainant wore pyjamas. The complainant's mother also said that she had bought little jars of vaseline for the complainant because she suffered from dry lips, although she was unsure whether she kept it in the bathroom or in her bedroom.

37 I have carefully examined the evidence of the appellant and his wife and, especially, the cross-examination. Leaving aside the question of demeanour, their evidence was not successfully challenged. Having regard to the nature of the allegations, the moderation of the level of contradiction was remarkable if the assumption be right that the appellant and his wife had concocted a story designed to exculpate him.

38 The defence also called evidence from a retired school teacher who knew the complainant's mother when the latter was working as a cleaner. They met in October 1981. Their two families became very friendly, going camping together on school holidays and long weekends and at other social occasions. They spent a lot of time together. She observed what she thought was a good relationship between the complainant and the appellant noting that she called him "Dad" often. There was, she thought, appropriate affection shown between them. She recalled that if they were going out or she was going with a friend, she would always kiss him on the cheek and say, "Goodbye, Dad". It never occurred to her that the complainant was uncomfortable in the appellant's company. On a couple of occasions, she said, in 1982, she and her husband stayed in the appellant's house in their bedroom. They slept in the waterbed and found that it was not possible to get out of it without disturbing the other person because it did not have a membrane in it. On the occasions that she and her husband were at the appellant's home for dinner, the complainant and her younger sister would come in and kiss them goodnight. Her recollection was that most of the time they had on what she called "baby doll pyjamas, which are the little bloomers and the little matching tops" and she remembered this because that was what her daughter and grandchildren used to wear.

39 The younger sister ("A") with whom the complainant shared a bedroom until 1986, when she was 14 was called by the defence. A said that throughout the time they shared a bedroom she never had any reason to believe that the appellant entered it to have any kind of sexual relations with the complainant. She never saw anything that suggested the appellant was having a sexual relationship with her sister. She thought the appellant and her sister "got along fine" and never heard the complainant express dislike of the appellant. She said that her sister and the appellant showed affection for each other, which she described as "just like we all did; just like you know, like a father and daughter would do, just like every day family thing". A gave evidence about the wandering habits of her grandmother, which confirmed that of the appellant. I have already mentioned A's evidence that, contrary to the complainant's evidence, she occupied the bed next to the door of their bedroom.

40 So far as the alleged offence comprising count 3 was concerned, the complainant's evidence was, as I have pointed out, that it occurred whilst her mother was in hospital for a foot operation and whilst the only carer at home was the appellant. The appellant, supported by his wife and A, said that his wife's sister, the complainant's aunt, had stayed at home since he was required to be at work between 6am and 6.30pm.

41 Neither the Crown nor the defence called the complainant's aunt to give evidence on this point. In retrospect, the evidence seems to have been given unwarranted emphasis by the parties. If it was mere presence in the house and, perhaps, the availability of another person to whom a complaint might have been made by the complainant, the aunt's evidence strikes me as being very much on the periphery. No explanation was forthcoming from either party as why the aunt was not called although each insisted that the other should have done so and sought to call in aid the so-called rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. As has been frequently said (following Buckland [1977] 2 NSWLR 452 at 459) in a criminal trial the making of a comment or indicating the available inference must be attended by a marked degree of caution, not only because the absence of a witness either for the Crown or for the accused might well be explicable upon grounds not readily capable of proof but, insofar as the accused's role in calling witnesses is concerned, it is important that nothing be suggested which qualifies the Crown's onus of proof. To my mind, the issue will only arise adversely to the accused where, at least, there is evidence from which it could properly be inferred more probably than not that the missing witness is indeed in the accused's camp. Evidence merely that the witness is a relative of the accused will rarely satisfy this requirement, still less, as in this case, where the witness is only related by marriage. Furthermore, the probability that the witness can give relevant evidence must, I think, also be established. In this case, the events in question occurred almost twenty years before the trial, a matter which of itself may well have caused the defence considerable prejudice.

42 I do not see any basis upon which it would have been appropriate or safe for the trial judge to have given a Jones v Dunkel direction adversely to the appellant. Whether such a direction should have been given adversely to the prosecution case was very much a matter for the discretion of the trial judge. It seems to me that there was a proper basis for his so doing but I do not think that his Honour's decision not to give the direction is demonstrated to be an error. On the other hand, it was quite inappropriate, in my view, for the Crown prosecutor to submit to the jury that any inference adverse to the accused could be drawn from the failure to call the aunt and I consider that the learned trial judge should have acceded to the defence application that the Crown be directed not to address the jury as he had intimated he would. In my view that the trial judge should have indicated to the Crown that there was no proper basis for the jury to draw any inference at all adverse to the accused for failing to call the complainant's aunt and, if the Crown nevertheless did so, should have directed the jury in emphatic terms that to draw any such inference would be wrong (Newland (1997) 98 A Crim R 455).

43 A third ground of appeal was stated in the notice of appeal but not pressed and it is unnecessary to make any reference to it.

44 The ground principally relied on is that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence": s 6(1) of the Criminal Appeal Act 1912. The relevant test to be applied to this ground is whether the court is of the view that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The test articulated by the majority in M v The Queen (1994) 184 CLR 487 is still applicable notwithstanding the abandonment of the phrase "unsafe and unsatisfactory" which had hitherto been commonly used in this context (Fleming v The Queen [1998] HCA 68, (1998) 73 ALJR 1, 158 ALR 329, 103 A Crim R 121): see Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450-2.

45 In M, the majority said (181 CLR at 493) -

"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 these considerations."

The application of the test was explained as follows (181 CLR at 494) -

"In most cases a doubt experienced by an appellate court will be 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 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."

In Jones, Gaudron, McHugh and Gummow JJ point out (191 CLR at 452) that the "open to the jury" test is significantly different to that implied by asking whether the jury must have had a reasonable doubt or whether the evidence for the prosecution was so weak or flawed as to make it wrong for the jury to accept it. These latter tests were described by their Honours as "much stricter" than the test formulated by the majority in M (191 CLR at 453).

46 In considering the question posed by this ground of appeal, it is important to bear in mind the very substantial delay between the alleged offences and the commencement of proceedings. A great deal of attention has been given over the years to the possible significance of this factor in assessing the complainant's credibility, usually in the context of a failure to make timely complaint. In recent years, however, another aspect of this factor has come to the fore, namely the adverse effects on the conduct of a defence which might, and probably will, be occasioned by that delay. This consideration is not rendered any less important because, on the assumption that the offence was committed, the complainant's delay in reporting it was completely understandable and did not reflect adversely on his or her credibility. I hasten to add that in this case, the learned trial judge gave an appropriate direction concerning this matter, along the lines set out in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 per Brennan, Dawson and Toohey JJ at 91. As Spigelman CJ said in R v Johnston (1998) 45 NSWLR 362 at 371, 375 the delay will have the consequence that the evidence of the complainant could not be adequately tested and accordingly the evidence must be scrutinised with great care. Having regard to the onus of proof in criminal cases, this may have the effect of limiting the mollifying qualifications which might otherwise overcome apparent shortcomings in the complainant's evidence whilst, on the other hand, increase tolerance for unsatisfactory features of an accused's evidence or apparent exiguity of his or her defence. In the former case, this is because it is important to be cautious about accepting the possibility that delay satisfactorily explains apparent weaknesses in the complainant's evidence in the sense that it renders those aspects less significant than they would otherwise be whilst, in the case of the accused, he (as will usually be the case in sexual charges) will be endeavouring to deal with events that took place a long time before in a context where if his account is reasonably possibly truthful, he should be acquitted. It is trite that if the complainant's account is only reasonably possibly true or, indeed, no more than highly likely to be true, the prosecution will fail (in the absence of other compelling evidence) because the Crown has not established guilt beyond reasonable doubt.

47 In a case such as the present, the prosecution had the additional difficulty that the Crown case comprised in substance the evidence of one witness unsupported by any other evidentiary material. The requirement that the evidence of such a witness "must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in" (R v Murray (1987) 11 NSWLR 12 per Lee J at 19) is an obvious rule of common sense of general application. I consider that both this and the caution that must be exercised arising from substantial delay are just as apt for this court to apply as they were for the jury.

48 Unlike many cases where sexual assaults are alleged, this case is not merely word against word. As is clear from the summary of the evidence outlined above, the preponderance of evidence in this case favoured the defence. One must, of course, be wary about applying what juries are often told to apply, namely their common sense and knowledge of the world, since sexual assaults on children will, I think, almost never be a matter to which common sense will have much application and it will also fall outside the worldly experience of most people. I do not discount the importance of observing the demeanour of witnesses but I think one must be sceptical about the inferences available from such observations when dealing with emotionally charged evidence and accounts concerning events that took place almost two decades previously.

49 In coming to the conclusion, as I do, that the jury in this case should have had a reasonable doubt about the guilt of the appellant on all charges, I have carefully considered the evidence as a whole. Some parts, however, are of more significance than others. If the evidence of the appellant's wife as to the conversation in which she alleged the complainant had attempted to blackmail her and her husband and the denials of the complainant in that regard is truthful, then a very serious doubt is raised in respect of the whole of the complainant's evidence. The complainant's mother, however, also gives additional detailed evidence which I have set out above contradicting that of the complainant in not insignificant respects. I do not see a sufficient basis for rejecting her evidence in favour of that of the complainant. Furthermore, the allegation that over a ten year period sexual assaults occurred in the complainant's bedroom which she shared with her younger sister continually during this time without the younger sister being aware of them to any degree at all strikes me as so unlikely as to raise serious questions about the reliability of the complainant's evidence concerning the assaults specified in the indictment. The complainant's evidence about whose bed was next to the door, an important element in her narration of the crucial events, should, I think, be regarded as somewhat doubtful in light of her sister's contradiction. Again, although it is no doubt possible that the cards addressed to the appellant and his wife by the complainant expressed faked affection, the more likely explanation (or, at the very least, a reasonably open one) is that they are genuine and hence inconsistent with the character of relationship between the complainant and the appellant to which the former deposed.

50 None of this is to say, of course, that what the complainant said is proved to be untrue. Rather the effect of these matters leads to the conclusion that the verdicts of jury, dependant as they are on proof of the appellant's guilt beyond reasonable doubt, were both unreasonable and could not be supported having regard to the evidence.

51 Pursuant to s 6(2) of the Criminal Appeal Act 1912, therefore, the appropriate order is that of acquittal, subject to other provisions of the Act, in particular s 8(1) giving the court a power to order a new trial when "having regard to all the circumstances", the miscarriage of justice identified can "be more adequately remedied" by such an order. The inter-relationship between these two provisions has been considered, eg in R v Johnston (1998) 45 NSWLR 362 esp at 380 and R v Giam (1999) NSW CCA 53 at [31]- [46]. As was said in M in the passage quoted above -

"Even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person had been convicted..."

52 For the same reasons, the evidence is not "sufficiently cogent to justify a conviction": (Director of Public Prosecutions) Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630. Accordingly, the Court should not exercise its discretion to order a new trial under s 8(1).

53 It was for these reasons that I agreed with the Chief Justice and Dunford J on 1 July 1999 that the convictions must be quashed and verdicts of acquittal entered.

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LAST UPDATED: 27/10/1999