Regina v John Thomas McD [1997] NSWSC 236 (7 June 1997)

REGINA v John Thomas McD

60410/95

Thursday 2 May 1996

IN THE COURT OF CRIMINAL APPEAL

GLEESON CJ, ALLEN J, JAMES J

JUDGMENT

GLEESON CJ: In June of last year the appellant was tried before his Honour Judge Madgwick QC and a jury in the Wollongong District Court on seven charges of assaulting a female and committing an act of indecency.

The complainant in the case of the first five charges was a niece of the appellant whom I shall call V. The complainant in the case of the sixth and seventh charges was another niece of the appellant whom I shall call D.

The jury convicted the appellant in relation to counts three, five, six and seven and acquitted the appellant in relation to counts one, two and four. I should mention in that connection that there is no submission made to the effect that there is any inconsistency in the verdicts. Senior counsel for the appellant, in the course of his address to this court, gave what appeared to him to be a rational explanation for the difference in the verdicts.

His Honour sentenced the appellant on the basis of totality. He imposed the heaviest sentence in relation to the fifth count, which involved a minimum of two years imprisonment and an additional term of two years imprisonment. In relation to the other counts, in each case he sentenced the appellant to concurrent fixed terms of two years. All the sentences were to date from 8 June 1995. His Honour specified 7 June 1997 as the earliest date on which the appellant will be eligible to be released to parole.

The two complainants were both nieces of the appellant. The Crown case was that he repeatedly sexually abused them when they were visiting him and his wife on school holidays on a farm. The complainant V was born in February 1970 and the complainant D was born in May 1968. The alleged offences occurred over a period between September 1976 and February 1983.

It is unnecessary for the purposes of this appeal to go into any particular detail of the nature of the offences allegedly committed by the appellant. It suffices for present purposes to say that, although the expression "striking similarity" has gone out of fashion in relation to statements of legal principle, it is particularly apposite in relation to the factual aspects of the present case. There was no application for separate trials. The complainant separately alleged conduct on the part of the appellant that involved what would clearly qualify for the description "striking similarity". In particular, they both said that the appellant played a certain game involving the singing by him of an adaptation of a popular song in a suggestive and sleazy fashion, and then encouraging them to engage in various acts of sexual indecency.

The circumstances in which the complainants came to complain about these incidents were the subject of very close investigation at the trial and they were in some respects quite unusual. Obviously a great deal turned on the assessment by the jury of the credibility of the complainants, and, of course, the credibility of the appellant.

The complainant V had suffered a psychiatric collapse. She gave evidence of information that she gave to her psychiatrist. She also gave evidence of tentative contact that she made with D to raise with her the question of whether she had been dealt with by their uncle in a similar fashion. A story unfolded before the jury of these two young women, years after the events, ultimately making complaints to the police. There was evidence of an earlier complaint by V to her mother and to her grandmother. There was one particular aspect of the timing of the complaints that is of special relevance to the first ground of appeal.

Having discussed the matter between themselves, and with relatives, the two complainants were confronted with the situation that, as they both knew, the appellant's wife was dying of cancer. Her death was imminent. They took the conscious decision to wait until after she died before approaching the authorities. The relevance of that will be explained a little later in these reasons.

At the commencement of the hearing, or perhaps a little before the commencement of the hearing, counsel representing the appellant at the trial applied to the trial judge for a permanent stay of proceedings. That application was unsuccessful.

The first ground of appeal concerns the failure of that application and what is said to have been a miscarriage of justice arising from the circumstance that by the time of the trial three persons who were potential witnesses had died. The ground of the application for a stay of proceedings was a combination of the objective delay between the time of the offences and the charging of the appellant, the deliberate decision that was taken in relation to waiting until after the death of the appellant's wife, to which reference has just been made, which accounted for several months of the delay, and the circumstance that three people had died before the matter came on for trial.

The three persons in question were a man named Hancock, who was alleged to have been a participant with the appellant in the events the subject of count three in the indictment, Mrs McD, the wife of the appellant, and the grandmother of the complainant V.

For the purpose of considering this ground of appeal it has been necessary for the court to give close consideration to the practical significance, or potential practical significance, of the evidence of those three persons.

The man named Hancock died in February 1992. If he had lived, he may have been a potential co accused with the appellant. He had nothing to do with any of the other counts in the indictment.

The jury convicted the appellant on count three. It was pointed out to us that the Crown case was especially compelling in relation to that count because of a certain description that the complainant V gave of the man who was involved with the appellant in indecent conduct towards her. She had never previously met the man Hancock, and had not seen him since, but the evidence showed that a man matching this peculiar description. Hancock was a regular visitor of the appellant at the time of the alleged offence.

The position of Mrs McD as a potential witness was that, subject to one qualification, there was no suggestion that any of the relevant events took place in her presence or hearing or that any complaint was ever made to her by the complainants. She was, of course, around and about the farm at the time of the events alleged by the complainants and to that extent she could have been asked questions about some of the objective circumstances to which the complainants made reference. The position, however, does not rise any higher than that with the exception of the qualification I am about to mention.

In relation to count two, in respect of which the appellant was acquitted, the complainant V gave evidence that, after certain conduct towards her by the appellant, which had taken place in a shed the appellant's wife came into the shed and yelled at the complainant to pull her pants up and to make herself ready for lunch. She also said that, following the lunch, there was a conversation in which the appellant and his wife in effect said something hurtful to her about the attitude of her parents towards her.

That was an occurrence which, if she had been alive at the time of the trial, Mrs McD might well have either remembered or been in a position to deny. The point that is made on behalf of the appellant in relation to that aspect of the matter is a significant point and requires to be given weight.

In relation to the complainant V's grandmother, the significance of her potential evidence was that it was said by the complainant that she had complained to her grandmother of the matter the subject of count four not long after it happened.

It is necessary to turn now to what the learned trial judge said to the jury by way of directions, but before doing so I should say that, consistently with authority, and in particular consistent with Jago v. The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, especially at 34, it has not been shown that the trial judge was in error in refusing to stay the proceedings.

His Honour referred to the significance of the role of the witnesses who were deceased by the time the trial commenced and to the reasons that might have existed for the delay and, of course, to the possibility of taking steps to deal with the problems arising as a result of the missing witnesses.

This court, however, also has to consider the argument that in the events that occurred at the trial there was a miscarriage of justice, and in that connection senior counsel for the appellant has directed us to what he says were deficiencies in the way in which the trial judge dealt with these matters in the summing up.

The first point to be made about that is that no complaint about such deficiencies was made by trial counsel at the end of the summing up. The trial judge asked counsel whether he wanted anything to be added to the directions or any alterations to be made and counsel said that he did not. Even so, it is important for this court to consider on its merits the argument that, in the events that occurred, including the absence of the three witnesses that I have mentioned and the way in which the trial judge handled the matter in his summing up, there was a miscarriage of justice.

If I may say so, in my view the trial judge handled this problem sensitively and appropriately in his summing up to the jury. He gave the jury a warning about the dangers involved in convicting on the uncorroborated evidence of the complainants and, as has already been noted, the jury did not convict in respect of all counts in the indictment. His Honour said:

"To the extent that you think that the story of either young woman is not backed up by acceptable other independent material, then that is called uncorroborated evidence. When a jury is asked to convict a person on the uncorroborated evidence of a single witness, then the law is that you should examine the evidence of that witness with special care before deciding to convict upon it because it can be dangerous to do so."

Two or three pages further on in his summing up his Honour directed the jury to the absence of witnesses and in particular Mrs McD and Mr Hancock. In doing that, he told the jury that in the circumstances of the case involving the absences of those witnesses they might think it fair, when considering whether the case had been proved beyond reasonable doubt, to adopt what he described as a reasonably high standard of the practical application of proof beyond reasonable doubt in the light of the unavoidable absence of those people. He also said that they should adopt that approach in view of the lapse of time since the events in question because their common sense and their sense of justice would tell them that it made it harder for the appellant to defend himself against the allegations.

He said, reminding them of an argument that had been addressed to them on behalf of the accused:

"For the accused, counsel urges you in effect to adopt a very high standard in that regard because these are old matters and there are people dead who one could assume one way or the other ought to be able to cast some objective light on the matter."

The summing up reminded the jury of the evidence before them as to the way in which these complaints had unfolded and fairly brought home to the minds of the jurors the risks that were involved in convicting the appellant and the difficulty of the task which they had before them, in the light of the length of time that elapsed since the alleged offences and the absence of potential material witnesses.

In all the circumstances of the case, including the evidence about the delays, the evidence about the reason for the delays, the events that occurred concerning the deaths of possibly material witnesses, the way in which the trial was conducted and the way in which the learned trial Judge summed up to the jury, I do not consider that it has been shown that there has been a miscarriage of justice as contended in ground 1. That ground of appeal fails.

The remaining grounds of appeal against conviction may conveniently be dealt with together. They concern what happened, and what was said by the trial judge, after the jury retired to consider its verdict. The jury retired to consider its verdict at a little after 11.30 on the last morning of the trial and at about 2 o'clock they sent to the judge a note enquiring about what would happen in the event that they were unable to reach a verdict on that day. Before the jury was brought back into court, the trial judge, in the absence of the jury had a discussion with counsel about what he would say to the jury. His Honour said:

"I think what I will do, subject to your comments, is tell them that they can sit on till 6 if they like and then if they don't agree, they can come back tomorrow, advise them against trying to decide the matter hastily, merely to finish it by today and tell them if they are having any difficulty that they should act consistently with their consciences but re examine the matter realising that there are other citizens whose life experiences are important and it is not uncommon for juries to have initial difficulties and then ultimately to agree."

The response of counsel to that is recorded in the transcript as follows:

"CROWN PROSECUTOR: Right.

GALLUZZO; Okay".

His Honour then had the note marked for identification

and placed on the file.

As senior counsel for the appellant has pointed out, at that stage there was nothing to indicate that the jury was deadlocked or that they expected to have any particular difficulty in reaching agreement.

When the jury came in, his Honour said to them:

"Members of the jury, in relation to scheduling and what happens, if you would like to sit on till say six tonight, that can be done, or any time up to there. I would not favour you sitting beyond that time, because there is a limit to how long one can keep close concentration going during the course of a day.

The second thing is, while it might be inconvenient, if you have got to come back tomorrow, if you cannot agree by the end of the day, I will bring you back tomorrow and we will start at 9.30 or ten, whatever you like, you have only to let me know.

I do not know whether you are having any difficulty in reaching agreement, but if you presently are do not be discouraged about it. It is by no means uncommon for juries to have initial difficulty and then in the end to reach agreement. If you are having difficulty, could I just say these things to you. In the first place, do not act against your own conscience; nobody wants you to do that. If at the end of some considerably more hours it is clear you cannot agree, well, I will discharge you and there will be another trial. But it is important, I think, that you each recognise, however compellingly clear the position that commends itself to you may be, that your fellow jurors, however they express themselves, whatever their seeming experience of life and so on, are all citizens who have lived in this world sometime. They have had their experiences that have formed their backgrounds and attitudes and it is necessary to do your utmost to try to see another point of view. There is no shame in changing your mind. There is no face to be lost by a departure from a strongly stated position. For example, it is by no means uncommon for judges to change their minds after their consideration of a matter is very considerably advanced. I must say I do it myself all the time. In circumstances where Judges have to sit with other judges or other people, on tribunals to decide things, it is often the case that one or more people will have strong views and then, after a while, perhaps after a break, one can come at quietly and slowly and try to see the other point of view.

Try to say to yourselves: what is there in the other point of view that has strength? Even if this other person is not putting it very well, even if that person is irritating in the way they say it, or I don't find attractive what can be said for that point of view. If everyone does that, then you at least can be sure that if have ventilated the issues, and, as I say, it is by no means uncommon for juries who send me messages early on saying they are hopelessly deadlocked in fact to come to an agreement later on. So I do not lightly assume that you will not come to an agreement. If at any stage you think that it might be useful to have a fifteen minute break, where you can just go for a walk outside and forget about the case for a few minutes...you think that might be useful? All right, well, none of you should repair to any establishment whose wares might impair your consideration of the matter, but if you would like to just have a fifteen minute break, then I will authorise the officer to let you go for fifteen minutes. You might in fact find a walk around of use. These things can be pretty intense."

It is argued on behalf of the appellant that his Honour put inappropriate pressure upon the jury, in particular by "indicating that the jury could not deliberate beyond 6pm" and "by giving an exhortation when he did and when there was no clear indication that the jury could not agree".

In fact, on a fair reading of what his Honour said he did not indicate that the jury "could not deliberate" beyond 6pm. What his Honour said was that he would not favour them sitting beyond that time, giving a reason why he did not favour that. On a fair reading of what his Honour said, he left it up to the jury to sit on after 6pm if they wanted to, but he indicated that his counsel to them was that that was undesirable.

I should add that all this was done by his Honour immediately after counsel for the appellant indicated that he accepted this as an appropriate course.

In regard to what has been described as the "exhortation", bearing in mind cases such as Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, R v Yuill (1994) 34 NSW LR 179 and R v Foster (1995) 78 ACrimR 517, I do not consider that what his Honour said to the jury was inappropriate or put undue pressure upon them.

Indeed, whilst what his Honour said to the jury has been referred to as "an exhortation", there is at least a good deal there that could not inappropriately have been said in the summing up in the first place. However that may be, it seems to me that his Honour made it perfectly clear that the individual jurors should not act against their individual consciences. He encouraged them, not inappropriately, to have an open exchange of opinions and he pointed out to them that there was no shame involved in people changing their minds after discussion.

The mere fact that he mentioned to the jury that in the event that they could not agree there would be another trial, in the context in which that observation was made, almost immediately following the proposition that individual jurors should not act against their own consciences, does not seem to me to constitute inappropriate pressure. Indeed, I should add that the experience of courts is that some jurors suffer considerable confusion because they do not know what will happen to the accused in the event of disagreement, and such confusion and uncertainty has itself the potential to lead to injustice.

The authorities establish that it is inappropriate to talk about expense and inconvenience, but merely to tell the jury that in the event of disagreement they will be discharged and there will be another trial, at least where that follows immediately upon a warning that they should act upon their individual consciences, does not appear to me to contravene the rules that exist in this regard.

I do not consider that grounds two and three have been made out and I would propose that the appeal against conviction should be dismissed.

There is an application for leave to appeal against sentence, but it is based upon a narrow point. It seems that his Honour was misled by counsel on both sides into thinking that the maximum penalty for these offences in each case was seven years whereas in truth it was six years. Bearing in mind that that error occurred, although without any fault of the trial judge, it is appropriate for this court to reconsider for itself the appropriateness of the sentences that were imposed.

In all the circumstances having regard to the objective features of the case and to the subjective matters referred to by the learned sentencing Judge, I consider not only that the sentences that were imposed have not been shown to be excessive but also that the sentences were appropriate.

I would propose that the court should make the following orders. The appeal against conviction should be dismissed. Leave to appeal against sentence should be granted but the appeal should be dismissed. There should be an order that time spent by the appellant in custody pending the appeal should count.

ALLEN J: I agree.

JAMES J: I also agree.

GLEESON CJ: The orders of the court will be as proposed.

CRIMINAL LAW - DELAY - REFUSAL TO STAY PROCEEDINGS

The appellant was charged with sexual abuse of young children which occurred many years previously. In the meantime three possible witnesses have died. Taking into account the potential significance of the evidence of those witnesses, the trial judge nevertheless declined to grant a stay - HELD - The decision to refuse a stay was correct and, in the light of the evidence at the trial and the way the trial judge summed-up to the jury there had been no miscarriage of justice.

JURIES - EXHORTATION

It was argued that, in giving certain directions, the trial judge had put undue pressure on the jury - HELD - He had not.

SENTENCING

Sentences involving a minimum term of two years and an additional term of two years were held not excessive.

O R D E R S

1 Appeal against conviction dismissed.

2 Leave to appeal against sentence granted; appeal dismissed.