Regina v Am Matter No 60262/97 [1998] NSWSC 97 (2 April 1998)

Last Updated: 22 April 1998

REGINA v AM

60262/97

2 April 1998

Gleeson CJ, Smart J, Dowd J

The Supreme Court of New South Wales Court of Criminal Appeal

CRIMINAL LAW AND PRACTICE - CHILD SEXUAL ABUSE - multiple charges - appellant convicted of one but acquitted of others - whether verdict unsafe or unsatisfactory - HELD - by reason of a combination of circumstances the verdict was unsafe.

Jones v The Queen [1997] HCA 56; (1997) 149 ALR 598 applied.

ORDERS

1 Appeal allowed.

2 Conviction quashed.

3 Judgment of acquittal entered.

JUDGMENT

THE COURT: Following a trial before his Honour Judge Johnston QC and a jury in the District Court at Parramatta, in May 1997, the appellant was convicted of an offence of indecent assault against his stepdaughter, R, who was, at the time of the assault, aged eight years and was under the appellant's authority.

The appellant was sentenced to imprisonment for a term of three years to be served by way of periodic detention.

He appeals against his conviction. The sole ground of appeal is that the verdict of the jury was unsafe or unsatisfactory.

The principles governing the consideration of an appeal on that ground are set out in the judgments of the High Court in M v The Queen (1994) 181 CLR 487 and Jones v The Queen [1997] HCA 56; (1997) 149 ALR 598. As will appear, there are some similarities between the present case and Jones, but it is the principles, rather than the decisions on the facts in those cases, which are important.

The indictment charged the appellant with five offences involving alleged sexual abuse of R. The charges related to four separate incidents. The first and second charges related to the one incident, and were laid in the alternative. The appellant was acquitted of the first, and more serious, charge, and convicted on the second count. He was acquitted of the third, fourth, and fifth charges.

In the case of each charge the Crown case depended upon the uncorroborated evidence of R. The appellant gave evidence, and denied all the allegations against him. Three of the alleged incidents, which gave rise to the first four charges, occurred in 1987 or 1988, when R was aged eight. The fourth incident, which gave rise to the fifth charge, allegedly occurred in late 1992, when R was aged thirteen.

R made no complaint about any of the incidents until March 1996, when she spoke to the police. The circumstances in which the complaint was made are of some significance. The marriage between the appellant and R's mother broke down, and acrimonious Family Court proceedings ensued. In March 1996 R was living with her natural father. When R made a statement to the police she recounted the four incidents the subject of the charges against the appellant. The appellant was interviewed by police. He denied all the allegations, but in relation to the first incident he gave an account of an occurrence of an innocent nature which he speculated might have been the occasion to which R was referring.

Counsel for the appellant has placed strong reliance upon the

pattern of the verdicts. Whilst not suggesting that there is any technical inconsistency between the verdicts in respect of the first incident, on the one hand, and those in respect of the second, third and fourth incidents, on the other hand, he argues that it is difficult to find any rational explanation of why the jury would have entertained a doubt about the complainant's evidence in relation to the second, third and fourth incidents, but entertained no doubt about her evidence in relation to the first incident. This, in combination with other features of the case, is said to call into question the safety of the verdict of guilty.

The appellant and the complainant's mother were married in March 1986. The first incident, which gave rise to the first and second alternative charges, was said to have taken place during a period of about six months before the birth, in May 1998, of a male child of the appellant and the complainant's mother. This was the matter in respect of which the appellant was convicted, and it will be necessary to return to the detail of the evidence about this occurrence.

The second incident, which was the subject of the third charge, was said to have occurred over the same period of six months. According to the complainant, she and the appellant were lying on a bed together. He was dressed in long pyjamas, and she was wearing her nightdress and underwear. He placed her on top of him, placed one hand on her buttocks and one hand on her back, and moved her in a motion simulating sex. Although the complainant said she had a specific recollection of one incident of this kind, she said this sort of thing happened on a number of occasions.

The third incident, which was said to have occurred between May 1988 and February 1989, and which gave rise to the fourth charge, allegedly took place on a Saturday morning when the complainant and her brother were at home with the appellant, the complainant's mother being away at a Mormon temple. The complainant said that the appellant asked her to sit next to him on a lounge. He slid his hands up her shorts, underneath her underwear and touched her vagina. The complainant said she cried and said she would tell her mother. When her mother returned she asked why the complainant was crying, and the appellant said that she was just being stupid.

The fourth incident was the one about which the complainant was most specific in relation to time. It allegedly occurred on her thirteenth birthday. She and two of her girlfriends were in a private indoor swimming pool together with the appellant. The appellant, in the course of playing in the pool, fondled her breasts. According to the complainant, both in her statement to the police and in her evidence at the trial, the two friends, on the occasion, told the complainant that the same sort of thing happened to them, and said that the appellant was "a feeler and a pervert".

The two friends were called to give evidence at the trial. They both denied that any such thing had happened to them, or that they had made any such remark to the complainant They did not see any wrongful conduct on the part of the appellant towards the complainant.

The complainant's mother gave evidence. Her evidence did not corroborate the complainant in relation to the matter in respect of which he was convicted, although the mother expressed concern she had felt from time to time about what she regarded as undue physical contact between the complainant and the appellant. She gave an account, for example, of seeing the complainant and the appellant lying close together in his bed on one occasion, when she removed the covers and touched his penis to see whether it was erect. It was not. This evidence was not supported either by the complainant or the appellant.

A common difficulty in cases such as this, especially in relation to allegations of indecent fondling, rather than aggressive penetrative sex, is that complaints are often of a pattern of conduct rather than of any specific incident. This does not mean that a complainant is not telling the truth, and doing her honest best to give an account based on recollection rather than reconstruction. However, an accused person stands charged with committing one or more specific crimes, not with being a person of bad habits. Although evidence of pattern of behaviour is frequently admitted, as it was in the present case, in order to show a relationship between a complainant and an accused, or to provide a context in which specific evidence about particular occurrences may be evaluated, what a jury must ultimately decide is whether there is evidence which establishes beyond reasonable doubt the guilt of an accused of the particular offence or offences charged.

The appellant, as was noted above, was charged with two alternative counts in relation to the first incident. The first charge, of which he was acquitted, was of sexual intercourse involving the digital penetration of the complainant's vagina whilst they were lying together in bed. The second count, of which he was convicted, involved indecent assault. The reason for the alternative counts arose out of variations in the complainant's account of exactly what happened.

The complainant's evidence in relation to the first incident was given in a manner which alternated between a description of a general pattern of behaviour and an account of a particular event. Furthermore, her description of the particular event was not consistent.

Curiously, the complainant's account of the first incident, which resulted in the appellant's conviction, was a good deal less specific than her account of the other three incidents, in respect of which the appellant was acquitted.

The complainant began her evidence in chief by telling of various forms of cuddling, kissing and caressing, which may well be described as inappropriate behaviour, but which did not involve any criminality. The Crown Prosecutor then asked her whether she recalled any specific incident and she said she could remember an occasion during the period of six months before her brother was born. She described the appellant's customary behaviour around bedtime, and then told of an occasion when she got into the appellant's bed to say goodnight to him. She said that he put his hand down the front of her underwear, put his fingers inside her vagina and started making thrusting motions. She tried to pull away but he was too strong for her. She said she was going to tell her mother and he said that her mother would not believe her. The Crown Prosecutor questioned her about the "thrusting motion", and asked whether she knew if it was inside her vagina. She responded by saying that all she knew that she was being "touched there" and that she did not know "whether inside or outside".

That aspect of her evidence explains the alternative charges. When she first told what happened she said that the appellant put his fingers inside her vagina and started making thrusting motions. For some reason the Crown Prosecutor asked her in effect to repeat her evidence and she then said that she did not know whether the fingers were inside or outside. The first charge was framed on the basis that the fingers were inside; the second charge was framed on the basis that they were outside.

When the Crown Prosecutor asked the complainant the circumstances in which the appellant came to stop this behaviour on the occasion in question, she responded, not by reference to the particular occasion, but by giving an account of what usually happened. She said that the respondent usually stopped interfering with her when her mother approached the bedroom. Later in her evidence she said, on a number of occasions, that the respondent frequently placed his hand around her vaginal area.

When, in March 1996, the respondent made a complaint to the police she told them of only one occasion about which she had a clear recollection of being indecently handled on the vagina in the manner just described. She also told the police of the incidents the subject of the three charges in respect of which the respondent was acquitted.

The statement made by the respondent to the police was not in evidence, but it is possible to draw certain inferences as to its contents from the appellant's record of interview, which took, in part, the form of a commentary by the appellant upon the statement the complainant had made to the police. In his record of interview the appellant denied any wrongdoing. He referred to a part of the complainant's statement where she said that she had been lying in bed with the appellant and he had put his hand inside her vagina. (The evidence made it clear that there was nothing unusual about the appellant and the complainant being in bed together over this period when, it will be remembered, she was aged eight.) The appellant told the police of an occasion which he believed was that to which the complainant was referring. The context in which he did this was that of an attempt to explain how his hand might have come into contact with the complainant's vagina. He said he remembered an occasion when he and the complainant were lying in bed together. She put her hand between his legs, and then put his hand between hers. He remonstrated mildly with her and told her that was not the right thing to do. The complainant became somewhat upset, but was subsequently consoled by her mother. The complainant and her mother denied in evidence that such a thing had occurred.

In seeking to explain the pattern of the jury's verdicts, and to advance a reason why the jury might at least have had a doubt about the complainant's evidence in relation to the second, third and fourth incidents, but no doubt about the second charge, the Crown argued that the jury might well have treated this statement made by the appellant, which he repeated in his evidence, as a partial admission. If that is what the jury did, then it raises a serious problem about the safety of the verdict on the second count.

To treat the appellant's statement as a partial admission of guilt involves treating the occasion to which he was referring as the same occasion as that to which the complainant was referring, regarding his description of the event as an acknowledgment that his hand was in the wrong place, and at the same time rejecting his explanation as to how it got there. There are a number of fallacies in that process of reasoning, beginning with the first step.

The complainant, in her evidence, said that there were numerous occasions when she was in bed with the appellant and the appellant touched her vagina. She said, however, that she could only specifically recall the detail of one occasion although, as has been observed already, her recollection of that detail involved a significant variation, and her account of the incident alternated between telling what usually happened and telling about a particular occurrence. She said she had no recollection of an incident of the kind described by the appellant. In those circumstances, there is no logical reason for concluding that the occasion to which the appellant was referring, and the occasion to which the complainant was referring, were the same. Nor is it possible to treat what the appellant said as an admission that it was his practice to put his hand in the area of the complainant's vagina. On the contrary, he denied that he had such a practice, and he said that the only occasion that he could remember having his hand near her vagina was that which he described.

The jury might well have rejected the appellant's evidence about the occurrence to which he was referring, but they were not entitled to treat the appellant as making a partial admission.

The following circumstances, considered in combination, cause serious concern as to the safety of the jury's verdict.

First, the evidence of the complainant was uncorroborated.

Second, there was substantial delay in the making of the complaint, the first complaint having been made approximately eight years after the occasion the subject of the conviction.

Third, the circumstances in which the complaint was made involved the breakdown of the marriage between the appellant and the complainant's mother, and contested Family Court proceedings.

Fourth, in the case of the one charge where the evidence of the complainant was capable of being checked by reference to independent witnesses, and could be clearly related to a specific occasion, (the complainant's thirteenth birthday and the swimming pool incident in the company of two friends), the witnesses both contradicted the complainant. Although this was not pointed out to the jury by the trial judge, this was capable of reflecting upon the reliability of the complainant, not only in relation to the fifth count, but in relation to all counts.

Fifth, it is difficult to find any reasonable explanation for the pattern of verdicts. The explanation advanced by the Crown does not hold water.

Sixth, the evidence of the complainant in relation to the first incident contained a significant internal inconsistency, and was presented in a manner which raises concern as to whether she was professing to remember a particular incident or describing a pattern of behaviour.

This being a case in which a great deal must have turned upon the jury's evaluation of the sworn evidence of the complainant and the appellant, the court must be very cautious about permitting its own view of the facts to lead it to a conclusion that the jury's verdict was unsafe. We are also fully conscious of the difficulties of recollection and of evidence which can confront a complainant who alleges a history of sexual abuse in early childhood. Nevertheless, the considerations listed above, taken in combination, have led us to the conclusion that the verdict in the present case is unsafe, and should not be permitted to stand.

The appeal should be allowed. The conviction should be quashed. A judgment of acquittal should be entered.