Dean v R

1. [1]

   MACFARLAN JA: In May 2021 the applicant stood trial in the District Court before a judge and jury on five counts of sexual assault and indecent assault of a child who was the daughter of a friend of the applicant.

2. [2]

   The charges and verdicts were as follows.

3. [3]

   Count 1 charged that the applicant indecently assaulted the complainant by touching her clitoris when she was three or four years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The jury returned a directed verdict of not guilty after the trial judge concluded that there was insufficient evidence to prove that the alleged offence occurred within the date range particularised (1 January 2009 to 31 December 2009).

4. [4]

   The remaining counts all related to acts alleged to have occurred in 2016 or 2017 in the course of an incident which took place at a house at Galston occupied by the applicant, his friend and, at times, the complainant who is the daughter of the applicant’s friend.

5. [5]

   Count 2 alleged that the applicant had sexual intercourse with the complainant when she was 11 or 12 years of age (that is, between 1 March 2016 and 31 March 2017), contrary to s 66C(1) of the Crimes Act. The jury returned a verdict of guilty on this count.

6. [6]

   Count 3 charged that the applicant indecently assaulted the complainant by sucking her nipples, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of guilty on this count.

7. [7]

   Count 4 charged that the applicant indecently assaulted the complainant by using a vibrator on her clitoris, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of not guilty on this count.

8. [8]

   Count 5 charged that the applicant indecently assaulted the complainant by forcing her to masturbate his penis with her hand, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of not guilty on this count.

9. [9]

   The applicant appeals against his conviction on Counts 2 and 3 on the sole ground that the verdicts on those counts are unreasonable because the verdict of not guilty on Count 4 is inconsistent with them. The applicant does not contend that there is a like inconsistency in relation to the verdict of not guilty on Count 5, in light of the trial judge’s direction to the jury that it needed to be satisfied beyond reasonable doubt that the applicant placed the complainant’s hand on his penis. Arguably the complainant did not clearly say in her evidence that he did this.

10. [10]

    For the reasons given below I have concluded that there is no inconsistency as alleged by the applicant, that the verdicts on Counts 2 and 3 are not therefore unreasonable and that the appeal should therefore be dismissed.

The complainant’s evidence at trial

1. [11]

   The complainant gave her evidence in chief largely by way of the playing of a recording of an interview with police which took place on 24 September 2019, when she was 14. She completed her evidence in chief and was cross examined at a pre-recorded hearing conducted on 4 May 2021, when she was 16.

2. [12]

   She told police at the interview that there was one “main incident” involving the applicant that occurred when she was living with her father in Galston and she was in Year 6 at school. This incident was the subject of Counts 2, 3, 4 and 5. The complainant first described it to police as follows:

3. [13]

   Later in the interview the following was said:

4. [14]

   She then indicated that the complainant put his fingers inside her vagina.

5. [15]

   Later in the interview, the following exchange occurred after the complainant referred to a visit with the applicant to a local shopping mall:

6. [16]

   The complainant then said that she was referring to a window at the “new address” which she later said was in St Johns Avenue, Gordon (A 399). The questioner then returned to the “main incident” to which [the complainant] had earlier referred and the following exchange occurred:

7. [17]

   In oral evidence in chief at the pre-recorded hearing, the complainant said:

8. [18]

   In cross examination, the following exchange occurred:

9. [19]

   Also in cross examination, the complainant corrected the questioner when he referred to the “vibrator” being thrown out the window at Galston. She said that this occurred at Gordon, not Galston, after she and her father moved out of Galston.

Other evidence before the jury

1. [20]

   Evidence of a complaint by the complainant in late 2018 was given by TM who was then aged 16. TM’s father started dating the complainant’s mother in 2018 and the complainant confided in TM later that year. The complaint was in the following terms:

2. [21]

   The complainant’s mother also gave evidence that in early 2019 the complainant told her that the applicant had “put his fingers inside her” and “[h]e put my hands on his things” referring to his genitals. No reference was made to a vibrator.

3. [22]

   Earlier in her evidence, the complainant’s mother had said that in 2009 the complainant had asked her what a vibrator was and that she asked that because the applicant had referred to one when he was reading the complainant a bedside story. The complainant said that the applicant said that he “actually … has a vibrator” and the vibrator is “used to put down there”.

4. [23]

   The complainant’s father also gave evidence of the complainant speaking to him in March or April of 2019 as follows:

5. [24]

   In cross examination, he said that when the complainant referred to the vibrator being thrown away she was referring to having done that at the premises in Gordon and that they were premises in which she lived before they went to live with the applicant at Galston. The complainant’s father moved there in about March 2016 and moved out in about January or February 2017, when he moved into premises at Chatswood.

Relevant legal principles

1. [25]

   The unreasonable verdict ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494–495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

2. [26]

   In addressing an unreasonable verdict ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) although, as stated in M v The Queen (at 494):

3. [27]

   In Nguyen v R [2017] NSWCCA 145 at [34]–[48] I reviewed relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). I stated in Nguyen the following conclusions (at [48]):

4. [28]

   Further elaboration of these principles is to be found in this Court’s judgment in Vasilevski v R [2019] NSWCCA 277 at [115] and [117] as follows:

5. [29]

   In Ganiji v R [2019] NSWCCA 208, in which one ground of appeal was that the verdicts were unreasonable by reason of their inconsistency, Basten JA (with the concurrence of Button and Longergan JJ) said the following in relation to the evidence of complaints at [8]–[9]:

Consideration of the appeal

1. [30]

   The applicant first submitted that there is inconsistency between the verdict of not guilty on Count 4 and the verdicts of guilty on Counts 2 and 3 because there was no logical, rational basis for the jury distinguishing between the counts having regard to the firm evidence given by the complainant in relation to each of them. He submitted that the acquittal must therefore have reflected the jury’s rejection of the complainant’s evidence on Count 4 and that that rejection should logically and reasonably also have applied to her evidence as to Counts 2 and 3, leading to verdicts of not guilty on those counts also.

2. [31]

   He submitted that there was no uncertainty in the complainant’s evidence concerning Count 4 in light of the “definitive nature of the responses [the complainant] made in the original interview and when she was cross-examined”. He relied in this respect on the decision in Shiv v R [2021] NSWCCA 245 in which there were a number of counts relating to one incident. In that case, Leeming JA (with the concurrence of Hamill and Lonergan JJ) concluded that the complainant’s evidence in support of both the relevant count on which there was a guilty verdict and that on which there was a not guilty verdict was “unequivocal” resulting in the absence of a rational basis for the jury to distinguish between the counts. The guilty verdict was accordingly unreasonable.

3. [32]

   In the present case there were however a number of features of the complainant’s evidence concerning the Count 4 act which could reasonably have led the jury to distinguish that evidence from her evidence concerning Counts 2 and 3. In these circumstances it was open to the jury not to be satisfied beyond reasonable doubt of the applicant’s guilt of the Count 4 offence but nevertheless to be so satisfied in respect of the Count 2 and 3 offences.

4. [33]

   First, in her first description of what occurred on the relevant occasion, the complainant did not refer at all to the applicant’s use of a vibrator (see [12] above).

5. [34]

   Secondly, when the complainant later mentioned the use of a vibrator she said that “there was a couple of times where he did use a vibrator”, leaving a doubt as to whether the applicant did that on the occasion referred to in [12] above which was the subject of the charges in Counts 2, 3 and 4 (see [13] above). She then narrowed her reference to use down to one use but again did not make it clear that that one use was on the subject occasion. As well, the change from use “a couple of times” to “just the one time” may have suggested to the jury that she was not sure of the true position.

6. [35]

   Thirdly, the complainant’s next reference to a vibrator came after the police asked her whether she remembered any other specific incident (see [15] above). She said in response that she “wrote it down on [her] phone” and then said “he gave me two vibrators” without saying whether that was noted on her phone and whether he had used them. She then said that the applicant gave her a vibrator “probably after, after the last incident” [sic] without clearly identifying that incident and again without saying whether the vibrator was in fact used. Moreover, her evidence in this context used the word “probably”, which arguably indicated a degree of uncertainty on her part.

7. [36]

   Fourthly, later again in the police interview, the complainant volunteered that “[h]e might have also used a vibrator” and that “he probably used a vibrator” (see [16] above). Both references contained an element of uncertainty. When asked by the police about her use of the word “probably” she said “[p]robably, definitely”, elevating her level of assuredness but in a way that the jury might have reasonably found unconvincing. Further, she reverted to the less certain expression “I think” in saying “so I think it was like, he used the vibrator on me and then like, and then he gave that one to me after” (see [16] above). In her oral evidence in chief at the pre-recorded hearing the applicant referred again to the vibrator but did not say, at least explicitly, that the applicant had used it on her (see [17] above).

8. [37]

   Fifthly, in cross examination the complainant denied that she was unsure whether the applicant used a vibrator (see [18] above) but it was reasonably open to the jury to regard her apparent earlier uncertainty as detracting from the quality of this evidence concerning Count 4.

9. [38]

   In contrast to the evidence given by the complainant concerning Count 4, her evidence concerning the Counts 2 and 3 acts was, throughout, firm and unqualified.

10. [39]

    Importantly also, her evidence, as ultimately given, that the applicant “definitely” used a vibrator did not receive any support from the evidence of complaints made by her to TM, her mother or her father. TM and the father recalled the complainant referring to a gift from the applicant of a vibrator and to the complainant throwing it away, but not to any use of it by the applicant on her (see [20] and [23] above). The mother did not recall any reference to a vibrator except in a conversation with the complainant some years earlier, in 2009 (see [21] and [22] above).

11. [40]

    The applicant submitted that inconsistency between the verdicts also arose because there was conflict between the evidence of the complainant and that of her father on the timing of when the complainant received the vibrator and disposed of it, and by acquitting on Count 4 the jury indicated that it was “not satisfied beyond reasonable doubt of the evidence of the complainant in circumstances where there was evidence inconsistent with hers”.

12. [41]

    The conflict was said to be between the father’s evidence, that after leaving the Galston property he went to live at Chatswood, and the complainant’s evidence that she threw the vibrators out of a window at the premises at Gordon to which she said she went after leaving Galston. It was however reasonably open to the jury to take the view that the complainant was innocently mistaken as to the suburb in which she lived after moving out of Galston, particularly, as Gordon was the suburb in which she lived before she moved to Galston. Alternatively, the conclusion would have to be drawn that the vibrators were given to her and thrown away at the premises where she lived prior to living at Galston (that is, at Gordon) but if that were so it would indicate that the use of the vibrator did not occur at Galston which was the charge made in Count 4. On this basis, the jury would have had an additional reason not to be satisfied beyond reasonable doubt that the applicant was guilty of the Count 4 offence. In reality neither possibility assists the applicant’s case on appeal as both identify an additional reason why the jury may have reached a different verdict on Count 4 to that it reached on Counts 2 and 3.

Conclusion and orders

1. [42]

   For these reasons, the jury’s verdict of not guilty on Count 4 cannot be seen as attributable to doubt about the credibility and reliability of the complainant or her evidence generally. Rather, it is reasonably and rationally explicable as attributable to the difference in the quality of the evidence that the complainant gave concerning Count 4 on the one hand and Counts 2 and 3 on the other hand. As Basten JA instanced in Ganiji (see [29] above), a jury might “be convinced that a particular serious assault took place, as described by the complainant, but have doubts about other aspects of her account, particularly if they only surfaced in later statements as further detail was elicited by persons taking her statements.”

2. [43]

   To the same effect is the statement from MFA quoted in Vasilevski (see [28] above) referring to factors that “might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence”.

3. [44]

   Rather than the difference in verdicts suggesting that the jury failed to act rationally, it suggests, in light of the circumstances to which I have referred above, that the jury gave conscientious attention to its duty to consider each count separately. This is a duty about which the trial judge instructed the jury in his Honour’s summing up by giving them a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) to this effect.

4. [45]

   For these reasons, I propose that the appeal be dismissed.

5. [46]

   ROTHMAN J: I agree with Macfarlan JA.

6. [47]

   DHANJI J: I agree with Macfarlan JA.