Artery v R

1. [1]

   PAYNE JA: I have had the advantage of reading the reasons of Adamson J in draft. I agree with her Honour’s reasons. I wish only to make a few additional observations.

2. [2]

   Although the sole ground of appeal was that the verdict on count 1 was unreasonable having regard to the jury’s verdict on count 2, the applicant’s written submissions appeared to address a complaint that was that it was not open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s evidence about count 1 in circumstances where there was an absence of complaint evidence given by the complainant’s mother and thus the evidence concerning count 1 was uncorroborated, the complaint was only made to the police nearly 30 years after the events and there was potential for conscious or unconscious contamination of the complainant’s memory and her evidence.

3. [3]

   At the commencement of oral address, however, Mr Flynn, who appeared for the applicant, made clear that the complaint about an unreasonable verdict was limited to a complaint that the jury had returned inconsistent verdicts on counts 1 and 2.

4. [4]

   For the reasons given by Adamson J, I agree that the jury did not return inconsistent verdicts. I agree with the orders proposed by Adamson J.

5. [5]

   JOHNSON J: I agree with Adamson J.

6. [6]

   ADAMSON J: The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on indictment of one count of indecent assault of a person under the age of 16 years. The sole ground of appeal is that the verdict on count 1 is unreasonable having regard to the jury’s verdict on count 2.

7. [7]

   The indictment was presented in the following terms:

8. [8]

   The applicant was sentenced on 17 February 2017 by way of a bond imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). No application for leave to appeal against sentence has been filed.

9. [9]

   Where there is a complaint that a jury verdict is unreasonable because of inconsistency between other verdicts returned, the question is whether there is an acceptable explanation for the differentiation as a matter of logic and reasonableness: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] and [52]-[53] .

10. [10]

    It was submitted on behalf of the applicant that there was a necessary inconsistency between the verdicts such as to give rise to the conclusion that the verdict of guilty on count 1 is unreasonable. In order to address this submission it is necessary to examine the evidence to determine whether there is a rational explanation for the difference in the verdicts returned for counts 1 and 2.

The evidence at trial

1. [11]

   The complainant was born in 1974. When she was 5 or 6 her parents moved to a place just outside Lithgow. Her father met the applicant at a hotel and invited him home for dinner from time to time. The complainant’s family later moved to the Mudgee area. In late 1983 the complainant’s parents separated. The complainant, her mother and sister moved to Richmond where her mother conducted a nail salon business close to the home. She worked long hours and worked late on Wednesday, Thursday and Friday. At these times the complainant was home with her sister alone.

2. [12]

   The complainant’s mother began an intimate relationship with the applicant. He stayed overnight from time to time.

3. [13]

   The first incident was in August 1985, when the complainant was 11 years old. Prior to that day, the applicant had played a game with the complainant a few times. He grabbed her from behind and rubbed his hands down over her breast and stomach area. The complainant was not developed at the time. On the day of the incident, the applicant was getting ready to leave the house. He went in and out through the front door. The complainant was in the lounge room, standing between two lounges. The applicant grabbed the complainant roughly, rubbed her and then let go. It seemed more deliberate and rough. The applicant returned and did it again. He grabbed and pinched the complainant's nipples (count 1) and looked at her very intently. The complainant, who was worried and alarmed, went out the front door and down the path towards the driveway as she did not want to be in the house with the applicant. The complainant stood on the pathway between the front door and the driveway. The applicant's car was parked in the driveway. The applicant walked past and grabbed her again and pinched her nipples. He got into his car and looked back at the complainant.

4. [14]

   The complainant could not recall the first time that the applicant played the game. She initially described it as a game because the applicant was laughing and smiling. The incident on this day scared her more because it was prolonged and seemed more deliberate. The other times, he had brushed over her breasts and she was not sure whether it was an accident. This incident was the final time that it occurred. She could not recall what she was wearing.

5. [15]

   Some time after the incident but before count 1, the complainant and her mother were driving past the RAAF base at Richmond, heading into Windsor. The complainant was in the front seat and did not recall whether anyone else was in the car. She told her mother that she was getting scared because the applicant was grabbing her and pinching her nipples. The complainant's mother did not ask her daughter “very many” questions and did not seem to want to start a conversation about it. The complainant did not think anyone else was in the car at the time.

6. [16]

   The next incident was on a Monday in the September 1985 school holidays. The complainant was 11 years old. Her mother was at work. Her sister was away in Townsville for longer than a night visiting a school friend. The complainant was sitting on the floor in the lounge room in front of the television. She was still wearing her pyjamas: a matching set of shorts and a top, which were white with a blue pattern on them. The complainant was wearing underpants but she was not wearing a bra. She had not yet started to wear one. The applicant, who was the only other person in the house, was sitting at his usual seat at the head of the dining room table, reading the paper. He was wearing long blue work pants and a blue work shirt. He asked the complainant to come over and sit with him. She went over and the applicant picked her up and put her on his lap with her back against his chest. This was the first time she had ever sat on his lap.

7. [17]

   The applicant put one hand around her waist and the other into her underpants. He rubbed the entrance to her vagina and her clitoris. The applicant continued to rub her vagina for more than a few minutes. The complainant looked at the newspaper and talked to the applicant about an advertisement for a car. She explained it was a coping mechanism, to try to disassociate from what was happening. The applicant pushed the end of his finger into her vagina. It was either the index finger or the next finger. He asked her, “does that feel nice?” and, “does that tickle?” The complainant responded yes to the second question. The complainant did not want the applicant to touch her genital area and did not want him to put his finger inside her vagina. She was very scared. She was not sure how long he had his finger inside her. The applicant's fingers felt rough and course. The other fingers on his same hand rubbed the outside of her vagina.

8. [18]

   The applicant removed his finger and told the complainant that he was going to bed. He asked if she wanted to go with him, and she said no. The applicant removed his arms from around her. The complainant got off his lap and stood beside the table. She was worried something would happen if it looked as if she was going to try to leave. The applicant asked, “are you sure you don't want to come?” and the complainant again declined. The applicant walked out of the dining room, through the kitchen and out of the complainant's sight. She heard a door shut and assumed it was the bathroom or the toilet. She grabbed her Cocker Spaniel, Connie, and went through the lounge room to her bedroom. The complainant shut her door. There was no lock. She put jeans on and waited to see what would happen. She heard the applicant walk up the hallway and into the bedroom that he shared with the complainant's mother. When she heard the door shut, she left her bedroom with Connie and left the house through the back door by the laundry. The complainant went out the side gate, up the driveway and ran to her mother's nail salon which was about 2kms away.

9. [19]

   When the complainant arrived at the salon, her mother was at a work table with a client who was sitting opposite. The complainant and her mother went to the kitchenette at the back of the shop. The complainant told her mother that the applicant had put his hands in her underpants and rubbed her, and asked her to go to bed with him. The complainant could not recall her mother's response. She did not ask the complainant for details or offer her comfort. The complainant's mother asked the complainant to wait in the salon. There were clients there. The complainant waited, with Connie, until the end of the day when her mother finished work. When they left the salon, they went straight home. The complainant did not remember seeing the applicant again that afternoon. It is possible that he was asleep.

10. [20]

    The complainant did not have any further conversations with her mother about the matter either that day or in the days immediately afterwards. The applicant seemed to disappear for a week or two and then he started coming back to the house again. The complainant could not recall telling anyone else about the incident immediately afterwards. She could not recall telling her sister about the incident when she returned from Townsville.

11. [21]

    In 1985 and 1986, the complainant attended the local primary school. Her closest friends included Vanessa and Jennifer. The complainant told Vanessa about what the applicant had done. She could not recall when she told her. When she was in high school, the complainant also told Jennifer details about what had happened.

12. [22]

    The complainant's sister gave evidence of going to Townsville to visit a school friend in 1985. On her return she noticed tension between her mother and the complainant. She gave evidence of the complainant telling her that she had been lying on her bed when the applicant entered the room, lay on the bed beside her and put his hand up her dress. The complainant’s sister agreed in cross-examination that the allegation was an ongoing issue with the family and was raised from time to time. The first time it was seriously raised in a family context was over 21 years prior to the trial.

13. [23]

    Jennifer, the complainant’s school friend, gave evidence that in about 1985 the complainant said, “My mother's boyfriend has been putting his hands down my pants while watching TV”. Jennifer gave evidence that the complainant had reported that she had told her mother, who had not believed her.

14. [24]

    Vanessa, another school friend of the applicant’s, gave evidence through the officer-in-charge, Detective Senior Constable Rebecca Clark that in about 1985 or 1986 the complainant told her that the applicant “put his hands into my underwear and touched me.”

15. [25]

    On 19 November 2012 the complainant telephoned the applicant. The call was recorded by a listening device obtained pursuant to a warrant. In respect of the conduct in count 2, the complainant said:

16. [26]

    The complainant agreed in cross-examination that she had not made any suggestion to the applicant during this call that he had put his finger or fingers inside her vagina.

17. [27]

    The applicant gave evidence at the trial in which he denied committing the alleged offences.

The summing up

1. [28]

   Of present relevance, in relation to count 2, the trial judge noted in the summing up that the complainant said nothing about the applicant putting his finger into her vagina during the pretext call, or to any of the complaint witnesses. His Honour expressly distinguished the evidence of complaint about count 2 from the evidence of complaint about count 1 in the following passage:

2. [29]

   The trial judge emphasised in the summing up the importance of the jury being satisfied that there was penetration for proof of count 2. His Honour said:

The period after the jury had retired

1. [30]

   The jury retired to consider its verdict on the afternoon of 8 February 2017. After lunch on 9 February 2017, his Honour indicated he had received a jury note which said: “We are very close to a verdict on count 1. It is highly unlikely we will come to a verdict on count 2 today.”

2. [31]

   On the morning of 10 February 2017 the trial judge announced that another jury note had been received. His Honour read out the following:

3. [32]

   The transcript recorded that the trial judge said the following in the absence of the jury:

4. [33]

   After consulting counsel about the proposed course, the trial judge invited the jury to return to the court room. The jury returned a verdict of guilty in relation to count 1 at 11.17am on Friday 10 February 2017. The trial judge then gave further detailed directions in relation to count 2 as follows:

5. [34]

   Following this further direction, the jury sent another note, the contents of which were not disclosed to the parties. By further notes the jury sought transcript and informed the trial judge that the jury was deadlocked, as a consequence of which his Honour gave a Black direction. At 3.58pm on 10 February 2017, the jury returned a unanimous verdict of not guilty in relation to count 2.

Whether the verdicts are inconsistent

1. [35]

   The applicant argued that the verdicts were inconsistent because the jury, by its verdicts, had apparently accepted the complainant’s evidence on count 1 and not on count 2.

2. [36]

   That a jury reaches a different verdict with respect to different counts does not lead to any assumption of inconsistency. Where an accused is acquitted of a charge of sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]:

3. [37]

   The present case appears to me to be an example of the appropriately cautious approach of the jury to the decision whether the Crown had proved its case, particularly with respect to count 2, beyond reasonable doubt. What occurred after the jury retired indicates that the jury had little difficulty in coming to a unanimous verdict in relation to count 1. The evidence of the offence and the evidence of complaint corresponded with count 1.

4. [38]

   However, the jury had difficulty in coming to a unanimous verdict in relation to count 2 and asked questions which can be taken to have reflected its concern about whether the Crown had proved count 2 beyond reasonable doubt. The jury had been told in the summing up that the complainant’s complaint about count 2 had been made to a number of people. However the complaint did not include a complaint about penetration; the evidence was that the complainant complained that the applicant had put his hand inside her underpants. This was all that the complainant put to the applicant in the pretext call on 19 November 2012. It was open to the jury to reason that, while it was satisfied beyond reasonable doubt about count 1, it retained a reasonable doubt about count 2 because the complainant had not told her mother or her friends that the applicant had digitally penetrated her vagina and had not accused the applicant of digital penetration in the pretext call.

5. [39]

   There was, accordingly, a basis on which the jury could differentiate between its verdict on count 1 and its verdict on count 2. In these circumstances, the applicant has not established that the verdicts were inconsistent.

6. [40]

   I would propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.