GT v R

Judgment

1. [1]

   Emmett JA: The applicant seeks leave to appeal from convictions on three of 20 counts following a trial by a judge sitting alone in the District Court of New South Wales. The essence of the grounds of appeal is that the conviction of the applicant on three counts is inconsistent with acquittal on the other 17 counts. I have had the advantage of reading in draft form the proposed reasons of Price J granting leave to appeal and dismissing the appeal. I agree with the orders proposed by his Honour for the reasons given by his Honour.

2. [2]

   Price J: The applicant was tried by Cogswell SC DCJ in the District Court at Sydney between 27 November 2012 and 7 December 2012. This was a Judge alone trial at the election of the applicant and with the consent of the Crown.

3. [3]

   The applicant had been arraigned on an indictment that contained 20 counts relating to the sexual assault of the complainant (KH). The offences were alleged to have commenced in 1996 and to have ceased by 2004 prior to the complainant turning 16 years of age. The applicant pleaded not guilty to each count.

4. [4]

   Counts 1, 2, 4, 6 and 8 were offences contrary to s 61M(2) Crimes Act 1900 (NSW). Counts 3, 5 and 7 were offences contrary to s 66A Crimes Act. Counts 9, 11, 12, 13, 14, 15, 16, 17 and 18 were offences contrary to s 66C(2) Crimes Act. Count 10 was an offence contrary to s 61M(1) Crimes Act. Counts 19 and 20 were offences contrary to s 66C(4) Crimes Act.

5. [5]

   On 19 December 2012, the Judge delivered judgment and acquitted the applicant of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18 and 19 but convicted him on counts 14, 17 and 20.

6. [6]

   The applicant was subsequently sentenced by the Judge to an aggregate term of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months.

7. [7]

   The applicant appeals his convictions on each of counts 14, 17 and 20 on the basis that the verdicts for each of these counts is unreasonable or cannot be supported in light of the not guilty verdicts in relation to the remaining 17 counts on the indictment. The applicant has not appealed against the sentences either individually or in total. Argument

8. [8]

   In oral address, Mr Kernaghan for the applicant helpfully confined the scope of the appeal to the matters identified in paragraphs 34 and 36 of his written submissions. He informed the court that the matters raised in those paragraphs were the only answer that he could advance in response to the Crown's written submissions at paragraphs 84 to 90. In view of the precise identification of the issue on appeal, Mr Kernaghan did not seek to address the court further and the Crown was not called upon to make oral submissions.

9. [9]

   The applicant contends that the Judge's reasons do not reveal any basis upon which counts 14, 17 and 20 should be approached distinctly from the remaining 17 counts. The applicant argues that the degree of specificity in each of these counts is either the same or worse than that of the remaining counts which resulted in a finding of not guilty.

10. [10]

    The applicant submits that in relation to the three guilty counts, there were no findings based on the principles established in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. Whilst conceding that this does not necessarily mean an error has occurred, the applicant contends that the absence of such an account demonstrates that inconsistencies in the verdicts have not been resolved. A further submission was that in cases such as the present which involve one uncorroborated complainant, the finding of reasonable doubt to such a substantial degree as seventeen out of twenty counts requires explication as to the absence of such doubt in the remaining three counts. The applicant submits that the verdicts of guilty with respect to counts 14, 17 and 20 are unreasonable when regard is had to the totality of the evidence.

11. [11]

    In written submissions at paragraphs 84 to 90, the Crown observed that the Judge accepted the applicant's submission at trial that the Crown was required to prove beyond reasonable doubt, inter alia, that the offence alleged in each count occurred within the time period pleaded in the indictment. Despite his Honour accepting that the complainant was a truthful witness, the issue of her reliability as to the dates or time periods of the offences remained a central issue that the Crown was obliged to establish beyond reasonable doubt.

12. [12]

    The Crown contends that it is evident that the Judge acquitted the applicant on each of the relevant counts because there was a reasonable doubt as to whether those offences happened within the periods pleaded. In so doing, his Honour identified the evidence (including that of the complainant) that left that reasonable doubt.

13. [13]

    The Crown submitted that in respect of counts 14, 17 and 20, the Judge made it clear there was no reasonable doubt as to whether each of those offences had occurred within the periods pleaded on the indictment.

14. [14]

    The Crown argues that the reasons for judgment set out the bases the Judge had for accepting beyond reasonable doubt that the offences in counts 14,17 and 20 occurred during the period's pleaded while not being so satisfied in relation to the remaining counts. The trial

15. [15]

    The resolution of the applicant's appeal does not require a summary of all of the evidence in the trial. The following is an overview.

16. [16]

    The Crown case relied primarily upon the evidence of the complainant. She gave evidence of being sexually assaulted by the applicant on a number of occasions. The Crown also relied upon a record of interview (ERISP) with the applicant that was conducted by the investigating police. In the ERISP, the applicant: i. denied the allegations that gave rise to each of the counts on the indictment; ii. admitted he had begun to indecently assault the complainant when she was about 10 years old; iii. admitted he had indecently assaulted the complainant about 5 or 8 times by inappropriately touching her vagina; iv. admitted he had attempted to digitally penetrate the complainant's vagina, but denied there was any actual penetration; v. denied ever actually penetrating the complainant with two fingers; and vi. admitted that the indecent assaults mainly took place in the lounge room.

17. [17]

    At the outset of the trial, the applicant's counsel identified that the central issues were whether the Crown could prove beyond reasonable doubt in relation to any count on the indictment: a. the relevant age of the complainant at the time; b. the relevant date (range of dates) of the offence; and c. that (where relevant) there had been any penetration.

18. [18]

    In written submissions to the Judge, the applicant's counsel acknowledged that the applicant had committed criminal misconduct but the applicant denied the complainant's account of when the conduct occurred, where it occurred and precisely what occurred. During her closing address, the applicant's counsel submitted that the Crown bore the onus of showing "when, where and what" happened. It was the applicant's case that the Crown could not prove his guilt on any count unless it established the date or time period of that offence beyond reasonable doubt. The applicant's counsel submitted that the complainant's evidence in relation to the timing of each count on the indictment was so unreliable that the Judge could not be satisfied beyond reasonable doubt of the applicant's guilt on any count, notwithstanding the general admissions he made in the ERISP. His Honour's judgment

19. [19]

    The Judge accepted the applicant's submission that the date or time of an offence alleged on the indictment must be established by the Crown beyond reasonable doubt. His Honour said (AB12 at [4]-[6]): "Despite his admissions to the police, [the applicant] pleaded not guilty to each of the charges in the indictment. His admissions did not specify any dates and they were clear to some extent about what he did and did not do during the sexual assaults. He was also fairly clear about how old [the complainant] was when he started assaulting her. On the other hand, [the complainant] claimed the assaults started much earlier and were more serious. In addition she was unable to specify particular dates when she was assaulted. The best she could do was to say they happened close to certain events or over certain periods of time. Each of the charges in the indictment therefore refers to a particular month or series of months. So the issues in this case were focused around whether [the complainant] could be sure that anything at all happened during the particular period claimed in each charge and whether the assaults were as serious as she claimed they were." (italics added)

20. [20]

    One of the directions that his Honour gave himself was in the terms of the principle in Markuleski. Specifically, his Honour directed himself that, if he entertained a reasonable doubt concerning the untruthfulness or unreliability of the complainant's evidence in relation to one or more counts, he was obliged to take that finding into account in assessing the truthfulness or reliability of her evidence generally.

21. [21]

    The Judge found that the complainant was a "truthful and, to the extent that she was able to be, a reliable witness". He described the complainant as a "very impressive person". He rejected the applicant's criticisms of her evidence.

22. [22]

    His Honour accepted the applicant's admissions in the ERISP which were against his interest. He was satisfied beyond reasonable doubt that the admissions amounted to proof of the applicant's tendency to touch the complainant's vagina. The admissions also supported the complainant's account that she was sexually assaulted, and on occasions was digitally penetrated by the applicant. The Judge found that the admissions did not necessarily support her account of when and where those assaults occurred.

23. [23]

    The Judge then gave careful consideration to each of the counts. In respect of the counts (except count 7 and alternatively count 8) in which verdicts of acquittal were announced, the Judge was not satisfied beyond reasonable doubt that the events described by the complainant had occurred between the dates pleaded for the particular count in the indictment. His Honour referred to the complainant's evidence in each of these counts and to those aspects of her evidence, which led him to have a reasonable doubt as to this essential element of the offence.

24. [24]

    As to count 7 (and alternatively count 8), the Judge noted that the Crown had conceded that there was no evidence in the Crown case that supported count 7 or count 8.

25. [25]

    Verdicts of guilty were found for counts 14, 17 and 20. Count 14 alleged that the applicant between 1 December 2000 and 31 December 2000, at Dapto, whilst under his authority, did have sexual intercourse with the complainant a child between the age of ten and sixteen years namely 12 years.

26. [26]

    In relation to count 14, the Judge noted that the complainant gave evidence that the offence occurred when she was 12 years old, was under the authority of the applicant and occurred at a time when the applicant "brought (sic) [her] brother a car for his sixteenth birthday".

27. [27]

    His Honour noted that the complainant was quite specific that the offence occurred either the day before, or on the day after or specifically on her brother's birthday. His Honour observed that the applicant acknowledged in the ERISP that he bought the complainant's brother a car although "he could not say when, nor could he say what birthday it was for, or whether it was for a birthday".

28. [28]

    The Judge referred to the complainant's recollection that the applicant had bought her first car and that she had received that car on her sixteenth birthday. His Honour acknowledged that the complainant's mother may have suggested the event of the car being given to her brother on his sixteenth birthday, however, he did not regard that as a fact which would influence or raise any doubt about the date. His Honour said that it did no more than the complainant could have achieved by consulting an independent source such as a newspaper for the date of some event she recalled was related to the time of the offence. His Honour said that in addition he was reinforced by the applicant's acknowledgement that he had given a car to the complainant's brother and to the complainant on her sixteenth birthday.

29. [29]

    The Judge said: "Given that I accept [the complainant's] accounts of the events which had occurred, I find that I am satisfied beyond reasonable doubt that, at some stage between 1 December and 31 December 2000 at Dapto, [the applicant] had sexual intercourse by digitally penetrating [the complainant] and that, at that stage, she was 12 years of age. He was her stepfather and there is evidence that she regarded him as her father; I am satisfied beyond reasonable doubt that she was under his authority. I am also satisfied beyond reasonable doubt of her age."

30. [30]

    Count 17 on the indictment alleged that the applicant between 1 May 2001 and 31 May 2001, at Dapto, whilst under his authority, did have sexual intercourse with [the complainant] a child between the age of ten and sixteen years namely 12 or 13 years.

31. [31]

    The Judge accepted that the complainant turned 13 in May 2001. His Honour observed, "[the complainant's] description of this particular claim is associated with a very particular memory". She said that she "got [her] period the week of [her] thirteenth birthday, in 2001". The applicant and her mother were still living separately at that time. The complainant remembered her birthday party was on the weekend but could not remember if her birthday was on the weekend day or not. The complainant said that she thought that she remembered the applicant coming over the next week. She recalled that "[the applicant] touched [her] vaginal area and he parted the labia and penetrated [her] with his finger". The complainant described the applicant as being "a bit more forceful again, or aggressive, and he sort of positioned or adjusted my legs." She agreed that the applicant had penetrated her vagina with one of his fingers. She thought that it was after she had commenced her period.

32. [32]

    His Honour said that the complainant, unsurprisingly, had a good memory of when she first got her period. She thought she was sick and went to show her mother her underwear. Her mother was on the phone and said "Oh my God, [the complainant] has got her period." The complainant said that she felt embarrassed because she did not know to whom her mother was speaking. In cross-examination, the complainant said that she had her birthday and then the period was a week later. The Judge said: "Given that I accept [the complainant's] evidence and given the specificity and the significance of the event which she recollects in this case, I am satisfied beyond reasonable doubt that, between 1 May and 31 May 2001 at Dapto, [the applicant] had sexual intercourse with [the complainant] by digitally penetrating her, and that she was either 12 or 13 years of age. She was, I am satisfied beyond reasonable doubt, under his authority at the time."

33. [33]

    Count 20 on the indictment alleged that between 1 January 2004 and 3 May 2004 at Horsley whilst under his authority [the applicant] did have sexual intercourse with the complainant, a child between the age of fourteen and sixteen years, namely 15 years. This was an allegation of digital penetration.

34. [34]

    In relation to this count, the Judge referred to the complainant's evidence-in-chief when she was asked to recall the last time that anything happened to her to which she replied "Yes. It was a couple of months after December 2003, so it would have been early the next year, or 2004." The Judge noted that the complainant said she was still 15, which meant that the offence occurred before her birthday on 4 May 2004. She also said that it was "a weekend once again, so a Saturday." His Honour's recount of the complainant's evidence included that the applicant "progressed to put his hands over [her] vaginal area under [her] underwear, parted the labia and penetrated [her] with his fingers in the vaginal area. This time he did insert a second finger". She recalled that the applicant removed her underwear down to her ankles, which had never happened before.

35. [35]

    The Judge said that there were a number of features about the allegation, which meant that the prosecution had satisfied him beyond reasonable doubt of its truth. First, it was the last occasion that anything happened. Secondly, the complainant was significantly older, namely she was nearly 16. Thirdly, it occurred within a year of the family moving into another home at Horsley. Fourthly, the complainant was able to identify the relevant period with some precision; it was in 2004 and before her birthday. Fifthly, he had inserted two fingers rather than one. Sixthly, he had removed her underpants down to her ankles.

36. [36]

    After giving consideration to a COPS entry made when the complainant first spoke to the police and stating that it did not leave a reasonable doubt about when the events the subject of count 20 had actually occurred, the Judge said that he was satisfied beyond reasonable doubt that, "between 1 January 2004 and 3 May 2004 at Horsley, [the applicant] had sexual intercourse with [the complainant] when she was between 14 and 16 years of age, namely 15, and that at the time she was under his authority". Consideration

37. [37]

    The narrow scope of the appeal does not require this court to conduct its own independent assessment of the sufficiency and quality of the evidence in accordance with M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63 in order to determine whether the verdicts of guilty on counts 14, 17 and 20 were open to the Judge: Peiris v R [2014] NSWCCA 58; (2014) 240 A Crim R 114 at [20].

38. [38]

    The applicant's complaint is confined to the argument that the verdicts of guilty on three counts cannot be reconciled with the not guilty verdicts on the 17 remaining counts.

39. [39]

    A convenient summary of the relevant principles that apply to this argument is provided by Leeming JA in Peiris at [22]-[24]: "This issue was examined in detail by this Court, constituted by Spigelman CJ, Wood CJ at CL, Grove, Simpson JJ and Carruthers AJ in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. This Court rejected the proposition that in a pure word against word case involving a number of charges for sexual offences, a mixture of acquittals and convictions by a jury must inevitably be set aside. It is clear that all depends on the facts of the particular case (see especially at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]-[219] and [224] (Wood CJ at CL). The other members of the Court agreed with the analysis of principle by Spigelman CJ and Wood CJ at CL). In R v NEK [2001] NSWCCA 392 at [24], Priestley JA, with whom Sully J and Smart AJ agreed, said that: 'Spigelman CJ's principal point in Markuleski was that Jones was not authority requiring courts of criminal appeal to regard mixed verdicts of acquittal and guilty, when all depended upon the evidence of a complainant, as necessarily showing inconsistency by the jury; Jones did not exonerate courts of criminal appeal from deciding upon claims of inconsistency in the light of a consideration of all the circumstances of the case.' Sperling J, with whom Sheller JA and Adams J agreed, reviewed the authorities and concluded in R v Bonat [2004] NSWCCA 240 at [106] that: 'There is no hard and fast rule. It all depends on the circumstances of the case.' and 'A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable explanation for differentiation as a matter of logic and reasonableness.'"

40. [40]

    A fundamental issue in the trial was that the Crown was obliged to establish beyond reasonable doubt that an offence occurred within the time period pleaded in the respective counts on the indictment. Time had been made the essence of each particular offence.

41. [41]

    This appeal is not the occasion for considering whether his Honour's acceptance of the argument that the time of the commission of the offence as being an essential element was correct. It is generally the case involving historical sexual assaults that the time an offence is alleged to have been committed is not an essential element of the offence, but in some circumstances it may be: R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34. Each case depends upon its own particular facts.

42. [42]

    The Judge found that the complainant was a truthful witness but went on to explain in his judgment the difference in the verdicts. In his consideration of the 17 counts for which verdicts of acquittal were entered, his Honour identified the evidence that left him with a reasonable doubt that the events described by the complainant had occurred between the dates pleaded for the particular count on the indictment. In view of the imprecision of the complainant's evidence as to the times upon which those offences were committed, identified by the Judge, the verdicts of not guilty were open to him.

43. [43]

    In returning the three guilty verdicts, his Honour detailed the evidence that satisfied him to the criminal standard that the offences in counts 14, 17 and 20 occurred within the dates pleaded for each of these counts on the indictment. These findings were amply open to his Honour.

44. [44]

    It is evident from the Judge's reasons that he would have been satisfied of the guilt of the applicant on all of the counts (with the exception of counts 7 and 8) if time had not been of the essence for each of the counts.

45. [45]

    I am satisfied that the guilty verdicts on counts 14, 17 and 20 are each rationally explained by the Judge and reconciled with the acquittals on the other 17 counts. I would reject the applicant's appeal.

46. [46]

    I propose the following orders: 1. Leave to appeal granted. 2. Appeal against conviction dismissed.

47. [47]

    Fullerton J: I agree with Price J.