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PARTIES: YUNUPINGU, Matthew Munurruy, YUNUPINGU, Ricky Riimitja, YUNUPINGU, Sid Mararpawuy
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NOS: CA6 of 2004 (20300560), CA7 of 2004 (20300561), CA8 of 2004 (20300562)
DELIVERED: 10 December 2004
HEARING DATES: 30 November 2004
JUDGMENT OF: MARTIN (BR) CJ, ANGEL & THOMAS JJ
Appeal – verdict – whether unsafe or unsatisfactory – attempted sexual assault – identity of attackers – whether open to jury to be satisfied beyond reasonable doubt – appeal allowed.
Criminal Code Act (NT), s 411
M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606, para , applied.
Appellant: Ms Suzan Cox QC
Respondent: M Carey
Judgment category classification: A
Judgment ID Number: Mar0419
Number of pages: 17
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
Yunupingu v The Queen  NTCCA 10
No. CA6 of 2004 (20300560), CA7 of 2004 (20300561), CA8 of 2004 (20300562)
MATTHEW MUNURRUY YUNUPINGU RICKY RIIMITJA YUNUPINGU
SID MARARPAWUY YUNUPINGU
CORAM: MARTIN (BR) CJ, ANGEL AND THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 10 December 2004)
Martin (BR) CJ:
 The appellants were each convicted by a jury of attempted rape. They appeal against their convictions on the sole ground that each verdict is unreasonable or cannot be supported having regard to the evidence. The learned trial Judge certified the case as fit for appeal on that ground.
 In essence it was the Crown case that the appellants were drinking with the complainant and her cousin, Gavin Yunupingu, in a park at Nhulunbuy in the early hours of the morning. According to the evidence of Gavin, he went to the toilet and, when he returned, he saw each appellant in turn sexually assault the complainant.
 It was the Crown case that each of the appellants attempted to have sexual intercourse with the complainant while she was held down and as she struggled and yelled for help. The appellants did not give evidence, but in the conduct of the trial the defence did not dispute that the complainant had been attacked. The defence argued that the jury could not be satisfied that the appellants had been correctly identified as the attackers.
 The complainant was 26 years of age. She had lived at Nhulunbuy since she was eight. She had known the appellants Ricky and Sid Yunupingu all her life and the appellant Matthew Yunupingu since she was aged 11 or 12 years. Ricky and Sid were her “poison cousins”. As a consequence, although the complainant knew Ricky and Sid by sight, she was required by customary law to avoid any contact with them and they to avoid any contact with her.
 The complainant gave evidence that on Thursday 9 January 2003 she was drinking VB stubbies at a hotel until about 2pm. She then went to a second locality where she drank more beer and moselle. The complainant then moved to a third locality where she joined a group of drinkers and drank moselle.
 According to the complainant, she left the third locality when it was still light. She did not remember much about the rest of the afternoon until she started drinking again at about 7pm at a place called the Oval. She later moved to the Walkabout pub where she saw her cousin, Paul Marika, who bought her a stubby of VB.
 The complainant said that after leaving the Walkabout pub she went to the ATSIC building where she saw a group of people drinking. She said there were a lot of people and she recognised Gavin. They talked about why he was having an argument with his wife.
 The complainant said that all the grog was gone. Gavin told her he had hidden some grog elsewhere. She and Gavin started to walk away from the group and a few minutes later “the other three fellows started walking up”. The complainant then gave the following evidence:
“Q. All right, now when you were walking away, were you walking with Gavin?
Q. And were you talking to him while you walked”
Q. And these three fellows who joined you, did you know who they were?
Q. Did you know where they came from?
Q. And when you got to the park, how were you affected by the alcohol you had drunk?
A. I couldn’t really see what was happening around me, I couldn’t recognise those other fellows.”
 According to the complainant, when the men joined her and Gavin walking she did not really look to see who they were. It was dark and she was unable to see their faces.
 During cross-examination the complainant said that she and Gavin were a few minutes away from the crowd at the ATSIC building when the other men joined them. The complainant then gave the following evidence:
“Q. And there’re the blokes you don’t know who they are?
A. Yes, that’s correct.
Q. Now, I think your evidence is those boys that joined us, “I have not seen them before”, that’s the position isn’t it?
A. I know – I didn’t seen them at the time when I was drinking at the ATSIC building, that’s what I mean by that I didn’t see them there.
A. When I was drinking at – only when – when me and Gavin got up I started walking away from that then the – these fellows come but I didn’t know who they were, I didn’t recognise them” (my emphasis).
 The complainant said the walk from the ATSIC building to the park took roughly ten to fifteen minutes. She said that at the park she obtained a can of vodka and orange from Gavin and that she, Gavin and the other three fellows were drinking in the park. She said they were sitting in a circle. During cross-examination the complainant said that if she had seen her poison cousins on the night she would have avoided them, but she would be prepared to sit in a circle with people drinking if the circle included those poison cousins. The complainant then gave the following evidence:
“Q. But the boys you were drinking in the circle with, do you know who they were?
A. No, at the time I didn’t know.”
 The complainant said she must have gone to sleep. She described herself as “pretty drunk” and “too drunk”.
 As to the attack upon her, in substance the complainant said that when she woke up a man was kneeling in front of her undoing the button and zip on his shorts or jeans. Another man was kneeling down on her left hand side pushing her face to the side. The third male was standing up behind the man who was kneeling down in front of her. Asked if she recognised any of those three people, the complainant responded “No”.
 According to the complainant the man who was pushing her face to the side punched her once and covered her mouth. The man who was standing up just stood there. The complainant was unable to see Gavin.
 The complainant said the man who had been kneeling in front of her got on top of her. She was yelling at them in a very loud voice and one of the men kept covering her mouth. The man who was on top of her got up and another man started coming towards her. The complainant was able to get up and start running away calling out for help.
 The complainant gave evidence that two of the men chased after her. They pushed her and she tripped over her skirt. One of the men kicked her and the other man pulled her hair back and slammed her face down onto the bitumen. The complainant was able to get up again and start running. During the chase the complainant turned and saw the two men. The area of the chase was lit by street lights, but from a distance the complainant did not recognise the two men.
 The complainant said that at the time the incident occurred it was really dark. She said that when she was being held down she felt really scared. She felt angry and scared at the same time.
 As to how well the complainant knew the accused, the complainant said she learned about ceremonial matters when she was aged about 11 or 12. It was at that time that she learned she had to avoid her poison cousins. She was not able to have anything to do with her poison cousins. If she saw them coming, she would avoid them and avoid eye contact with them. If she saw them in the Woolworth’s store at Nhulunbuy, she would stay on the other side of the store until they went away.
 The complainant agreed she knew her poison cousins and Matthew by sight. She had seen Sid from time to time in the Nhulunbuy area and avoided him. If she had seen Sid on the night in January she would have avoided him. She had also known Ricky for a long time by sight and seen him from time to time to avoid him.
 In her statement to the police immediately following the attack the complainant stated the following:
“When this trouble happened I was full drunk and I had passed out before I woke up and these boys attacked me. I don’t know what the other boys looked like except they were all about 17 to 18 years old and they were full blood Aboriginals. I have not seen them before.”
 The complainant said her statement to the police, including her statement that she had not seen the boys before, was true.
 The complainant also said in the statement:
“This is all I can remember about this trouble, I don’t know if I would know these boys if I saw them again.”
 Gavin Yunupingu said he met the complainant late on the evening of Thursday 9 January 2003. He had been drinking since about 2pm that day. If the evidence of Gavin is accepted, he had consumed an extraordinary amount of alcohol. On more than one occasion he described himself as blind drunk.
 Gavin also described the complainant as blind drunk. He said that after meeting up with the complainant they went to the ATSIC building where they were drinking alcohol with a lot of people.
 Gavin said the appellants were at the ATSIC building. He had known them all their lives. Gavin said that he, the complainant and the appellants went to the park. Matthew had a bicycle. The complainant walked on his left hand side. Sid and Ricky were walking in front and Matthew was behind with the bicycle.
 Gavin said that at the park he, the complainant, and the appellants sat drinking. They were talking and drinking alcohol together for about half an hour.
 According to Gavin, he went to the toilet and on his return he witnessed the sexual assault. He saw each of the appellants in turn get on top of the complainant.
 The Crown case for identification of the appellants as the attackers relied entirely upon Gavin. He told the jury he had known the accused all his life. He described them as his nephews. On the issue of identification, Gavin was unshaken in cross-examination.
 The evidence of Gavin gained a degree of support from the evidence of a witness, Mr Gordon Bridge. He heard cries for help. He got a torch and went into the park where he saw a person jump out of the bushes and ride away on a bicycle. He described the person as not Aboriginal and not white. Gavin gave evidence that Matthew had a bike and the complainant said she was chased by only two of the three men.
 The evidence of the complainant was different from that of Gavin in a number of respects. Of particular significance was the difference as to the events that occurred in the park. According to the complainant, only one of the men got on top of her before she managed to escape. She said that a second man was coming towards her when she managed to get up and run away.
 Gavin described Ricky holding the complainant by the legs and Matthew climbing on her doing rude things. He said Matthew got off and held the complainant by the right arm while Sid got on top and did the same thing. Then Ricky got on top and did the same thing while Sid was holding the complainant’s left arm. The point was made by counsel for the appellant that if the complainant was asleep when two of the men got on top of her, there would not have been any need to hold her by the arm.
 The reliability of Gavin’s evidence was attacked on a number of grounds. The learned trial Judge brought many of those matters to the attention of the jury.
 Gavin gave a number of different accounts of the order in which the appellants got on top of the complainant. He told the Magistrate that Matthew had threatened the complainant with a bottle and had slapped, not punched, her in the mouth. The first mention of a threat with a bottle was to the Magistrate at the committal proceedings. During cross-examination at trial when it was put to Gavin that he told the Magistrate that Matthew was trying to calm the complainant down by threatening her with a bottle, Gavin responded “No, that’s because he was threatening me.” The complainant did not make any mention of a bottle.
 Gavin also gave different descriptions of the type of bottle being carried by Matthew. His evidence altered in this regard on a number of occasions. Gavin also gave varying descriptions of the clothing being worn by the appellants. While allowance must be made for the tendency of some Aboriginal witnesses to seek to please the cross-examiner, the content of the answers on these topics conveys the distinct impression that to a significant degree Gavin was either making up the answers or giving the answers that he thought would satisfy the cross-examiner.
 The trial Judge gave detailed directions as to the impact of intoxication on the reliability of the evidence. As I have said, his Honour drew the attention of the jury to the inconsistencies and the submissions of counsel. Detailed directions were given as to the relevance of the inconsistencies.
 Notwithstanding the effects of alcohol, Gavin was so familiar with the appellants that there was no realistic possibility that he could have mistakenly identified the appellants as the attackers. It was a necessary part of the defence case that he was lying. Gavin denied the direct propositions that he was lying. In that context, the trial Judge gave the following directions:
“In a case such as the present, the main way in which a witness’ can be tested is to see if the witness gives a consistent and coherent account. Liars have to make up the details of the story as they go along and often they get caught out because they have forgotten what they have said on a previous occasion and so it is often by examination of the details of a witness’ testimony that a judgment is ultimately made about that witness’ truthfulness and reliability. You might think that in important matters of detail this witness is unreliable and therefore have a reasonable doubt about whether or not it was the accused who attacked Vanessa.”
 After referring briefly to comments by counsel for the accused about Gavin, the directions continued:
“Now you do not have to make positive findings about these sorts of matters. If it is a reasonable possibility that someone else, be it Paul Marika or Gavin Yunupingu or someone else entirely but unknown was the attacker then the Crown will not have proven its case against the accused and they will be entitled to be acquitted.
On the other hand you might think that although Gavin Yunupingu was hazy and gave different accounts and details, this was because he was drunk and he had a confused memory of those details and that he nevertheless tried his best not to mislead you and that because of that you have arrived at a state of satisfaction beyond reasonable doubt that he has been a truthful and accurate witness when he says that it was the three accused who were involved in the attack on Vanessa. That is a matter for you.”
 Section 411 of the Criminal Code Act provides that the Court of Criminal Appeal shall allow an appeal against a finding of guilt if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ expressed the test in the following terms (493):
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.”
 In MFA v The Queen (2002) 213 CLR 606, Gleeson CJ, Hayne and Callinan JJ confirmed in a joint judgment that the test is that stated in M in the passage cited. In a separate joint judgment, McHugh, Gummow and Kirby JJ accepted that the test is as stated in M and added the following observations :
“The majority in M pointed out that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” [M at 494]. In such a case of doubt, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred [M at 494 – emphasis added]:
“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.””
 In M, shortly before the passage cited by McHugh, Gummow and Kirby JJ, the following passage appears (493):
“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnote omitted).
 In the matter under consideration, the advantage of the jury in seeing and hearing the witnesses should not be underestimated. The jury was given full and accurate directions about the evidence of Gavin. Those directions included identification and intoxication warnings. The attention of the jury was drawn to various inconsistencies within the evidence of Gavin and between his evidence and that of the complainant. The jury was given every assistance possible.
 Notwithstanding the assistance given to the jury and the advantage that the jury had of seeing and hearing the witnesses, there are a number of features of considerable concern. Although the complainant was very drunk, she was able to recognise without difficulty persons with whom she drank that day and evening. She recognised her cousin, Gavin. The complainant gave a coherent account of the events that afternoon and evening, including drinking at the ATSIC building and moving from there to the park where the attack occurred. She also had a memory of the three men joining her and Gavin in the walk to the park.
 According to both the complainant and Gavin the three men accompanied Gavin and the complainant to the park. This was a ten to fifteen minute walk. Regardless of whether the men were in front of Gavin and the complainant or to one side of Gavin, there was ample opportunity for the complainant to recognise the men. She was not in such a drunken condition that subsequently she could not remember the walk.
 Similarly, the complainant was not so drunk that she could not remember sitting together with Gavin and the men drinking in the park. The complainant had a memory of sitting in a circle with the men. According to Gavin, they were sitting and drinking for approximately half an hour.
 Leaving aside subsequent opportunities to recognise the attackers, the complainant was in close proximity of the three men for a significant period. She was very familiar with their appearance. Two of the appellants were the complainant’s poison cousins. If the men who were sitting in the park drinking with the complainant and Gavin were the appellants, the complainant had a strong reason to remember their presence. Significantly, the complainant did not identify any one of the appellants as being in the park.
 The evidence leaves me with the firm impression that, although very drunk, the complainant was capable of recognising the appellants and of remembering their presence if they had accompanied her and Gavin to the park, sat drinking with her and attacked her. The total effect of the complainant’s evidence was not that it was too dark for her to see or recognise the persons. Nor was it to the effect that for some other reason she was not in a position to recognise these persons. The total effect of her evidence was that she saw the persons and did not recognise them. They were persons she had not seen before.
 In these circumstances, based on the complainant’s evidence, the conclusion would have to be reached with a significant degree of certainty that the persons who accompanied the complainant and Gavin to the park were not the appellants. Very strong and convincing evidence would be required to negate such a finding and to negate the possibility that it was not the appellants who were in the park with the complainant and Gavin. While considerable allowance must be made for the complainant’s drunken condition, given that the complainant was capable of walking to the park and sitting in company with the men drinking, and bearing in mind the extent of her memory as to the events that day and evening and her ability to give a coherent account of those events, the suggestion that the complainant failed to recognise the appellants by reason of her intoxication is far from convincing.
 Against that background, in my view the evidence of Gavin is not capable of negating the possibility that the appellants were not the persons who accompanied the complainant and Gavin to the park and attacked the complainant. As mentioned, Gavin had consumed an extraordinary amount of alcohol. In his own words, he was blind drunk. There were a number of significant inconsistencies within his evidence. In addition his evidence was in conflict with the complainant as to the number of men who got on top of the complainant. Gavin’s evidence was not the strong and convincing evidence required to negate the possibility that the appellants were not involved.
 Making full allowance for the advantages possessed by the jury, in my opinion the jury should have entertained a doubt. On the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellants were the attackers.
 For these reasons, I would allow the appeal and quash the finding of guilt. I would direct that a judgment and verdict of acquittal be entered.
 I concur with the Chief Justice.
 In my opinion the guilty verdict of the jury should be set aside on the ground that it is unreasonable. The three accused men were well known to the complainant. She had ample and extensive opportunity to see and recognise her attackers. She was capable of giving a coherent account of events on the night in question and of recognising people she knew. She told Police she had not seen her attackers before. In evidence she said she did not recognise her attackers. I agree with the Chief Justice that the whole tenor of her evidence was that she was in a position to recognise her attackers, saw them but did not recognise them because she had not seen them before. Having regard to the complainant’s evidence in my opinion the jury should have entertained a doubt. I agree that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellants were the attackers.
 I agree that the appeal should be allowed, the verdict of guilty quashed and that a verdict of acquittal be entered.
 I have read the Draft Reasons for Judgment prepared by Martin (BR) CJ. I agree with his reasons and with his decision that the appeal be allowed, the finding of guilt quashed and that a judgment and verdict of acquittal be entered.