Abbott (a pseudonym) v The Queen - [2017] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Abbott (a pseudonym) v R [2017] NSWCCA 149
Hearing dates: 18 April 2017
Decision date: 28 June 2017
Before: Basten JA at [1];
McCallum J at [29];
Fagan J at [30]
Decision:
1. Leave to appeal is granted in respect of all grounds.
2. The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – appellant charged with 6 counts of indecent assault against 2 child complainants contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to order separate trials in respect of each complainant – cross-admissibility of complainants’ evidence as tendency and context evidence – nature of context evidence – whether appellant had been prejudiced by trial on all counts – use of directions to ameliorate potential prejudice

CRIMINAL LAW – appeal against conviction – appellant convicted of 6 counts of indecent assault against child under 16 contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to discharge jury where complainant did not answer questions in cross examination – whether appellant denied a fair trial – where unanswered questions did not take account of previous answers – cross examination of child complainants
CRIMINAL LAW – appeal against conviction – whether trial judge erred in failing to discharge jury on the basis of impermissible communications with witness under cross examination – whether communications calculated to corrupt the witness’s testimony – whether convictions were unreasonable or unsupported by the evidence
Legislation Cited: Crimes Act 1900 (NSW), s 61M
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 29, 306U
Evidence Act 1995 (NSW), ss 11, 13, 55, 97, 137
Cases Cited: DeVries v The Queen [2013] VSCA 210
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Hoch v The Queen (1988) 165 CLR 292
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
International Relief and Development Inc v Ladu [2013] FCA 1216
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Potier v R [2015] NSWCCA 130
Qualtieri v Regina [2006] NSWCCA 95; 171 A Crim R 463
R v Barton [2004] NSWCCA 229
R v Belford & Bound [2011] QCA 43; 208 A Crim R 256
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Verma v R (1987) 30 A Crim R 441
Versi v R [2013] NSWCCA 206
Category: Principal judgment
Parties: Abbott (a pseudonym) (appellant)
Regina (respondent)
Representation:
Counsel:
Mr Braddon Hughes SC/Ms Maeve Curry (appellant)
Ms Helen Roberts (respondent)
Solicitors:
M Cronin (appellant)
C Hyland, Office of the Director of Public Prosecutions (respondent)

File Number(s): 2013/345934
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any of the complainants referred to in the reasons of the Court of Criminal Appeal or any person related to or otherwise associated with those complainants is prohibited, on the ground that this order is necessary to avoid causing undue distress or embarrassment to the complainants.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

23 September 2016

Before:

Craigie SC DCJ

File Number(s):

2013/345934

Judgment

BASTEN JA: On 25 May 2016 the applicant was convicted of six counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW). Each of the charges for which he was convicted involved a complainant, referred to below as Pamela (a pseudonym) over a period from approximately December 2012 to mid-October 2013.
The applicant was put on trial pursuant to an indictment with 10 counts of aggravated indecent assault. Four counts (of which he was acquitted – two by direction) involved a younger sister of Pamela, referred to below as Rachel (a pseudonym). Rachel was, at the time of the alleged offending, 4 or 5 years of age; Pamela was 7 or 8 years of age.
All of the alleged misconduct occurred at the home of the applicant, where, by arrangement with their mother, the sisters were provided with day care by the wife of the applicant. On occasion they stayed overnight.
With respect to counts 1 and 2 (alleged to have been committed on Rachel) Rachel herself made no complaint supporting the conduct which Pamela said she had observed. The judge directed verdicts of not guilty in respect of each count. With respect to counts 4 and 5 (also being alleged misconduct against Rachel) the only persuasive evidence was that of Rachel; the applicant was acquitted on each count.
With respect to each count resulting in a conviction, the jury must have been satisfied beyond reasonable doubt of the truthfulness and reliability of the evidence given by Pamela.
The notice of appeal (which requires leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW)) included three grounds, namely:

“(1)   The trial judge erred in refusing to order separate trials in respect of each complainant;
(2)   the trial judge erred in admitting the evidence of [Pamela] and refusing to discharge the jury in circumstances where there were over 80 occasions where she remained mute or refused to answer questions in cross-examination thereby denying the applicant a fair trial; and
(3)   the verdicts are unreasonable and inconsistent, or cannot be supported, having regard to the evidence.”

The original written submissions filed in support of the appeal, on 7 December 2016, were directed to ground 3, namely that the verdicts were unreasonable and unsupportable having regard to the evidence, in part because of inconsistency. On 10 April 2017, additional submissions were filed on behalf of the applicant, which included a new ground 4, in the following terms:

“(4) The trial judge erred in refusing the defence application to discharge the jury on the basis of impermissible communications by the DPP solicitor to [Pamela], who was under cross-examination, thereby interfering with due process and denying the applicant a fair trial.”

The accompanying additional submissions were directed entirely to the new ground. Counsel for the Director took no objection to the addition of the new ground and responded in her submissions of 12 April 2017. Further, while noting that no written submissions had been filed in support of grounds 1 and 2, counsel for the Director also responded to those grounds.
There are two ways in which the Court might approach the present application. One is to address the grounds separately; an alternative course is to understand the grounds as in effect particular bases upon which the applicant submitted that the Court should be satisfied that there had been a miscarriage of justice. The latter appeared to be a fair statement of the way in which senior counsel for the applicant opened his case on the hearing of the appeal. I propose to take that course in the following reasons. That is appropriate because the individual grounds have been fully dealt with by Fagan J; these reasons are intended to supplement rather than replace his reasons, with which I agree.

(1) Initial complaints of Rachel to her mother

At the heart of the challenge to the refusal to order separate trials lay the concern that the prosecution sought to call evidence of the first complaint by Rachel, which included an allegation of digital vaginal penetration by the applicant. That complaint was first made by Rachel to her mother on the morning of Sunday, 27 October 2013, when she got into her mother’s bed. She repeated the allegation in the course of a conversation on 3 November 2013, again with her mother. However, she did not squarely repeat that allegation when interviewed by police and it did not form the basis of a charge at trial.
Because all of the charges relating to Rachel resulted in acquittals, either because the jury were not satisfied beyond reasonable doubt (counts 4 and 5) or because acquittals were directed (counts 1 and 2), the serious allegation contained in the first complaint did not directly affect the verdicts, in the sense that the jury were not persuaded as to the truthfulness or reliability of Rachel on the basis of her first complaint, or otherwise. So much was acknowledged by the fact that the challenge to the prosecutor’s reliance on the first complaint arose as a challenge to the refusal to hold separate trials. In other words, the serious allegation made by Rachel against the applicant was said to have prejudiced the applicant with respect to the charges based on complaints by Pamela, of which he was convicted.
There is some awkwardness in pursuing this issue by way of a challenge to the refusal of separate trials. The evidence of complaint (including the reference to digital penetration) was originally sought to be relied upon as tendency evidence. It was admitted as “context” evidence. Why it was so admitted is obscure. If it were not to be viewed as tendency evidence, it could only be admitted because it was relevant in the sense that, if it were accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue, namely charged conduct. [1] As explained in IMM v The Queen [2] complaint evidence may be “tendered for the purpose of proving the acts charged.” However, because this particular complaint did not relate to an act charged, but to other uncharged conduct, it is difficult to understand what probative value it could have, otherwise than as tendency evidence. The circumstances in which the complaints were volunteered and then followed through could readily have been presented without reference to this specific element of the complaint.
1. Evidence Act 1995 (NSW), s 55.
2. (2016) 257 CLR 300; [2016] HCA 14 at [73] (French CJ, Kiefel, Bell and Keane JJ).
Although the applicant objected at a pre-trial hearing to the admissibility of the evidence, unsuccessfully, that challenge was not repeated in this court, a comprehensive warning having been given to the jury not to use the evidence as tendency evidence. However, it is difficult to see how this matter supported a claim for separate trials. Arguably it could only do so if the evidence of the offences against one sister were not admissible in respect of the charges involving the other sister. There are two bases on which such cross-admissibility may be tenable. One is in substance tendency or propensity evidence, meaning that similar allegations against the same person by two complainants tend to be mutually supportive, absent collaboration, suggestion or concoction. Alternatively, it may be said that the fact that two complainants have independently made similar allegations against the one person supports the veracity of each complainant. [3] However, it will not usually be necessary to draw any such distinction to the attention of the jury, as the force of the reasoning in each case is likely to be the same.
3. Versi v R [2013] NSWCCA 206.
Rather, the unfairness or prejudice appears to have been premised not so much on the fact that the first complaint was by Rachel, but that there was a complaint of serious uncharged conduct committed by the applicant on a young girl. The same submission might have been made with greater force if that complaint had been made by Pamela, whose evidence the jury were minded to accept.
In principle, an allegation of criminal conduct on another occasion will involve an application of the tendency rule, whether there is a single complainant or there are two or more complainants. In the present case, there was no doubt that all the charges relating to both complainants could properly be heard together, pursuant to s 29 of the Criminal Procedure Act 1986 (NSW), unless the court were of the opinion that they ought to be heard and determined separately in the “interests of justice.”[4] Whether or not the evidence on one charge is cross-admissible on another charge is likely to determine whether there should be separate trials; in the present case, the trial judge held on 3 May 2016 that there should be joint trials.
4. Criminal Procedure Act, s 29(3).
There is an issue as to whether, in making such an assessment, the trial judge is required to consider the risk of collaboration, suggestion and concoction. In IMM, the joint reasons of the majority rejected the premise of the appellant’s submission that the court should consider “the risk of joint concoction to the determination of admissibility of coincidence evidence”, based on the reasoning in Hoch v The Queen. [5] However, the joint reasons continued:

“The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting.”

There was no reason to assess that possibility as part of the test in s 97(1)(b) of the Evidence Act.

5. (1988) 165 CLR 292 at 296; IMM at [59].

The interlocutory judgment of 3 May 2016 revealed that the prosecutor accepted that it was appropriate for the Court to take account of the risk of contamination or concoction, [6] and it is clear that the judge had careful regard to the relevant question, which he identified as the risk of contamination. This approach may have been overly favourable to the accused. In any event, no error was identified in the reasoning of the trial judge on this issue.
6. Judgment at p 15.
No error having been identified in the reasons of 3 May 2016, there remains the separate claim of inconsistency arising from the verdicts in respect of the two complainants. As noted above, counts 4 and 5 depended on the evidence of Rachel alone. With respect to counts 1 and 2, the prosecution case depended upon the evidence of Pamela, Rachel not being able to recall the event. Pamela’s evidence was that both were in beds in the same room, the applicant was kneeling on the floor between them and that she saw the applicant rubbing Rachel’s backside and then licking her on the ear. However, it was clear that in respect of the rubbing, she did not have a clear view and further, recanted in cross-examination as to seeing the applicant lick Rachel’s ear.
There was no inconsistency between the acquittals and the convictions. The acquittals were fully explicable without casting doubt on Pamela’s credibility or veracity in relation to her evidence with respect to the assaults on herself, which resulted in convictions.

(2) Unresponsive conduct in cross-examination

There is always a forensic risk in cross-examination which causes distress to a young child, which is apparent to the jury. Such distress will not, without more, lead to a miscarriage. Were it otherwise, prosecutions dependent on timid and vulnerable victims would rarely proceed. Similar levels of unresponsiveness may arise with intellectually or developmentally immature witnesses; whether their evidence is to be judged unreliable will, except in unusual cases, be a matter for the jury, subject to appropriate warnings.
I agree with the reasoning of Fagan J for dismissing the challenge raised by ground 2.
With respect to the question of contact with a witness under cross-examination, I agree with the analysis of Fagan J, but would add the following observations.
There was no consideration in the course of the hearing as to the nature, scope or purpose of the practice whereby witnesses under cross-examination are required not to discuss the case, or their evidence, with any person. With respect to legal representatives, the practice is set out in the Bar rules in most Australian jurisdictions, derived from British practice. The Victorian rules and their precursors were discussed by Kenny J in International Relief and Development Inc v Ladu. [7] That discussion occurred in the context of an application by counsel for the respondent for leave to confer with his client before embarking on re-examination. However, the legal obligation to seek leave appears to have been treated as a matter of professional practice and the source of the court’s power to refuse or restrict leave was not examined. The limitation on the power of a legal representative to speak to a witness who has commenced giving evidence has been presumed to arise only upon the commencement of cross-examination. [8]
7. [2013] FCA 1216.
8. Potier v R [2015] NSWCCA 130 at [576]-[581] (Ward JA, Simpson and Wilson JJ agreeing).
The father gave evidence of his brief conversation with the prosecution solicitor and his remarks to Pamela. It may be inferred that her mother also spoke to her in terms consistent with the text messages she had received; it would have been appropriate for the prosecutor to call the mother on a voir dire if such an inference were to be challenged. Nevertheless, the content of the message was anodyne. It was largely consistent with the statements required to be made by the judge to an unsworn child, pursuant to s 13(5) of the Evidence Act. (That is not to say that it was appropriate for the prosecution to have the parents repeat remarks which might have been made by the trial judge.)
However, given the absence of any submission concerning the basis of the “rule”, its scope, or its purpose, by reference to its source pursuant, for example, to s 11 or s 23 of the Evidence Act, all that need be asked is whether the communications with the parents (and, through them, Pamela herself) caused any practical unfairness to the applicant. There was no basis identified to satisfy the court that they did.

(3) Conclusions

There is no reason to conclude that there was any unfairness to the accused in the manner in which the joint trials were run. Nor was there unfairness resulting from the communication with the witness Pamela in the course of her cross-examination.
So far as the unresponsiveness of Pamela was concerned, it would be open to the Court to find that, although there were explanations for the varying occasions on which Pamela was unresponsive, the overall effect of her evidence left a sense of unease as to whether there had been a fair trial. As explained by Gleeson CJ in Nudd v The Queen [9] “not all miscarriages involve error”; if there is a “failure of process which departs from the essential requirements of a fair trial” there may be a miscarriage. That might be established if it could be seen that counsel for the accused was unable to put some part of the applicant’s case to Pamela and obtain satisfactory responses, or was unable to demonstrate that she had some motive to lie, arising from some independent dislike of or antipathy towards the applicant. Other forms of unfairness may readily be envisaged. However, a consideration of the transcript of Pamela’s evidence, taken in the context of the trial as a whole, including the motions for a discharge of the jury, does not reveal a basis for concluding that the trial miscarried. Nor does it leave a concern that the conviction was unjust for reasons which cannot be satisfactorily articulated.
9. [2006] HCA 9; 80 ALJR 614 at [7].
For these reasons, together with the reasons given by Fagan J, the appeal against conviction should be dismissed.
McCALLUM J: I agree that the appeal should be dismissed for the reasons stated by Fagan J and the additional reasons stated by Basten JA. As to ground 2, I would strongly endorse the view expressed by Fagan J at [101] that Pamela’s hesitancy as a witness was probably contributed to by confusion or dismay at the manner of questioning, as cogently explained in his Honour’s judgment. As to ground 3, my own review of the evidence has not left me in any doubt as to the appellant’s guilt.
FAGAN J: This is an appeal against conviction following trial of the appellant in the District Court. He was indicted on ten counts of aggravated indecent assault of two young girls, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences were alleged to have been committed in 2013. The girls, who are sisters, were aged respectively about 4 or 5 years and about 8 years during the charge period. They were in the care of the appellant and his wife as babysitters. The appellant was at the relevant time aged 68 years.

Counts 1, 2, 4 and 5 concerned the younger child, Rachel (a pseudonym). Verdicts of not guilty were returned by direction on counts 1 and 2. The jury found the accused not guilty of counts 4 and 5. He was convicted of the remaining six counts, all of which concerned the older girl, Pamela (a pseudonym). The trial lasted over two weeks and concluded on 25 May 2016. On 23 September 2016 the appellant was sentenced to imprisonment for 3 years and 9 months comprising a non-parole period of 2 years and 6 months and a balance of term of 1 year and 3 months.

Grounds of appeal

The grounds of appeal are as follows:

1.   The trial Judge erred in refusing to order separate trials in respect of each complainant.
2.   The trial Judge erred in admitting the evidence of [Pamela] and refusing to discharge the jury in circumstances where there were over 80 occasions where she remained mute or refused to answer questions in cross examination thereby denying the applicant a fair trial.
3.   The verdicts are unreasonable and inconsistent, or cannot be supported, having regard to the evidence.
4.   The trial Judge erred in refusing the defence application to discharge the jury on the basis of impermissible communications by the DPP solicitor to [Pamela], who was under cross examination, thereby interfering with due process and denying a fair trial.

All of these grounds involve, at least to some degree, questions of fact. Leave to appeal is therefore required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). I propose that leave be granted and will therefore refer to the moving party in this Court as the appellant. The breadth of the grounds is such that it will be necessary to consider the evidence adduced on all counts, including those concerning Rachel of which the appellant was acquitted.

Circumstances of contact between appellant and complainants

Up to December 2012 the appellant’s wife provided children’s day care on a commercial basis at the home she shared with the appellant in a suburb of a regional city in country New South Wales. The parents of the two complainants arranged for them and their older sister to attend for day care with the appellant’s wife on a regular basis, each from a young age. The complainants had attended for some years when the appellant’s wife ceased to conduct the business, from the end of 2012. Thereafter, during 2013, the two complainants continued to be placed by their parents in the care of the appellant’s wife from time to time. Rachel attended on most Mondays and both girls were there together on four or five additional occasions during the first ten months of 2013. They stayed overnight with the appellant and his wife on some of these occasions.

First complaints by Rachel and Pamela

Evidence was adduced from the complainants’ mother that on 27 October 2013 Rachel told her the appellant “licks my vagina”, that he had licked her ear and put his fingers in her vagina and that he had “said it’s a secret, I’m not allowed to tell anyone”. Rachel also told her mother that her older sister, Pamela, had said “we can just say, ‘No, [appellant], you’re not allowed to do that’”.
This caused the mother to speak with Pamela. She said Rachel had “just told me that someone’s touched your privates”. Pamela put a pillow over her face. The mother asked “Do you know who it was that’s done this to [Rachel] or has anyone done this to you?” Pamela pulled the pillow off her face, nodded and whispered the appellant’s name. She then stopped talking. The mother invited her to write more information on a piece of paper. Through a combination of oral questions and written answers Pamela complained that the appellant “would lick her ear and touch her in places he shouldn’t” under her clothes and that he had done these things when Pamela was in the playroom (also referred to as the rumpus room) of the appellant’s house. She said he had touched both herself and Rachel in a sexual manner when they were in bed whilst staying overnight.
Immediately following these complaints the children’s mother invited the appellant’s wife, on a pretext, to come to their home. When the appellant’s wife arrived she was informed of the complaints. She was shown the piece of paper on which Pamela had written some of the answers to her mother’s questions. The appellant’s wife returned to her own home, collected the appellant and brought him back with her. According to the complainants’ mother he was at first lightly dismissive of the allegations “like it was a joke and it couldn’t be true”. He then appeared to become angry, said he felt faint and that he had to sit down and denied the allegations emphatically.

Particulars of the counts

Stated as briefly as possible, particulars of the counts as given in the Crown’s opening address were as follows. The sub-paragraph numbers in brackets correspond with the count numbers on the indictment.

On an occasion in 2013 when Rachel and Pamela were sleeping over at the appellant’s house, the appellant touched Rachel on the bottom whilst she was in bed in the spare bedroom in the appellant’s house and whilst Pamela was lying in an adjacent bed.

On the same occasion as that concerned in count (1), the appellant licked Rachel’s ear.

Also on the same occasion as that concerned in count (1), the appellant touched Pamela on the bottom whilst she was in the adjacent bed.

On 8 October 2013, when Rachel was aged 5 years, the appellant touched his penis on her vagina whilst she was in the playroom of the appellant’s house.

During the first two weeks of April 2013, when Rachel was aged 4 years, the appellant touched Rachel’s vagina whilst she was in the playroom of the appellant’s house.

On about 17 July 2013 in the lounge-dining room of the appellant’s house he touched Pamela on the vagina.

On the same occasion as that concerned in count (6), the appellant touched Pamela on the bottom.

Again on the same occasion as that concerned in count (6), the appellant licked Pamela’s ear.

On about 10 October 2013 in the playroom of the appellant’s house he touched Pamela on the bottom.

On the same occasion as that concerned in count (9), the appellant touched Pamela on the vagina.

Recorded police interviews with Rachel

Police conducted recorded interviews with Rachel on 5 November 2013, 9 July 2014 and 27 February 2015. Rachel was aged 5 years when the first two interviews took place. In the interview of 5 November 2013 she did not support or particularise the claim she had made to her mother that the appellant had licked her vagina. When asked “What did he do?” Rachel replied “I don’t know what you mean” and “I don’t know”. At first she said she did not know what part of his body he used. Then she said it was his mouth but that she did not know what he did with his mouth. She said this hurt her leg. When asked why it hurt her leg she said “I don’t actually know”. She said she could not remember a time when the appellant had done this. Later she said “He done it with his tongue” but when asked what he did with his tongue, whether it was moving and whether it was on her skin or over her clothes, she answered “I don’t know” to all of those questions.
With respect to being touched on the vagina Rachel was asked “What did he do?” and replied “I don’t know”. She said that it hurt. When asked where it hurt she answered “My arms”. She said she had her clothes on and was asked whether the appellant “put his hands in your clothes”. She said he put his hands “in my T-shirt”. She marked on a drawing the area of her vagina and said the appellant had touched her there.
The girls’ mother gave evidence that on 10 June 2014 she received a further complaint from Rachel to the effect that on an occasion when she was on the couch in the playroom of the appellant’s house he had pulled her pants down and touched his penis on her vagina. This complaint led to the second police interview being conducted on 9 July 2014. In that interview despite being prompted about the subject matter Rachel only said that she had seen the appellant’s penis and did not remember what he did with it. She could not remember having told her mother about this.
In the third interview on 27 February 2015 Rachel gave answers which were the basis of count 4. Namely, that the appellant had on one occasion pulled her pants down whilst she was on the couch in the playroom and touched his penis on her vagina whilst shaking his body. In the same interview Rachel described the events which were charged as count 5. She said the appellant had touched her vagina “with his whole hand”. She was playing on a windmill at the appellant’s house in the playroom when he pulled her off it and over to the couch. There he took her pants down and “whacked me … smacked it [ie her vagina] like a high five … really hard … on my skin”.

Evidence of Rachel at trial

Although the answers in the first police interview provided only very faint and insufficient substantiation of Rachel’s complaints to her mother that the appellant licked and inserted his fingers in her vagina, the Crown initially laid a charge based upon these allegations (at least with respect to the digital penetration), then withdrew it. The Crown served a tendency notice dated 10 July 2015 according to which it proposed to rely upon evidence that the appellant had licked and digitally penetrated Rachel’s vagina. An amended notice of 2 September 2015 deleted these two items of proposed tendency evidence. These procedural steps are narrated in written submissions made by defence counsel to the trial judge when applying in late April 2016 for severance of the counts on the indictment, considered further below at [106] – [113]. According to those submissions the amendment of the tendency notice was made at the direction of his Honour Judge Lerve.
Rachel was seven years old at the date of the appellant’s trial. Her interviews by police were played to the jury pursuant to s 306U of the Criminal Procedure Act 1986 (NSW) and constituted Rachel’s evidence in chief. No supplementary oral evidence in chief was led from her concerning the allegations of licking and digital penetration of her vagina. Defence counsel cross examined on those allegations (at T 83 – 104). She rejected the proposition that these things did not occur (at T 83 and 95). She contradicted herself about where she was in the house when the appellant digitally penetrated her. Ultimately she said that she “couldn’t remember and I still can’t remember” where this occurred (T 96). She had told police that the incident of licking her vagina occurred in the bedroom occupied by the appellant and his wife but in cross examination said she never went in there and ultimately said she didn’t know where this occurred (T 97).
There was nothing in any of the records of interview with Rachel to support counts 1 and 2 (touching Rachel’s bottom and licking her ear whilst she lay in bed during a sleepover, with Pamela in an adjacent bed). The Crown did not lead from Rachel any supplementary oral evidence directed to those counts. In cross examination Rachel said she had never been touched rudely by the appellant in any of the upstairs rooms of the house (that is, rooms on the main level as opposed to in the playroom below) nor ever in the presence of Pamela. This contradicted the evidence of Pamela, through whom the Crown attempted to sustain counts 1 and 2.
In relation to count 4 (the appellant touching his penis on her vagina), Rachel was cross examined about her failure to repeat this allegation in the second police interview on 9 July 2014, having made it to her mother about four weeks earlier. With respect to count 5 (the appellant touching her vagina in a smacking action “like a high five”) she was cross examined about never having given any account of this until her third police interview on 27 February 2015, nearly two years after it was alleged to have occurred and only following a further conversation with her mother.

Recorded police interviews with Pamela

Pamela was interviewed by police on 5 November 2013 and 16 April 2015. The layout of the appellant’s house is material to the allegations Pamela made in those interviews and to her evidence under cross examination at the trial. Most of the rooms were on a single level. Immediately inside the main entrance door was a short hallway. To the left of this from the perspective of a person entering the house was a doorway into Bedroom 3. This was the spare bedroom in which the complainants slept when staying overnight.
Straight ahead at the end of the entry hallway was a door leading into the Main Bedroom used by the appellant and his wife. To the right of that doorway a second hall ran off the entrance hallway at right angles. On the left of the second hall was a door into Bedroom 2, occupied by K, the adult daughter of the appellant and his wife.
Immediately inside the main entry door on the right, opposite the door to Bedroom 3, was an archway opening onto a combined Lounge-Dining Room. This contained a dining setting, a pair of two-seater fabric-covered couches and a chest of drawers with a television on top of it. At the far end of this Lounge-Dining Room, furthest from the archway off the entry hall, a doorway with a sliding door led to a combined Kitchen-Family Room. This contained a three-seater couch, a two-seater couch and a large wall-mounted television screen. A dining bench with stools divided the Kitchen area from the Family Room area.
In the wall of the Kitchen-Family Room opposite the doorway from the Lounge-Dining Room was a sliding glass door. This opened on to a balcony. Stairs led from the balcony down to ground level at the rear of the property, in which there was an in-ground swimming pool. At that level, accessible through a door which opened off the pool surround, there was a playroom (also referred to as the day care room or the rumpus room) under the Kitchen-Family Room. It contained, amongst other things, a bookshelf against one wall with a television screen mounted in it and another couch.
In her first police interview on 5 November 2013 Pamela gave specific and lucid answers regarding the facts alleged in counts 9 and 10 (touching her bottom and her vagina, both in the playroom on the same occasion). This occurred when her mother was in hospital for removal of a cyst from her vocal chords, during October 2013. She said “He rubbed it. … My bum and my vagina. … Skin on skin. … just softly”. She said he did not penetrate her vagina with his fingers. She illustrated on a diagram whereabouts the appellant had touched her. She told police that she had said to him “[Appellant] please stop. You know not to do that” but he continued “until I got over it and just said ‘[Appellant] can you please stop’”. She said “he stopped when I got really angry”.
Pamela described the clothes she was wearing during this incident including “stretchy shorts”, which the appellant did not remove. She said that at the time this occurred they were downstairs in the playroom. The appellant was sitting on the couch there and Pamela said she was standing in front of it. She said Rachel was present in the room.
Pamela gave a similarly articulate description of the indecent assaults in counts 6, 7 and 8 (touching her on the bottom and on the vagina and licking her ear, all on one occasion). She was able to fix the occasion of these assaults. She recalled she was at the appellant’s house as a result of having been taken out of school with an earache. The indecent touching of her bottom and vagina only continued “for a short time” because the appellant’s daughter came out from her bedroom. Pamela said this incident occurred in “the spare lounge room” (apparently a reference to the Lounge-Dining Room) when “we were watching a movie”. She was lying down on a couch and the appellant knelt to touch her under her school sports uniform.
Pamela told police in this interview that she had seen the appellant indecently touching Rachel on the bottom, under her clothes, and licking her ear while Rachel lay in a bed next to Pamela’s bed (counts 1 and 2). Pamela said that on this occasion the appellant also “touched me in the private again”, which she explained as meaning that “he only did the bum that night … Just down in the middle of it and in the centre” (count 3). She said this touching was under her clothes, with the appellant kneeling on the floor beside the bed.
During this first interview Pamela asserted that there had been numerous other instances of such touching which she did not particularise as to time, place or detail of contact. She said “he does it when people aren’t around and so he goes in the rooms where no one else is and he touches us under our clothes”. Pamela said “It happens like everywhere if someone’s not there” and, in a later answer, “it’s happened every time we go there, but I can’t remember all the other times”. She said the appellant’s touching of her indecently commenced at the end of 2012, just after Christmas that year. Pamela said the only parts of her body that had been touched by the appellant on these occasions were “my ear and my bum and my vagina” and when asked “How many times would you guess?” she said “Forty or more” and agreed that “it’s pretty much every time you go there”.

Evidence in chief of Pamela

On the third day of the trial, 11 May 2016, Pamela’s two police interviews were played to the jury as her evidence in chief, commencing at 11:44 am. There were very few supplementary questions, limited to having the witness identify the document on which she had written some answers when first asked by her mother about the subject and a drawing she had provided to police in the course of the interviews. These questions only called for one word answers, which were given.

Cross examination of Pamela on the third day, 11 May 2016

In summarising the cross examination of Pamela, observations will be made in the following paragraphs concerning the effect of her failures to answer a significant number of questions. These observations are directed to ground 2 of the appeal.
Cross examination commenced at 2:00 pm on 11 May 2016. Pamela was first questioned about having discussed with Rachel the things the appellant had done. This included putting back to her some answers she had given during the hearing of the applicant’s notice of motion for severance of the indictment, two weeks before the trial. In cross examination in the trial Pamela made no verbal response to a number of questions on the topic of discussion between herself and Rachel. That fact is recorded at T 150 – 155. All of the unanswered questions were asked again in slightly different terms and a response was in due course given in respect of every matter which the cross examiner raised. On occasions when no verbal response was made to any question a long pause was allowed by the learned trial judge and counsel, to wait for her reply.
The trial judge was able to observe the witness, who was in a room remote from the court, as she gave her evidence over an audio visual link (“AVL”). His Honour intervened before 3:00 pm to give the witness a break and recorded the following in the absence of the jury (T 157):

“… some of the long [pauses] may well be just the product of tension and distress rather than anything else. I don’t know that I may have let that run rather long this time but finally a tear appear[ed] on the cheek and then it was unmistakable that she was distressed. But I’ll aim to get her past 3 o’clock. If we are still going at 3 o’clock will just take it I think in 5 minute blocks after that. At any stage if I get the same sort of lengthy pause I’d still be inclined to stop.”

After a few minutes adjournment cross examination resumed. The witness was reassured that she was “not in trouble” and that if she should become too upset to carry on she could ask for a break. Counsel asked a few more questions about discussions between Pamela and Rachel, then put a series of questions to confirm the layout of the house (T 158 – 161). There was no significant failure to answer in this passage of questioning.

At T 162 – 170 Pamela was cross examined about counts 9 and 10 (upon which her evidence in chief was as summarised at [51] – [52]). The witness made no reply to a number of questions on this topic, prompting the learned trial judge to cease taking her evidence for the day at about 3:15 pm. Another matter in the list required his attention from 3:30 pm in any event.
The witness’s failures to respond to some questions in this last passage of cross examination on 11 May 2016 do not appear to have disadvantaged the appellant. It was put to her that nothing had happened to her in the playroom on the day to which counts 9 and 10 related. She rejected that. She failed to respond to an open question about “how the room was set up” but then answered responsively a series of questions about particular features of the furnishings.
Pamela said that Rachel was present when the appellant touched her indecently as particularised in counts 9 and 10 and that Rachel saw what occurred. At T 162 these questions were then asked:

Q.   Do you say that [Rachel] saw and heard what was going on do you?
A.   Yes.
Q.   Did you talk to her after you say she saw and heard that?
A.   I’m not sure.
Q.   Well, could you think about it please?
A.   (No verbal reply)
Q.   Can you recall whether you said anything to her or she to you after that happened?
A.   No.
Q.   If that happened [Pamela], you would have said something to your sister wouldn’t you?
A.   No.
Q.   You wouldn’t have said, “Watch out for [the appellant]”, or, “Has this happened to you?” Nothing like that?
A.   No.
Q.   The reason you didn’t say anything to [Rachel], [Pamela] is I suggest to you that nothing happened in that room. That’s correct isn’t it?
A.   No.

The effect of these answers was that Pamela did not recall whether she had spoken to Rachel about the incident and she did not agree that she necessarily would have done, upon such a thing occurring. Later (at T 167 – 168) the following questions were asked:

Q.   You don’t know what [Rachel] saw, do you?
A.   No.
Q.   Because you never talked to her about it, that’s what you say? That’s what you say, isn’t it, you never talked to her about it?
A.   (No verbal reply)
…
Q.   You told us you didn’t talk to [Rachel] about this incident. Remember I asked you all those questions about that?
A.   (No verbal reply)
…
Q.   You remember I asked you questions about whether you discussed this incident with [Rachel] when it happened, and what I suggest to you is that you didn’t say – you said you didn’t discuss it with her when it happened. Doing the best you can, is that true, that you didn’t discuss it with her when it happened?
A.   (No verbal reply)
…
Q.   Do you remember telling the members of the jury that you did not discuss what [the appellant] did in that room when [Rachel] was there with [Rachel] at that time?
A.   Yes.
Q.   Is that true, you did not discuss it with her at that time?
A.   Yes.
Q.   You don’t know what she saw, do you?
A.   (No verbal reply)
…
Q.   You don’t know what [Rachel] saw, do you?
A.   I’m not sure.
Q.   The only way you could know what [Rachel] saw if anything was if you talked to her about it. That’s true isn’t it?
A.   (No verbal reply)

Shortly after this exchange, at approximately 3:15 pm, the trial was adjourned for the day. In the above passage of cross examination the first three questions to which no verbal reply was received were put on a false premise. The witness had not agreed earlier that she never spoke to Rachel about this incident. She could not recall. When counsel pressed her in a fourth question about “telling the members of the jury that she did not discuss what [the appellant] did in that room when [Rachel] was there” she agreed that she had so answered. But she had not. These four questions were objectionable. They were misleading to the witness because they paraphrased inaccurately answers she had given shortly before.
The appellant suffered no disadvantage by Pamela’s first three failures to respond in the passage quoted at [64]. This 11-year-old witness may well have been confused by questions which failed to take account of her earlier answers. The ultimate concession sought by counsel, that Pamela could not be sure what Rachel saw without having spoken to Rachel about it, had been self-evident from the earlier answers in which Pamela acknowledged she did not recall whether she spoke to Rachel on the subject.

Discharge application on 12 May 2016 after communication with Pamela

On the morning of the fourth day of the trial, 12 May 2016, cross examination of Pamela did not resume at 10:00 am but was interrupted by the learned trial judge’s consideration of evidence and submissions about communications with the witness the preceding afternoon and evening. In the absence of the jury the appellant’s son-in-law gave evidence that he had heard the Crown’s instructing solicitor say to Pamela’s father outside court after 3:15 pm the previous day:

“When you go home tonight and when you speak to [Pamela] make sure you tell her to say, ‘I don’t remember’.”

Pamela’s father gave evidence of different words having been used in this conversation. He said he enquired of the solicitor “How did she go?” and he was told “She needs to make sure she answers the questions. I could give you examples but I am not allowed to give you examples.” The father said he spoke to Pamela that evening in words to the effect “You need to remember to answer all questions, you can’t sit there” and “Just remember that you keep telling the truth” and that if Pamela was unsure of anything then she needed to ask that the question be repeated to her.
On this evidence defence counsel asked his Honour to discharge the jury (T 213). His Honour declined to rule on the application at that stage. He deferred making any finding as to exactly what had been said to Pamela by her father. He expressed concern that there may have been interference with the witness not by encouraging her to concoct evidence but by emboldening her “in such a way as to present a false picture of herself and her credibility”. His Honour determined that he should defer ruling on the discharge application until the complainant had recommenced her evidence before the jury, with a view to inviting further submissions if there then appeared to be “a perceptible change in her evidence or the mode of its delivery”.

Cross examination of Pamela on the fourth day, 13 May 2016

Cross examination of Pamela did not resume on 12 May 2016. From 10:36 am on 13 May 2016 her cross examination continued on the subject of counts 9 and 10 (T 229 – 230). In this passage there was no significant failure to respond. From T 230 the questioning turned to the subject of counts 6, 7 and 8 (upon which Pamela’s evidence in chief had been as summarised at [53] above). At the commencement of this subject there were three questions to which no verbal reply was given, one of which was answered when asked again. The other two questions were superfluous in that they sought answers which in any event logically followed from an answer obtained immediately before.
Just before the morning tea adjournment on 13 May 2016 it was put to Pamela that no “inappropriate touching” had taken place in the Lounge-Dining Room. Pamela rejected that and said this had occurred on a day when the appellant’s daughter, K, was at home. This was in accordance with her evidence in chief on counts 6, 7 and 8.
In the absence of the jury the learned trial judge recorded that during the first hour of cross examination that morning:

… there have been repeated pauses. The shortest of them being of the order of about 15 seconds, a number of them have been of the order of half a minute or slightly more and the longest including the most recent at least one minute.

In this passage of cross examination such pauses appear to have been of no consequence. Responsive answers were obtained to all relevant questions, if not on the first occasion the question was put then on the second or third. To the extent that the pauses cast doubt on her credibility, that was a matter for the jury to assess. The possibility that the repeated pauses hindered the cross-examiner will be addressed below.

Immediately after morning tea four further pages of transcript of cross examination were recorded before his Honour interrupted the proceedings. During this passage it was put to Pamela (at T 238) that when she first arrived at the appellant’s house “on the day that you had the sore ear” (being the day she identified with counts 6, 7 and 8) she went to the three seater couch in the Kitchen-Living Room and that whilst she lay on that couch K came from her bedroom to join her. Pamela rejected both of those propositions. She was then asked these questions:

Q.   She had a conversation, that is [K] sat down on the couch, that’s the three seater couch and talked to you. And you told her, “My ear is sore,” that’s right isn’t it?
A.   (No verbal reply)
Q.   You talked to her on the couch didn’t you, on the three seater couch in the family room?
A.   (No verbal reply)

This was followed by four questions from his Honour urging her to respond. In retrospect, with the benefit of being able to review the transcript, the witness’s difficulty appears obvious. She had denied that she was on the three seater couch in the Kitchen-Living Room and that K had joined her in the room. The subsequent propositions that K had sat on the couch and carried on a conversation must, to her, have seemed absurd or a refusal to accept her earlier answers. These propositions had already been rejected by way of her denial that she was on the couch at the relevant time and that K came into the room. An adult witness might well have been able to respond to a question in those terms but it is understandable that an 11-year-old would not be so confident, might think that she must be missing something and would be unable to muster any response.
This course of confusing questioning continued with counsel again putting to Pamela the proposition she had denied from the outset. Namely, that when she arrived at the appellant’s house from school with a sore ear she went to the Kitchen-Living Room and lay on the three seater couch there. This time the witness answered, “I’m not sure”. Twice more counsel put that K had come into that room to join her and Pamela did not respond. This could hardly have caused disadvantage to the appellant as Pamela had previously answered the question responsively, in the negative.
When this questioning was interrupted by the learned trial judge as referred to at [73], his Honour (a) recorded that defence counsel had “not been able to obtain answers to questions you’re entitled to ask and from which you’d be entitled in the ordinary course to expect answers” and (b) received a communication from the witness assistance officer who was in the remote room with Pamela, to the effect she was concerned the witness was not understanding the questions.
His Honour responded to the concern of the witness assistance officer with remarks which included the following:

I simply [observe] that that [difficulty of understanding] is a matter for the witness to raise. She has ample opportunity and has been repeatedly advised that if she does not understand anything she’s asked she’s to raise that. I also observed that the witness has been exhibiting signs of distress. Now there are all sorts of possible reasons for that. Not understanding a question may be but one of them.

With due respect, the witness’s difficulty may not have been one of understanding the question. She may have understood perfectly well the propositions she was being asked to agree with and that they could not possibly stand with the answer she had already given, repeatedly, that she was not in the Kitchen-Living Room on the couch on the relevant day. A child of 11 questioned in this way might well find it perplexing to be pressed with such contradictory propositions, without anything being said expressly to indicate that her earlier answers were disbelieved or rejected by the questioner. This is a manner of questioning with which judges and counsel are familiar. It may be incomprehensible and confounding to a young child.
Cross examination on counts 6, 7 and 8 continued after this break, up until lunchtime on 13 May 2016. Only five more pages of transcript were recorded (T 245 – 250). In this passage again a number of the questions to which the witness was initially unresponsive did in due course receive an answer, often to the effect “I’m not sure”. Then (at T 248) the following questions were asked with respect to a time on the day to which these counts related when Pamela agreed she was on one of the two-seater couches in the Lounge-Dining Room watching a movie:

Q.   [The appellant] was sitting on the other couch [in the Lounge-Dining Room] reading, that’s right isn’t it?
A.   I’m not sure.
Q.   You don’t know where he was?
A.   (No verbal reply)
Q.   Is that what you say [Pamela], you don’t know where he was?
A.   I just can’t remember where he was.

In subsequent questions Pamela agreed that K went from the Lounge-Dining Room to her bedroom and returned, whilst Pamela was still watching the movie. The following questions were then asked (at T 250 – 251):

Q.   And [the appellant] was still reading on the other couch, correct?
A.   (No verbal reply)
Q.   That’s right isn’t it?
A.   (No verbal reply)

There was evidently a long pause at this point which caused his Honour to direct counsel to ask his next question. Three further questions elicited no verbal reply, at which point his Honour ceased to take Pamela’s evidence at 12:50 pm. Defence counsel applied for an adjournment to enable an application to be made to the Director of Public Prosecutions “that the proceedings be no billed”. He submitted that the accused was placed “in a very difficult situation” given that he had received no answer to some questions and that the witness “does look very distressed”.
The learned trial judge made the following observations at this point (at T 251):

… I regard the present state of affairs is [sic] one that’s frankly quite appalling. The state of distress of the witness is very apparent and as [defence counsel] has indicated, [he] is putting matters only at this stage in relation to but one of three incidents alleged, it’s quite apparent if he is to properly perform his duties that there will be the necessity for further cross examination in all likelihood as we’re not sitting this afternoon, in fact I’d certainly (sic) it will go into Monday. … in order for there to be a fair trial there must be a reasonable expectation that questions put be answered. It’s apparent to me that now a large number of questions have been put and simply not answered in the context that the witness has become so distressed that either she is not able to collect herself, is unwilling or for some other reason no answer is forthcoming. The matter has now reached a stage that is almost unseemly, I’m also mindful that the jury is having repeated images of the witness in a highly distressed state.

After discussion between the judge and counsel, the jury were excused for the remainder of that Friday, to resume on Monday 16 May 2016. With due respect to his Honour it is not apparent that the witness’s failure to answer up to this point had caused any embarrassment to the defence. Most of the questions to which no verbal response had been given had been asked again and ultimately answered. Others were superfluous. In several cases the questions in relation to which Pamela remained silent were to the same effect as earlier questions which had been answered responsively.
The questions quoted at [80], which appear to have precipitated the adjournment application, are an example of this last category. Pamela had already said she did not recall where the appellant was whilst she was in the Lounge-Dining Room watching the movie (see [79]). It would follow that she would not be able to recall whether he was “still reading on the other couch” following an absence of K from the room. Not only were these questions already answered, in substance, but the fact they were asked without acknowledgement of the earlier answers probably explains this young witness’s confusion. At 11 years old she could not be expected to respond, as a mature witness might justifiably do, along the lines “How can I answer that? I have already told you that I do not recall where he was”.
These questions concerning the whereabouts of the appellant and the movements of K were not made specific to any particular time or times. The playing of the movie must have occupied a period of time, perhaps one to two hours. The duration was not established in the evidence. The lack of nomination of a time or times within the period of the movie playing, either for the questions about where the appellant was located or about when K went from or returned to the Lounge-Dining Room, must have contributed to the young witness’s difficulty in answering and would have limited the utility of answers if obtained.

Cross examination of Pamela on the fifth day, 16 May 2016

In cross examination from 10:13 am on 16 May 2016 (commencing at T 261) Pamela agreed that on the day she had to leave school with a sore ear (the occasion of counts 6, 7 and 8) she sat on a couch in the Lounge-Dining Room watching a movie with K. She agreed that the appellant’s wife was in the adjoining kitchen but was not sure whether the connecting door was open. Pamela said that she watched the movie to the end but could not recall whether K remained with her right through to that point.
At T 261 Pamela agreed that whilst sitting on the couch watching the movie with K the two of them shared a blanket. At T 265 she was asked “Do you remember now that she was sharing a blanket?” Pamela made no verbal reply. The transcript shows that the court waited over a minute before his Honour directed that another question be asked. It is not apparent why defence counsel should have repeated this question, to which he already had the answer he apparently wanted, nor what disadvantage could have flowed from the failure to get it a second time.
At T 263 and again at T 264 it was put to Pamela that the appellant did not sit on the couch with her, to which she made no reply on each occasion. At T 265 she made no reply to a question whether she remembered him being on the couch with her. However she agreed that the appellant had not sat on the couch with herself and K and she said she could not remember whether the appellant had left the room whilst she and K were on the couch together.
The effect of Pamela’s failure to respond to some of these questions and her lack of recollection of the other matters was that she gave no affirmative evidence of the appellant having sat on the couch with her. It was of course entirely proper to put the accused’s case to the complainant. But not having received a denial counsel was then in a position, if the evidence otherwise allowed the submission to be made, to tell the jury that this aspect of the accused’s case had not been denied and they should accept it. It is not apparent that the appellant was disadvantaged by his counsel’s inability to obtain a positive concession about this. The net result of her not giving affirmative evidence was to the same effect. Nor is it apparent that any of this was critical to the defence. Pamela’s evidence in chief was that the appellant was “kneeling on his knees” when he sexually assaulted her on this occasion (with K absent from the room), not sitting beside Pamela on the couch.
Pamela was then cross-examined about failure to make complaint soon after the events which were the subject of counts 6, 7 and 8. It was put that “the reason for your silence was that nothing rude had happened” and she rejected that.
At T 270 – 273 cross examination commenced on counts 1 and 2 (the assaults on Rachel in Bedroom 3 during a sleepover) and on count 3 (the assault on Pamela on the same occasion). Following the morning tea adjournment on 16 May 2016 cross examination on these counts resumed and continued to T 287.

There were two single beds in the room occupied by the complainants, one next to a window in the wall furthest from the door and the other near to the door, parallel to the first and with a space between. Pamela said she lay in the bed nearest the window and was facing toward the door when she saw the appellant kneeling between the two beds. Regarding the indecent assaults upon Rachel which Pamela had described in her interview with police (summarised at [54]), Pamela said the appellant had his back to her when he touched Rachel. At T 272 and again at T 276 she made no reply when it was put to her that “his back would block any view you might have as to what he was doing”.
At T 275 again Pamela did not reply when it was put to her that “you couldn’t see what, if anything, he was doing” and “you couldn’t see his hand”. Pamela said she could not remember if Rachel was “under the covers” but agreed that if so “the covers would be blocking your view”. Pamela said she saw the appellant in between the beds, facing towards Rachel, for five seconds or less. She said that he then turned to herself.
As referred to at [45] Rachel said in cross examination she had not been touched rudely in any of the rooms on the main level of the house. Over objection defence counsel was permitted to ask Pamela the following question (at T 280):

Q. [Pamela], if [Rachel] said nothing rude happened to her in that room would she be wrong would she?
A. (No verbal reply)

Pamela still made no reply after having confirmed she understood the question and after declining the offer that it be put again. With respect, the question appears to have had no useful forensic purpose. The appellant’s case was that Rachel was correct in saying “nothing rude had happened to her in that room”.

At T 285, with respect to count 2, Pamela conceded she could not remember having seen the appellant lick Rachel’s ear. Not satisfied with this concession, which was sufficient to eliminate the only evidence in the Crown case on this count, counsel put to Pamela that if the appellant had his back to her she would not have been able to see him lick Rachel’s ear. Pamela made no verbal reply to this question. Although it was superfluous in view of Pamela’s concession “I don’t remember” seeing the applicant lick Rachel’s ear, his Honour repeated the question and the witness said “I’m not sure”.
There was no disadvantage to the defence in Pamela not having answered the questions referred to at [92] – [95]. By the end of her cross examination she had acknowledged the appellant’s body was in between herself and Rachel, with his back to Pamela, and she had not asserted that despite this she had been able to see what he did with his hands. She had conceded the bedcovers may have been over Rachel and, if so, would have blocked Pamela’s view. She had said she could not remember if Rachel’s ear had been licked. Coupled with Rachel’s positive assertion that nothing rude had happened in any room on the main floor, these concessions were enough to eliminate the Crown case on counts 1 and 2.
As has been mentioned, the learned trial judge subsequently directed verdicts of not guilty with respect to counts 1 and 2. Pamela’s concessions and her inability to support the allegations in her police interview which had led to these counts being laid were matters to be taken into account by the jury in assessing her credit overall. Pamela’s failures to answer some questions concerning the first two counts did not deprive the appellant of any significant opportunity to discredit her yet further.
In respect of count 3 (the appellant touching Pamela on the bottom as she lay in bed on this occasion) at T 286 it was put to her that this did not occur. She rejected that. She said the touching had continued for a few seconds. Counsel then put to the witness that on other occasions the appellant had rubbed her back whilst she was going to sleep in a manner to which she did not take objection. She made no verbal reply to this, prompting the learned trial judge to take a short adjournment. During that break, in the absence of the jury, the appellant’s counsel applied to his Honour for a direction to the jury “that they are to place no reliance on the evidence of this witness”. His Honour indicated that a direction would not be given in those terms.
Cross examination then resumed and continued to about 12:15 pm on 16 May 2016. This passage of questioning mainly concerned conversations Pamela had with Rachel and with the girls’ mother concerning the complaints. The final question and answer were as follows (at T 298):

Q. [The appellant] never touched your rude parts, did he?
A. Yes he did.

Conclusion on ground 2

Written submissions on the appeal state that 119 questions went unanswered. Careful review of the trial transcript shows that the majority of these were in fact answered when put again or had already been answered before they were asked a second or third time. For the reasons given at [57] – [66] and [70] – [98] no forensic disadvantage was suffered by the appellant as a result of the relatively few instances where no answer was ever received. There was no miscarriage of justice as a result of Pamela’s failure to answer some questions.
The learned trial judge identified distress of the witness as a possible cause of her failure to respond and her hesitancy. I have no reason to doubt that she was distressed, as his Honour recorded from time to time. The distress was likely contributed to and supplemented by confusion flowing from the manner of questioning, in the respects illustrated in the paragraphs above. In the circumstances of this case the intermittent unresponsiveness and hesitancy of the witness provided no justification upon which his Honour should properly have rejected Pamela’s evidence, or instructed the jury to disregard it, or discharged the jury. Ground 2 is not made out.

Ground 4 – communication with the witness under cross examination

Some of the circumstances relevant to ground 4 have been summarised at [67] – [69]. Those circumstances caused counsel for the appellant to make the application for discharge of the jury referred to at [69]. On 17 May 2016 (at T 353) defence counsel renewed this application on the basis of communications with Pamela’s mother which had taken place on 11 May. He tendered a printout of text messages sent by the Crown’s instructing solicitor to the mother which included the following:

“She has to say if she can’t REMEMBER or doesn’t KNOW. Can’t just sit there and say nothing.”

The important factual question was what had been said to Pamela. The only direct evidence in that regard was that of her father, summarised at [68]. Pamela was the only other witness to whatever conversation took place. Defence counsel did not seek to question her about it, on the voir dire, at any stage. This may have been for the very good reason that after Pamela had been spoken to by her father on the evening of 11 May 2016 she did not appear to have become “emboldened” in the giving of her evidence, as his Honour had thought might occur. She continued to testify with long pauses and with omission to provide any answer in some cases. There was no indication that any communication with her had made any difference to her presentation.
In dismissing the application for discharge the learned trial judge was not satisfied there had been any undue interference with Pamela. To the extent there may have been contact with her, his Honour concluded it had been “plainly of no assistance nor encouragement to her such as changed her presentation to the jury”. His Honour did not consider that the communication described by the father “in addition to the many communications in open court from me, simply reformulating the advice that she should only receive from me, could have had an adverse effect”.
These findings were well open to his Honour. The communication with Pamela as sworn to by her father was not such as would be calculated to corrupt the witness’s testimony, either in content or in manner of delivery. Given the consistency of the deficiencies in the way Pamela gave evidence before and after this conversation there is no basis for concluding that it had any relevant effect upon her. His Honour was right to dismiss the application for discharge. Ground 4 is not made out.

Ground 1 – refusal to sever indictment

On 26, 27 and 28 April 2016 the learned trial judge heard a pre-trial notice of motion filed by the appellant seeking severance of the counts on the indictment. At the outset of this application the indictment included counts relating to a third complainant. The appellant sought that the counts relating to each complainant should be charged, respectively, on three separate indictments. Whilst being cross-examined during the hearing of this application the third complainant became acutely distressed and the Crown determined not to proceed with the charges concerning her.
The Crown had on 2 September 2015 served an amended tendency notice under s 97 of the Evidence Act 1995 (NSW). This stated the Crown’s intention to rely upon evidence of both Rachel and Pamela concerning charged and uncharged acts of the appellant as evidence of a tendency on his part to have sexual attraction to very young female children between the ages of 4 and 10 and a tendency to act upon that attraction and to prey upon such children. As referred to at [43] – [44], the amended tendency notice did not refer to acts of the appellant licking and digitally penetrating Rachel’s vagina, as initially complained of by her to her mother. The appellant’s notice of motion sought to have the amended tendency notice struck out.
On hearing of the notice of motion the appellant also sought to have the evidence of Rachel’s initial complaint to her mother excluded, relying upon s 137 of the Evidence Act. The Crown pressed for this evidence to be received, albeit that the appellant’s acts alleged in that initial complaint were no longer sought to be relied upon as tendency evidence. According to reasons for decision published by his Honour on 3 May 2016:

The Crown did not seek to rely upon the particular allegations contained in [Rachel’s] initial complaint to her mother as evidence of tendency but sought the complaint’s admission as relevant for the non-tendency purpose of providing context in which the allegations being prosecuted in relation to both [Rachel] and [Pamela] arose.

The learned trial judge first determined (on 27 April 2016) that Rachel’s initial allegations to her mother concerning licking and digital penetration were admissible as evidence of the context in which her first complaint and, subsequently, Pamela’s first complaint were made. The decision to admit this evidence is not challenged in any appeal ground and the Court has not been provided with His Honour’s reasons for the ruling. Implicitly, his Honour must have determined that the probative value of the evidence for the purpose of establishing the point of commencement of the children’s complaints outweighed its prejudicial effect. It can be gleaned from other materials in the appeal papers that his Honour recognised “the potential for considerable prejudice to attach to the very serious allegations” in Rachel’s initial complaint and noted that the evidence would have to be “subject to careful direction if a jury is in any way to use it, in particular to avoid its misuse”.
The severance application was governed by s 29 of the Criminal Procedure Act, as follows:

29   When more than one offence may be heard at the same time
(1)   A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
(a)   the accused person and the prosecutor consent,
(b)   the offences arise out of the same set of circumstances,
(c)   the offences form or are part of a series of offences of the same or a similar character.
…
(3)   Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

His Honour made an assessment of what he termed “the threshold justification required for a joint trial” under s 29 of the Criminal Procedure Act. In that regard his Honour accepted that the allegations of both complainants arose from closely related circumstances. Further, the only evidence in support of counts 1 and 2 concerning Rachel would come from Pamela, meaning that she would have to give evidence in two trials if the counts were separated. His Honour acknowledged the risk that Pamela would not be prepared to give evidence a second time but made clear that he would not give that consideration any weight “if the primary finding is that a joint trial entails an unfair trial”. His Honour did not consider that that would be the case having regard to his decision regarding cross admissibility of the indecent assaults of each complainant as tendency evidence and his view that any prejudice flowing from evidence of Rachel’s initial complaint could be neutralised by a strong direction.
With respect to the use of evidence of the counts concerning Rachel for tendency purposes on the counts concerning Pamela and vice versa, the appellant sought to demonstrate that there had been collaboration between the two complainants and that their evidence was (or was likely to be) concocted. His Honour found that

…the matters of challenge raised by the accused are no more and no less than contestable questions of credibility and reliability.

In his Honour’s view IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 dictated that the task of determining those contestable questions was for the jury. Upon the assumption the jury would accept the evidence his Honour concluded, in his judgment of 3 May 2016, that the pre-requisites for admissibility under s 97 of the Evidence Act were satisfied.

His Honour further held that in a trial of all counts, concerning both Rachel and Pamela, on the one indictment:

the Crown should be permitted, within the terms specified in the tendency notice, to use the related evidence of complaints by each complainant in turn as evidence [as] contended by the Crown [of] a tendency common in the accused’s conduct towards both complainants.

That is, the evidence of the respective complaints was cross admissible on all counts.

The learned trial judge accepted that “the implications of [his ruling that Rachel’s initial complaints were admissible as context evidence] have remained as integral to the contested issues as to joint trial and tendency”. His Honour held:

I have found that the initiating complaint by [Rachel] is properly to be regarded as context evidence that is required to give a rational explanatory setting to what would otherwise be allegations in the case of both complainants arising in inexplicable isolation. Whilst I have rejected the submission that my earlier decision to admit the context evidence now required separate trials I have found that the treatment of this evidence will require the most careful and clear direction as to restrictions to be placed upon the use of this evidence and a strong warning that it is not to be misused. The evidence is however relevant to the context in which the sequence of complaints directly related to the indictment counts emerged over time from allegations made by both complainants.

With respect, the Crown’s submission paraphrased by his Honour (see these reasons at [108]) and his Honour’s reasons quoted above at [114] are concerned solely with the complaint. That is, the words spoken by Rachel on the occasion in October 2013 when she first mentioned to her mother indecent assaults by the appellant. The Crown’s submissions and the learned trial judge’s reasons are not concerned with evidence of the truth of the complaints.
There was a misuse of the expression “context evidence” in the Crown’s submission and in his Honour’s reasons of 3 May. The established usage of that expression in sexual assault cases is that it refers to evidence of actual conduct of the accused person in relation to or towards the complainant which, although not the subject of any charge, puts “the particular allegations [which are charged] in the context of the whole of the relationship as described by the complainant”: Qualtieri V Regina [2006] NSWCCA 95; 171 A Crim R 463 at [116]. In that case Howie J said further:

[117] Context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment. Its relevance will only be found in the extent to which it does provide an understanding of the particular allegations before the jury. Where the complainant is alleging a history of assaults upon him or her by the accused, the evidence, or some of it, may need to be admitted because it would be impossible for the complainant to give an account of the particular allegations without referring to uncharged allegations that proceed or surround them. It would often be unrealistic for the complainant to be expected to give an account of the particular allegations as if they happened “in a vacuum”.
[119] Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant’s credibility in this way, context evidence does not make the complainant’s account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.

The purpose for which evidence of Rachel’s initial complaint was admitted was even more limited than the purpose of true context evidence, as expounded in Qualtieri and subsequently in DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28]. That is clear from the learned trial judge’s reasons quoted at [114]. It was later affirmed by the following direction given in summing up:

… these matters were initiated, essentially, by what [Rachel] said to her mother as they were both lying in bed one Sunday morning in October 2013. What she said on that occasion is context evidence and you will remember this occurred … the day after a visit by the accused, his wife and his daughter … [to the complainants’ family home] [Rachel], lying in bed with her mother on that Sunday morning said words to the effect of, “I don’t like it when [the appellant] licks my vagina”. She was asked some further questions by her mother and she said words to the effect that [the appellant] had also licked her ear, put his finger in her vagina.
Now, as you have been told and, no doubt are fully aware, there are no counts on the indictment that allege any such acts. It is very important, therefore, that you understand the limited use to which that evidence can be put. Its limited use is as context evidence only. It is not any evidence whatever that the accused did any such thing, as those very serious allegations would suggest. It is also not any evidence that can be used to support any evidence that the accused had a criminal tendency of the kind that the Crown alleges in respect of other conduct, including conduct specifically mentioned in the indictment counts. It must also not be used, that context evidence, in any way that suggests that the accused is a person of generally bad character, who has, indeed, committed such acts. So you need to be aware at all times, the sole proper status of the evidence of what [Rachel] said on that Sunday morning to her mother is to place all those events that followed in the several complaints, both of herself and her sister, in context and in sequence, effectively. The fact that [Rachel] said what she said was simply the point of departure for all those events that the Crown asserts happened in the taking of complaints and the interviews. It would be inadmissible for you to employ that context evidence in any other way.

Although Rachel’s initial complaint was received only to prove that the words were spoken by her, as an explanation of the conversation her mother then had with Pamela and as the commencement of the ensuing sequence of complaints and police interviews, it appears no objection was taken to the tender of Rachel’s first police interview, which provided some evidence, albeit of very little weight, that the licking and digital penetration had in fact occurred.
As noted at [109], the learned trial judge’s decision to admit Rachel’s initial complaint is not the subject of any challenge in the appeal. However under ground 1 this evidence was the focus of submissions that the failure to sever the counts had resulted in an unfair trial. In support of this ground, the only submission made in writing was:

This conduct [the licking and digital penetration complained of by Rachel] did not form the basis of any charge on the indictment but was admitted to put the later allegations of both Rachel and Pamela into context. However, Pamela makes no such complaint and it is submitted it adds no context to the allegations she made. An application that there be separate trials for each complainant was refused.

The fact that Pamela did not complain of licking or digital penetration did not deprive Rachel’s initial complaint of probative value for the limited purpose identified by his Honour to the jury. The submission quoted at [119] does not demonstrate that unfairness arose from the trial of all counts together.
In oral submissions the appellant disavowed any criticism of the direction concerning Rachel’s initial complaint (quoted at [117]). However it was argued that the terms of that first complaint would have had such a prejudicial effect that the counts concerning Pamela should have been tried separately. It was submitted that:

… it was in fact evidence of offending behaviour more serious than the allegations the subject of the trial because inserting his finger into the vagina of Rachel would constitute sexual intercourse and not an aggravated indecent assault.

This would be a consideration of significance if the Crown had sought to use evidence that the appellant did lick and/or digitally penetrate Rachel’s vagina for a tendency purpose: R v Barton [2004] NSWCCA 229 at [14] – [15]. But that was not the case. Given the limited purpose for which the evidence was received and the strong direction to the jury in that regard, the relative seriousness of Rachel’s first complaint does not establish error or unfairness in the trial of all charges on the one indictment.
More generally, it was argued orally on the appeal that “there must have been a flow on effect as to how the jury perceived the appellant” and that “the prejudicial effect of this context evidence tainted unfairly the jury’s perception of the appellant”. For a number of reasons I do not consider that unfairness resulted in this way from the trial of all counts together.
First, I consider that the direction quoted at [117] was appropriately strong to counter and neutralise any prejudicial effect which otherwise might have followed. The Court will usually assume that such a direction will be followed and there is no reason to think otherwise in this case. The following two decisions illustrate the operation of this assumption in appeals which did not concern sexual assaults but which are relevantly comparable in principle.
In DeVries v The Queen [2013] VSCA 210 Court of Appeal of the Supreme Court of Victoria considered the sufficiency of a trial judge’s direction concerning submissions made by the prosecutor in final address. The prosecutor had questioned the credibility of one of the Crown’s witnesses and had postulated a reason why the witness may not have been truthful. Osborn JA said, with the concurrence of the other members of the bench:

[37] It is difficult to see that a clearer and more comprehensive direction could have been given to the jury. There is no reason to reject it as inadequate particularly having regard to the other circumstances to which I have already referred. The prohibited reasoning which is in issue, including the initial identification of a potential motive for false evidence was not so irresistibly seductive that a jury would be unable to obey the direction given. Moreover as the High Court has affirmed, the capacity of juries to disregard prejudicial matters and decide cases in accordance with judicial directions is fundamental to our system of criminal justice: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15.

R v Belford & Bound [2011] QCA 43; 208 A Crim R 256 was an appeal against convictions of murder. The two appellants had been tried together. Bound had sought a separate trial which had been refused. It was argued by him on appeal that Belford’s inadmissible statements that Bound dealt in drugs, that the deceased owed Bound a drug debt and otherwise as to the conduct and character of Bound, might have so overwhelmed the jury that it might have ignored the trial judge’s clear directions against misuse of this evidence. Fraser JA held:

[108] The trial judge also gave clear directions that the jury could not use against a defendant evidence of bad character, the commission of criminal offences, including drug offences or assault, or that a defendant had been involved in other undesirable conduct as evidence of a disposition or propensity to commit the offence of murder or the alternative offence of manslaughter. In relation to the evidence of the drug debt upon which the prosecution relied as explaining Bound’s motivation to assault the deceased, the trial judge directed the jury that the evidence, “is not relied upon and cannot be relied upon as proving a propensity or disposition to commit the kind of violent killing that the prosecution alleges occurred in this case. Even if you accepted that Mr Bound assaulted [the deceased] on Boxing Day and had supplied drugs to him, that does not prove a disposition to commit a violent killing. The prosecution does not rely on that evidence as somehow proving a disposition or propensity to commit homicide and I direct you that you cannot rely on that evidence as showing such a disposition or propensity.”
[109] There is no reason in this case to depart from the usual assumption that the jury would follow the trial judge’s directions. [Gilbert v R cited]. No error has been shown in the trial judge’s refusal of Bound’s applications for separate trials. That refusal did not produce any miscarriage of justice.

The potentially prejudicial effect of Rachel’s initial complaints of licking and digital penetration was not, when considered against the entirety of the evidence, so “irresistibly seductive that a jury would be unable to obey the direction given” – to adopt the language of Osborn JA quoted above from [37] of his Honour’s judgment in DeVries v The Queen. That was particularly so where, as the jury could see, the Crown had not made any charge in respect of the subject matter of these complaints and did not argue that the licking and digital penetration were proved or could stand as evidence of tendency.
The terms of Rachel’s first police interview (summarised at [39] and [40]) and her cross examination at the trial would have made it clear that the complaints of licking and digital penetration were not credibly supported by Rachel. The prejudicial effect of the evidence that such complaints had been made by her to her mother was very much reduced by the lack of substantiation.
Further, the jury’s verdicts of not guilty on counts 4 and 5 show that they did not find Rachel reliable even in relation to the allegations of indecent assault by the appellant which she had maintained in her third interview with police (see [42]). This further diminishes the likelihood the jury were influenced by prejudice, in the face of his Honour’s clear directions, flowing from Rachel’s first, uncharged and unsubstantiated complaints.
No error has been shown in the learned trial judge’s decision of 3 May 2016 to try all counts together. In determining such a ground of appeal this Court is required to examine whether, having regard to the whole course of the trial, the appellant in fact suffered unfairness by reason of the refusal to sever the indictment: Verma v R (1987) 30 A Crim R 441 at 445. It has not been shown that any unfairness arose from the course taken in this case. The trial judge’s direction to the jury adequately dealt with any prejudice that may have arisen from the admission of Rachel’s initial complaint. Ground 1 is not made out.

Ground 3 – convictions not supported by the evidence

The principles on which this Court is required to determine ground 3, that the verdict was unreasonable, were set out by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. They were summarised by a majority of the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 in these terms (citations omitted):

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
'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.'

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M v The Queen is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".'
[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M v The Queen went on to say:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M v The Queen and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ stated:
'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand.'

As Hayne J made clear in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] this ground is not to be upheld if the appellant shows no more than that it was open to the jury to reach a different conclusion. Nor is it sufficient to dismiss the ground that there was evidence upon which the jury could convict: M v The Queen cited in SKA v The Queen at [14]. Full weight must be given to the primacy of the jury as the tribunal of fact. If a full consideration of the evidence at trial leaves the Court in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the Court’s doubt that it can conclude there was no miscarriage of justice (see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [26] and [55] – [56]).
In support of this ground the appellant submitted, first, that this Court would give little weight to the advantage of the jury in seeing and hearing the witnesses because the jury were “in effect, misdirected by the trial Judge on issues of credibility and reliability because of the context and tendency evidence led in the joint trial”. I have already dealt with what was referred to as “context evidence” in this case. There was no misdirection in what his Honour said on that subject (quoted at [117]). An orthodox and ample direction on tendency evidence was given at page 16 of the Summing Up. No fault in that direction has been identified by the appellant and none is apparent on reading it. In particular, the jury were correctly told that they could only use the evidence on any count as proving a tendency of the appellant relative to another count if they found the first count proved beyond reasonable doubt.
Secondly, it was submitted that the hesitancy and non-responsiveness of Pamela eroded her credibility to the point where “the Crown case [was] heavily dependent upon the evidence of [Rachel] and the evidence of context and tendency”. On the analysis made in this judgment under ground 2 I feel no doubt concerning the proof which Pamela’s evidence afforded of the six counts on which the jury returned verdicts of guilty. In any event, it was well open to the jury to resolve the difficulties concerning the way in which Pamela’s evidence was given under cross examination in such a way that they could reasonably decide to rely upon that evidence.
Thirdly it was submitted that by their verdicts, the jury rejected Rachel’s uncorroborated accounts in respect of the charges relating to her. However it is difficult, it was submitted, to reconcile these findings with the apparent inconsistency of the jury’s verdicts as between the two complainants.
The jury made no finding on counts 1 and 2. Their verdicts of not guilty were by direction. Those were the only counts concerning indecent assaults on Rachel with respect to which Pamela also gave evidence. There is no inconsistency between the jury having returned verdicts as directed and, on the other hand, having accepted Pamela in relation to assaults upon herself. The jury acquitted the appellant on counts 4 and 5 which had been supported only by evidence of Rachel. There is likewise no inconsistency between rejection or discounting of Rachel’s evidence, which is implicit in the not guilty verdicts on counts 4 and 5, and on the other hand the jury’s acceptance of Pamela with respect to other indecent assaults.
The appellant’s fourth point was that Pamela made no complaint to anyone until October 2013 concerning assaults which were alleged to have occurred, for example, in July of that year. This was despite Pamela having ample opportunity to complain to the appellant’s wife on any of the occasions when she was at the appellant’s home, or to complain to her schoolteacher or her mother at any time. This was something for the jury to take into account but they were well able to resolve the question whether this was a basis for having reasonable doubt about her testimony. It is not a matter which causes me to have a reasonable doubt.
Fifthly, the appellant asserted that Pamela’s mother first raised with her the subject of indecent assaults, following Rachel’s complaints, in a manner which tended to lead allegations from Pamela. Contrary to this submission, I consider that the mother’s questioning did not identify or suggest to Pamela any person who might have perpetrated assaults. Yet Pamela, with reluctance and embarrassment, nominated the appellant. Having heard Pamela’s detailed allegations in the first record of interview with police and her adherence thereto in cross examination, it was for the jury to exercise their advantage in seeing and hearing the witness and to determine whether her account was subject to any doubt by reason of the way in which she had first been drawn into speaking on the subject.
Sixthly, the appellant argued that with respect to counts 9 and 10 Pamela had given evidence that what occurred was witnessed by Rachel yet Rachel did not give evidence of these alleged assaults. Again that was a matter well within the capability of the jury to evaluate. There were reasons, which have been identified in this judgment, for the jury not to give weight to the evidence of Rachel. It was open to them to consider that Rachel’s lack of testimony regarding indecent touching of Pamela did not give rise to any reasonable doubt about the veracity of Pamela’s evidence on the subject.
Seventhly, the appellant argued that there was a “potential for conscious or unconscious contamination of [Pamela’s] memory”. This was the subject of extensive cross examination of Pamela, Rachel and their mother in an attempt to show that there had been discussion between them of allegations against the appellant. The jury was in a sound position to weigh up this line of attack and to assess its results. Their verdicts show that they did not feel a reasonable doubt about Pamela’s evidence on this account. Nor do I.
The appellant’s eighth point was that police asked some leading questions in their interviews with Pamela and that there were inconsistencies from one interview to the next and between the answers given to police and her evidence under cross examination. Again, the jury were in the best position to weigh up these features of the manner in which Pamela’s evidence had emerged and to put them against such assessment as they may have made of Pamela by viewing the video recordings of the interviews and seeing and hearing her respond to cross examination.
Lastly, turning to affirmative points in his own case, the appellant relies upon the facts that:

he made no admissions;

he positively and emphatically denied the allegations from when they were first put to him;

whilst a listening device was installed, without his knowledge, in his home during the investigation, police detected no admissions made in unguarded moments and

the appellant had no prior convictions.

All of these matters were before the jury and the appellant’s counsel had the opportunity to address upon them. No complaint is made about any directions given in respect of these matters. These affirmative aspects of the defence case do not cause me to feel a reasonable doubt about the appellant’s guilt and they were not such that the jury ought to have felt such a doubt.
The numerous points raised by the appellant under this ground, even when taken cumulatively, are not such as to cause me to feel any doubt concerning the appellant’s guilt let alone to consider that the jury ought to have acquitted. Ground 3 is not made out.

Orders

For these reasons I propose that the Court should order:

Leave to appeal is granted in respect of all grounds.

The appeal is dismissed.

Endnotes

Decision last updated: 28 June 2017

Medium Neutral Citation:	Abbott (a pseudonym) v R [2017] NSWCCA 149
Hearing dates:	18 April 2017
Decision date:	28 June 2017
Before:	Basten JA at [1]; McCallum J at [29]; Fagan J at [30]
Decision:	1. Leave to appeal is granted in respect of all grounds. 2. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – appellant charged with 6 counts of indecent assault against 2 child complainants contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to order separate trials in respect of each complainant – cross-admissibility of complainants’ evidence as tendency and context evidence – nature of context evidence – whether appellant had been prejudiced by trial on all counts – use of directions to ameliorate potential prejudice CRIMINAL LAW – appeal against conviction – appellant convicted of 6 counts of indecent assault against child under 16 contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to discharge jury where complainant did not answer questions in cross examination – whether appellant denied a fair trial – where unanswered questions did not take account of previous answers – cross examination of child complainants CRIMINAL LAW – appeal against conviction – whether trial judge erred in failing to discharge jury on the basis of impermissible communications with witness under cross examination – whether communications calculated to corrupt the witness’s testimony – whether convictions were unreasonable or unsupported by the evidence
Legislation Cited:	Crimes Act 1900 (NSW), s 61M Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 29, 306U Evidence Act 1995 (NSW), ss 11, 13, 55, 97, 137
Cases Cited:	DeVries v The Queen [2013] VSCA 210 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Hoch v The Queen (1988) 165 CLR 292 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 International Relief and Development Inc v Ladu [2013] FCA 1216 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Potier v R [2015] NSWCCA 130 Qualtieri v Regina [2006] NSWCCA 95; 171 A Crim R 463 R v Barton [2004] NSWCCA 229 R v Belford & Bound [2011] QCA 43; 208 A Crim R 256 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Verma v R (1987) 30 A Crim R 441 Versi v R [2013] NSWCCA 206
Category:	Principal judgment
Parties:	Abbott (a pseudonym) (appellant) Regina (respondent)
Representation:	Counsel: Mr Braddon Hughes SC/Ms Maeve Curry (appellant) Ms Helen Roberts (respondent) Solicitors: M Cronin (appellant) C Hyland, Office of the Director of Public Prosecutions (respondent)
File Number(s):	2013/345934
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any of the complainants referred to in the reasons of the Court of Criminal Appeal or any person related to or otherwise associated with those complainants is prohibited, on the ground that this order is necessary to avoid causing undue distress or embarrassment to the complainants.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 23 September 2016 Before: Craigie SC DCJ File Number(s): 2013/345934