AS v R

[2022] NSWCCA 291

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AS v R [2022] NSWCCA 291

Hearing dates:

30 September 2022

Decision date:

21 December 2022

Before:

Adamson J at [1]; Hamill J at [145]; Cavanagh J at [194]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where discrepancies in evidence about timing — whether discrepancies could be explained by complainant’s age — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 61M, 61O, 66A

Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:

BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387

Coughlan v TheQueen (2020) 267 CLR 654; [2020] HCA 15

Crickitt v R [2018] NSWCCA 240

Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21

GS v R [2022] NSWCCA 225

JN v R [2019] NSWCCA 287

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Johnston (1998) 45 NSWLR 362

Reed v R [2006] NSWCCA 314

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Z (apseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

AS (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Moutasallem (Applicant)
A Bonnor (Respondent)

Solicitors:
HepMac Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/288621

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 April 2021 (verdict)

Before:

Girdham SC DCJ

File Number(s):

2017/288621

HEADNOTE

[This headnote is not to be read as part of the judgment]

AS (the applicant) was charged with seven offences all related to acts of indecency and sexual intercourse against two children, contrary to s 61M, 61O and 66A of the Crimes Act 1900 (NSW). Following a trial by jury, the applicant was found guilty of five counts (counts 1-5 on the indictment) and found not guilty of two counts (counts 6 and 7 on the indictment). Counts 1 and 2 were alleged to have been committed against F, the applicant’s natural son, and counts 3-7 were alleged to have been committed against G, the son of his former partner.

The following is a summary of the facts in relation to counts 1 and 2. F’s evidence was that when he was between the ages of 3 and 5, the applicant used to play the “whizzle game” with him upstairs in the bathroom. F’s description of the “whizzle game” was, in essence, that the applicant and F would watch each other urinate. Subsequently, in F’s presence, the applicant would watch pornography on his phone while masturbating, and then attempt to masturbate F. If the applicant was unable to masturbate F, he would flick his penis, often resulting in F’s crying, and then lock F outside the house.

Some time after the alleged conduct, F’s general practitioner referred him to Ms Gilmour, a registered psychologist, because he was distressed and refusing to eat. Ms Gilmour saw F on about five occasions. In the first session, F expressed his fear of the applicant. At their fourth session, in response to F’s discussion about the applicant and the stress he was feeling, Ms Gilmour suggested he write down his worries and draw pictures in an art book, which she provided him. At the fifth appointment, F provided Mr Gilmour with an art book, different to the one she had provided him. F said he was given that art book when he was in pre-school (between 2012 and 2014) but uncontroverted evidence showed that the art book was first supplied by Big W from 11 October 2016. That art book contained three detailed drawings, all accompanied by descriptions, showing different instances of misconduct perpetuated by the applicant.

Counts 3 and 4 can be briefly summarised. G’s evidence was that one day, upon returning from a family trip to the park, the applicant was showering him (G required help in the shower as he could not see without his glasses). G’s evidence was that whilst in the shower, the applicant masturbated in front of him and then later touched G’s penis, “wiggling and … feeling it”.

Count 5 involved the applicant pulling down G’s pants, licking his fingers and then inserting them into G’s anus. G’s evidence was that when he told the applicant to stop, the applicant covered G’s mouth with his hand and said, “if you tell anyone I’m not going to be your father any more”.

The evidence relating to counts 6 and 7 was limited. G said in his police interview that the applicant would take him to the bathroom, they would urinate together, and then the applicant would play with both G’s and his own penis. G referred to this as “a wingle game or something like that”.

The applicant sought leave to appeal from his conviction and sentence pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) on a single ground, that the guilty verdicts for counts 1-5 were unreasonable. The particulars of that ground were first, that the guilty verdicts for counts 1 and 2 were unreasonable on the evidence, second, that the guilty verdicts for counts 3 to 5 were unreasonable on the evidence, and third, that the guilty verdicts for counts 3 to 5 were inconsistent with the not guilty verdicts for counts 6 and 7.

The Court held (Adamson J, Hamill J agreeing; Cavanagh J dissenting) dismissing the appeal:

Per Adamson J; Hamill J:

1. It was open to the jury to accept some parts of the complainant’s evidence and dismiss other parts. For example, it was open to the jury to reason that children can be imprecise about time, providing an explanation for the discrepancies in timings surrounding the drawings in the art books, but still believe the substance of what was portrayed in those drawings: [110]-[111] (Adamson J).

   BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387 discussed.

   (2)   Whilst the evidence on the applicant’s living situation made it unlikely that he slept in the house on the relevant date for count 5, this was not crucial to the Crown case. The evidence still showed that the applicant continued to visit and stay overnight intermittently during the relevant period: [122] (Adamson J); [180] (Hamill J).

2. Where an accused is acquitted of some sexual offence charges, it ought not be assumed that the jury did not find the complainant credible, particularly where guilty verdicts were returned on other counts. The evidence relating to counts 6 and 7 was considerably less detailed than counts 3 to 5, which related to the same complainant. This is sufficient to explain the different verdicts: [126], [128]-[129] (Adamson J); [190] (Hamill J).

   MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 considered.

Per Hamill J:

(4)   Whilst a child may give unreliable evidence about drawings and tell lies about surrounding evidence, they can be honest in their account of sexual abuse: [171] (Hamill J).

Per Cavanagh J:

1. In this case, the evidence about the scrapbook drawings was a matter of significance which could not be explained by the complainant’s young age and inaccurate recollection. The complainant’s evidence about the scrapbook could not be true. When combined with other aspects of the evidence, this should have caused the jury to have a doubt about the reliability of the complainant’s evidence. Where the Crown relied substantially on this evidence to establish counts 1 and 2, the jury ought to have had a doubt about the applicant’s guilt: [364]-[367] (Cavanagh J).

   BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387 distinguished.

2. In circumstances where there was no evidence contrary to the applicant’s statement that he was working night shifts when count 5 was alleged to have occurred, it was not open to the jury to reject this evidence without proper reason for doing so. It was not inherently unlikely. This and statements of other witnesses that the applicant did not stay the night at the premises during the period specified on the indictment and evidence about the sleeping arrangements should have caused the jury to have a doubt as to the guilt of the applicant in respect of count 5: [407], [409] (Cavanagh J).

3. In circumstances where the jury ought to have a doubt about the complainant’s evidence in relation to count 5, they ought to have had a doubt about his general reliability which impacts upon the conviction in respect of counts 3 and 4: [417] (Cavanagh J).

JUDGMENT

1. ADAMSON J: On 24 March 2021, AS (the applicant) was arraigned before Girdham SC DCJ and a jury on an indictment which charged the offences which are summarised in the following table. The applicant pleaded not guilty to all counts. All references to legislation in these reasons are, unless otherwise stated, references to the Crimes Act 1900 (NSW).

Count	Date/date range	Section/ offence	Complainant	Age of complainant
1	Between 27 September 2012 and 25 December 2013	s 61M(2): assault with act of indecency of child under 16 years (masturbated child’s penis in bathroom)	F	3 or 4 years
2	Between 27 September 2012 and 25 December 2013	s 61O(2): act of indecency towards child under 10 years (masturbated own penis in the presence of the child in bathroom)	F	3 or 4 years
3	12 May 2013	s 61M(2): assault with act of indecency of child under 16 years (touched and wiggled child’s penis in the shower)	G	8 years
4	12 May 2013	s 61O(2): act of indecency towards child under 10 years (masturbated in presence of child)	G	8 years
5	Between 31 October 2013 and 1 December 2013	s 66A(2): sexual intercourse with a child under 10 years under authority (inserted finger into anus of child)	G	9 years
6	Between 1 January 2012 and 25 December 2013	s 61M(2): assault with act of indecency of child under 16 years (grabbed and pulled child’s penis in downstairs laundry)	G	7, 8 or 9 years
7	Between 1 January 2012 and 25 December 2013	s 61O(2): act of indecency towards child under 10 years (touched his own penis in presence of child in the downstairs laundry)	G	7, 8 or 9 years

2. Counts 1 and 2 were alleged to have occurred on the same occasion, as were counts 3 and 4, and counts 6 and 7.

3. On 7 April 2021, following a trial by jury, the applicant was convicted of counts 1, 2, 3, 4 and 5 and found not guilty of counts 6 and 7. All charges alleged sexual offences against F, his natural son (counts 1 and 2), and against G, the son of his former partner, R, (the remaining counts). R was the mother of both F and G.

4. The applicant appeals against his convictions on the ground that the guilty verdicts for counts 1-5 were unreasonable. The particulars of the ground are as follows:

“a)   The guilty verdicts for counts 1 and 2 were unreasonable taking into account the whole of the material available.

b)    The guilty verdicts in relation to counts 3 to 5 were unreasonable taking into account the whole of the material available.

c)    The guilty verdicts in relation to counts 3 to 5 were inconsistent with the not guilty verdicts for counts 6 and 7.”

5. In order to address this ground, it is necessary to review the evidence in the trial to determine the adequacy of the evidence in support of the counts of which the applicant was convicted as well as to determine whether there is a basis on which the jury could have returned not guilty verdicts in respect of counts 6 and 7, having found the applicant guilty of counts 1-5.

The Crown case

Background circumstances

6. In 2007, G’s mother, R, commenced an intimate relationship with the applicant. R already had three children, two daughters, M and S, and a son, the youngest of the three, G, who was born in July 2004. They lived at R’s home in a suburb of Newcastle (R’s house).

7. F was born in September 2009. About a year later, in September 2010, the relationship between R and the applicant broke down which led to their separation. The applicant moved in with his own father.

8. Although they no longer lived together, the applicant would return to R’s house on occasions and stay overnight to help to look after the children.

9. The sleeping arrangements in R’s house changed from time to time, depending on who was living there. The house had three bedrooms upstairs and another room downstairs, which was eventually converted into a bedroom. At one stage, F and his mother slept in one bedroom, with F sleeping in a “car bed” or “toddler bed”. Later, F moved into the bedroom where there was a bunk bed and a trundle bed (the boys’ bedroom). When the applicant stayed overnight, he would either sleep on the lounge downstairs or trundle bed on the floor beside the bunk bed in the boys’ bedroom. G’s sisters slept in the third bedroom (the girls’ bedroom).

10. There was a bathroom upstairs which had a drain in the floor as well as a drain in the shower recess. There was a separate toilet downstairs in the laundry near the kitchen.

11. In about December 2011, R took two foster children, a boy and girl, into her care as their father, who was a friend of hers, had died. A, the foster son, used to sleep on the top bunk in the boys’ bedroom. The two foster children lived with R until about 2014 and were, therefore, living in the house at the time of the alleged offences.

12. From about 2012, R’s father, who then lived nearby, needed care as he had cancer. In about March 2013, “Aunty”, a neighbour, began to help R look after her father, whose health continued to deteriorate. From about that time, Aunty stayed at R’s house for a few nights a week. In June 2013, R’s father was moved in to R’s house. Aunty and R became intimate partners in about 2013. Aunty was still living in the house in 2021 when she gave evidence at the applicant’s trial.

13. In about October 2013, the applicant moved in with J, one of R’s brothers. On one occasion, the six children went to J’s place, where the applicant was living, and stayed the night there. There was an issue about whether the applicant had ever stayed overnight at R’s house after October 2013. This was significant to particular b) of the unreasonable verdict ground because count 5 was said to have been committed on 6 November 2013, when R’s father had stitches removed from his back and shoulder (G’s evidence related the sexual intercourse to that occasion). The applicant argued, at trial, that he could not be guilty of count 5 because he had not stayed overnight after October 2013. He relied on an affidavit sworn by R in Family Law proceedings (commenced by the applicant in March 2017, see below) in which she said that he had not stayed overnight after October 2013. R said in her evidence at trial that she had been mistaken about the date and that the applicant had stayed overnight after that time.

14. R’s father died in December 2013, shortly before Christmas. The applicant came to the house on the day of R’s father’s death to say goodbye to him. He returned on Christmas Day, 2013. The applicant also saw F and G on 31 December 2013, the day of R’s father’s funeral. The applicant did not see F again until contact visits began in late 2016, pursuant to an agreement between R and the applicant that he could see F at McDonald’s at Warners Bay (see below).

15. According to J (R’s brother), after their father had died in December 2013, the applicant stopped coming around to the house and R and Aunty made it clear to the children that the applicant did not care about them and was not interested in them (this was denied by R and her daughters, M and S, as well as Aunty). J regarded the applicant as a friend. He has not had contact with R since their father died.

16. Aunty recalled that the applicant contacted R in about November 2014 with a view to having contact with G and F. The applicant brought presents for them as Christmas was approaching. Aunty’s evidence was that the two boys did not want to see him. At some stage, Aunty tried to persuade F to see the applicant. R asked the children whether they wanted to see the applicant and they said no, a decision which R and, to her knowledge, the applicant at the time, respected. There was other evidence that R encouraged her sons to see the applicant.

17. It was an agreed fact that on 22 July 2016 the applicant took formal steps to have access to F. On 7 December 2016, the applicant and R attended a mediation session concerning the applicant gaining access to F. As a result of an informal arrangement between the applicant and R, the applicant was to have weekly access to F at McDonalds in Warner Bay. The first such visit occurred on 17 December 2016 and the second on 12 January 2017.

18. On 17 January 2017, R took F to her general practitioner, Dr Kabir, as he was stressed and not eating. Dr Kabir referred F to Jenni Gilmour, psychologist. On 18 January 2017, the applicant had a third access visit with F. An incident occurred during that access visit. Following this incident, the applicant did not have further access to F.

19. On 30 March 2017, the applicant commenced Family Law proceedings in which he sought orders that he have access to F.

20. As referred to above, on 24 May 2017, R swore an affidavit in the Family Law proceedings that there was no occasion after October 2013 when the applicant had gone to her home. In her evidence at trial, R said that she was mistaken about that and that the applicant had visited and stayed overnight after that time.

21. On 6 July 2017, F saw Jenny Richards, a family consultant, as part of the Family Law proceedings. On 7 August 2017, interim orders were made by consent which provided for the applicant to spend time with F.

22. On 17 August 2017, F saw Ms Gilmour for a consulting session and made the disclosures which are the subject of counts 1 and 2 (set out in more detail below).

F and G’s interviews and pre-recorded evidence

23. Ms Gilmour reported what F had told her on 17 August 2017 to the relevant authorities. As a consequence, on 18 August 2017, F was interviewed by police. He was, at the time of the interview, about 7 years and 11 months old. R took him to the interview. F gave pre-recorded evidence in June 2018, when he was 8 years and 8 months old and in Year 3 at the local public school.

24. F and G did not discuss what F had told police. On 14 September 2017, police contacted R and asked her to bring G to be interviewed by police. G was told one day after school that he needed to go and see the police and tell them what he knew. R took G to the police interview but did not tell him why he was being taken to speak to police or what F had told her about the applicant’s conduct. G was interviewed by police on 14 September 2017 when he was 13 years old. G gave pre-recorded evidence on 27 June 2018 when he was still 13 years old.

Counts 1 and 2: alleged offences against F

The circumstances of the alleged offences

25. F said that when he was 3, 4 and 5 years old, the applicant used to play “the Whizzle Game” with him upstairs “in our bathroom when we had an old bathroom before we got a new bathroom” in R’s house (where F was still residing at the time of the interview).

26. F described the Whizzle Game as follows:

“… two people stand at the toilet and pee in the toilet and watch each other pee. … And then after, one person sits down on the toilet lid and you watch them. You have to stand in front of them and watch them. And then [the applicant], he used to have stuff on his phone with like girls making weird noises like they were running. … And while that was going he always, he always used to pull his doodle out of his pants. … And pull his doodle up and down. And then after, he made this weird noise and then all white stuff came out of his doodle. … And he tried to do it to me and if it wasn’t working he used to keep flicking it until I cried and then after, when he was done, he used to lock me outside. And once, [F’s sister] brang [scil.] food and some water until Mum came back inside because [the applicant] wasn’t letting me inside. And also when [the applicant] got that white stuff out of his doodle he um, wiped it with a paper towel or something. And his doodle had weird old skin and, mmm.”

27. F said that the applicant would hold his phone in one hand and pull his own “doodle” (penis) up and down with the other. When the “white stuff” came out of the applicant’s penis, “he closed his eyes and looked up and he made a weird noise.” The white stuff came out of his penis and went on the floor. He cleaned it up with a paper towel or toilet paper.

28. The applicant would also lick his fingers and pull F’s penis, which was “fully straight”. F was crying and telling him to stop. As a consequence, the applicant called him a “brat”.

29. When F was asked who the applicant was (in relation to him), he said that he “was my Dad” but “I don’t allow him to be anymore … [a]fter all the stuff he has done to me … every time Mum was gone he did it … [w]hen I was in preschool.” F told the interviewer that he “hate[d] Father’s Day” because “everyone else has fun with their Dad”. F also told the interviewer:

“And by the way, I was afraid to tell anyone ‘cause he was going to kill me and if I told anyone and I went with him he said he was gonna hurt me even more.”

30. In his interview, F described the “old bathroom” before it was renovated, where these assaults occurred. He said that the applicant would play the Whizzle Game with him whenever his mother was away looking after her father, who was “really, really, really sick”. In cross-examination in his recorded evidence, F said that it happened more than ten times and “maybe more” than 20 times.

31. F said that he would be downstairs in the house and the applicant would tell him that he wanted “to show [F] something” and F would say, “No”, but the applicant would pull him up the stairs by his “arm, ear or hair” and take him to the bathroom and lock the door. F said that he was “crying” and if he tried to run out, the applicant would pull him back and throw him into the bathroom.

32. Afterwards, the applicant would drag F downstairs and throw him outside and lock the door. If they encountered any of F’s siblings along the way, the applicant would say, “Shush and don’t tell your Mum or anything.” The applicant told the other children to stay downstairs when he went upstairs with F “or they would be grounded forever” and “wouldn’t be able to have anything to eat forever.”

33. F said that the applicant stopped coming to the house before F’s grandfather died but after F’s grandfather had come to live with them.

34. F said that he saw the applicant at McDonalds (which other evidence established was in the course of agreed contact visits). On one occasion when F was playing in the playground, the applicant asked him, “Do you remember the Whizzle Game?” At that point, F “just froze”. The evidence did not reveal whether this question was the “incident” which occurred during the last contact meeting between the applicant and F but it was accepted that it was open to the jury to infer that this is what had precipitated F’s refusal to attend another such meeting.

Other evidence of the interaction between the applicant and F

G’s evidence

35. G said that he got on well with the applicant but said that the applicant “was quite cruel to [F].” In his recorded interview, G said:

“… this one time like he didn’t really like [F] so like he would have us kids with him and then like make [F] to go do something else. … sometimes if [F] was annoying him he would lock him out the front and then leave him there … but usually like [M, G’s older sister] would go and like stay outside with him and feed him and all that ‘til mum got home.

… I don’t remember the exact age but [F] was quite young. … [The applicant has] done it a couple of times. … [[F] was out the front] … until mum would text [the applicant] saying she was coming home then he would bring him back in.”

36. When asked what would precipitate this conduct by the applicant towards F, G said:

“… [F] wouldn’t really do anything sometimes like. If we were like watching a movie [F] would like ask questions like what’s happening and that and then he would get like the poops … and then go off at [F], slap him, and then throw him outside. … sometimes [the applicant] just slapped him like either like, like on his face or something. … Other times he used the belt and like got him on the leg or the bum and then take him outside and leave him there. … we told mum a couple of times and mum … like told him to stop and that but he never did stop.”

37. G also said that the applicant was “really mean” to F and swore at him and used “the F-word” and “the C-word” and called him a “grub” when F “got stuff around the face when he used to eat.” G said that F’s behaviour as a child had been better than his own had been. When the applicant was annoyed with F, he would sent him upstairs but, according to G, this did not happen when their mother was there because when she was at home the applicant would be “nice” to F “so then he wouldn’t get in trouble.”

38. The applicant would play PlayStation with G and F while he was at their house.

The evidence of G’s sister, M

39. M, the younger of G’s sisters, recalled “numerous occasions” in the period from 2012 to the end of 2013 when F was locked outside the house because the applicant had locked the doors to the house. On such occasions, M would go outside and take food to F and wait with him until their mother arrived home.

40. M recalled seeing the applicant, on these occasions, bring F downstairs, holding him by his wrist, throwing him outside, locking the door and leaving him outside by himself. M recalled that F was “crying and screaming”.

The evidence of G’s sister, S

41. S, the elder of G’s sisters, was in primary school when she met the applicant and was 24 when she gave evidence in June 2021. In the period from 2012 until the end of 2013, S recalled that the applicant would stay overnight at their house and sleep either on the lounge downstairs or upstairs in the boys’ bedroom on the trundle.

42. On multiple occasions, S saw F “put outside” by the applicant who did not want him inside. Sometimes, F would be “crying and whinging” and the applicant would take him by the arm or the side of his shirt and “take him outside.” On such occasions, S and M would play with him or take food to him and wait with him outside.

43. S said that she had had no discussion about the case with members of the family because she had been told that “everything was to be kept individually and we weren’t supposed to discuss anything with anyone else.”

Evidence of complaint by F

F’s evidence of his complaint to Ms Gilmour

44. F recalled that he saw Ms Gilmour on more than one occasion. F had not told anyone else before telling Ms Gilmour because the applicant said that he would kill F if he told anyone. However, F felt sufficiently safe with Ms Gilmour to confide in her. After he had told Ms Gilmour, he also told his mother. Later, he told his brother, G.

45. F saw Ms Richards once. This occasion was after he had spoken to Ms Gilmour. When he gave pre-recorded evidence, he could not recall whether he had told Ms Richards about the whizzle game.

Ms Gilmour’s evidence of F’s complaint to her

46. Ms Gilmour, a registered psychologist, who worked at the Jacaranda Centre at Cardiff, gave evidence in the Crown case that, following a referral from Dr Kabir, a general practitioner, she had seen F on about 5 occasions, the first of which occurred on 31 January 2017 and the last of which took place on 17 August 2017. (According to R, it was the applicant’s suggestion that F received some counselling.)

47. Each session lasted between an hour and an hour and a half. On each occasion, F presented as “agitated and stressed and distressed and upset.”

48. In the first session, F told Ms Gilmour that he was scared of his father and was “extremely determined that he didn’t want to see his father.” F told her that there had been an altercation at McDonald’s during a contact visit and that the applicant had hurt him many times. F was very traumatised about words his father had said to him during the last contact visit. F refused to enter Ms Gilmour’s consulting room at the first session because he was worried that his father would be inside.

49. At their fourth session on 5 May 2017, according to Ms Gilmour, the following occurred:

“He talked about being scared of his father and that was what he presented with in every session. He was concerned that he was going to be taken away from his mother and that his father was going to kill him, and that he was so worried about this he was not eating. He was, he had been losing weight, I know that. He had, he was feeling very stressed and agitated not, not doing as well as he would normally do at school.”

50. Ms Gilmour tried to reassure F in that session. She adopted a strategy of asking him to write down his worries and draw pictures of them. For this purpose, she gave him an art book in which he could draw or write. Ms Gilmour agreed that this strategy was “a fairly common therapeutic strategy for children”. She told him:

“He could write or draw his worries, anything that [was] bothering him. He could do anything he liked in that book, he could bring it back if he wanted to and we could talk about the worries that he had drawn in the book or written down.”

51. The next appointment took place on 17 August 2017. On that occasion, F arrived with a visual art book which was, according to Ms Gilmour, “much nicer” than the one she had given him. Ms Gilmour spoke briefly with F’s mother in the waiting room but, by that stage, F was comfortable coming into Ms Gilmour’s room for the session. Ms Gilmour described what happened as follows:

“On that particular day, so he came in holding a book. He had it across his chest and he sat down, and he said ‘I’m going to tell you something today’ and that’s how the session started – ‘I’m going to tell you something today’. And we, we pretty much went straight into looking, he handed the book to me pretty, pretty early in the session.”

52. Ms Gilmour took some time to look at, and read, the book. While she was doing so, F was talking to her but she was focussed on the pictures and the text. When she had finished, she asked F to explain the toilet drawing (see description below) and F told her that the applicant (F used the applicant’s first name and did not refer to him as “Dad”) would take F into the toilet and he could hear the noise of girls running on the applicant’s phone and the applicant would flick F on the penis, which he would call the “whizzle game”. F then told Ms Gilmour that the applicant would make a weird noise and white stuff would come out of his penis.

53. While F was telling Ms Gilmour about the picture, he was “[a]gitated, but determined and … resolved he was going to tell me what he was going to tell me.” Ms Gilmour asked him how he felt when that was happening and F said that he felt “scared and sad”. She also asked him how he felt telling her about it and F said, “I feel really embarrassed because you’re a girl, this is really embarrassing.” Ms Gilmour also said in evidence:

“[F] said that [the applicant] had told him it was a secret. He couldn’t tell anyone. He said he would kill him if he told someone, he would do worse things that what he’d already done to him and that, and, and [F] believed that. He was genuinely scared that he had now told me and that he was going to be killed.”

54. Ms Gilmour asked F about the chest of drawers drawing to which he responded as follows:

“He said that, so this was a picture of [the applicant] hitting him with a belt, and he said he used to hit him with a belt and lock him outside and call him names, and this was an example of something that had happened.”

55. Ms Gilmour did not ask F when he had done the various drawings in the book since she regarded that matter as of no consequence.

56. Ms Gilmour said that, at this session, F was “very scared” and “very determined” that he never wanted to see the applicant again. When F had finished talking about the pictures, Ms Gilmour told him that she would have to tell the police and that they would also need to tell his mother. F did not want her to tell the police because he thought that the applicant would kill him but he agreed to tell his mother. Ms Gilmour left F in her consulting room and went out into the waiting room to speak to R. Ms Gilmour spoke to R separately to attempt to manage her reaction when F told her what the applicant had done to him. Ms Gilmour brought R back into the consulting room and remained there while F told his mother about the conduct which comprised counts 1 and 2.

57. Although R recalled giving F the drawing book, she had not looked inside the book until 17 August 2017 when F explained the contents of the book to her in the presence of Ms Gilmour in her consulting room. R described F’s demeanour when he was showing her the drawings as “upset and embarrassed.”

58. Ms Gilmour told F that he was not going to be killed and that he had done the right thing in talking about it. She observed that, after this disclosure, F was visibly relieved, was smiling and that he also said that he was relieved. On the following day, 18 August 2017, F was interviewed by police (as referred to above).

59. It was put to Ms Gilmour in cross-examination that it was possible that someone had suggested the content of the drawings to F and that he had, in substance, drawn them because of outside influence. Ms Gilmour said that she had seen no evidence of that.

Drawings done by F

60. According to F, one day, when the other members of the household were otherwise engaged, he drew pictures in a drawing book while he was alone in the kitchen, sitting at the kitchen table. His mother had given him the drawing book when he was at pre-school (other evidence established that he was at pre-school in 2012, 2013 and 2014). R could not remember when she gave him the book. The uncontroverted evidence of Detective Senior Constable Matthew Davis was that the type of book was distributed nationally by Big W and was first supplied on 11 October 2016.

61. When F had finished the drawings he put the book in the bedroom which, at some stage, he shared with his mother (he later moved into the “boys’ bedroom” where he slept on a bunk bed). He did not show anyone what he had done.

62. F said in cross-examination in his pre-recorded evidence that no one other than him had drawn in the drawing book (apart from one page which was not relevant to the proceedings) and that no one had told him what to write. G confirmed in his pre-recorded evidence that he had not done any of the drawings or written in that book. Nor had he told anyone what to draw or write in that book. G said that he had seen the book in the “boys’ bedroom” but “didn’t know what it was so [he] just left it.”

The earliest of the drawings (the toilet drawing)

63. The earliest of the drawings showed three stick figures with bubbles coming out of their mouths to indicate thoughts or words. The stick figure on the left has a bubble with the words, “pleace [scil.] god keep me away from [the applicant]”. The second figure is standing in front of a toilet and has a bubble with the words, “I don’t want to play the wizzle game”. The third figure is sitting on the toilet and has a bubble with the words, “You will do what your [scil.] told you little fucker.” Under the drawing, the following words appear:

“I pray every night when I go to bed that god stops [the applicant] from coming near me. I wish I could tell Jenny [Gilmour] or Mummy all the things [the applicant] does to me but I’m to [scil] scared and embarassed as they are girls. Pleace [scil] god help me. I [am] alone and scared like no one[‘]s listening to me. Why would he want [to] hurt me?”

64. In the police interview, F said that he did the toilet drawing “ages ago”, before 2017, before he saw Jenny from the Jacaranda Centre (Ms Gilmour) and before his “Pop” (his mother’s father) came to live with them because he was so ill (which was in 2013). It was accepted that this evidence could not be correct because the drawing book was, having regard to the information on its barcode, first available in October 2016.

The second drawing (the chest of drawers drawing)

65. The second drawing depicts a stick figure marked with the applicant’s name with a bubble with the words, “I’ll kill you, your [scil.] a little cunt, I fucking hate you!” The second stick figure has a bubble with the words, “please God help me!” and another bubble, with the words, “please, he’s hurting me.” There is a chest of drawers in the drawing. Under the drawing, the following words appear:

“Yesterday I went to see Jenny. I had to speak about [THE APPLICANT]. I hate him so much! All the bad things he’s done to me. I feel sad and angry + when I’m near him. I never want to see him again.”

66. F said in his interview that he did the second of the drawings “after [he] saw the court Jenny” (Ms Richards). In his pre-recorded evidence, F said that he did the drawing before he saw Ms Richards.

Third drawing (the man with sharp teeth, carrying a jagged stick)

67. The third drawing depicted a man with two sharp teeth and hoofed feet, carrying a jagged stick. There was a small stick figure in the foreground with a bubble with the word, “run” in the bubble. On another page, there was some writing which said:

“Today I was feeling very brave because I told Jenny about [the applicant] touching me. I was embarrassed telling her but my secret is finally out. I hope I don’t get into trouble and they don’t take me away now. I really like speaking to Jenny. She makes me feel safe.”

68. F also pointed out this drawing to the police interviewer which was just a picture “with no writing”. The picture was “of him [the applicant] killing me with a knife ‘cause he said he was going to kill me.”

Expert handwriting evidence relating to the drawing book

69. The Crown called Dean Swift, a handwriting expert, who could not say conclusively whether the drawings and writings in the drawing book had been done by F, having regard to the other samples of F’s handwriting which had been provided.

70. The applicant’s trial counsel interposed his handwriting expert, Stephen Dubedat, who could not conclusively determine whether the writing in the drawing book was F’s handwriting. He also opined that there was “strong support for the proposition that two writers have written [a particular page]” and that certain entries appeared to be synchronous (having been done at about the same time).

71. Mr Moutasallem, who appeared for the applicant in this Court, accepted that the evidence of the handwriting experts “didn’t seem to take anyone anywhere.” He did not rely on it in support of the unreasonable verdict ground.

F’s complaint to G

72. G told the police in his recorded interview that F had told him that the applicant had taken F into the bathroom and made F stand there while the applicant touched and played with his “doodle” while he was “on the phone.”

Counts 3, 4, 5, 6, and 7: alleged offences against G

73. G was interviewed by police on 14 September 2017 when he was 13 years old. Initially, he was asked about F and the applicant. G could not recall the applicant living with his family at R’s house but recalled that “he’d come whenever he wanted to” and only “sometimes” stayed the night because “he wasn’t welcome to stay at night”. In his pre-recorded evidence, G said that what he had said in his police interview on this topic was not correct as the applicant “stayed whenever he wanted to … [and] was welcome to stay whenever he wanted.”

74. In his police interview, G recalled that the applicant “worked most days” but in his pre-recorded evidence, G said that sometimes the applicant worked at night. G said that the applicant would come and look after the children during the day if their mother “went out to do something” and would sometimes take them to school.

75. G told police in his recorded interview that he and the applicant generally got on well but that (as referred to above), the applicant did not get on with F and would swear at him and punish him.

76. After this topic was concluded the police asked G, at Q241, whether the applicant would do or say things and then ask G not to tell anyone. At that point, G became visibly upset and said:

“Um, yes but I don’t, don’t really want to talk about it, it’s a bit embarrassing.”

77. The questioning continued as follows:

“Q242   It’s a bit embarrassing is that one of those difficult questions?

A    Yeah.

Q243    O.K. You’re starting to get a little bit upset.

A    Yeah.

Q244    So was one of, when it was one of those difficult questions was it about you or someone else?

A    It was about me.

Q245    That’s O.K. There’s some tissues next to you.

A    Thank you.”

78. In the course of the questioning by police in September 2017, G told them about the conduct which constituted the charges referred to below. G said in his interview that it was the first occasion on which he had ever told anyone about any of the conduct which was the subject of counts 3, 4, 5, 6 or 7.

Counts 3 and 4: alleged offences against G on 12 May 2013

79. R’s evidence was that 12 May 2013 was Mother’s Day and that F had brought home a “Yogi bear” from preschool, having been instructed that he was to bring back photos of the bear while it was in his family’s care. The family, including the applicant, attended a Mother’s Day barbecue in the area next to the Dixon Park Surf Club. When the family returned home from the barbecue, the applicant accompanied them.

80. G told police in his recorded interview that one day the whole family (including A, the male foster child) went to the park because F had to have pictures taken in the park with a yogi bear that F received at pre-school. That evening, the applicant was showering G (who was then aged 8) in the upstairs bathroom. It was usual for someone to shower G because he could not see without his glasses as his vision became “all blurry”.

81. G said:

“Then after he like had to get the conditioner …. [to wash] my hair. … Then after he pulled down his pants and then like he squatted and the hand that was covered in the conditioner he was like started to like wank in the shower over the drain. … And then after he was done, he washed his hands he used like my towel and dried his penis off. And then after he got me out and dressed me and also watched me while I got dressed. … He touched my penis in the shower. … he was like, like wiggling and like feeling it.”

82. G’s mother, R, confirmed in her evidence that G needed assistance showering in 2012 and 2013 because he had problems with his vision.

83. G recalled in his police interview that on that day, the applicant “refused to shower [F].” G could not recall where the rest of the family was when he was in the shower but said that he thought that they were downstairs, although he did not remember.

84. In cross-examination in his pre-recorded interview, G could not recall whether he only needed assistance with showering when his hair was being washed. G denied that the applicant got into the shower with him and said that the applicant masturbated while he was outside the shower, near the door of the shower where the drain was.

Count 5: alleged sexual intercourse with G

85. G told police when interviewed in September 2017 that one night, when his grandfather came back from having stitches near his shoulder and G was sleeping in a bunk bed (A was on the top bunk) and the applicant was to sleep on the trundle bed in the same room, the applicant did the acts which constituted count 5. G said:

“And then after he told me to like roll over and then after he pulled down my pants and like licked his fingers and then after he put them up my butt. And then after I told him to stop he put his hand over my mouth and said, ‘If you tell anyone I’m not going to be your father any more’, and then it happened that night.”

86. G could not recall whether he had been asleep or not when the applicant came to him. At the time of the incident, it was dark but G could see the applicant lick his fingers because the moonlight was coming through the “glass”. In his pre-recorded evidence, G also said that there was “a little lamp that I got from mum, [which] had like fish and like animals and that on it.”

87. G also saw that the applicant was “on his phone” but turned off the phone before touching G. After the applicant rolled G over, G was facing the wall and the back of his pants (blue boxers with yellow stars on them) were down. When G was cross-examined in his pre-recorded evidence about how he knew that the applicant had licked his fingers, G said “[b]ecause you could hear it and I could feel it.” He said that he knew that the applicant’s phone was on because he could see the light from the phone “coming onto the wall.”

88. G did not “really remember” what had made the applicant stop but he thought that it was because his mother was coming upstairs but could not recall whether she had to go to work.

89. G explained in his police interview that he had not told anyone before about what had happened because the applicant had told him that if he did, he would not be his dad anymore and, at the time, G thought that he was his “real dad.” G learned in 2017, when F came home from school and told him, that the applicant was not G’s “real dad” although he was F’s “real dad”. G then asked his mother whether it was true.

Counts 6 and 7: alleged offences against G between 1 January 2012 and 25 December 2013

90. G also said in his police interview:

“And he used to do this thing, he called it like a wingle game or something like that … He would make me go to the toilet with him and we would have to pee together and then after he used to play with it then as well. … after he’d like start feeling it and grabbing it and pulling it … and obviously pulling his as well.”

91. G could not recall whether this had occurred before or after either of the two earlier incidents. He said that this incident had occurred in the downstairs laundry where there was also a toilet.

92. In his pre-recorded evidence in chief, G was not asked about the conduct which comprised counts 6 and 7. The cross-examination of G regarding these counts in his pre-recorded evidence did no more than put to G that the conduct comprising counts 6 and 7 (which the cross-examiner described from G’s police interview) did not occur, which G denied.

Subsequent events

93. As referred to above, after R and the applicant separated, there were Family Law proceedings, following which the applicant spent time with F at McDonalds. At the time, G wondered why the applicant was not asking the Court for permission to have time with G, a matter which made G “a little bit” angry.

The applicant’s police interview

Interview on 23 August 2017

94. The applicant was arrested on 23 August 2017. He participated in a recorded interview. He said that he lived with R “formally” and was not just staying overnight. He agreed that he babysat the children many times when R was out. He denied all the allegations put to him about sexual contact with F and G. The applicant said that he commenced Family Court proceedings to see F. He denied that he ever threatened F or swore at him. He also denied that he had ever locked F out of the house. He admitted that he yelled at G from time to time, including when he was acting as the coach of the soccer team in which G played.

95. The applicant said that after the first round of supervised visits with F, he suggested that F ought see a counsellor. This arose in the context of the following passage in the questioning:

“Q 159   Has there ever been any allegations before?

A   None whatsoever.

Q162    Yep.

To try and see my son, that's been the whole idea of trying to get back to know him like, you know, I can understand he's, he's hurt that I haven't been there but like, I've never done anything to hurt him or for him- to react the way he's reacting. So while we had the first round of supervised visits, I said to her, ‘Why don't we get him a, a counsellor or a psychologist, find out why he's reacting this way?’”

96. The applicant admitted that he sometimes watched pornography on his phone but said he did so in the bathroom with the door shut and denied that there was ever an occasion on which the children might have seen him watch it.

Further interview on 22 September 2017

97. The applicant was invited to participate in a further interview so that the allegations made by G (which G had disclosed to police in his interview which occurred after F’s interview) could be put to him. The applicant agreed to participate. He told police that, although he was not G’s father, G called him “Dad”.

98. The applicant said that he occasionally slept in the boys’ bedroom but mostly he slept downstairs in a single bed or on the lounge. The applicant denied the allegations which comprised counts 3-7 on the indictment.

99. It was accepted that, apart from one drink driving offence, the applicant had no other criminal record and was of good character.

Consideration

General principles

100. Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW):

“The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …”

101. The relevant principles which govern how an unreasonable verdict ground should be addressed were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ):

“1)   This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.

2)   It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.

3)   If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.

4)   A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant’s guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.

5)   A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. 

…”

[Footnotes omitted.]

102. Thus, this Court must determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. In other words, this Court must determine whether it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

103. In Pell, the High Court said further, at [53]:

“There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it.”

104. The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). This constitutional principle has certain consequences.

105. First, it will not generally be appropriate, where evidence has been pre-recorded or recorded, for the appellate court to review it to form its own view of the credibility of particular witnesses on the basis of their presentation, since this is the function of the tribunal of fact: Pell at [36]-[38].

106. Secondly, in an appeal such as the present one, the function of this Court must proceed on the assumption that the evidence of the complainants was accepted by the jury as credible and reliable: Pell at [39].

107. Thirdly, there are consequential constraints on the extent to which an appellate court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

“… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.”

108. Further, in assessing evidence of particular witnesses, particularly complainants, for the purposes of determining an unreasonable verdict ground, the experience of courts can be taken into account. This experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClelland CJ at CL and Sully J agreeing):

“Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.”

109. The experience of courts is also that it is not uncommon for children to be imprecise about time. Apart from their immature minds, they often lack the markers, such as diaries, and dated written records to assemble a chronology in their minds as to events. In BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387, the applicant argued that E’s (the complainant) failure to recall a particular detail and error about another detail resulted in an unreasonable verdict. The High Court said as follows:

“45   The fact that E said B had been present with her on the occasion of the sleepover and that she did not recall the foster children being there at the time were matters to be taken into account in assessing her reliability. However, they were not matters that were critical to the acceptance of her evidence of the offences. The Court of Appeal was right to treat as believable E’s explanation that she had not told her mother about the third incident because she was embarrassed about telling her how she had reacted to the assault and because she felt scared. …

46    The four inconsistencies in E’s accounts are to be considered in light of her age at the date of the offences, the interval between the offending and her first interview with Detective Enright, and the further interval between the interview and her evidence. On the essential features of her account of the offences E was consistent. She had woken from a nightmare in which a boy turned into a massive alien. She had gone into the applicant’s room and got into bed with him. The applicant had indecently touched her as she lay in bed next to him. Sometime not long after this first incident, the applicant had sought her out and taken her back into the bedroom, where he had indecently touched her in the same way. She had extricated herself from the situation by saying that she needed to go to the toilet. When she went into the toilet she had seen a hairy spider. E was also consistent in her account that when she got into bed next to the applicant, his wife was asleep on the other side of the bed. It was open to consider that her recollection of the wife’s earplugs was a damning detail.

47    None of the criticisms of E’s evidence discloses inconsistencies of a kind that lead, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to convict. It follows that the appeal must be dismissed.”

110. It does not follow from the court’s experience with respect to recollection of trauma and a child’s compromised ability to be precise about time that there is anything inappropriate about a cross-examiner testing a complainant on these matters. Indeed, Sully J, when agreeing with Spigelman CJ in Reed v R, said at [85]:

“… there are, in the very nature of things, some sexual assault trials in which the only practical means by which the accused person can exercise his right to test the evidence of his accuser is, precisely, by testing in some proper fashion matters of detail that could be fitted easily enough within the description: ‘surrounding tangential detail’.”

111. However, when assessing the evidence of such witnesses for the purposes of determining an unreasonable verdict ground, it is incumbent on this Court to take account of such experience as courts have gained through regularly hearing and assessing such testimony (and which may have been applied by the jury, using its collective wisdom and experience of life). To bring to bear the same considerations as might apply to assess the evidence of a witness to a non-fatal car accident or work accident (such as inability to recall tangential details, imprecision about time and delay in coming forward to give a version), in the context of evidence of a child complainant of sexual assault would be not only misguided but also inappropriate.

112. Further, while courts may have experience in particular areas (evidence of complainants in sexual assault trials or trials where a prosecution witness is criminally involved in the events the subject of the charge), this is not to say that judges have any particular wisdom above that of jurors in fact-finding (indeed, judges may not be as good at it and lack the collective wisdom that comes from the cumulative experience of twelve jurors). What to a judge may seem “implausible”, may be commonplace in the world but simply be outside the experience of that particular judge. It is important for an intermediate appellate court, when reviewing evidence following a conviction, not to discount it simply on the grounds of apparent implausibility, when a jury can be taken to have been satisfied that the evidence, whether plausible or not, was true and correct.

113. For example, it used to be thought that delay in complaint reflected adversely on a complainant’s credibility. This view was rejected by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 367, where his Honour said:

“There is no doubt that the criminal courts do have a body of experience that is not shared by the ordinary juror. For many years it was thought that practice with respect to warnings about complainants in sexual assault cases reflected such superior experience. It is now clear that the practice in fact reflected the limitations on the experience of judges, who were almost invariably male.”

114. Having set out the applicable principles, it is necessary to address the particulars of the unreasonable verdict ground.

Particular a) alleged unreasonable guilty verdicts for counts 1 and 2

115. An allegation of unreasonable verdict such as is made against the guilty verdicts in respect of counts 1 and 2 requires the Court to review the whole of the evidence (as I have done), which I have summarised above.

116. In substance, the reasonableness of the verdicts of guilty returned by the jury in respect of counts 1 and 2 depends on whether it was open to the jury to accept the evidence of F beyond reasonable doubt as to the conduct which comprised counts 1 and 2.

117. It was submitted on behalf of the applicant that F’s evidence in relation to the drawing book “contained discrepancies, displayed inadequacies, was tainted and otherwise lacked probative force” which meant that his evidence could not provide a sufficient foundation for proof of counts 1 and 2 beyond reasonable doubt. The applicant relied on the discrepancy between F’s evidence that he drew the toilet drawing when he was in pre-school; the uncontroverted evidence that the drawing book was first available for sale on 11 October 2016; and the evidence that Ms Gilmour had suggested that he draw his troubles in the course of the session on 5 May 2017. The applicant also relied on alleged discrepancies in F’s evidence concerning the storage of the drawing book.

115. Mr Moutasallem relied on the implausibility of the drawings in the drawing book having been done by a pre-school child, having regard to their relative sophistication. He submitted that F’s evidence about the toilet drawing was particularly significant because it depicted conduct which corresponded with the conduct comprising counts 1 and 2. He submitted that:

“… [F] lied about the timing of the drawings in the scrapbook to conveniently coincide with his allegations the subject of counts 1 and 2 that were said to have occurred when he was 3 or 4.

… the presentation of the scrapbook was worryingly too convenient, it appears to have been brought to the attention of the psychologist shortly after she suggests that [F] should draw or write about his worries in another scrapbook. The scrapbook appears to have arisen at the exact moment the [applicant]’s parenting case was starting to achieve a measure of success.”

119. Mr Moutasallem submitted in this Court that F’s error about the time could not be regarded as either “innocent or honest” in circumstances where F was giving evidence in 2018, the following year after he had done the drawings. Thus, Mr Moutasallem submitted that the jury (and this Court) could not exclude as a reasonable possibility that F was lying when giving his evidence about the drawing book and thus, that he was an unreliable witness whose evidence could not be accepted beyond reasonable doubt. Mr Moutasallem accepted that F’s statement that the toilet drawing was done in pre-school (at around the time of the conduct) “wouldn’t have been an idea that [F] probably came up with by himself.” It was not suggested on behalf of the applicant that anyone other than R (or R and Aunty) could or would have got F to say that he had done the toilet drawing in pre-school. The suggested motive attributed to R was that she bore the applicant considerable animus and did not want F to see his father.

120. As is evident from the extracts below, all of the submissions made to this Court by Mr Moutasallem about why F ought not be believed (and the corresponding acceptance by the Crown that F’s evidence about when he received the drawing book and when he did the drawings was wrong) were made to the jury at trial. Thus, the jury could consider, when determining whether they believed F to the requisite standard, the effect on his credibility of his error in saying when he drew the toilet drawing and for how long he had had the drawing book in which the pictures were contained.

121. The Crown said in closing:

“Can I move to thinking about the issues in the Crown case, the scrapbook? You heard through Detective Davis that the scrapbook that [F] wrote in wasn’t released until 11 October 2016. Now, in his interview with the police, [F] said he did one writing after he had seen court Jenny [Ms Richards], and the other one he said he did ‘ages ago’ was the term that he used. He said he did it in the kitchen and no-one else was around. He explained that he did the other pictures ages ago, before he saw any Jenny. Now, in some answers to some questions from Mr Sundstrom [trial counsel for the applicant], [F] said that mum gave her the scrapbook before he started school. Now, it will be obvious to you, members of the jury, that [F] can’t be correct about that when he says that he got the scrapbook before he started school, because the scrapbook hadn't been released yet.

So in terms of when he may have done the drawings and writings, you might be assisted by what is written in the document itself. So again, you’ve got exhibit 2. Take your time, go through it. This is what he writes: ‘Yesterday I went to see Jenny’. Now, you know he didn’t start seeing any Jenny until at least January 2017, so it must have been after that. And again, in the second picture there’s a reference to wanting to tell Jenny or mummy, which you might think means that he did the writing at some point after January 2017 and before he takes it to Jenni Gilmour in August of 2017, when he shows her the book. But what you make of that error is a matter for you.

Mr Sundstrom might suggest to you that this was a lie told by [F] and that you couldn’t accept anything he says to you, because he told a lie about when it was that he received the scrapbook. The Crown says perhaps you might not want to judge him so harshly, that yes, he made a mistake about when he received the scrapbook, but when you think about it, when he received the scrapbook probably wasn't all that important to him, but rather what he wrote in the scrapbook was of importance to him. But this is one of those factual matters that you'll need to talk about and consider for yourselves. At the end of the day, you give that inconsistency the weight that you think it deserves.”

122. In closing, the applicant’s trial counsel relied on the evidence of J that R and Aunty were badmouthing the applicant. He then reminded the jury of the progress of the Family Law proceedings and the circumstances that agreed access orders had been made on 7 August 2017. A substantial challenge to F’s credit was made as a result of his evidence about the drawing book in the following passage in the applicant’s closing address:

“So there’s that in the background your Honour and of course the issues surrounding exhibit 2, the exercise book, only reinforce that in my submission. When you look at the issue of the scrapbook I’ll call it, the first thing that’s noteworthy is this, and this comes from the enquiries made by the police when it was raised, that book was not imported into the country and made available until October 2016.

So whatever was done in the book can’t have happened before that date. However, [F] says in his evidence and it’s not just – it’s in two places. He gives his interview with the police. I’ll give you some reference to this and I’ll read some of it. On p 23 of [F]’s interview with the police at question 277, “When you drew…that’s your writing.” Then it goes on to question 285 and it follows on from that, “When mum bought…got me the book.” So that’s what he says when he’s being interviewed by the police about exhibit 2. He then goes on to the pre-record and you’ve got the transcript of this and he says in the pre-record on p 29 in answer to questions that were being asked of him that he did the first drawing in pre-school.

He did the writing on that drawing after he started seeing Jenni Gilmour and before Jenny Richardson. So he’s saying he did the drawing in pre-school, the second drawing before the therapist, after pop died, still at pre-school. And that’s at p 32 of the transcript. The writing on the second drawing, after the first Gilmour visit and before Jenny Richardson. The third drawing he says the writing was before Richardson and post the first Gilmour visit. The fourth drawing he said he doesn’t remember drawing it. The writing on the fourth one he might have done that but he doesn’t know.

He tells you a story on pp 35 to 37 about the storage of the book. Remember he said he had it in his book - I asked him whether it was a bookcase and he said, “No it’s a bookshelf” and it’s in this room and it’s this and that. Now as far the drawings were concerned, his evidence about that and the storage of the book, it’s just a fantastic story. He’s just telling lies because it can’t have been. He didn’t have the book at that time. It can’t be. Members of the jury when you’re looking at [F]’s evidence that’s contained in his police interview and his pre-record you might find his presentation, his demeanour a bit confronting and for this reason he seems very forthright and wanting to tell this and tell that and quite strong in what he says but when he’s telling these lies his presentation’s exactly same as when he’s saying anything else. Exactly the same. Have a think about.

You would, in my submission members of the jury be a bit concerned that that sort of presentation was there. That he can basically, my words, bald faced lie and look exactly the same as he did when he’s giving uncontroversial evidence like whether he was playing football or not and what he was doing. Where I’m taking you with this is that contrary to the Crown’s submission to you that [F] is a reliable witness and because of things that he alerted to you that were said and some things in the external evidence that might support what you said, this is his own evidence, his own evidence and it can’t be right. And it’s not just a mistake because, in my submission he’s made an elaborate story about it. When he got the book, when he drew the pictures, how he stored it in his house and all that sort of thing. None of which could be true before 2016. None of which could be true.

And he was in school by then. He said pre-school was three, four and five years old. He was born in 2009, he’s finished pre-school in 2014. So it’s just a lie. And so where does that take you in terms of [F]. He’s got to be unreliable. He’s got to be an unreliable witness. If you can lie like that about that thing and then the next step is that you’ve got to consider is well can we accept him on anything else? And how can you really when you think about it? I mean you might think well some of the other things might be possible but how do you ever get with [F] beyond reasonable doubt? How can his evidence rise that high? And look in terms of this case it’s the evidence of the boys that’s the important factor in the Crown case. The Crown case rises and falls on their evidence and my submission is, before I just move on from [F], you can’t accept what he said because of the lies.”

123. One of the directions given to juries is that they may accept part of the evidence of a witness and not accept other parts of that witness’s evidence. Thus, it was open to the jury to accept F’s evidence as to the offending conduct and not accept his evidence (which the Crown case proved to be incorrect) of when he did the toilet drawing in the drawing book. It can be taken from the jury’s verdict that the jury accepted F’s evidence of counts 1 and 2 beyond reasonable doubt although it was common ground that his evidence about the timing of the drawings and, in particular, the toilet drawing could not be correct.

124. It was open to the jury to reason, from their experience of life, that children can be imprecise about time. As referred to by the High Court in BCM v The Queen in the passage cited above, the jury, taking into account its collective experience of life, could regard F’s evidence about the timing of the drawing as neither affecting the credibility nor reliability of his evidence of the conduct which comprised the offences charged.

125. It was also open to the jury to reason that F’s incorrect evidence was immaterial since the overwhelming likelihood was that F only started doing the drawings after 5 May 2017 when Ms Gilmour suggested that he do so and provided him with a drawing book (although it was open to the jury to infer that he had done at least one of the drawings in the drawing book at some time between October 2016 and 17 August 2017). The relative sophistication of the drawings also implied that they were done at that time since it would have been unlikely for F to have the manual dexterity and word comprehension to be able to create such an image with words at pre-school age.

126. It was, in substance, submitted by the applicant to the jury and in this Court that F had a motive to lie arising from his desire to derail the access arrangements to which his parents had recently agreed and that he had picked up the animus expressed by R and Aunty towards the applicant. At trial, and in this Court, the Crown submitted that it was illogical to suppose that R would denigrate the applicant in the presence of F while at the same time agreeing (as she did on 7 August 2017) that he could have access to F. The Crown further submitted that it was open to the jury to infer that F had found out that the access arrangements with the applicant were about to be reinstated, which may have given him the courage to disclose the events which were the subject of counts 1 and 2 to Ms Gilmour when he next saw her on 17 August 2017.

127. It was open to the jury to reject the evidence of J that there was any such animus between R and the applicant (and accept the evidence of all other witnesses on the topic that neither R nor Aunty denigrated the applicant in the presence of F). Further, even if the jury accepted that F wanted to derail the access arrangements, it was open to the jury to regard this matter as strengthening the Crown case that F was fearful of his father because of the conduct in counts 1 and 2 and was very scared that his father would kill him if he thought that he had disclosed the conduct to anyone else. That the applicant had, on a recent contact visit, asked him whether he remembered the whizzle game may have reinforced F’s fear and the presence of the continuing threat. Further, it was open to the jury to accept the Crown’s submission that R would hardly denigrate the applicant to F while at the same time consent to access arrangements.

128. It was also open to the jury to accept F’s evidence that he had not told his mother about the conduct which comprised counts 1 and 2 and that F had to be persuaded by Ms Gilmour to tell his mother as Ms Gilmour would have to tell police.

129. Further, it was open to the jury to reject the defence case that R had, in effect, put up F to say that he had drawn the toilet drawing in pre-school and that he had lied in his evidence about that matter in order to give his evidence about the applicant’s conduct greater weight. It was also open to the jury to consider that, if the applicant had initiated the referral to the psychologist in the first place (as he said he had in his recorded interview), the applicant had suggested the referral only because he was confident that his threats to F would be sufficient to ensure that F would not disclose the real reason for his distress (the conduct which comprised counts 1 and 2) to a psychologist or to anyone else, including R.

130. The incorrect evidence given by F about the timing of the toilet drawing and other matters associated with the drawing book, including its storage, did not cause the jury to have a doubt about the applicant’s guilt of counts 1 and 2. It does not cause me to doubt his guilt of those offences. F’s evidence was corroborated in a number of respects, including by his own conduct in becoming disturbed and not wanting to see his father. That it took the considerable skill of Ms Gilmour to persuade him to disclose the reason for his fears at the fifth session is a powerful indication (which was open to the jury to accept) that he believed the threats which the applicant made to him that he would be killed if he disclosed the offences.

131. I am not persuaded that the verdicts of guilty for counts 1 and 2 were unreasonable.

Particular b) unreasonable verdicts for counts 3 to 5

132. The applicant submitted that the verdict of guilty for count 5 was unreasonable because the conduct was said to have occurred between 31 October 2013 and 1 December 2013 and was linked, in F’s evidence, to the procedure which R’s father underwent on 6 November 2013. Further, F’s evidence was that it occurred on a night when the applicant slept over at R’s house. The applicant contended that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant stayed overnight on 6 November 2013, and therefore that the verdict of guilty was unreasonable.

133. Mr Moutasallem contended that there was a “wealth of evidence” that the applicant had not stayed overnight after October 2013 and that, accordingly, even if the jury was satisfied that the acts which comprised count 5 occurred, it could not be satisfied that they occurred within the date range in the indictment. He submitted that, as the Crown had put its case on the basis that count 5 was committed on 6 November 2013, the verdict of guilty on that count was unreasonable, having regard to the preponderance of evidence against the applicant staying overnight at R’s house at that time.

134. The applicant highlighted R’s evidence in her affidavit in the Family Law proceedings that the applicant had not stayed overnight after October 2013. As referred to above, R said that this evidence was incorrect and that the applicant had, in fact, stayed overnight after that time. Thus, it was open to the jury to accept R’s evidence that the applicant had stayed overnight after October 2013.

135. It was not crucial to the Crown case that the applicant actually slept overnight on 6 November 2013 as long as the jury was satisfied that he had the opportunity to commit the offence (and did commit the offence) on 6 November 2013. Although the applicant no longer lived with his father after October 2013 as he had moved in with J, R’s brother, the evidence of R, Aunty, G’s sisters, and G was that the applicant nonetheless continued to visit R’s house whenever he wanted to up until the time R’s father died, including on the day of his death (and visited afterwards on Christmas Day and for the funeral). Aunty’s evidence was that, after she moved in (on 28 September 2013), the applicant continued to visit and stay overnight three to four times a week.

136. There was, thus, evidence on the basis of which the jury could have been satisfied that the applicant either slept overnight at R’s house in November 2013 or visited in the evening when G was already in bed, at the time of the alleged commission of the offence in count 5. In these circumstances, the jury’s verdict of guilty of count 5 is not unreasonable.

137. The allegation that counts 3 and 4 were unreasonable depended on a finding that the verdict for count 5 was unreasonable. Accordingly, they need not be separately addressed in detail. Any inconsistencies or inaccuracies in G’s evidence about the counts concerning him are readily explicable by reference to the experience of courts referred to above by reference to Reed v R. Juries appreciate, as does this Court, that recollection of an assault or other traumatic incident may be vivid but that tangential details may be forgotten or not even recorded in the complainant’s memory. Thus, a witness’s evidence about an assault may reasonably be accepted as reliable and credible notwithstanding that tangential details are missing or incorrect.

138. It is sufficient to observe that, having reviewed the evidence as a whole, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of counts 3, 4 and 5.

Particular c) Alleged inconsistency between the guilty verdicts in relation to counts 3 to 5 and the not guilty verdicts for counts 6 and 7.

139. Where a guilty verdict is alleged to be unreasonable, having regard to a verdict of not guilty which has been returned (particular c)), the focus of the appellate court is upon any explanation for the acquittal. The relevant test was stated authoritatively in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J (McClellan CJ at CL and Latham J agreeing) said:

“[128]   … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. …

…

[130]      Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.”

A   In mine and mum’s bedroom.

Q   And so were your clothes kept in that bedroom or somewhere else in the house?

A   They were kept in that bedroom. Some were downstairs.

Q   And so did you have, did you have a chest of drawers or a cupboard in which your clothes were, in your mother’s bedroom?

A   Yeah, I did have a chest of drawers.

Q   There was a chest of drawers, and was your bookshelf on top of that or in some other piece of furniture?

A   I don’t know.

Q   You don’t know. And you said that was in yours and mum’s room?

A   Yeah.

Q   So was this at a time before [Aunty] moved into the house?

A   [Aunty], yes it was before because [Aunty] didn’t live in our house yet, she still lived with her mum.

Q   Okay?

A   She just came over and visited. To help out with Pop.

Q   And so [F], did you sleep in mum’s bedroom until [Aunty] moved in or not?

A   When [Aunty] moved in I slept in the room with [G] and yeah. And [G].

Q   So when [Aunty] moved in, you then slept in the room with [G]?

A   Yep, and [Aunty] was there.

339. In this exchange, F identified where he kept the scrapbook and related it to the period before he moved out of the bedroom he shared with R, again relating that to when Aunty moved in. Again, that could not be correct.

340. As the trial judge said to the jury and as Ms Gilmour identified, the applicant’s conduct towards F was revealed through the scrapbook. Evidence about the scrapbook, including when F got it, where he got it from, what he did with it, when he did the drawings and when he did the writing was thus an important aspect of F’s evidence.

341. At least, on the Crown case, that which caused F to reveal the conduct of the applicant towards him was the technique of Ms Gilmour in providing F with a scrapbook and urging him to write and draw things in it about which he was concerned. According to Ms Gilmour, this appears to be a recognised technique.

342. Further, it is important to observe that on the Crown case, the drawings in the scrapbook were most likely done during the period May to August 2017, although it is possible that they could have been done any time after October 2016.

343. Accordingly, when he was being asked on 18 August 2017 questions about the scrapbook, he was being asked about a scrapbook which he could only have received in the months before he was being asked the questions and being asked about a scrapbook in which he could only have done the drawings in the weeks or months before he was being asked the questions, and possibly a very short period before he spoke to the Police.

344. F was being asked questions about something he did (on the Crown case) within three months, not years prior to being asked. The offending conduct happened years earlier. F doing the drawings could not have happened years earlier.

345. This case is different from BCM because it does not merely involve a child being wrong about something that happened years earlier when asked to estimate a time or forgetting when something had occurred. F gave specific evidence as to what he did with the book and where it was kept, directly referable to when he was sharing a bedroom with his mother, that is, prior to October 2013. F related the time when things happened to other events such as being in pre-school and before Pop came to live with them.

346. Of course, he also said that the conduct the subject of the charges happened whilst he was in pre-school. Thus, he was identifying doing the drawings around the time of the terrible conduct by the applicant towards him. F’s statements to the Police when first made were not vague or non-specific. He was able to recall actual words spoken by the applicant to him when he was 2 or 3 and sequences of events, that is the sequence starting with him saying he did not want to play The Wizzle Game, to then being pulled upstairs into the bathroom and then the acts of the applicant in looking at his phone, the sounds of girls on the phone, the applicant doing things to his own penis until white stuff came out and then the applicant wiping it with a paper towel and then pulling F’s penis and then him being dragged down the stairs.

347. F was in Year 2 when he participated in the Police interview. He was in Year 3 when he recorded his evidence. He must have known that he was in preschool before he started school and that he was last in preschool three years earlier.

348. F’s evidence about the scrapbook could not be true in a number of respects, including:

1. The applicant made him play The Wizzle Game when he was four and five;

2. When he got the scrapbook;

3. When he did the first two drawings; and

4. What he did with the scrapbook after he did the drawings.

349. Even if F might have been confused as to precise years and dates, he identified a time with reference to an important event, being when Pop came to live with them. This evidence could not have been correct. In respect of the toilet drawing, his statements changed between the interview and the recorded evidence as on the first occasion he said it was before Pop died and on the second occasion after Pop died but still whilst he was in preschool.

350. He was asked whether R bought him the book whilst he was at school “like where you are now”. That might have been viewed as leading him in a certain direction, but he responded saying “No it was before that”, again specifically saying that he was in pre-school when R bought him the book. That evidence could not be correct.

351. He was asked what he did with the book. He said he kept it at home. He said he did not take it to preschool. He kept it on a bookshelf in one of the cupboards in his bedroom being the bedroom he was sharing with his mother at the time. He described where the cupboard was in the bedroom. He said he had a chest of drawers in the bedroom. He said it was before Aunty moved into the house. Again, he must have been referring to a date prior to October 2013, as he stated that he moved out of his mother’s bedroom when Aunty moved into the house. Again, this evidence could not have been correct.

352. He also referred to S being in the house when he did the drawings. S moved out of the house in 2016. That evidence could not have been correct.

353. It is difficult to accept that all of this evidence could be reflective of a confused memory. A child in Year 3 knows that he is in Year 3 and knows when he has been in Year 2, Year 1 and Kindergarten. He knew when he was in preschool and when he had been at preschool. He knew when Aunty had moved in and when Pop moved in. He knew when he had moved out of R’s bedroom.

354. Further, it must be that, on the Crown case, the revealing of the applicant’s conduct by F was something that F must have thought a lot about because not only did he do the drawings, but he composed and wrote the sentences underneath the drawings indicating his feelings and attitude towards the applicant and identifying that he was only revealing it at that time through the scrapbook because Jenni made him feel safe.

355. It is one thing to forget or be wrong about a timeframe. It is another to make a statement about doing something which could not possibly have occurred. That is, he could not have kept the scrapbook in the bookshelf in R’s bedroom whilst he was sleeping in R’s bedroom because the scrapbook was not in existence at that time. He could not have done the drawings while S was in her room as S had moved out before he got the scrapbook.

356. Further, regard should be had to other aspects of F’s evidence which, to say the least, is unlikely to be accurate. During the JIRT interview, he went from starting with one occasion of The Wizzle Game to specifically saying that it happened when he was three, four and five and happened every time that the applicant was there, that is, when he was in the home and R was out, the applicant would do all of the following:

1. Engage in the conduct said to be The Wizzle Game;

2. Hit him with a belt; and

3. Lock him outside.

357. Children may tend to exaggerate. Some exaggeration may be of the type that does not impact upon the truthfulness of the critical evidence. The things that F said the applicant did to him (that is, he did it every time he saw him) might have grown in his mind over time. Further, the jury would not have considered that F’s recollection about the things the applicant said to him and the words he used when threatening him would be as precise as F seemed to recall. F’s statements as to what the applicant said must be treated as words to that effect or type. It was open to the jury to have treated them so but it is also important to observe that the applicant has been convicted based on the statements made by F when he was 7 and 8 about what happened to him when he was three. That is why it was necessary to approach F’s evidence with care assessing it for reliability and accuracy.

358. Perhaps some exaggeration by a child about such conduct might be disregarded in assessing the overall reliability of the evidence, but in my assessment, it is a factor that the jury ought to have taken account of in assessing the reliability of his evidence.

359. There are aspects of F’s evidence which, on an examination of the whole of the record, could not be correct. F said that the applicant said during his first access visit at McDonald’s (a public place) “Remember The Wizzle Game”. According to F, the applicant also threatened to kill him whilst they were at McDonald’s.

360. The arrangement was obviously that the applicant could have access in a public place, that is, McDonald’s in the playground. The applicant had initiated the process to have access, yet on the very first occasion that he had access in a public place, according to F, the applicant reminded him of The Wizzle Game and threatened to kill him before just leaving and slamming the door behind him. R said that she was there supervising her son, yet she made no mention of this incident on the first access visit during her evidence.

361. Further, when asked if he wanted to say anything else he said:

Q320   Righto. That’s O.K. So is there anything else you haven’t told me that you think I should know?

A   That he didn’t give me any food, anything. He whacked me with the belt and didn’t do anything with me that was fun or, at all.

Q321   When did he whack you with the belt?

A   Every time Mum was here and wasn’t here.

Q322   O.K. And what did you do to get whacked with the belt?

A   Nothing.

Q323   O.K.

A   He just whacked me with the belt.

Q324   Where did he get the belt from?

A   His drawer.

Q325   His drawer?

A   Yeah.

Q326   O.K. And where was his drawer?

A   His drawer was um, well, he brang belts from his house - - -

Q327   Ah.

A   - - - to our house.

Q328   O.K. So did he have clothes at your house?

A   Mmm, he brang clothes.

Q329   Did he? And where did he put those?

A   On the lounge or on the floor.

362. When talking about the use of the belt, F initially said he kept the belt in his drawers and then changed, saying the applicant would bring the belts. Again, when viewed in isolation, this may not be significant, but it is another statement by F which required close examination. It is notable that the first drawing in the book, being the drawers drawing, is of the applicant with a belt and includes a chest of drawers. This rather emphasises the importance of the scrapbook in the process of F revealing the conduct. There was no evidence from either M or S, who were teenagers at the time and F said were in the house at the time, of witnessing the applicant strike F with a belt, despite the frequency with which F said it occurred.

363. The matters to which I have referred are all aspects of F’s evidence which the jury was required to consider, along with all of the other evidence in assessing the reliability of F’s evidence.

364. In my view, they are matters of some significance and not matters which can be explained by F’s young age and inaccurate recollection of things that happened years earlier. The offending happened approximately four years earlier, that is when F was three. He maintained when asked by the Police and in cross-examination that he did the drawings in pre-school, being within the same timeframe as when he said the offending conduct occurred. The Police did not lead him down that path and he expressed no uncertainty about it. He could have said he did not remember.

365. The problem is that his evidence about the scrapbook could not be true. That could not have been an error in recollection as he was talking about things he actually did (on the Crown case) a short time before he was being asked about them.

366. In my view, the matters to which I have referred ought to have caused the jury to have a doubt about the reliability of his evidence.

367. In circumstances in which the Crown relied substantially on F’s evidence to establish Counts 1 and 2, the jury ought to have had a doubt about the guilt of the applicant and in my view the applicant is entitled to succeed in respect of Counts 1 and 2.

Counts 3, 4 and 5

368. Each of Counts 3, 4, 5, 6 and 7 related to conduct involving G when he was either eight or nine. G first disclosed the conduct during the course of the JIRT interview with the Police on 14 September 2017 as part of the Police investigation into the matters revealed by F on 18 August 2017.

369. Having answered questions about matters relating to the applicant’s general behaviour and what he observed in respect of F (to which I have already referred), G was then asked whether there were any other matters he wanted to talk about. He then disclosed each of the three separate events which gave rise to Counts 3 to 7 in a sequence or narrative. When asked whether there were any more matters, he said, “No just those three.”

370. The only evidence relied upon by the Crown in support of Counts 3, 4 and 5 (other than the tendency evidence) was the evidence of G. There was no evidence of any other person in the house witnessing or hearing about it.

371. G said that he was threatened by the applicant to the effect that he said he would not be his Dad anymore if he told anyone. G said that at the time he believed that the applicant was his Dad, not finding out that he was not his Dad until 2017. G agreed that the applicant not seeking to see him made him angry.

372. G’s evidence at trial thus consisted of the JIRT interview of 14 September 2017 and his pre-recorded evidence taken on 27 June 2018.

373. Like F, G was cross-examined in an age-appropriate manner as is apparent from the transcript. There had been agreement as to how this would happen. Cross-examination thus proceeded along the lines of G being reminded of that which he said to the Police, being asked limited questions about it and then being asked to state in respect of each statement whether it was true or false. The trial judge directed the jury to the effect that they should not infer or think that the statements made by G (and F) were not the subject of strenuous challenge by the applicant because of the way in which F and G were cross-examined.

374. The evidence of G as to Counts 3, 4, 5, 6 and 7 first emerged during the Police interview. I will include it all as it is important to consider everything that he said:

Q241   O.K. Was there any other times that he would do things or say things and he’d say, tell you not to tell anyone?

A   Um, yes but I don’t, don’t really want to talk about it, it’s a bit embarrassing.

Q242   It’s a bit embarrassing is that one of those difficult questions?

A   Yeah.

Q243   O.K. You’re starting to get a little big upset.

A   Yeah.

Q244   So was one of, when it was one of those difficult questions was it about you or someone else?

A   It was about me.

Q245   That’s O.K. There’s some tissues next to you.

A   Thank you.

Q246   All right. Well in here kids tell us everything, all sorts of things because what we are here to do is to help you. O.K. We work for children, with children to help children. We don’t judge children, we like to think that you can talk to us because that’s what our job is. It’s to enable you to tell us things that maybe you can’t tell someone else. Is there something that happened between you and [the applicant]?

A   He like yeah.

Q247   Can you me what it is?

A   Ah, it was um, it was one time my Pop he came back from his um, this … he had like to get stitches here ‘cause like near is shoulder - - -

Q248   Yeah.

A   - - - ‘cause he like had this lump - - -

Q249   Yeah.

A   - - - it was that night something happened. I was in bed - - -

Q250   Ah hmm.

A   - - - and he was on the trundle bed.

Q251   Yep.

A   And then after he told me to like roll over and then after he pulled down my pants and like licked his fingers and then after he put them up my butt. And then after I told him to stop he put his hand over my mouth and said, “If you tell anyone I’m not going to be your father any more”, and then it happened that night. And then this other time [F] had like this Yogi Bear like teddy that he got preschool.

Q252   Ah hmm.

A   And like we had to go to the park ‘cause like the thing was he had to take pictures with it - - -

Q253   Ah hmm.

A   - - - like with the bear prove that like he was actually doing an assignment from his preschool.

Q254   Yeah.

A   - - - And then after we got home and like it was later that night I, like I had a shower and he was showering me.

Q255   Mmm.

A   Then after he like had to get the conditioner - - -

Q256   Yeah.

A   - - - like had it, like washing my hair.

Q257   Ah hmm.

A   Then after he pulled down his pants and then like he squatted and the hand that was covered in the conditioner he was like started to like wank in the shower over the drain.

Q258   Ah hmm.

A   And then after he was done, he washed his hands he used like my towel and dried his penis off. And then after he got me out and dressed me and also watched me while I got dressed.

Q259   O.K. Did he touch you that time?

A   Yeah.

Q260   And when he touched you that time what did he do in the shower?

A   He touched my penis in the shower.

Q261   And what did he, when he touched your penis what did, how, tell me how he touched your penis?

A   Like he was like, like wiggling and feeling it.

Q262   O.K.

A   And - - -

Q263   And that was when Pop had had stitches out was it?

A   - - - and then the other times were after.

Q264   O.K. Pop had stitches out and then there was the bear in the park. Is that right?

A   Yeah.

Q265   That was the two times.

A   And he used to do this thing, he called it like a wingle game or something like that.

Q266   Mmm.

A   He would make me go to the toilet with him and we would have to pee together and then after he used to play with it then as well.

Q267   And when he played with it, what did he, how, can you describe to me how he played with it?

A   Like, he would like do this - - -

Q268   Yeah.

A   - - - and then after he’d like start feeling it and grabbing it and pulling it - - -

Q269   Ah hmm.

A   - - - and obviously pulling his as well.

Q270   At the same time.

A   (NO AUDIBLE REPLY)

Q271   And do you remember how old you were when that happened?

A   No I don’t remember how old I was.

Q272   O.K. Was, do you remember if that was before Pop came to stay?

A   No I don’t remember how old I was.

Q273   You don’t remember. But one time with the fingers in the your bottom.

A   (NO AUDIBLE REPLY)

Q273   - - - was when Pop had stitches in his shoulder, is that right?

A   Yeah it was like his shoulder like here.

Q274   Yeah. Yeah. And the other time was you had to do a project with [F] with bear in the park.

A   (NO AUDIBLE REPLY)

Q275   All right. So was there any other time anything happened?

A   No, not that I can remember, those three yeah.

Q276   Have you ever told anybody?

A   No.

Q277   So is today the first time you’ve told someone?

A   Yeah.

375. The first event described by G was that which led to Count 5. G identified that the time that it occurred was when Pop came back from having a procedure involving stitches. That night he was in bed and the applicant was on the trundle bed. The applicant told G to roll over, pulled down G’s pants, licked his fingers and put them in his “butt”. When G told the applicant to stop, he put his hand over his mouth and said, “If you tell anyone I’m not going to be your father anymore”.

375. G then went on to describe Counts 3 and 4 with reference to the time that F was in preschool and had the Yogi Bear and they went to the park. This appears to have been a Mother’s Day picnic. G said that later that night, the applicant was showering him and he had to get the conditioner and was washing his hair. The applicant pulled down his pants and squatted. The applicant then used the hand that was covered in the conditioner and “started to like wank” in the shower over the shower drain. G then said that after he was done he washed his hands and used G’s towel and dried his penis off. He then got out of the shower and the applicant dressed him and also watched him while G got dressed.

376. G was asked whether the applicant touched him at that time and G said he touched his penis in the shower like he was “wiggling and like feeling it”.

377. After describing the conduct leading to Count 6, G said there were no other incidents of a sexual nature towards him.

378. In cross-examination, G was taken to what he had said in the Police interview. When he was reminded of things he said in the Police interview, such that he saw the applicant lock F outside a couple of times or that he saw the applicant slap F or that the applicant was cruel to F, he agreed with those things. The cross-examiner then went further through G’s statement, putting a series of statements to G and asking him to say whether they were true or false. He was asked questions about the need to be showered as follows:

Q   You said, question 254, after you got home you had a shower and “he was showering me” – do you mean [the applicant]?

A   Yeah.

Q   [G], why was [the applicant] showering you.

HER HONOUR: He can’t answer that.

SUNDSTROM: All right, I withdraw the question.

Q   [G], this is back when you were eight or nine years old?

A   I don’t remember what age I was then.

Q   Were you not able to shower yourself?

A   … (not transcribable) ..

Q   Did somebody or other in the family have to assist you to have a shower back in those days?

A   (No verbal reply)

CROWN PROSECUTOR: Sorry, your Honour, he nodded perhaps ask for a verbal answer.

SUNDSTROM

Q   We need to get it on recording. [G], can you answer the question?

A   Beg your pardon, sorry?

Q   Instead of nodding, were [are] able to say yes or [not] to that?

A   For what question sorry?

Q   The question was were you unable to – did you require assistance with your showering?

A   So if I needed assistance?

Q   Yeah?

A   Yes, I did.

Q   Why was that?

A   I don’t remember.

Q   Was it because you had problems with your vision?

A   Yeah, that’s some of it.

Q   Who would regularly assist you when you needed assistance showering?

A   Mostly [the applicant].

Q   Usually [the applicant]?

A   (No verbal reply)

Q   What if [the applicant] wasn’t there?

A   Then Aunty would have to or mum first but if not then Aunty would.

Q   Or one of your sisters perhaps?

A   Some – sometimes they would.

Q   Was it just to wash your hair that you needed assistance or was it for - -

A   I don’t remember.

Q   Well, in any event, you said that on this occasion that you’re talking about [the applicant] was showering you?

HER HONOUR

Q   You’re all right [G]?

A   Yeah.

380. When asked why he needed assistance, G said he could not remember but then when reminded of his problems with his vision he said, “that was some of it”. He did not remember whether it was just his hair with which he needed assistance.

381. He was then asked about the events he had described as happening in the shower. He agreed that the applicant had pulled down his pants in the shower while the shower was still running and whilst he (G) was still in the shower.

382. His evidence was as follows:

Q   So if he squatted over the drain in the shower he would have been right in the shower wouldn’t he?

A   The drain of the shower is near the left hand corner where you open the, what’s it called, the line thingy that’s with the shower.

Q   So it’s near the door of the shower?

A   Yeah.

Q   You said he pulled down his pants. Can I ask you this, was, do you remember what colour his [pants] were?

A   No I don’t remember.

Q   Was he wearing long pants?

A   I think he was wearing short pants.

Q   Shorts, short pants. Was the shower still running?

A   Yeah.

Q   He was in the corner of the shower?

A   (No verbal reply)

Q   Where were you at that time?

A   In the shower.

Q   You said that he touched you, you said that he touched your penis while you were in the shower?

A   I don’t remember saying that.

Q   You don’t remember saying that?

A   Don’t remember.

Q   You said this was about the time that Pop had stitches out?

A   Yeah.

383. R said that G needed assistance with washing his hair. There was no explanation of why this would have been such that the jury was left with the evidence that G must have had some visual impairment and, as he said, things became blurry in the shower, although he initially said that he did not know why he needed assistance showering.

384. It would be unusual for a boy of that age to require assistance with showering, but G said that the applicant normally showered him and, if the applicant was not there, it was either R or Aunty.

385. G said the applicant dressed him after showering him on this occasion.

386. On G’s description of what happened in the shower that night, things could not have been blurry because G gave a precise description of what happened, including stating that he saw the applicant with the conditioner and that his hand was covered in the conditioner.

387. These are all matters which the jury was required to consider, assessing G’s evidence cautiously for its reliability and accuracy.

388. The applicant said he had not showered G or F since they were toddlers (about the age of two). He said it was not his area. He left that to R. At most, when he was looking after the kids, he would open the door and pop his head in and just ask if they were okay. Plainly, the jury must have rejected the applicant’s evidence.

389. The jury may have had a concern about G’s statement in cross-examination that he could not remember telling the Police that the applicant touched his penis (which is the subject of Count 4), bearing in mind that he was asked about it in his pre-recorded evidence only nine months after he told the Police about it. The jury must have accepted, that although G could not recall telling the Police that the applicant touched his penis, what he said to the Police nine months earlier must have been correct.

390. Further, although he could not recall telling the Police about it, when he was asked as part of a series of questions and answers whether the statements were true or false, he maintained that it was true that the applicant had touched his penis whilst in the shower.

391. In my view, there could be an inconsistency between being unable to recall and then stating it was true but, it may be that the jury reasoned that he was only saying that he could not recall telling the Police about it as opposed to not recalling it happening. The jury might have reasoned that G’s evidence that he could not remember saying it to the Police did not mean that he could not remember the applicant actually doing it.

392. G’s evidence that he needed assistance with washing his hair because of vision problems at the age of 8 and his evidence that he was able to see the conditioner (and that he could identify that it was not shampoo or anything else), on the applicant’s hand is difficult to reconcile.

393. In considering Counts 3 and 4, these are matters which might (not necessarily ought) have caused the jury to have a doubt, but it was a matter for the jury to assess the evidence, in circumstances in which there is no surrounding evidence, objective facts or evidence of other persons which might bear upon any inconsistencies in G’s evidence and the conflict between G’s evidence and that of the applicant.

394. Having said that, the reliability of G’s evidence must be considered also in the context of Count 5.

395. Count 5 is different because the applicant points to evidence of other persons and matters in support of his contention that he did not sleep over at the house at the time the offending is said to have occurred. According to G, on the night that Pop had a procedure done involving stitches (which is agreed as 6 November 2013) the applicant was sleeping in the trundle bed in the boys’ bedroom. At some stage during the night, the applicant told him to roll over, pulled down his boxer shorts, placed his fingers in his “butt” and placed his hand over his mouth and threatened him that he would not be his Dad anymore if he told anyone. When asked about how he knew that the applicant had licked his fingers before placing them in his butt, G said that he could see it in the moonlight through the window and could feel it.

396. The applicant’s main contention in respect of Count 5 is that he did not and could not have done it because he did not and could not have been staying the night on that night.

397. The applicant’s contention that he did not stay the night at that time is consistent with both what R and Aunty said prior to giving evidence in these proceedings. As emerged during cross-examination, R had prepared an affidavit for the Family Law Court proceedings in 2017. She stated that the applicant did not stay overnight after October 2013 (again, this is a general reference to when the arrangements in the house changed with the arrival of Aunty and Pop).

398. When this was put to R in cross-examination, she said she was mistaken in her affidavit. The jury must have accepted that, although it is difficult to understand why she would have had a clearer recollection of when the applicant stayed over when giving evidence in 2021 as opposed to when she prepared an affidavit for the purposes of the dispute over access in 2017.

399. In her evidence-in-chief, Aunty said that, during this period, that is after she moved in, the applicant used to come over two or three times a week, often picking up the kids from school and bringing them home. However, although her statement prepared for these proceedings was not in evidence, she was taken to what she said in her statement in cross-examination. She had said in her statement that after the six children had gone to stay at JO’s house, there were no more overnight visits. That is, the applicant did not stay overnight at the house. Her response to being reminded of that was to say she could not recall as it was four years earlier.

400. Her statement cannot be reconciled with her evidence-in-chief about her recollection of how often the applicant was coming over during that very same period.

401. Further, AF agreed in cross-examination that the applicant did not stay over at the house after October 2013. The applicant’s contention is thus consistent with AF’s evidence as well. His contention is also consistent with the general observations of J as to what was happening in the house and the attitude of R and Aunty towards the applicant.

402. By that time, that is, November 2013, there were three boys sleeping in the boys’ bedroom as F had moved out of his mother’s room and into that room. F said he slept on the bottom bunk and G slept on the top bunk, whilst AF slept on a mattress on the floor. F gave evidence as to the sleeping arrangements as follows:

Q. At that time was [the applicant] sleeping in the boys' room or not?

A. When I moved into the boys' bedroom - well [the applicant] never lived in our house, in mum's house, he lived with his Pop.

Q. Well did [the applicant] stay in the house overnight?

A. When he didn't, when he didn't, when he was too tired and he didn' t feel like going home he just slept on the trundle bed. But when I moved into the boys' room he stopped staying.

Q. So when you--

A. I moved into the boys' room .

Q. And he stopped staying in the house?

A. He stopped coming to the house which was good.

Q. So after you moved into the boys' bedroom was there any time that [the applicant] stayed overnight?

A. No.

403. Evidence of the older children such as M, S and RF did not have any bearing on the issue. They were not directed to the time after Aunty and Pop moved in, the questions being directed broadly to the whole period.

404. There is another matter which, in my view, is significant, being that the applicant said he was working night-shift during this period for a transport company. He worked night-shift Monday to Friday. He occasionally worked Saturdays but did not work Sundays. He said he finished work at 8.30pm. It is not clear on the evidence where he would actually finish work but, by this time, he had moved into JO’s house.

405. That is, unlike earlier in the year, when it might have been convenient and of assistance for him to have stayed the night, there was no reason for him to have travelled to the house after finishing work at 8.30pm to stay the night. At this time, that is after 28 September 2013, things in the house had changed. Both Pop and Aunty had moved in. F had moved into the boys’ bedroom.

406. Further, during this period, J was attending the house on a daily basis. J said he attended to sit with his father. Whilst J was R’s brother, he was also a friend of the applicant.

407. It was open to the jury to accept or reject a witness’s evidence or part of the witness’s evidence. It was a matter for the jury to resolve conflicts. However, in circumstances in which there was no evidence contrary to the applicant’s statement that he was working night-shift during this period, the jury was not entitled to merely reject it without a proper reason for doing so. It was not inherently unlikely. The Crown adduced no evidence contrary to the applicant’s statement that he was working night-shift.

408. Further, the fact that he was working night-shift during this period impacted not only on G’s statement that the applicant was sleeping in the boys’ bedroom that night, but also on Aunt’s evidence, that during this period the applicant was coming over two or three times a week picking up the boys from school. He could not have been.

409. There was, in my view, significant evidence that ought to have caused the jury to have a doubt as to whether the applicant would have stayed overnight on the evening of the conduct leading to Count 5.

410. In my view, this is again not an insignificant matter as it was necessary for the jury to be satisfied beyond a reasonable doubt that the conduct happened during the timeframe specified in the indictment. The timeframe is after Pop and Aunty moved in.

411. Indeed, as is evident from the jury note, the jury was aware of the importance of the time specified in the indictment. One explanation for the acquittal could be that the jury was not satisfied that the Crown has established when Counts 6 and 7 happened, although that is only one explanation.

412. The applicant’s contention is consistent with what the two adults said (who were living in the house) said at earlier stages (that is prior to giving evidence).

413. In my view, all of these matters ought to have caused the jury to have a doubt about the accuracy and reliability of R’s evidence in respect of Count 5.

414. The indictment specified that the offending occurred during the period 27 September 2012 and 25 December 2013 and was identified by G as occurring at a particular time with reference to what must have been a significant event, having regard to Pop’s illness and the care that he required, that is, some sort of procedure.

415. Further, the doubt the jury ought to have had as to G’s reliability in respect of Count 5 impacts upon whether the jury ought to have had a doubt about Counts 3 and 4. This is because the conviction of the applicant was dependent entirely upon the reliability and accuracy of G’s evidence.

416. I have referred to a number of matters about the conduct alleged in respect of Counts 3 and 4.

417. In my view, any doubt as to G’s reliability and accuracy in his evidence must impact upon the assessment of his evidence generally. By this, I mean that, having regard to all of the matters to which I have referred in respect of Counts 3 and 4 and on the basis that the jury ought to have had a doubt about his reliability and accuracy in respect of his evidence in respect of Count 5, in my view, the jury ought to have had a doubt about G’s general reliability such as that which impacts upon the conviction in respect of Counts 3 and 4.

418. For all these reasons, having regard to all of the factors and evidence to which I have referred, I consider that the jury ought to have had a doubt about the guilt of the applicant in respect of Counts 3, 4 and 5.

419. In my view, the applicant is entitled to have those convictions quashed.

420. The orders I propose are as follows:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the applicant’s conviction in respect of all counts and enter verdicts of acquittal.

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Endnotes

Decision last updated: 21 December 2022