AWK v Tasmania
[2024] TASCCA 5
•20 June 2024
[2024] TASCCA 5
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | AWK v Tasmania [2024] TASCCA 5 |
| PARTIES: | AWK |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 1516/2022 |
| DELIVERED ON: | 20 June 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 16 April 2024 |
| JUDGMENT OF: | Blow CJ, Wood J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Appeal dismissed – Charge of persistent sexual abuse of a child – Allegations of unlawful sexual acts on seven occasions – Acquittal of crime charged but convictions of rape on two occasions – Whether evidence lacking probative force.
Aust Dig Criminal Law [3476]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Charge of persistent sexual abuse of a child – Crown alleged unlawful sexual acts on seven occasions – Acquittal of crime charged but convicted of rape on two occasions.
Aust Dig Criminal Law [3478]
Cases Cited:
Browne v Dunn (1893) 6 R 67
Dansie v The Queen [2022] HCA 25, 274 CLR 651
M v The Queen [1994] HCA 63, 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
Pell v The Queen [2020] HCA 12, 268 CLR 123
R v Kirkman (1987) 44 SASR 591
R v Olbrich [1999] HCA 54, 199 CLR 270
REPRESENTATION:
Counsel:
Applicant: K Baumeler Respondent: D Coates SC
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASCCA 5 |
| Number of paragraphs: | 319 |
Serial No 5/2024
File No CCA 1516/2022
AWK v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
BLOW CJ
WOOD J
MARTIN AJ
20 June 2024
Orders of the Court:
1 Leave to appeal granted.
2 Appeal dismissed.
2 No 5/2024
File No CCA 1516/2022
AWK v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
BLOW CJ
20 June 2024
1 I agree with the orders proposed by Wood J and with her Honour's reasons. I also agree with the additional comments of Martin AJ.
3 No 5/2024
File No CCA 1516/2022
AWK v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
WOOD J
20 June 2024
Introduction
2 This is an appeal against conviction after a trial by jury. Because the grounds of appeal involve exclusively questions of fact, the appellant seeks leave to appeal by virtue of s 401(1)(b) of the Criminal Code. I am satisfied that leave should be granted in order that the merits of the appeal can be considered.
3 The appellant was charged on indictment with a single count of persistent sexual abuse of a child or young person, contrary to s 125A(2) of the Criminal Code Act 1924. The complainant was the appellant's step-daughter and at the material time she resided with the appellant and her mother and siblings at Collinsvale. The particulars of the charge alleged that between 30 November 2013 and 13 April 2015, he maintained a sexual relationship with the complainant. At the beginning of the indictment period she was aged seven and at the end she was eight. Further particulars of the charge were relied on at the trial and alleged that this charge related to seven occasions when an unlawful sexual act or acts were committed. Under the Code provisions, to find the accused guilty of the charge the jury had to be satisfied beyond reasonable doubt that the accused committed an unlawful sexual act or acts on at least three of those occasions.
4 At the conclusion of the trial the jury were directed by the learned trial judge, the Honourable Justice Jago, in relation to alternative verdicts that were available to them with respect to the specified occasions, in the event that they were not satisfied of at least three occasions.
5 The unanimous verdict of the jury was that the appellant was not guilty of the primary charge under s 125A of the Code but guilty of rape with respect to two specified occasions, one and seven.
6 The Crown alleged the appellant committed unlawful sexual acts in relation to the complainant on seven separate occasions which, in essence, formed the charge. The occasions and unlawful sexual acts alleged to have been committed by the appellant are as follows:
"Occasion 1
Location In a small room within the shed at the Collinsvale property in Tasmania Unlawful sexual act(s) Making the complainant suck his penis
Occasion 2
Location On a car seat in the shed at the Collinsvale property in Tasmania while watching pornography Unlawful sexual act(s) Making the complainant suck his penis
Occasion 3
Location The accused's parents address in Austins Ferry in Tasmania while watching pornographic DVD's 4 No 5/2024
Unlawful sexual act(s) Making the complainant suck his penis
Occasion 4
Location The complainant's bedroom at the Collinsvale property in Tasmania Unlawful sexual act(s) Holding the complainant upside down and:
1 Making her suck his penis; and 2 Licking her vagina
Occasion 5
Location On a mattress in the lounge room at the Collinsvale property in Tasmania Unlawful sexual act(s)
1 Penetrated the complainant's vagina with one or more of his fingers;
2 Penetrated the complainant's vagina with his tongue and licking the outside of her vagina; and
3 Made the complainant suck his penis
Occasion 6
Location The house at the Collinsvale property in Tasmania
involving adult sex toysUnlawful sexual act(s)
1
Turned the vibrator on and directed the complainant to put it down her pants;
2
Licked and kissed the complainant's vagina and put his tongue inside her vagina;
3 Put a vibrator inside the complainant's vagina; and 4 Made the complainant suck his penis
Occasion 7
Location On a couch in the shed at the Collinsvale property in
TasmaniaUnlawful sexual act(s) Made the complainant suck his penis"
7 The appellant has appealed his convictions on two grounds. The first ground is that the verdicts were "unreasonable and cannot be supported" by the evidence. The second is that the verdict of not guilty to the charge on indictment but guilty of two counts of rape in the alternative are verdicts which are "factually inconsistent." The argument here was that there was no real matter of fact to distinguish these two occasions from the others and if the jury were not satisfied beyond reasonable doubt of occasions 2–6, the jury should not have been so satisfied in relation to all of the occasions.
Ground 1: unreasonable and unsupported by the evidence
The Law
8 The first ground of appeal reflects the terms of s 402(1) of the Code which provide that the Court may allow an appeal if the verdict was unreasonable or was incapable of being supported by the evidence. In M v The Queen [1994] HCA 63, 181 CLR 487 at 493-495 the joint judgement of Mason CJ, Deane, Dawson and Toohey JJ authoritatively stated the approach that must be taken when courts of criminal appeal are considering an appeal on that ground.
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9 The ultimate question is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen at 494-495.
10 The question is one of fact "which the court must decide by making its own independent assessment of the evidence": M v The Queen at 492.
11 In answering the question, the "court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen at 493.
12 In deciding whether the jury ought to have entertained a reasonable doubt, the joint judgment
explained at 494:
"In most cases a doubt experienced by the appellate court will be a doubt which the jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced."
13 The passage in the judgment continued at 494 providing examples of evidence that may give rise to a conclusion that a reasonable jury ought to have experienced a reasonable doubt:
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
14 In Dansie v The Queen [2022] HCA 25, 274 CLR 651, the High Court stated that the authoritative guidance to be gained from the joint judgment in M has not diminished with time. In Dansie, the High Court was considering a verdict of guilty after a trial by judge alone. It was said that the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The judgment stated at [7] that:
"The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence."
15 In Dansie, it was noted by the court that the advantage that a trial judge (in a case of trial by judge alone) might have had over the court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced and on the nature of the issues that arose at the trial. In that instance, the prosecution case was circumstantial, the evidence adduced by the prosecution was largely uncontested, and the advantage was described as slight.
16 In Pell v The Queen [2020] HCA 12, 268 CLR 123 at [39] the High Court considered a case where the jury was required to make an assessment of the credibility of the witnesses, including the evidence of the complainant, and was dependent upon the evaluation of the witnesses in the witness box. In that case, there were inconsistencies with other unchallenged evidence. The judgment of
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Keifel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ described the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness as having always been, and which remains, the province of the jury as representative of the community: [37]-[38].
17 The judgment considered the function of the court of criminal appeal in such a case when determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence:
"[The court of criminal appeal] proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
18 I turn to independently assess the nature and quality of the evidence, having regard to the asserted inconsistencies, discrepancies and inadequacies raised by the appellant, to see whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty with respect to occasions one and seven, or whether the jury acting rationally ought to have entertained a reasonable doubt.
Arguments on appeal
19 It was argued for the appellant that the complainant's evidence contained inadequacies, discrepancies, and inconsistencies with other evidence, principally, her mother's evidence on certain key points. These were said to exist with respect to both the complainant's evidence regarding occasions one and seven, which were the subject of the guilty verdict and the other occasions, also. As I understand the appellant's argument, it is that the difficulties associated with evidence the complainant gave about occasions two–six cast a shadow over the credibility or honesty of her evidence generally. The argument would seem to be that, given the difficulties with respect to her evidence in relation to occasions which were not the subject of a finding of guilt, the jury ought to have had a doubt about the appellant's guilt on occasions one and seven. This approach is sound in principle and, indeed, the jury were directed to take into account all of the evidence in their assessment of the witnesses.
20 It is also argued for the appellant that there are aspects of the complainant's evidence other than about the specific occasions which, when considered in light of other evidence, amount to inadequacies, discrepancies or inconsistencies. These matters include her disclosure about the sexual abuse and, in particular, what motivated her to make her disclosure as and when she did, and whether there was opportunity for the abuse to occur with the frequency she described.
21 In essence, it was the respondent's submission that the jury was entitled to find the complainant's evidence reliable and credible, and there is no reason for the Court to conclude that the evidence was "so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the requisite degree". Further, it was submitted by the respondent as a general proposition that this is not a case where the evidence contains such discrepancies, inadequacies, or lack of probative force that this Court can disregard the jury's assessment of the credibility of the complainant. The respondent's submissions focussed on difficulties raised with respect to the complainant's evidence in relation to occasions one and seven and did not address the identified deficiencies and inadequacies of the complainant's evidence in relation to occasions two–six, presumably because these occasions were not found to be proved. The respondent's submissions highlighted evidence from the complainant's mother that was corroborative of the complainant's account.
7 No 5/2024
The approach taken to this appeal
The submissions on the complainant's veracity and reliability repeated many points made to the jury in the defence's closing address. In many cases, the submissions related to matters which depended on the jury's assessment of the complainant's credibility or reliability. As will be seen, they were the sort of matters a jury might have viewed as casting doubt on an aspect of the reliability or credibility of the complainant's evidence or as inconsequential in their assessment of that evidence.
23 While valid points about credibility and reliability are proper matters for this Court's consideration, this Court's task is not the same as the jury's function. This is because of the jury's function at trial and the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at the trial. The evidence will be examined to see if notwithstanding the advantage the jury had, they ought nonetheless, to have had a reasonable doubt with respect to either or both of those occasions.
24 It is convenient to begin with an overview of the evidence at the trial, and then focus on the complainant's evidence with respect to each specific occasion and the asserted difficulties associated with that evidence. I will then consider the arguments about the complainant's evidence on other matters beyond the specific occasions.
25 In considering each of the identified discrepancies, inadequacies and inconsistencies, it will be necessary to consider whether they do, in fact, amount to a discrepancy, inadequacy or inconsistency. Just because evidence is labelled deficient because of a discrepancy, inadequacy or an inconsistency does not mean it is. If it does qualify, then it will be necessary to assess the significance of the deficiency and whether it ought to have given rise to a reasonable doubt. In that task, the evidence must be considered in light of the whole of the evidence. Of course, if there are a number of deficiencies then their cumulative effect is to be taken into account. Individually, they may not amount to a deficiency that ought to have given rise to a reasonable doubt but, in combination, they may.
Overview of the trial
26 Before the trial commenced, the complainant was declared a special witness pursuant to s 6(1) of the Evidence (Children and Special Witnesses) Act 2001, and an order was made by the learned trial judge that a special hearing be held to take and record her evidence prior to the trial. The complainant's evidence took place over five days in late November and early December 2021. At that time, she was aged 15, and giving evidence of events that happened when she was seven to eight years of age. The jury was empanelled on 2 May 2022 and the audio and visual recording of the complainant's evidence was played at the trial.
27 There was uncontroversial evidence about the background. The accused commenced a relationship with the complainant's mother in 2012 when he was aged approximately 23 and the complainant was five or six. The appellant and the complainant's mother then commenced living together with the children of the family unit, comprising the complainant, her brother, who is four years older than her, and a younger sister born in 2012. The appellant is the father of the complainant's younger sister and the complainant considered the appellant to be her step-father. The family lived together at various addresses including the accused's parents address at Austins Ferry. In late November of 2013, they moved to a rural property at Collinsvale. The property was a two- bedroom house and a number of outbuildings, including a "granny flat" and various sheds.
28 The complainant gave evidence that after they moved to the address, the complainant's grandmother moved in and, for a time, shared a bedroom with the three children until she moved into
8 No 5/2024
the granny flat. The sexual abuse commenced after the move to Collinsvale and ceased in about April
of 2015.29 There were no witnesses to the appellant's conduct the subject of the charge other than the complainant. She gave evidence of the seven occasions particularised in the Crown's document at [6] above. The evidence she gave with respect to each of the seven occasions is set out in some detail below.
30 The complainant's evidence was that other than these seven occasions, there was a context of ongoing abuse, sometimes up to three times per week during the period specified in the indictment. She said that these other (unspecified occasions) happened about "once or twice a week, maybe even three times a week". It changed if her mother and the appellant were arguing, and reduced to "like" once every fortnight. Her evidence was that after the first occasion, "we did it a few more times in the little room [that is, the same room where the first occasion happened in one of the outbuildings] before moving to the shed." After that, the unspecified occasions happened in the shed, and she could not remember any of them happening elsewhere. Common features of these occasions are that the appellant would make her suck his penis and he would watch pornography on his phone. Typically, these occasions would start with him saying, "let's go down to the shed", or, "come help me down in the shed" and he would refer to "doing the usual". These unspecified occasions were relied on by the State as context evidence and tendency evidence.
31 Cross-examination of the complainant challenged the complainant's evidence of the seven specific occasions and the unspecified occasions to support the defence contention that the sexual acts alleged did not happen.
32 As the complainant was a critical witness to the prosecution case, the jury were directed by the trial judge in accordance with what is known as the 'Murray direction', or the critical witness direction: that they had to scrutinise her evidence and, in order to find the accused guilty, the jury needed to be satisfied beyond reasonable doubt of her honesty and reliability.
33 The complainant made an interview statement to police in August 2019 and April 2021, and she made a short, written statement to police in July 2021. The statements were not tendered as exhibits on the trial, but defence counsel cross-examined the complainant about statements she made which were relied on by the appellant as being inconsistent with her oral evidence-in-chief.
34 The complainant's mother gave evidence concerning the family situation and matters relied upon by the State as supporting the complainant's evidence regarding the circumstances of the abuse. She described the layout of the Collinsvale property, particularly the relevant shed and the contents of it, and also the layout of the Austins Ferry house. She gave evidence that the State relied upon as evidence of opportunity for the commission of the acts of sexual abuse; that when she went out, she left the appellant to look after the children. She would leave the house on Tuesday nights to play darts and, sometimes on a weekend and during school holidays, she went horse riding with her friend Jackie and she also spent time visiting her or going shopping.
35 Other evidence from the complainant's mother was relied upon as supporting the Crown's case. She described the complainant's behaviour as deteriorating during the time they were living at Collinsvale. The complainant had always been "a little bit naughty but nothing out of the ordinary". Then, as time went on, especially at Collinsvale, she was always causing grief, she was rude and bossy, and "it was just a constant war with her." She went from a child who was getting in trouble every now and then to "all day every day".
36 The complainant's mother gave evidence of finding pornographic material on the complainant's device at a time when she was in a relationship with the appellant. After her
9 No 5/2024
relationship with the appellant ended, there was also an occasion when she used the complainant's phone and received notifications and saw websites like "Porn Hub or something like that". She opened one of the messages and discovered the complainant had been having a conversation with a "man with grey hair" and she had sent a photo of her vagina to him. She enlisted the help of a friend to delete photographs and websites, and to deactivate the accounts.
37 A friend of the complainant's mother gave evidence about the phone. After the complainant's mother handed it to her, she looked at it and saw the complainant had been on "sex pages" and "sending photos of her vagina to men". There were numerous sites and numerous photos had been sent. She deleted the photos and the conversations, and her partner deactivated the accounts that the complainant had. The friend's partner gave evidence that he removed adult sites from the phone, deactivated the accounts, and "unsubscribed" from the emails.
38 There was what is known as "complaint" evidence concerning a disclosure the complainant made to one of her teachers at school and the school psychologist on 22 August 2019 when the complainant was aged 13 years. At that time, her mother was living in Queensland and the complainant was living in Tasmania with her father. The complainant gave evidence that she had been having a particularly bad day and had been in a physical fight that morning and had had a relationship end. She said she broke down when she was with her teacher. She gave evidence of what she said, namely that her "little sister's dad did all this stuff to me" but "not in full detail". She disclosed that "he made me suck his penis and he would do the same to me".
39 The teacher who received the disclosure was the grade 7/8 coordinator and she gave evidence of her conversation with the complainant. On a morning during August, the complainant went into the co-ordinator's office and asked to have a chat. The teacher gave evidence that the complainant had her head down, let her know she had broken up with her boyfriend at the time, and then kept sitting there. The teacher said she kept probing her as she had the sense there was something else. The complainant then mentioned she had been sexually assaulted by her mum's ex-partner when she was about seven or eight years old and that it lasted for about 12 months. She said she had been inappropriately touched, but she did not say where. When the complainant was speaking, the teacher described her as quite withdrawn, "her head was down and she kept sort of fidgeting and sort of looking at her hands and was very, very quiet." The complainant was normally a "very bubbly character".
40 The teacher did not ask for more detail, and they went to the school psychologist. The complainant spoke to the psychologist and what she told her was the same. The teacher gave evidence that the complainant told the psychologist that it had lasted for about 12 months and she was worried because she had a younger sister in the house who was 12 months old and she was concerned for her. The teacher's notes from the meetings with the complainant were tendered on the trial.
41 The school psychologist gave evidence of her meeting with the teacher and the complainant. The psychologist said she received a phone call from the teacher and that, together, they met with the complainant. She said the teacher told her the complainant had disclosed that she was hurt as a child by her step-father at the time. The complainant confirmed that and provided a little further detail but did not go into any specifics. In terms of the further detail, the complainant told her that as a child, the appellant had inappropriately touched her and made her do sexual stuff. She had not met the complainant before, but her impression was that she was fairly quiet, very calm, and measured.
42 The jury were directed in accordance with the law that the complaint evidence could be used as evidence that the facts stated by the complainant did happen, and also in assessing the complainant's credibility or truthfulness. While the evidence of complaint was capable of being regarded as broadly consistent with the kind of sexual conduct the complainant described in her evidence at trial, it was too general to be regarded as evidence of any specific occasions.
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43 The complainant's father gave evidence about some matters concerning contact with his daughter while she was living at Collinsvale. He gave evidence about the usual arrangements with collecting his daughter and her brother for them to stay. He would drive to the top of the driveway and the complainant and her brother would come out to the car. When he dropped them back home, they would get out of the car and go inside.
44 He gave evidence that his daughter lived with him for a period after she stopped living at Collinsvale. In 2019, when the complainant was in grade 7 and attending Cosgrove High School, he received a phone call from the school to come in and he was informed that his daughter had disclosed that she had been sexually assaulted by her mother's previous partner. He took her to the Glenorchy Police Station, and she was questioned by police.
45 The accused declined to take part in a record of interview with police, exercising his right to silence, and did not give evidence at his trial.
46 I have mentioned the closing address of the appellant, and that many of the points made to the jury are now relied upon in advancing the appeal. It would be remiss not to also mention the closing address of crown counsel, Mr Allen, which advanced contentions and countervailing points for the jury's consideration.
47 A summary of the complainant's evidence about each of the seven occasions is set out below, along with consideration of the appellant's submissions asserting difficulties with the complainant's evidence with respect to the specified occasions.
Complainant's evidence: occasion one
48 The complainant gave evidence about the first occasion when something of a sexual nature happened with the accused. It was before her eighth birthday and not long after they moved into Collinsvale. The complainant said she was "grounded" but could not remember what for. Her brother was playing on the PlayStation, and she wanted to have a turn. She asked the appellant if she could have a go and he said, "Yeah but you'll have to come down to the shed. There's something I need you to do down there." She thought it was "just like moving boxes or something like that". The complainant gave evidence that they walked out the front door and down through the carport and to the shed. They walked to the left and there was a door that led into a little room and there was no pavement on the ground as it was just dirt, and there were a couple of shelves and a window to the right. She described the appellant as wearing navy blue work pants with grey high visibility reflective strips, his work boots, and a black T-shirt which had a girl on it with a shovel in her hand, a wheelbarrow with concrete in it, and very revealing clothes on. She was asked what happened when she was in the room with the appellant, and she gave evidence that:
"… – he closed the door and he said, 'I'm going to show you what you need to do,' and he then took his pants down and his undies and he grabbed his penis and then he had told me to put it in his – put it in my mouth and I knelt down a little, I was only very little, and put it in my mouth, before he then grabbed a hold of my – like, the back of my head, started to make it go back and forth, and then a little bit of doing that, he then removed his hand and told me to continue doing it. I did it for about two to three minutes before he told me to remove my head, so I did, and he started to masturbate for about 30 seconds before he ejaculated onto the ground."
49 She was asked whether she could see his penis when his pants and underpants were down and she said she could. In response to questions, she said his penis was not erect when she first saw it and his penis became erect in her mouth. The complainant described the accused leaning the slightest bit against some of the shelves. She was asked how she managed to get her head in front of his penis and her evidence was:
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"Because of, like, how small I was, I was already up to the height of, like, his
stomach, so I only had to, like, bend my knees by the slightest bit."
50 It appears from the transcript that at this point of her evidence, she demonstrated how she bent slightly at her knees. She described he had hold of his penis and put it into her mouth and then let go and grabbed onto the back of her head and pushed it back and forth, so his penis was going in and out of her mouth. She was asked how long he had hold of her head in this way and she replied 30 seconds to a minute, and then he took his hand away and she continued to do what he had shown her to do for about a "minute or two – two to three minutes".
51 She was asked what else he was doing, and she said he had hold of a shelf and he was breathing out loud, "like fast breathing".
52 He told her to remove her head, and she did and took a step back, and he grabbed hold of his penis and moved his hand up and down on it and he ejaculated; he had semen coming out of his penis. He grabbed one of the napkins and wiped his penis off with it, scrunched the napkin up, and threw it on the ground. He put his pants up and told her she was good to go play the PlayStation. She said that as he was pulling up his pants, he said, "Don't tell anyone."
53 The learned trial judge directed the jury that if the jury accepted her evidence and they found beyond reasonable doubt that the incident occurred, it would be a matter of rape given the circumstances at play in the trial.
Asserted difficulties specific to occasion one
54 The appellant argues that there are aspects of the complainant's evidence with respect to the first occasion which should have raised doubts in the jury's mind, and which are said to amount to inadequacies, such that her account is inherently improbable, or to inconsistencies with other evidence.
55 The appellant argues that the incident, described as happening out of the blue, was inherently improbable when there was no evidence of any grooming prior to the incident, or that the appellant had shown an interest in the complainant, or any evidence of him "testing the water to see what he could get away with" or of spending time with her to the exclusion of other family members or favouring her.
56 This argument, in highlighting the absence of these features, compares the appellant's conduct with the behaviour or modus operandi of some perpetrators of child sexual abuse. Grooming, and "testing" a child's response, are the hallmarks of some offenders' behaviour, but not others.
57 The appellant's mindset may have been to see what happened and whether the complainant objected, or he may have assumed she would do what she was told. Her age is a material factor, as she was only seven and, on her evidence, she had no prior knowledge of this kind of sexual conduct. The complainant's evidence was that the appellant would discipline her. The fact that she asked him for a favour, in wanting a turn on the PlayStation, presented a person, if they had a sexual interest in a child, with an opportunity and leverage. There is nothing improbable about a person who was intent on sexually abusing a child using that opportunity to commit an unlawful sexual act. I find her evidence that after the sexual assault, he said to her that she was "good to go play on the PlayStation" to be telling. So is the fact that he told her not to say anything.
58 To put it another way, the complainant's account reveals circumstances which presented him with opportunity and leverage and her account is inherently plausible.
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59 There were other aspects of this account said to be improbable. It was said that it was not believable that the appellant would have gone to the trouble of taking the complainant somewhere secluded and yet have been so careless as to toss the napkin on the floor, having used it to wipe his penis, where anyone could find it. A reasonable jury, however, may have regarded his conduct as not improbable and what someone might do if they did not expect to attract suspicion.
60 It was said to be improbable that the appellant would only tell the complainant on this first occasion not to say anything and not on any other occasions, especially given the account involved an escalation in his conduct. There are all sorts of factors at play here, such as the power imbalance in a step-father/step-daughter relationship, and the personality and state of mind of the appellant. It was just as equally the case, on the evidence, that because the complainant did not say anything to anyone after the first occasion, the appellant assumed that she would obey his demand thereafter. This point about the likely behaviour or response of an individual is in the realms of conjecture.
61 It was said that, in reality, the opportunity for the offence to be committed did not exist. While the complainant's evidence was that it was her memory that the appellant was the only adult at home at the time, the point was made that "the evidence of [the complainant's mother] was that at this time, she was depressed and barely got out of her PJs let alone left the house". The complainant's mother gave evidence that when the family first moved to Collinsvale, "she was more depressed. Didn't leave the house much. Didn't get out of my pyjamas much. My life was the kids and the animals and that was kind of it for a while."
62 In cross-examination, she said she did not want to go anywhere and then she slowly pulled herself out of that. She was not specific about how long she felt like that but "a couple of months maybe", then she met her friend Jackie, and she started going back out again. Significantly, her evidence about this period was not that she did not go anywhere but that she did not want to go anywhere, and she did not leave the house "much". In any event, the period of time when she felt like that and did not leave the house much may well have passed by the time of the first occasion.
63 The evidence of the complainant's mother did not suggest an inconsistency with the complainant's evidence. It has not been shown there was no realistic prospect that the appellant was the only adult in the house as the complainant described in her evidence.
64 The appellant attaches significance to the fact that the complainant does not mention putting on her shoes when leaving the house to walk down to the shed, when the evidence was that there was a rule that shoes were to be taken off inside the house. It is also pointed out that the complainant did not give evidence that the appellant stopped to put his shoes on. This is said to be significant when the evidence was that getting from the house to the shed involved walking on a gravel drive and so, if he did walk to the shed, it would be expected he would have put his shoes on.
65 The complainant was cross-examined on this topic and her evidence was clear that she did not have a memory of "the walk". The jury may have accepted that evidence, and they would have been acting reasonably in doing so. This point about shoes does not, in my view, raise an inadequacy in the complainant's evidence. It would be entirely unsurprising if the complainant did not have a recall of such an ordinary and mundane detail as whether she put her shoes on or whether the accused put his shoes on, in the lead-up to a first occasion of abuse.
66 As noted above, the complainant gave evidence that there was a window in the room where the first occasion of abuse occurred. The argument for the appellant pointed out that this evidence was inconsistent with the evidence of the complainant's mother that there was no window in the room.
67 The complainant was cross-examined about the window:
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"I want to suggest to you that there isn't actually a window in that room at all?........
Isn't there? I just remember there being some light.
Could it have been just from the light from the shed itself?........ Yeah, that could have
been, yeah, because I just remember there it being not dark, but there being some light
in there, yeah.
Quite possible that there's no window?........ Yes."
68 It is perhaps worth mentioning that during her evidence-in-chief, having referred to there being a window in the little room, she was asked whether there was any lighting in the room, and she replied, "Only the lighting from the window".
69 The evidence of the complainant's mother was that the room had no window and no light in it. She agreed that if the door was shut, it would be pitch black in that room. She also stated that the "door was kept closed and didn't go in there".
70 The evidence from the complainant about there being a window is not significant given her concession that she may have been wrong about that, and what she remembered was there being light in the room.
71 On the matter of the door to the little room and whether that was closed, she gave the following evidence in cross-examination, having agreed a short time before that there may have been no window in the room:
"Just in relation to going from the house to the shed and into this room, how is it that you ended up in that room? Were you told to go there? Were you directed there? Did you follow him there?........ We went down into the shed and he had, like, walked over
to the room and he was like, 'In this room. In here – come in here.'
All right. So he said, 'Come in here'?........Yep.
Once – I take it you went into the room, as far as you can recall?........Yes.
And what happened once you were in the room? What did he do?........He had closed – I think he closed the door but not, like, fully, just like – so there was still some light, like, coming through from it.
All right?........ And he had, sort of, like, like, next to, like, the door, like, kind of, like, area. And he was, like, 'I am going to show you what you need to do.' And he started to undo his pants before taking them down with his undies."
72 Having regard to this evidence, it was contended on the appellant's behalf:
"The evidence of the window was important from a defence perspective in that it gave the jury an example of the cleverness and adaptability of the complainant. In evidence in chief the evidence was that there was a window in the dungeon and that [the appellant] closed the door to the dungeon after they had entered, and there then followed an account of what the complainant could see. This account was impossible if the evidence of [the complainant's mother] was accepted, as her account was of the dungeon having no window and no light in it. In cross examination it was put to the complainant that there was no window, and the complainant adapted her evidence to say that the appellant had closed the door but not all the way so that light could still get in from the main shed."
73 The question of whether it could be inferred that the complainant cleverly "adapted" her evidence, or was simply being truthful, was a matter where the jury had the advantage of seeing her give her evidence. Once it was pointed out to the complainant that she may have been wrong about the window, and she accepted that, it would have been natural for her to question whether the door was closed. If the complainant was unsure whether the door was completely closed, the truthful answer was to say so. In other words, the content of her answer does not demonstrate she was not
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telling the truth. What her demeanour disclosed was a matter where the jury had an advantage that
this Court does not have.74 It is submitted that the complainant's evidence gave no detail of the shed having to be unlocked and yet her mother gave evidence of a lock on the shed door. These aspects of the evidence do not give rise to an inconsistency. The complainant was not asked during her evidence-in-chief or cross-examination whether the shed was locked, and she did not say whether it was unlocked by the appellant or not. That is not to suggest that such a difference would necessarily be of any moment.
75 It was pointed out that the complainant's mother gave evidence the particular room in the shed smelt like mould and mildew, yet the complainant made no mention of the room having any smell, despite having been taken to this room on more than one occasion before the alleged offending moved into the main shed area. This point, however, falls away completely since the complainant was not asked any questions about the smell of the room during the course of her evidence.
76 I do not find that any of these points amount to inadequacies in the complainant's evidence or as indicating her account is improbable. They are not matters which a reasonable jury should have regarded as reflecting adversely on the nature or quality of her evidence. That, however, does not dispense with the task at hand in relation to this occasion. It is still necessary to consider the nature and quality of her evidence in all its detail, and the evidence generally on the trial, and ask whether it was such that the jury should have been left with a reasonable doubt with respect to occasion one. I have undertaken that assessment and I shall return to that later.
77 At this stage, I will provide my conclusions confined to the evidence regarding the first occasion. Not only is there an inherent plausibility to her account, as I have mentioned, but the nature of her evidence presented an account of someone who had a clear recall of the appellant's conduct. Descriptions such as how the appellant was leaning and handling his penis and the complainant's head, how she was standing, and details such as his breathing and use of the napkin to wipe himself before scrunching it up and throwing it on the ground, speak of a reliable account and a genuine recall. I found the complainant's account of the first occasion to be sound and credible and it was reasonably open to a jury to so find.
Complainant's evidence: occasion two
78 The complainant gave evidence that there were a few other occasions in that same little room before "we moved out into the actual shed". She said the next specific occasion happened approximately two weeks after the first specific occasion. She said her mother and grandmother were not anywhere around. It was midday and the complainant thought she again wanted to play the PlayStation. The appellant asked her to come down to the shed to "do the usual", which is what he started to call it when he wanted her to go down to the shed and suck his penis.
79 They went through the carport and turned to the right, where there were cupboards, an eight- ball table, a table and bar stools, and on the ground, a "two seat" car seat. The appellant took down his work pants to his ankles and sat down on the car seat. He "kind of had his legs open" and the complainant knelt down onto her knees in between his legs and put his penis in her mouth. Her evidence was that she moved her head up and down, not all of his penis went into her mouth, and that after a little bit, he put "porn" on his phone and he was watching that.
80 The complainant said when she looked up to see what was happening she could see the screen and she saw an older male and a younger female having sex. The girl was saying stuff like, "Mum won't find out" and, "It's okay, we can do this. I'll keep it a secret". There was a lot of "buffering",
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meaning it kept pausing and having to load, because of a bad Wi-Fi connection. The appellant was
skipping to parts where the sex was happening.81 The appellant asked her to take her head away, so she moved and stood up as he masturbated for about 30 seconds before he ejaculated onto his stomach, where his shirt was pulled up. He wiped his stomach with paper towel. She waited for him to pull his pants up and stand up, and he told her she was "good to go play the PlayStation".
82 The trial judge directed the jury that if they were satisfied that occasion occurred, it would amount to the unlawful sexual act of rape. The verdict discloses the jury were not satisfied beyond reasonable doubt of the appellant's guilt with respect to that occasion.
Asserted difficulties specific to occasion two
83 The appellant's counsel contended the second occasion was improbable and that it was unlikely that there would have been an opportunity for the offending to have occurred. The factors included the appellant's one-year-old daughter needing supervision at that stage, which was relied on to suggest he would not have left her unsupervised to go to the shed to abuse his step-daughter. The evidence does not assist on the probability of what the appellant would have done, and the point is speculative. Perhaps the child was engaged in play at the time, or watching the iPad and he considered the child could be left safely for a short period. Other factors relied upon, such as the complainant's mother's depressed state, do not assist as previously discussed.
84 It is said that there are discrepancies in the evidence of the complainant and her mother regarding the complainant's grandmother and the period she lived at the property in the house, and then the granny flat. The complainant's mother gave evidence that her mother did not sleep in the same bedroom as the children. While she did not have a memory of it, she said she must have slept on the couch in the lounge area, describing this as "more of a guesstimate". This evidence is vague and does not call into question the evidence given by the complainant.
85 The complainant's mother recalled her mother being in the "granny flat" not very long after she came to live with them. There was no laundry, toilet, or cooking facilities in the "granny flat" and her mother spent most of her time in the house, and could come and go as she wished. This evidence about the granny flat is different to the evidence given by the complainant. Her evidence was that the granny flat had a kitchen and bathroom, as well as a little room that had a bed in it. When cross- examined about whether the granny flat had a kitchen and a toilet or bathroom, her response was that she thought the granny flat had a kitchen and bathroom as she did not remember her grandmother coming to the house to get meals or use the bathroom. The complainant's evidence suggested that she did not spend much time at the granny flat, although her brother did. She gave evidence she went with her mother, but there was no evidence as to the frequency of visits.
86 This difference in the evidence about peripheral circumstances is not a matter a reasonable jury ought to have regarded as significant in its assessment of the complainant's evidence.
87 Further, the point was made that the grandmother did not raise any concerns about the appellant's conduct. This is entirely consistent with the truthfulness of the allegations, the explanation being that the complainant's grandmother was unaware of his conduct.
88 It is suggested that the evidence of the complainant's mother that she did not see her partner watch pornography, and that the watching of pornography was not a feature of their relationship, undermines the complainant's evidence that he watched it when he was abusing his step-daughter. It is submitted that the evidence of the complainant's mother regarding pornography was an important piece of evidence the jury could use to disbelieve the complainant's account. It need hardly be said
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that what the appellant did when sexually abusing his eight-year-old step-daughter may not have been
imitated in his sexual relations with his partner.89 It was submitted that the complainant's account of being able to see the screen at the time of the sexual act was improbable:
"… with reference to the complainant's size and how tiny she was it was suggested that it was unlikely if not impossible for her to see the screen – let alone see the screen to the point where she could tell what the website was."
The evidence from the complainant was that when she looked at the screen, she could see it. The evidence she gave of the incident, how the phone was held, and the relative positions of herself and the appellant does not suggest this account was improbable. The complainant did not give evidence that she saw the website being accessed on this occasion. She gave evidence she was aware the appellant accessed a particular website and named that website, but not that she witnessed that access on this occasion.
90 The complainant was criticised for the evidence she gave about how long the incident lasted for. On appeal, the appellant's counsel submitted:
"The complainant indicated that the incident was of two-three minutes, but also gave evidence of buffering and the website needing to reload. There was also evidence given of the appellant skipping to the parts where there was sex. It was submitted to the jury that it would have been a frustrating two-three minutes and, making the whole account implausible."
91 The evidence on this point from the complainant was in response to a question from Crown
Counsel:
"Now, I want you to try and explain how long you think [the appellant's] penis was in your mouth and your head was moving up and down. So if you can think about that first and say how long you think?........Probably only about like two to three minutes."
The effect of the complainant's evidence was that this was just an estimate. Further, it was an estimate of time about an event experienced by a child when she was approximately eight years of age. Approaching the matter in a realistic way, the child's impression of time should not be held up and treated as a measure of the plausibility of her account about the appellant's conduct.
92 It was argued that some or all of the criticisms relating to the evidence about this particular occasion "must" have been accepted by the jury for them to not be able to find the appellant guilty of this particular. That, however, is not correct. The jury may simply have been unpersuaded to the requisite degree about the reliability of the account given. The jury may have rejected all these points as having any significance, or they may have found one or some to have force. In fact, the jury are not confined to the points raised by counsel and may have had some other reason for doubting the reliability of the complainant's account.
93 The significant point is that the appellant has not shown the nature or quality of any aspect of the complainant's evidence about this occasion to be such that it casts a shadow over the nature and quality of the complainant's evidence regarding occasions one and seven.
Complainant's evidence: occasion three
94 The complainant gave evidence of an occasion that happened at the appellant's parents' place at Austins Ferry. This was a house she had previously lived in for a little while with her family and the appellant.
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95 The complainant said she thought he had to go there to get some of his property from the house, and she went with him either because he asked her, or her mother asked her to go and help. He drove his silver four-wheel drive there.
96 When they arrived, the front door was locked, so they had to go around to the back of the house. The appellant lifted her up and she went through the window then to the front door, which she opened for him, and he disarmed the alarm. They went downstairs and he went into his old room, where he started going through his cupboards and drawers and grabbing stuff, and she went over to the corner of the room and played with a ball "where the power would go to wherever you touched".
97 Then, the complainant described seeing two movies, a "pirate one" and a "nurse one". One of the covers showed naked girls with pirate hats on, and beads in their hair and braids, and the other showed naked girls with stethoscopes around their necks and wearing nurse's hats. There was a television and DVD player in the bedroom and the appellant put the nurses one on and pressed play. They were both sitting on the bed. She described in some detail the sex scenes she saw involving nurses and patients. They also watched the other DVD and, again, she described the sex scenes she saw. She gave evidence of what the appellant said and did:
"Okay. Now, while you and [the appellant] are watching this, what are you
doing?.......At first, we were just on the bed before he goes, 'Can you do, like, that to
me? Can you do the usual whilst we watch this,' or whilst he watches it, and he, like,
goes to, like, the end of the bed where, like, the pillows are and, like, lays down and
pulls down his pants down to his ankles again with his undies, and I do remember his
penis being erect and I had put his penis in my mouth before moving my head up anddown.
How long did you do that for?........About two to three minutes.
Then what happened?........ Then he'd asked me to take my head away before he started to masturbate and ejaculate.
When he ejaculated, where did that go?........ Onto his stomach. He had his shirt pulled up again.
Do you remember what he used – did he use anything to clean?........ I can't remember what he used to clean it."
98 After he told her to move, she went back over and played with the "ball thing" again. He then "grabbed his stuff" and they walked upstairs and were about to go out the door, but his parents were opening the door just as they were about to go out and they had a "tiny little chat", like, "Hey, how are you going," before they left.
99 In cross-examination, the complainant gave evidence that she had gone through her mother's things previously when they lived in Springfield, and she had seen the DVD covers. The complainant's mother gave evidence that she was aware the appellant had two or three pornographic DVD's. She gave evidence of finding them including one she described as "Pirates of the Caribbean" in a cupboard under the stairs in her bedroom at the Springfield house. She gave evidence that she thought she also remembered seeing them at the appellant's parent's place in his bedroom before they
moved to Springfield and before moving into his parent's house.
100 The learned trial judge directed the jury that if they were satisfied beyond reasonable doubt that the incident occurred and that the complainant's mouth was penetrated by the appellant's penis, the appellant had committed an unlawful sexual act of rape.
Asserted difficulties specific to occasion three
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101 Aspects of the complainant's evidence are said to be inconsistent with her mother's evidence. The evidence of the complainant's mother said to be inconsistent was that the appellant had keys to his parents' house, and his keys, including his car keys, were all on one large key ring he carried around. The point was made that if the appellant had had his keys, there would have been no need to break into the house. The evidence given by the complainant's mother was in response to a number of leading questions in cross-examination and, significantly, her evidence was not expressed in definite terms. She gave the following evidence about the keys:
"So – and they were on that. So if he took the keys to go somewhere, he'd have the
keys to Collinsvale and he'd also have the keys to his parents' house in it?......Yeah, I'dassume so, yep. Yep.
Yep. Okay. And car keys and whatever else is attached to it ?...... Yep."
102 Another aspect of the complainant's account said to be inconsistent with her mother's evidence concerned the front door. The complainant's mother gave evidence of a dead bolt on the front door that required a key to open. She spoke of an occasion after she moved out of the house where she was unable to open the front door from the inside. Her evidence was that she did not recall an alarm. I note, in relation to the alarm, she did not suggest there was not an alarm, but merely that on that occasion, it did not "go off". This evidence about the dead bolt may properly have been regarded by the jury as inconsistent with the complainant's evidence about her opening the front door, suggesting to them her recollection was flawed on this point. A reasonable jury, however, may have regarded this difference as explicable depending on the kind of deadlock and not necessarily as indicating the complainant's memory was inaccurate, or if it was, that it was insignificant in the overall context of her evidence.
103 Further, the appellant pointed to evidence that the family lived at Hilton Road for a short period and lived at two other residences before moving to Collinsvale, and suggested there would not have been things to collect. The appellant highlighted the complainant's mother's evidence that the only things that were moved into Hilton Road were clothes, and the only things the appellant still had there after they moved to Collinsvale were things he did not want or use. This evidence was relied on to suggest the evidence of the complainant was improbable because he did not have property that he might have wanted to collect. The evidence the complainant's mother gave, however, was not unequivocal, and did not demonstrate the complainant's account was improbable:
"Yeah. So he's not having to go back to his parents ' to get something or anything like
that?......No. I know he did have some stuff there, but I think it was the older stuff that
he didn't wear as such. He kind of just brought stuff that he did wear."
It is perhaps worth noting also that this criticism of the complainant's evidence presupposes that the appellant's stated reason for going to the house was genuine, rather than a ruse.
104 It was submitted that the complainant's mother's evidence contradicted the complainant's account about a DVD player being in the bedroom and that, in fact, her evidence was that they had no need for a DVD player because they used the PlayStation to play DVDs. The complainant's mother, however, did not give evidence there was not a DVD player in the bedroom; she said she could not remember a DVD player in the room. Her evidence was that while there was a TV downstairs in the appellant's room, she remembered "sitting upstairs all the time" because there was a massive TV up there. Whether or not the couple watched DVDs on a PlayStation does not assist on the point of whether there was a DVD player in the appellant's bedroom.
105 It was pointed out that the DVDs were not tendered on the trial, and it was not possible to test the complainant's accuracy as to what they contained. That is a valid point, but it is not a matter of inconsistency or inadequacy in the complainant's evidence.
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106 It was submitted that the account of the sexual assault makes little sense, noting the complainant's evidence was that the DVDs were watched for a 15-minute period, as 15 minutes is a short time for watching two DVDs, even taking into account the complainant's evidence that the appellant skipped through parts of them.
107 The complainant gave the following evidence in cross-examination on this point about time:
"All right. How long do you think that you were watching that DVD?.......I can't
remember, but we were watching both for about, like, 15 minutes."
108 Plainly, her evidence of the time taken to watch both videos is an estimate only. Furthermore, it is an estimate of time given by a seven to eight-year-old child during which time, on her account, she was sexually abused. In my view, demonstrating the inaccuracy of the complainant's estimate of time is not a realistic approach to an assessment of the reliability of the complainant's evidence generally and specifically about the appellant's conduct. This point can thus be disregarded entirely in an assessment of the nature and quality of the complainant's evidence.
109 Indeed, the same can be said of other estimates of time, such as the duration of time the appellant's penis was in her mouth, or the days or weeks that elapsed between occasions when there were no other events to anchor her memory to the timing of the abuse.
110 The appellant's submissions with respect to this specific occasion concluded with the
following:
"This account was rejected by the jury. This is despite the tendency notice relied upon that it did not occur. Accordingly, this then is a relevant factor when considering the two guilty verdicts. Looking at the evidence holistically, given the improbability and inconsistencies between the evidence of the complainant and [her mother] call into question the soundness of the guilty verdicts on particulars 1 and 7."
by the Crown.
111 To find an accused not guilty of an act of sexual abuse, however, is not to reject a complainant's account or to find that it did not occur. In accordance with the critical witness direction given to the jury in this case, if a jury have a reasonable doubt about the honesty or reliability of a complainant's evidence about the incident the subject of the charge (or the occasion), then the jury are to find the accused not guilty with respect to that incident.
112 The jury's verdict in this case reveals no more than that the jury were not satisfied beyond reasonable doubt of this occasion. Furthermore, the verdict, in and of itself, cannot assist in the task of considering the nature and quality of the evidence. It is the evidence which must be the subject of scrutiny.
113 No aspect of the complainant's evidence or other evidence regarding this occasion has been shown to give rise to a reasonable doubt about the honesty of the complainant's evidence regarding this occasion, or generally. A jury may have regarded aspects of her evidence as inconsistent with her mother's evidence, thus giving rise to a reasonable doubt with respect to this occasion, but not affecting her reliability generally beyond it. I have independently reviewed the complainant's evidence and other evidence, such as her mother's evidence, bearing on this occasion, and I am not left with a reasonable doubt regarding her honesty and credibility generally, or specifically with respect to occasions one and seven.
Complainant's evidence: occasion four
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114 The complainant gave evidence of a subsequent specific occasion that happened in her bedroom which she said, as a guess, was a week or two later after the occasion at Austins Ferry. She described the circumstances as follows:
"Okay. Now, in your own words, can you tell us about how this one started?......I remember him just asking, like, 'Do you want to just to go the room and do the usual?' I don't recall wanting anything or being in trouble. [The complainant's little sister] was home. [The complainant's brother] was in the lounge room playing the PlayStation. I'm not 100 per cent sure, but that's what he mostly did. Mum wasn't home and Nan could've been home or she could not have been, but she wasn't in the house at this time."
115 The complainant added that, by this time, her grandmother was living in the granny flat. The complainant gave evidence that she thought it was a day her mother was out riding with her friend Jackie. She understood "the usual" was to go down to the shed and give him a "blow job", but she did not go to the shed; she went into her bedroom, a room she shared with her brother and little sister. Later, she agreed in cross-examination that [the complainant's brother] did not then share a bedroom with her and her sister.
116 She was asked what happened in her bedroom and she gave evidence that "he went and laid down on my bed … I remember my Saddle Club bedding … he'd pulled his pants down to his ankles…". The complainant gave evidence that she "kneeled down in between his legs", before starting to suck his penis. That went on for about a minute or so, before he asked if she wanted to try something new, and she "had just nodded and shrugged in agreement." She said she just wanted it over and done with. The appellant pulled his pants up a bit so he could walk, and walked to the end of her bed, saying, "You're going to have to pull your pants down for this". The complainant did so, and then he said, "but you kind of have to take them off completely". He asked her to come closer, and she did, and was standing in front of him. Then:
"… he said, 'Turn around so your back's facing me,' …
… He'd kind of like grabbed me like by the waist and lifted me up and told me to wrap my arms around his waist and – which I did end that ended up in me like being upside down and he let go of – he like moved his arms up so I was like more around like my butt kind of like area and my legs were just over his shoulders, one on each shoulder."
She agreed that they were now effectively facing each other, but she was upside down and their
stomachs were together. The complainant was asked what she remembered feeling and she replied,
"all the blood rushing to my head." She then gave the following evidence:"And what was the next thing that [the appellant] did?......He had told me to keep going on with the usual, so I put his penis back in my mouth and started to move my head up and down again.
Okay. And then what does he do?......I remember feeling his tongue touch my – my vagina like – and he started to like lick it like around and inside of it and that went on for about one or two minutes before – no, actually, not – it only went on for about a minute before [the complainant's little sister] had walked in.
… my vagina."
117 The complainant's little sister had just started walking and was one to one and a half years of age. The complainant explained what happened when she walked in. She said the appellant put her down and said to the complainant's little sister, "What do you want, baby" and the complainant remembered hearing her say, "iPad". Her evidence continued:
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"Now, when that's happened, what has [the appellant] said?......He said, 'I'll be out to help you in a minute. Go out and see if [the complainant's brother] can help you', and so she had walked off back out into the lounge room, and he had – he had picked me back up and put my legs over his shoulders again and continued what he was doing, so I continued as well for about only a minute before he had put me down and started to masturbate for about 30 second before he ejaculated."
118 Later, in cross-examination, she explained that when she was being held upside-down, her feet were near his shoulders and not over his shoulders, she was looking at his penis, and her arms were wrapped around his waist.
119 The learned trial judge directed the jury that if they accepted the evidence that the complainant had given about this occasion, there were a number of unlawful sexual acts that are alleged to have occurred. The penetration of her mouth with his penis would amount to rape; the penetration of her vagina with his tongue would amount to rape; and the licking of her vagina, if the jury were satisfied of licking but not penetration, and that the circumstances were indecent, would amount to indecent assault.
Asserted difficulties specific to occasion four
120 On behalf of the appellant, it was submitted that the complainant's account of this incident
was "unbelievable".
121 It was highlighted that the complainant's evidence was that this occasion occurred in the "warmer months" and that, according to the complainant's account, the complainant's brother and sister were both in the house at the time. It was submitted that given the warmer months, there was little reason to stay in the house, rather than go to the shed, and especially so given the risk of detection.
122 The complainant's mother's evidence was that there was no door on the bedroom. This was consistent with the evidence of the complainant that she could not remember seeing a door, and that if there was one, it was open.
123 It is submitted for the appellant that the risk of detection was overwhelming. On this point, I find there are all sorts of considerations which may have played into his choice of location. For example, he may have regarded there being a minimal risk of the complainant's brother leaving the PlayStation and going to that part of the house noting it was away from the bathroom and kitchen. Additionally, the appellant may have been unconcerned about his baby daughter coming into the room given her age and lack of understanding.
124 Further, it was submitted that the acts alleged are physically improbable, and that the description of the oral intercourse, which relies on details obtained during cross-examination of the complainant, is improbable. The appellant summarised the account the complainant gave as follows:
"… The evidence was that the appellant pulls his pants down to his ankles and lies down on the bed. In cross examination the complaint [sic] says that the appellants trousers remain on and that she believed his legs were straight out as he was lying on the bed – however she says that she was kneeling down in between his legs as she sucks his penis."
125 I expect the physical impossibility that is being referred to here is the complainant kneeling in between his legs while his legs were straight out and the appellant's pants were around his ankles. Her evidence, however, was no more than her belief or impression of the position of his legs at some point:
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"Yeah. Okay, and so now – so he's lying on that bed. Can you remember anything
about whether his knees were bent up or whether he was lying flat or - ?......I can't
remember.Can't remember? Okay. Looking back, when you think about this incident, have you got any visual impression as to where or how he's got his legs?......I think they were straight."
126 It is submitted that the description of mutual oral intercourse is improbable. It was contended that, noting the complainant was a small child at the time, it was physically impossible for the appellant to reach and lick her vagina while she sucked his penis in a position where her feet and ankles were near his head.
127 This point may have resonated with the jury, or they may have regarded her account as feasible given the position of the complainant and that the appellant may not have been static during the incident and may have crouched his head and the top of his body down to reach. The complainant's evidence that her ankles were "near" his shoulders is a relative descriptor of proximity and a matter difficult for her to judge during the incident. In re-examination, again, it seemed clear that she was describing the approximate position of her feet. She reiterated that her feet were next to his head, with one leg on either side of his head.
128 The jury may have had reservations about the reliability of aspects of this account, but not the complainant's honesty as a witness, or her reliability generally. It was also reasonably open to the jury to accept the account as physically possible but be left with a reasonable doubt. The complainant's account about this occasion does not leave me with a reasonable doubt about her honesty or reliability generally.
129 The appellant challenged the plausibility of the complainant's evidence that the appellant ejaculated while standing when there was carpet on the floor. This point is particularly weak when the complainant remembered him ejaculating onto something, and he had something in his hand, but she could not remember what it was.
130 The submissions on behalf of the appellant made a point regarding the probability of another aspect of the complainant's account:
"While the above was occurring [the complainant's younger sister] walks into the room, asking for her iPad. This was criticised as unbelievable. Firstly, the unlikelihood of an 18 month asking for an iPad, but also when told to go back to the lounge room that she did as she was told without complaint. Here too [the complainant's mother's] evidence was relied upon, that if [the complainant's younger sister] wanted something she would not give up until she got it, or words to that effect. The implausibility of [the complainant's younger sister] simply going back to the lounge room was commented upon, especially in circumstances where it looks like dad is giving [the complainant] attention."
131 I find this aspect of the submission invites speculation in two respects: first, as to whether the infant would have asked for an iPad when there was no evidence to suggest that was beyond her stage of development at the time and in fact, her mother gave evidence that if her infant daughter wanted the iPad she would ask for it; and second, as to whether the infant would have gone to the lounge room as told to without complaint in circumstances when she was told by her father he would help her in a minute and to go and see if her brother could help her.
132 In a concluding submission regarding this occasion, it is contended:
"The jury did not accept this account occurred, and accordingly must have accepted the submissions made as to the implausibility of the allegation at least in part. The jury must have also rejected tendency to have concluded as they did."
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For the reasons I have given, the inference drawn is flawed. The jury may have been left with a reasonable doubt about this occasion but not positively found that part or all of the complainant's account was implausible, and they need not have rejected the tendency evidence.
133 Having reviewed the complainant's evidence about this incident, it does not cause me to doubt her honesty or, more broadly, the reliability of the evidence she gave on occasions one and seven.
Complainant's evidence: occasion five
134 The complainant gave evidence of a specific occasion that occurred in the dining room at the house in Collinsvale. It was in the evening, it was dark outside, her mother was not at home, and she thought her little sister and brother must have been with her mother. She said there was a single bed mattress underneath the window in the dining room, which was part of a large, conjoined room including the lounge room. Her evidence was that she remembered a little bit of a conversation with the appellant which led "to us being on the mattress doing the usual", as he called it. Her evidence continued:
"All right. Now you go over to the mattress. When you got there, what did [the vis shirt. He'd pulled his pants down and, like, laid down on the mattress, and I just, like, kneeled down in between his legs and I – no. No, no. No. He – he had asked me to take my pants off, or take them down. I had done that, and I had laid down on the mattress, and he'd started to lick my vagina."
appellant] do?......He had – he'd said – he pulled his pants down around his ankles.
She was asked whether the appellant "took his pants down to his ankles", and she replied that was her mistake, saying, "I had got it muddled up. It was me, not him".
135 She was asked to start again, and she reiterated that once they got to the mattress, "he had asked me to take my pants down and to lay down on the mattress", and she did that. Her evidence was that the appellant licked her vagina and put his tongue inside, and that "he was also putting his finger inside as well." She said he was "putting it in and out" and that he did that for about a minute or two before he stopped and said, "okay, now you can do the same to me." She stood up and put her pants back on. He took his pants down to his ankles and laid down on the mattress, and the complainant started to suck his penis. She said while she was sucking his penis, he was sitting up a bit and using his elbows to hold himself up, and that she was in between his legs and his penis became erect in her mouth. She did that for "about two to three minutes", before he asked her to remove her head and he started to masturbate then ejaculated. His shirt was pulled up and he ejaculated onto his stomach. Then he wiped it off with his shirt, stood up and pulled his pants up, and said she was "done". The complainant gave evidence that that was the first occasion he had used his fingers in that way.
136 In cross-examination, the complainant agreed that, of all the incidents, this was one she remembered the least. She was asked:
282 The multiplicity of points and contentions regarding the evidence does not reveal any deficiencies or inadequacies that should have impacted upon a jury's assessment of the complainant's honesty. There were some valid points about the reliability of her evidence with respect to certain occasions, but ultimately, there was not a verdict of guilty with respect to those occasions. Moreover, that evidence was not the kind that cast a shadow on the reliability of the evidence the complainant gave with respect to the occasions that did result in a guilty verdict.
283 Having regard to the points made, in my view, the evidence was sufficient in nature and quality to satisfy the jury beyond reasonable doubt about the accused's guilt in relation to occasions one and seven, which resulted in a verdict of guilty. In reaching that conclusion about the sufficiency and quality of the evidence, I have undertaken an independent assessment of the entirety of the evidence and I am not left with a reasonable doubt as to the guilt of the appellant. It was plainly open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant with respect to occasions one and seven.
Ground 2: Inconsistent verdicts
284 The second ground of appeal asserts:
"The verdict of the jury of not guilty to the charge of persistent sexual abuse of a child, but guilty to 2 counts of rape in the alternative was factually inconsistent, particularly in light of:
i The evidence led at trial; ii The specificity of the particulars asserted; iii The tendency directions given at trial."
285 The term "factually inconsistent" has a particular meaning derived from the High Court case of MacKenzie v The Queen (1996) 190 CLR 348 per the joint judgment of Gaudron, Gummow and Kirby JJ at 366. Verdicts which are factually inconsistent are to be contrasted with cases of legal or technical inconsistency where, on the face of the court's record, there are two verdicts which cannot stand together. Assertions of factual inconsistency are demonstrated by reference to the evidence. The test cited by the High Court judgment from Devlin J in R v Stone (13 December 1954) is:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion …"
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In this case, it is argued for the appellant that the acquittal of the principal charge cannot stand with the finding of guilt with respect to occasions one and seven.
286 If doubt is cast upon a verdict in a particular case because it logically cannot stand with another verdict, an appellate court must determine whether it should intervene. It must decide whether the conviction, based upon the impugned verdict, is unsafe or unsatisfactory: MacKenzie at 365.
287 The judgment in MacKenzie identified guiding propositions at (355-368), including the respect for the function the law assigns to juries which has led to the courts repeatedly expressing reluctance to accept a submission that verdicts are inconsistent. At 367, the judgment, in part, stated:
"Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries." (Footnotes omitted.)
288 After referring to the ameliorative role of the jury and the comments of King CJ in R v Kirkman (1987) 44 SASR 591, the judgment referred to a residue of cases where the ground may be borne out:
"Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'." (Footnotes omitted.)
289 Applying these principles to the case at hand, the verdicts are not at all inconsistent, let alone so as to render the resulting convictions of the appellant unsafe or unsatisfactory. In essence, this is a case where the jury appears to have "simply followed the judge's instruction to consider separately the case presented by the prosecution" and the need for satisfaction beyond reasonable doubt with respect to each occasion. My reasons for that conclusion are as follows.
290 The appellant argued:
•
The flaws that existed regarding particulars two to six were equally present in particulars one and seven;
• All occasions relied upon the acceptance of the complainant's evidence for a conviction; •
The complainant's evidence as to occasions two to six must have been rejected by the jury for the verdict that was entered;
•
The jury must have rejected any suggestion of tendency reasoning as, once it is accepted that tendency was rejected, it then becomes difficult to logically provide a pathway to conviction for particulars one and seven;
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• The evidence for particulars one and seven did not differ substantially to particular two, where no conviction was proved; and • The verdict returned is an affront to logic and common sense. 291 It has been revealed in the above consideration of each occasion with respect to ground one, that it is not the case that "all flaws regarding occasions two to six were equally present in particulars one and seven". As discussed above, there were discrete issues; for example, in relation to occasion five, the complainant expressed confusion about what in fact happened and in what order.
292 The submission is correct insofar as the point that all occasions relied upon the acceptance of the complainant's evidence for a finding of guilt. As noted above, the jury were given a direction in terms that they could not find the accused guilty unless they were satisfied beyond reasonable doubt of the complainant's honesty and reliability.
293 It is not correct, however, that the verdicts reveal the complainant's evidence on occasions two to six must have been "rejected" by the jury. As already mentioned, the verdicts are entirely consistent with a finding by the jury that the complainant was an honest witness across her evidence but, given some aspects of her evidence, the jury were not able to find all seven occasions proved beyond reasonable doubt.
294 At the risk of stating the obvious, I add the following remarks. The submission on appeal fails to take into account the nature of the jury's function, and the onus and standard of proof. The jury are not presented with an all or nothing choice. It is not a case of acceptance of a witness's evidence and satisfaction beyond reasonable doubt of the honesty and reliability of a witness's evidence on the one hand, or rejection of a witness's evidence on the other.
295 In this case, the jury may have been satisfied of the complainant's honesty beyond reasonable doubt, and satisfied that she was generally reliable, but left with a reasonable doubt about the reliability of her evidence with respect to occasions two to six. Put simply, rejection of the complainant's evidence is not an essential step in the pathway to an acquittal.
296 It was submitted that the verdicts reveal the jury must have rejected the tendency evidence. It will be remembered that there were two categories of tendency evidence: first, the evidence of the other specific occasions; and second, the general evidence of the appellant's sexual behaviour that is not the subject of a specified occasion. In relation to the first category, it was inherent in the verdict that the jury was not satisfied beyond reasonable doubt that any of those specific occasions, apart from one and seven, happened. That proposition is incontrovertible.
297 In relation to the second category, it was submitted the verdicts reveal the evidence must have been rejected by the jury. Here, there was heavy reliance by the appellant on the sentencing remarks by the learned trial judge and her Honour's findings about the tendency evidence. Her Honour referred to the evidence that the appellant had sexually abused her on occasions other than the seven specified occasions. As noted above, this evidence was as follows:
• "After occasion 1 we did it a few more times in the little room before moving to the shed". • "It happened once, twice – sometimes even three times per week – in the shed… he would put his penis in my mouth and be watching pornography on his phone. It would usually start by him saying 'Let's do the usual'." 298 The jury were instructed they could use the evidence as context evidence, that is, as part of the complainant's narrative, and were further instructed they were entitled to use the evidence as part of a tendency reasoning process. The instruction given to the jury regarding the tendency reasoning process that was open to them reflected the tendency notice, and the jury were directed in the following terms:
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"The Crown says this conduct reveals the appellant had a tendency to sexually assault [the complainant] when her mother was away from the residence and in circumstances where he would often be watching pornographic videos."
299 The learned judge in her sentencing remarks made findings of fact about this evidence. Her
Honour stated:
"In my view, given the way the trial was conducted, it is difficult to see how the jury could have been satisfied the accused had the asserted tendency, namely a tendency to sexually assault the complainant when her mother was away from the residence and in circumstances where he would often be watching pornographic videos, and not have been satisfied beyond reasonable doubt that more than two occasions had been proven. I do not consider it is consistent with the jury verdict to sentence on the basis the asserted tendency has been proven.
The State argue that the complainant's evidence in respect to occasion seven, which she said involved the defendant pulling his pants down, sitting on the couch and saying, 'We're going to do the usual' makes no sense unless there had been intervening sexual assaults directed at the complainant which would explain her understanding of the instruction 'We're going to do the usual'. I acknowledge there is some merit in that submission, but it is difficult to rationalise how the jury, if they accepted there was intervening sexual behaviours, could not have been satisfied beyond reasonable doubt that at least one other of the identified occasions had been proven beyond reasonable doubt, given the particularity of those occasions, and the jury's entitlement to rely on tendency reasoning. Having regard to the jury's verdict I intend to proceed on the basis that the two counts of rape were isolated acts, constituted by the conduct described by the complainant. Her evidence satisfies me that at the relevant time, [the appellant] was acting in a parental role in respect to her. He was her mother's partner and was living with the complainant in the family home. He was the father of the complainant's sister."
300 It must be remembered that the learned trial judge was engaged in the task of making findings of fact for the specific purpose of sentencing. Whether there were unspecified occasions of sexual conduct, also described as "intervening behaviours", is an aggravating factor extraneous to the two specified occasions the appellant was charged with and found guilty of, and so, in order for this factor to be taken into account, the learned sentencing judge would herself need to be satisfied of those unspecified occasions beyond reasonable doubt: R v Olbrich [1999] HCA 54, 199 CLR 270. The sentencing comments were made to reveal the trial judge's process of synthesising the verdicts and the evidence and determining the facts beyond reasonable doubt.
301 It may be noted her Honour's reasoning was not based on any adverse observations she made about the complainant's veracity or her evidence regarding the specific occasions or the "intervening behaviours", but rather, the difficulty her Honour had in rationalising the evidence of "intervening behaviours" with the verdicts, that is, the jury not being satisfied beyond reasonable doubt of more than two occasions.
302 In light of these matters, the sentencing comments are of limited assistance in the entirely different task faced by this Court in ascertaining whether there was a logical and common-sense pathway to conviction. The jury did not receive any directions which reflected the sentencing remarks and, of course, were not constrained by her Honour's reasoning in their consideration of the evidence. I consider it would have been open for the jury to both accept the intervening sexual behaviours, but not be satisfied beyond reasonable doubt of the identified occasions two to six because of discrete factors regarding the complainant's evidence with respect to each of those occasions. I put to one side the remarks for the purpose of this appeal and, because it was open to the jury to do so, I take into account the tendency evidence of unspecified occasions.
303 It was argued that the evidence on occasions one and seven did not differ substantially from occasion two to support the proposition that the verdicts could not be reconciled. Occasion two was
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the only other specific occasion that occurred in a shed at the Collinsvale property. There were however matters of detail in relation to occasion two, which were different to occasions one and seven, that the jury may have considered had a bearing on whether they were satisfied beyond reasonable doubt as to the complainant's reliability with respect to this occasion. For example, there was some uncertainty in the complainant's evidence about whether she had been to school that day, she said she was unsure and could not remember what happened on that day. She agreed however that she had talked to the prosecutor to prepare a document and that she told them she thought she had been to school that day. In her evidence, she was asked whether the appellant had been at work and she said, "No, I don't. I don't reckon he did, no." By contrast, in her statement, she said the appellant was dirty as he had been to work but he had washed his hands. The jury might have regarded these differences between her evidence and her statement as immaterial, or they may have had a bearing on the jury's conclusion with respect to that occasion.
304 In cross-examination, the complainant agreed this second occasion was an occasion mentioned in her first police interview. It was suggested to her that she told police when stating what happened in the shed, the appellant "walked into and he laid down", while it was now her evidence that he was seated on a car seat. She agreed this was "because I remember a lot more." The jury may have considered that evidence raised a reasonable doubt.
305 There is another reason why the jury may have been satisfied of occasions one and seven, but not occasion two when the evidence was that it occurred in similar circumstances. According to the complainant's evidence, there were a number of incidents of similar abuse between the first and second occasion and after the second occasion. The jury may not have been satisfied beyond reasonable doubt that the complainant was recounting the second specific occasion relied upon by the State and not confusing it with one or more of the non-specific occasions. The learned trial judge directed the jury it was essential to a finding of guilt that the jury were satisfied beyond reasonable doubt of at least three specific occasions and that they must not substitute the conduct of the accused on some occasion other than the seven specific occasions the State rely upon to prove a particular occasion occurred: see above at [256].
306 After summarising the Crown and defence contentions in relation to the tendency evidence,
her Honour added:
"Now ultimately, proof of the asserted tendency relies upon you accepting the evidence of [the complainant] beyond reasonable doubt. And I remind you about what I have already said to you about scrutinising her evidence with care."
307 It is worth noting the jury returned with a question with respect to the terminology, "exact circumstances" in par 2.5 of the memorandum that her Honour provided to the jury. That paragraph stated:
"2.5 It is not necessary for the Crown to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of them were committed. But the jury must be satisfied beyond reasonable doubt that the individual unlawful sexual act was committed."
308 In answering the jury's question, the learned trial judge stated:
"What is important is that you are able to identify the specific occasion as opposed to it being a general assertion that things happened. So, for example, occasion 2. She references it happening on a car seat. You wouldn't have to be satisfied that it was a particular type of car seat; you would have to be satisfied that the evidence establishes that that identifiable occasion occurred and that that was an occasion that occurred as opposed to just a general assertion that, 'we used to go down to the shed and he would make me suck his penis'.
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So, do you understand that that needs to be your focus? You need to be able to identify the specified occasions and your satisfaction as to three specified occasions must relate to three of the identified occasions that the State have relied upon. So, at least 3 out of the 7. So it comes back to what I told you before, you cannot substitute general evidence to satisfy you about specific occasions that are alleged. So, little things like type of car seat, colour of a couch, those sorts of things, they are the type of exact circumstances that the State don't have to identify, but what they must do is lead sufficient evidence that satisfies you that an identifiable occasion occurred."
309 In relation to occasion two, it is entirely possible that the jury accepted the complainant as an honest and reliable witness generally, but could not be satisfied beyond reasonable doubt that, in her evidence, she was referencing the specific occasion rather than the usual incidents that were non- specific. It must be remembered that the complainant was recounting what happened to her when she was seven or eight years of age, approximately seven years before she gave evidence.
310 In my view, there is a logical and rational pathway open to the jury which explains the verdicts of not guilty of the principal charge and guilty of rape in relation to occasions one and seven.
311 Occasions one and seven were the first and last occasions, and the jury may have regarded those as holding a distinctive place in the complainant's memory. She agreed that she referred to three occasions in her first police interview. It was reasonably open to the jury to regard the occasions she did not mention in her first police interview as being less reliable than those that she did. The evidence was that she specifically referred to the first and last occasion and one time "in the middle". The evidence she gave suggests occasions three, four, five and six were not specifically referred to by the complainant in her first police interview.
312 In terms of the sequence of occasions, the complainant was confident about the first and last occasion but that, in relation to the other specific occasions: "The order's a bit jumbled", and she agreed the occasions in between might have happened in a different order. When cross-examined about occasion five, she stated the frequency of the incidents has made it difficult to remember: see above at par [138]. The jury may have regarded this evidence as detracting from the reliability of the complainant's evidence regarding occasions two-six.
313 The jury may have found the tendency evidence of the general occasions or intervening behaviours held more weight or significance for occasions one and seven than some of the other occasions. The jury were directed the evidence could be used as tendency reasoning in that the appellant had a tendency to sexually assault the complainant when her mother was away from the home and in circumstances where he would often be watching pornographic videos. Occasion seven had both hallmarks of this tendency, while occasions one, four, five and six did not involve the watching of pornography, and occasion three did not occur at Collinsvale when the complainant's mother was away from the residence. Additionally, and relevant to the support provided by the tendency evidence to occasions one and seven, all of the general occasions were said to have happened in the shed where only occasions one, two and seven occurred.
314 As noted, the jury may not have been satisfied beyond reasonable doubt that occasion two was not confused with other similar occasions which happened in the shed.
Conclusion: ground two
315 It is for these reasons I conclude the verdicts are not "an affront to logic and common sense". The verdicts of not guilty of the principal charge and guilty with respect to occasions one and seven are not inconsistent and, in fact, they reflect the evidence and factual findings open to the jury and the directions of law given by the trial judge.
Conclusion on the appeal
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316 For the reasons I have expressed, neither ground of appeal succeeds. I would dismiss the
appeal.
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File No CCA 1516/2022
AWK v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 20 June 2024 |
317 I agree that leave should be granted and the appeal dismissed for the reasons given by Wood J. To those reasons I would add general observations concerning one aspect of the appeal and submissions.
318 This appeal, and many of the submissions advanced by the appellant, reflect and seek to perpetuate outdated concepts and myths surrounding the conduct to be "expected" of child complainants in sexual assault cases. Similarly they seek to perpetuate such concepts and myths about the evidence of child complainants, often given many years after the events. The submissions also overlook the risk-taking behaviour of sexual predators commonly the subject of evidence in the criminal courts.
319 I agree with the observations of Wood J concerning submissions amounting to speculation as to memories and behaviours "expected" of child complainants. As her Honour has noted, there exists extensive research in this area. In addition to research, there is a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts to which I have referred.
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