Bolton v R

[2023] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bolton v R [2023] NSWCCA 211

Hearing dates:

24 July 2023

Date of orders:

28 August 2023

Decision date:

28 August 2023

Before:

Harrison J at [1]
Wilson J at [53]
N Adams J at [55]

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIMES – appeals – appeal against conviction – sexual offences against child – asserted unreasonableness or questionable supportability of verdicts – where complainant six years old at time of alleged offending and nine years old at trial – asserted inconsistency of complainant’s evidence – where allegations themselves said to be so inherently fantastical jury must have had doubt – nature of child sexual offending – nature of allegations described within experience of courts and the community – jury advantage in observing witnesses – verdicts not unreasonable

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5

Cases Cited:

AS v R [2022] NSWCCA 291

Dansie v The Queen [2022] HCA 25

JL v R [2023] NSWCCA 99

Khan v R [2022] NSWCCA 157

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

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

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

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

RA v R [2020] NSWCCA 356

RW v R [2023] NSWCCA 2

Sita v R [2022] NSWCCA 90

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

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

VP v R [2021] NSWCCA 11

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

Brendon Bolton (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Avenell SC (Applicant)
E Nicholson (Respondent)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/169366

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

10 December 2021 (conviction)
30 March 2022 (sentence)

Before:

Harris DCJ

File Number(s):

2019/00169366

HEADNOTE

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

Mr Bolton was tried and convicted on 10 December 2021 of seven counts of sexual offending against his nephew before a jury and Harris DCJ. The allegations in the indictment were referable to three separate incidents:

• The “bathroom allegations”;

• The “couch allegations”; and,

• The “grey bed allegations”

The circumstances of the alleged offending, globally, were perverse, opportunistic and at times bizarre. The complainant’s account, who was aged six at the time of the alleged offending, six at the time of a JIRT police interview and nine at the time of the pre-recorded hearing, contained inconsistencies regarding both the occurrence and substance of the alleged offending.

Mr Bolton on appeal took issue with his conviction, asserting that the verdicts were unreasonable and cannot be supported having regard to the evidence. The substance of the attacks on the complainant’s evidence centred on apparent lapses in memory and detail in the complainant’s account, as well as a suggestion that certain allegations were so inherently fantastical they could not reasonably have been believed.

The Court held (granting leave to appeal but dismissing the appeal):

Globally:

Per Harrison J (Wilson J and N Adams J agreeing):

1. The jury were able to see and hear the complainant and Mr Bolton give evidence, and were appropriately directed in terms of Liberato. The issues which were raised on appeal were credibility matters resolved by the jury in favour of the complainant, and they were not in error to do so: [52], [54], [56]-[60]

Z (a pseudonym) v R [2022] NSWCCA 8; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Per Harrison J (Wilson J and N Adams J agreeing):

2. Noting the advantage of the jury to observe and evaluate the characteristics of the child complainant it is unrealistic to assess the evidence of the complainant too critically by suggesting the jury must have had a reasonable doubt about Mr Bolton’s guilt, just because the evidence of the complainant did not come out without apparent lapses in memory or in a logical temporal sequence: [37]-[38]

3. The experience of the Court is that the fear of detection in child sexual assault cases does not universally operate as a deterrent. The fact that the conduct giving rise to the alleged offending was extraordinary, or bizarre, and that the language used by the complainant reflected a child’s understanding of the conduct, are also not beyond the Court’s experience, and do not raise a doubt as to the guilt of Mr Bolton: [41]-[45], [54]

VP v R [2021] NSWCCA 11; RW v R [2023] NSWCCA 2

4. The complainant did give some inconsistent evidence on, for example, time. Putting this to the side when it came to assessing those parts of the complainant’s evidence that recounted and described a number of sexual assaults in idiosyncratic detail was within the jury’s remit: [50]

Per N Adams J:

5. With regard to the “couch allegations”, the evidence of the complainant was capable of giving rise to a doubt about the guilt of Mr Bolton, but one which is resolved by the jury’s advantage in seeing and hearing the evidence.

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

JUDGMENT

1. HARRISON J: Brendon Bolton seeks leave to appeal against his conviction by a jury on 10 December 2021 on seven counts of sexual offences against a child on the single ground that the verdicts are unreasonable and cannot be supported having regard to the evidence. Leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 as the ground of appeal does not involve a question of law alone.

2. Mr Bolton was sentenced on 30 March 2022 to an aggregate sentence of 10 years imprisonment commencing on 10 February 2021 with a non-parole period of 7 years. Mr Bolton does not challenge that sentence.

3. Mr Bolton was convicted of the following offences:

Count 1: Indecent assault person under 16 years of age

Count 2: Indecent assault person under 16 years of age

Count 3: Common assault

Count 4: Commit act of indecency with victim under 10 years of age

Count 6: Sexual intercourse with child under 16 years of age

Count 7: Indecent assault person under 16 years of age

Count 8: Sexual intercourse with child under 10 years of age.

4. These counts can be conveniently considered in three groups:

The bathroom allegations

Count 1 alleged that Mr Bolton rubbed the complainant’s penis. Count 2 was an allegation that Mr Bolton had inserted and wiggled his penis in the complainant’s armpits. Count 3 was an allegation that Mr Bolton kicked the complainant in his bottom when naked in the bathroom.

The couch allegations

Count 4 alleged that Mr Bolton put his penis in the complainant’s face. Count 6 alleged that Mr Bolton penetrated the complainant’s anus with his penis.

The grey bed allegations

Count 7 asserted a second complaint that Mr Bolton inserted his penis in the complainant’s armpits. Count 8 came from a complaint that Mr Bolton inserted his penis in the complainant’s mouth.

5. The Crown case at trial may be briefly summarised.

6. The complainant is Mr Bolton’s nephew. His father, JH, is Mr Bolton’s brother. The complainant’s parents separated in 2015. The complainant and his older brother thereafter continued to live with their mother NF, but stayed with their father every second weekend. By 2018, the complainant’s father had a new partner, EG and another son, E. In July 2018, Mr Bolton moved in with JH’s family in an apartment. When the complainant visited, he called Mr Bolton uncle BJ. In October 2018, JH moved to a house. In 2018, the complainant constantly indicated, especially after JH moved to the house, that he did not want to go to his father’s place to stay or visit.

7. On 10 or 11 January 2019, the complainant complained about Mr Bolton to his mother. On 11 January 2019, NF reported the complaint to the police. On 21 January 2019, the complainant participated in a JIRT interview with police where he outlined the events in the bathtub (Counts 1-3), the incident on the couch (Counts 4-6) and the incident in the grey bed (Counts 7-8). The complainant was about 6 years and 8 months old at the time of the JIRT interview. The pre-recorded evidence hearing took place in November 2021, by which time the complainant was 9 years old.

8. On 30 May 2019, police attended Mr Bolton’s address where he was arrested. He has always denied committing the alleged offences.

9. In the pre-recorded hearing on 10 November 2021, the complainant agreed that he had spoken to police about some things that Mr Bolton had done to him. He agreed that he had watched that recording of his interview with police earlier that week prior to giving evidence. He said that everything he had told police was the truth and that there was nothing that he had told them that he now thought might not be quite right.

10. The complainant indicated in his 2019 interview that he understood that police would be recording what they asked him. He told police that he was 6 years old and would be 7 years old in 5 months’ time. He also spoke with police about his understanding of the truth and lies and said that lying was a bad thing.

11. The complainant told police that “uncle BJ touched my willy on my private parts”. He said, “and he was touching my private parts, and he was saying really rude things to me, but my brother didn’t hear … ‘cause I think he was asleep in the night… But I forget all the rest”. The complainant did not know uncle BJ’s name. In the recording, the complainant pointed to his genital area twice and under his arm pits. He identified on a drawing of a boy the private parts that BJ touched, placing a circle around the “willy and balls” which is used for “weeing” and the “butt hole” which is used for “pooping”.

Mr Bolton’s submissions

12. Mr Bolton maintained that there are substantial difficulties, not just minor inconsistencies or discrepancies, with the complainant’s evidence, with the result that there must be a reasonable doubt: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493-495, Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14], The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66], Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], [119] and Dansie v The Queen [2022] HCA 25 at [7]-[14]. Mr Bolton contended as follows.

13. First, the complainant said the bathroom allegations took place at night, after EG asked Mr Bolton to bathe him, and everyone else was asleep in bed. Part of the significance of these circumstances is that they provide an opportunity for Mr Bolton to be with the complainant in the bathroom alone. This opportunity is, however, highly improbable in light of the evidence of JH and EG. The effect of their evidence is that there was no occasion when the complainant was left in the bath when everyone except Mr Bolton had gone to bed. There is no reason not to accept their evidence on this. It is generally unlikely that the parents of a 6 year old would go to bed while the child is still up. It is especially unlikely they would do so while the child is still in the bath. Given the importance of supervision, one would expect them to have remembered if they had done so, leaving Mr Bolton in charge.

14. In cross-examination, the complainant said, at least when he got into the bath, the complainant’s brother was in the loungeroom playing on his phone. However, if that were the case, it would mean a person was up and awake in a room just down the hallway from where the alleged conduct was taking place in the bathroom.

15. Secondly, in the evidence-in-chief (JIRT interview), the complainant said Mr Bolton touched his armpits with his penis in the bathroom (Count 2) and woke up to Mr Bolton wiggling his penis on his armpits on the grey bed (Count 7). Mr Bolton contended that this is an inherently implausible activity if it occurred once, let alone twice, in both armpits. The complainant did not mention it in cross-examination, despite being given a specific opportunity to do so in relation to what happened on the grey bed. It is the kind of act one would expect to be remembered if it actually happened.

16. Thirdly, in evidence-in-chief, the complainant said when he got out of the bath and was drying himself in the bathroom, Mr Bolton kicked him on the bottom (Count 3) and insulted him. In cross-examination, the complainant did not mention this. Rather, he gave an account of both he and Mr Bolton sprinting out of the bathroom to their bedrooms, the complainant being undressed and Mr Bolton wearing no pants. This is unlikely, especially if one were to accept the possibility that the complainant’s brother was still up. Mr Bolton submitted that the complainant’s whole cross-examination, explaining what happened when he got out of the bath, was redolent of a young child making-up answers as he was being questioned. Moreover, this is not on some peripheral issue, but when Count 3 as it is said to have occurred.

17. Fourthly, the complainant had forgotten about the couch allegations at the pre-recorded hearing, even though he had watched the JIRT interview two days earlier. He brought up some other incident. Mr Bolton submitted that this must raise a doubt when the complainant had forgotten about, amongst other things, Mr Bolton putting his penis into the complainant’s anus and wiggling it around, hurting him.

18. Fifthly, in his evidence-in-chief, the complainant said the couch allegations happened at night, when everyone else was outside. In cross-examination, once reminded of them, the complainant said it was during the day and that no fewer than seven adults were outside on the veranda. The complainant claimed the blinds were closed and the front doors shut. Mr Bolton emphasised that this seems unlikely given the group was on the veranda, probably socialising, during the day in warmer months. Furthermore, the prospect of a grown man, with his pants around his ankles, having anal intercourse with a 6 year old in a loungeroom opening straight onto a veranda where several adults were located, “borders on the fantastical”. This view is also supported by the inconsistencies of whether it happened during the day or night and how it started, with the complainant waking up to Mr Bolton’s penis on his face or Mr Bolton taking the complainant’s iPad.

19. Sixthly, in evidence-in-chief, the complainant said that during the grey bed allegations, his brother was sleeping in E’s cot. Even if the complainant’s brother was a heavy sleeper, it is again highly unlikely that, in what the complainant later described as a very dark room, Mr Bolton would have gone in, wiggled his penis around the complainant’s armpits and face and then put it into the complainant’s mouth, without disturbing the complainant’s brother, or having regard to the very real prospect of disturbing him. The beds were very close together, with drawers adjacent to the complainant’s bed. The doubt this raises is furthered by the numerous other issues arising from the complainant’s cross-examination on the grey bed allegations.

20. For example, in cross-examination, the complainant was asked whether he remembered telling the police about someone touching him with his “willy” on the grey bed. He said Mr Bolton “put his willy in my face and my mouth on my grey bed”. When he was being questioned about how he recognised Mr Bolton in the dark, the complainant volunteered “…then he put his willy up my butt and my mouth and my face”. Later, there was the following:

“Q. When you were on your grey bed where on your body do you say that Uncle BJ touch you?

A. He touched me on my mouth and face.

Q. Your mouth and your face?

A. Yep.

Q. What part of his body did he touch your mouth?

A. His willy and my face his willy as well.

Q. Were they the only parts of your body that he touched while he was in your room?

A. Yes.”

21. The complainant said he could not remember if it was the same day that something happened on the couch. He said it was when he was trying to fall asleep but before he had done so, because it was night time and time to go to bed. The complainant said he had been lying in bed for a very long time before Mr Bolton came in. He said he could not remember if anyone else was in his bedroom with him. He said his brother was asleep in his own bedroom, which was another room his brother shared with Mr Bolton. He said he thought Mr Hart and EG were asleep, as he heard the television in their bedroom go silent. When reminded he said they always went to bed after he did, the complainant said, “Yes, but I accidentally stayed up.” The complainant said it was very dark in the room, so much so that he could not see Mr Bolton or what clothes he was wearing, but recognised his shape. The complainant said Mr Bolton spoke in a soft voice. He said he didn’t call out, because he was afraid.

22. Seventhly, across all of the alleged incidents, the complainant said Mr Bolton swore and directed insults to him, in a soft voice. It has been submitted that the statements attributed to Mr Bolton are “fatuous and childish”. They have the hallmarks of things a child would say another person said, when trying to get that person into trouble, rather than things an adult would say, even if trying to be demeaning. The soft voice with which Mr Bolton allegedly spoke is incongruent with the supposed content.

23. Finally, Mr Bolton’s pre-emptive attendance at Campbelltown Police Station to report the accusations against him cannot be disregarded. Even if the jury did not accept Mr Bolton’s evidence, this was an unusual thing for a guilty person to do.

24. Mr Bolton submitted that the prosecution case is not saved by the complaint evidence. He acknowledged that there is some consistency between the things the complainant told his family members and reported in the JIRT interview. The complaints, however, were brief and “had a rote air to them”. They were also relatively not long before the JIRT interview.

Crown submissions

25. Mr Bolton’s argument rests primarily upon the assertion that there were “substantial difficulties” regarding the credibility of the complainant and that on that basis the jury verdicts were unreasonable. However, the primary function of determining guilt or innocence is entrusted to the jury as the tribunal of fact and this Court must proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [38]-[39].

26. There are in those circumstances consequential restraints upon the extent to which an appellate court is entitled to disbelieve a witness whose evidence the jury must have accepted, at least in so far as it established the elements of the offences of which an accused person has been convicted. It will only be in an unusual case that a complainant’s credibility will have been so damaged that it would not open to the jury to accept his or her evidence: Z (a pseudonym) v R [2022] NSWCCA 8 at [29]; JL v R [2023] NSWCCA 99 at [94]-[95]; AS v R [2022] NSWCCA 291 at [107].

Consideration

27. Mr Bolton’s propositions proceed on the basis of a combined attack upon the complainant’s memory, his believability and his consistency. That is to say, his memory is so suspect and so frail that his recollection of events must be doubted, his assertions about what happened to him are so extreme and fanciful that they simply could not be believed and his self-contradictions are so stark and so numerous that his evidence must be rejected as wholly unreliable. Having regard to these general criticisms, Mr Bolton maintains that the jury must have entertained a reasonable doubt and that this Court must do so as well.

Memory

28. The Crown submitted that the complainant’s failure to mention some aspects of the conduct complained of in general or his failure to remember some of the details of that conduct in particular should not mean that the jury must have had a doubt.

28. For example, the complainant failed during cross-examination to mention that Mr Bolton kicked his bottom (Count 3) or that Mr Bolton’s penis touched his armpits (Counts 2 and 7). Mr Bolton relies upon these omissions as significant. The Crown contends on the contrary that it is unsurprising as the complainant was not asked any questions about these matters by counsel for the defence. The Crown also emphasises that the complainant was young and his evidence was given some time after the alleged offending occurred. The fact that he did not return to some aspects of the offending in such circumstances therefore dilutes the apparent significance of these matters.

29. Several other examples can be observed. Mr Bolton asserts that the complainant forgot the incident “on the couch” when he gave his pre-recorded evidence so that this required the jury to have a doubt about those counts. The Crown disputed that submission upon the basis that a careful reading of his evidence shows that he had not forgotten the relevant facts but appeared instead to be confused about the particular incident to which his attention was being directed.

30. The Crown suggested that the source of the confusion may have been the reference to “the couch”. It would appear that there were two discrete incidents that occurred on the couch, about which some evidence was given at the pre-recorded hearing. These were the incident of anal penetration and the incident referred to as “the very first time”. The complainant also slept in his bedroom on a mattress which he called his “grey bed”, but which he understood to be part of a couch, described as “a cushion piece”. This was the location of the incidents charged in Counts 7 and 8: the reference to “on the couch” was therefore potentially ambiguous.

31. In the recorded interview with police, the complainant had spoken about the incident where Mr Bolton touched his face with his penis and then engaged in anal penetration as occurring “on the couch”, although it was not clarified at that time in what room the “couch” was located. At the pre-recorded hearing, when the complainant was asked questions about a time that something happened “on the couch”, he spoke about an occasion that he referred to as “the very first time” that something had happened with Mr Bolton. This appeared to be a different incident, which involved Mr Bolton staring at him and placing his hand in his lap. He explained he had not told police about this incident, as he had forgotten about it at the time.

32. When the complainant was specifically directed to the time when he woke up and Mr Bolton’s “willy was in [his] face”, he explained that this was in his bedroom, on the piece of the couch that he called “the grey bed”. This was what the Crown submissions described as “an unfortunately ambiguous question”, as Count 8 also involved Mr Bolton’s penis being in the complainant’s face, being the act of fellatio. The complainant’s answer at T39.19 suggests that at that time he was answering questions relating to Count 8:

“A. Yes and then he put his willy up my butt and my mouth and my face.”

34. In cross-examination, when the complainant was asked about the incident “on the couch”, he appeared again to discuss “the very first time” incident that he had mentioned in evidence in chief. When he was then specifically asked about the incident of anal penetration, he confirmed that he remembered that incident happening. He gave evidence that this incident occurred when his father had a number of friends over, and they were outside socialising. That evidence was consistent with his evidence in his recorded interview with police, that everyone else had been outside when the incident occurred.

35. The Crown submitted that it is not unexpected that the complainant’s memory would be affected by the passage of time between the alleged incidents between October 2018 and January 2019, his recorded interview with police on 21 January 2019 and his pre-recorded oral evidence on 10 November 2021. The Crown emphasised that the fact that the complainant, who was 6 when he was interviewed and 9 at the time he gave evidence, may not have recalled aspects of the offending after a period of almost three years, was not unexpected and did not, of itself, require the jury to have a doubt. The recorded interview with police took place when the incidents were fresh in the complainant’s memory and the jury were entitled to rely on that evidence in considering whether they were satisfied beyond reasonable doubt of Mr Bolton’s guilt.

36. It is in my opinion important to bear in mind the fact that the complainant was very young at the time of Mr Bolton’s alleged offending. Juries are regularly implored to bring their common sense and experiences of life to their deliberations. It is not unreasonable to assume that members of this jury will in varying degrees and circumstances have been able to observe and evaluate the characteristics of children of the age of the complainant from time to time. I would find it surprising that a child between the ages of 6 and 9 years would be expected in the normal course to recall events of the type with which this case is concerned with unerring accuracy as to timing, sequence, and location. That is the more so having regard to the fact that the complainant regularly spent time at the premises where the offences are alleged to have occurred and would have been involved there in a multitude of regular but innocent daily activities that did not involve Mr Bolton.

37. In my opinion, it is unrealistic to assess the complainant’s evidence too critically drawing upon an expectation that it should have fallen out during a JIRT interview or cross-examination some years later without any apparent memory lapses and in a consistently logical temporal sequence. The jury by definition must have accepted the complainant’s evidence notwithstanding the matters to which counsel for Mr Bolton has in helpful detail referred. However, I do not consider that the jury must have entertained a reasonable doubt that the matters complained of were true by reason of some variability in the complainant’s recollection of them. Such a conclusion would offend common sense and one’s experience of young children. That is particularly so given the graphic subject matter of the complainant’s evidence which is unlikely to have derived from an unassisted imagination.

Implausibility

38. Mr Bolton contends that it is implausible or unbelievable that an adult would sexually abuse a child in a loungeroom with adults nearby on a veranda socialising, or in a bathroom adjacent to bedrooms where another child may be in bed but awake, or in a bedroom in which another child was also asleep without waking or disturbing the other child. Mr Bolton also challenges the believability of the complainant’s account that he swore at the complainant during an assault or that he touched the complainant’s armpits with his penis. Mr Bolton also challenges the complainant’s account of running naked from the bathroom with Mr Bolton following him.

39. The burden of Mr Bolton’s contentions is that the things that the complainant has described are simply incapable of belief: they must be the subject of reasonable doubt. Two general reasons for that proposition emerge. First, Mr Bolton relies upon the inherent unlikelihood that a rational adult would risk being discovered or detected perpetrating brazen sexual acts upon a child in the vicinity of adults or another child without being able to exclude the possibility that one of them might enter the room where the acts were being committed. Mr Bolton contends that the jury must have had a reasonable doubt that he would or could have been so recklessly unmindful of the consequences of being discovered that he was prepared to take that risk.

40. The difficulty with that proposition is that common experience, including the experience of this Court, is that the fear of detection in cases of child sexual assault does not universally operate as a deterrent. So much is evident from remarks such as those of McCallum JA in VP v R [2021] NSWCCA 11 at [79]:

“The proposition that the applicant could have silently touched and kissed the complainant in the way she describes as they lay on the floor next to the mattress without being observed by the other girls on the mattress does not cause me to entertain any doubt as to the applicant’s guilt of those counts. Experience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending.”

41. It is important in this context to distinguish between a doubt that the jury might have had and a doubt that they must have had. Mr Bolton’s alleged incautious conduct may well in the course of their deliberations have caused the jury to entertain a doubt. However, in my opinion, Mr Bolton’s alleged conduct was not of a kind or character that must have had that result.

42. Secondly, Mr Bolton relies upon what Ms Avenell described as allegations of conduct that “bordered on the fantastical” and recollections of what Mr Bolton allegedly said to the complainant as “fatuous and childish” in aid of the submission that such evidence must have been doubted. Once again, however, the experience of this Court, if not of the community more widely, is that what might on one view be thought to be extraordinary descriptions of offending conduct are on the contrary commonly, if not regularly, encountered.

43. In RW v R [2023] NSWCCA 2, I considered similar submissions in a case of child sexual assault at [161]-[163] as follows:

“[161] The thrust of the applicant’s submission is that the complainant’s account is so replete with references to what are undoubtedly some very unusual, if not quite bizarre, items and activities that the jury ought to have retained a reasonable doubt about the truthfulness and reliability of the complainant in the circumstances. Rainbow feathers and fluffy gloves are certainly unusual items for a young girl to be describing to adults in formal interviews or in cross-examination and are on any view not things commonly encountered in the normal course of daily life, even in the wide experience of this Court. The applicant maintains, in effect, that his daughter’s descriptions are so fantastic and unusual that they could not be thought by any reasonable jury to be anything other than the product of a vivid imagination. More particularly is this said to be so having regard to the fact that some of the complainant’s evidence is the subject of competing evidence, such as that relating to the existence and deletion of video or photographic material.

[162] However, as the Crown’s submissions somewhat graphically reveal, it is difficult to accept that the matters described in such detail by the complainant must necessarily or only be the product of her imagination. Her reference to the smell of ‘poo’ is a prominent example. Her description of how she felt when penetrated is another. The seemingly inconsequential reference to the applicant’s toenails causing her to bleed is also in this category. The suggestion that the applicant made a paper penis and affixed it to her is on one view so extraordinary, having regard to what one might think to be the usual experiences of a primary school aged girl, that its truthfulness is thereby enhanced rather than shadowed in doubt. Such matters are properly ones for the jury to decide.

[163] I am not satisfied that the complainant’s evidence lacks credibility for reasons associated with its extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that her evidence contains discrepancies, or displays inadequacies, that ought to have led a jury to doubt it or that her evidence is somehow thereby tainted or otherwise lacks probative force. Moreover, in this case the jury had the advantage of seeing and hearing the JIRT interviews of the complainant and her cross-examination. The burden of the applicant’s contentions is that the complainant’s story is simply unbelievable. However, that submission does not find any support in the identification of some fact or circumstance that is obviously or even arguably irreconcilable with its truth so as to lead inevitably to a conclusion that the jury ought to have entertained a reasonable doubt. The Crown’s concession in opening the case to the jury and in closing submissions, that it would have difficulty accepting parts of the complainant’s evidence, and that at times her evidence may appear to be difficult to follow and confusing, is no less than a recognition of the fact that some suitable allowance needs to be made for evidence given by a child…”.

44. These remarks are presently apposite. They are in effect no more and no less than a recognition, in cases such as the present, of the reality that children of the complainant’s age do not generally possess an anterior or pre-existing fund of sexual knowledge and experience from which to draw. In my opinion, the proposition that the jury must have had a reasonable doubt about the complainant’s evidence of anal and oral intercourse, or descriptions of Mr Bolton “wiggling” his penis, is less forceful than the obverse proposition that the descriptions of their very nature lend support to their validity. In particular, the complainant’s references to pain associated with anal penetration are difficult to discount as fantasy. Such issues were plainly for the jury to determine. Any doubt that the jury might, in the course of their deliberations have entertained, by reason of the arguably extravagant and possibly even astonishing nature of the complainant’s allegations, was not one that in my view should have risen to a doubt that they must have entertained.

Inconsistencies

45. It is uncontroversial in this case that the complainant gave some evidence that must have been wrong. For example, he told the police that he was in the bath for 1,000 minutes, later revised to 10 hours. He also gave evidence that his father would watch television for 18 minutes after he went to bed. Imprecision, or alternatively dubious excessive precision of these types would presumably not be expected to influence a jury concerning other descriptions of events given by a child complainant.

46. Moreover, more generally, inconsistency in the evidence of a witness does not of itself establish that a jury ought to have entertained a doubt about the balance of a witness’s evidence. The resolution of such matters is the recognised role of the jury: RA v R [2020] NSWCCA 356 at [15]. Juries are well able to evaluate evidentiary conflicts and imperfections: MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [96].

47. Understandably, Mr Bolton relies upon the asserted inconsistency between the evidence of the complainant, that he stayed in the bath so long that everyone else had gone to sleep, and the evidence of EG and JH, that there was no time when Mr Bolton was bathing the complainant late at night when the rest of the family was in bed.

48. The Crown’s written submissions in this Court included the following:

“As this Court has acknowledged, it is not uncommon for victims to remember specific details about the assaults but not tangential details: See JL v R at [96]; Reed v R [2006] NSWCCA 314…The jury were entitled to determine what significance to give any inconsistency between the complainant’s evidence in his recorded interview that the others in the household were ‘asleep’ and ‘in bed’, and his evidence at the pre-recorded hearing about T being in the lounge room and JH and EG being in their bedroom, in assessing whether they were satisfied of the particular counts beyond reasonable doubt. This evidence does not raise a doubt about whether the complainant was credible and reliable on the elements beyond reasonable doubt.”

49. It is instructive to recall the analysis of Adamson JA in JL in this area of discourse:

“[92] It is for this Court to determine whether it was ‘open’ to the jury to find the applicant guilty or whether a jury ‘must have had a doubt’: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[93] Although the credibility of a complainant may, as here, be significant in a criminal trial, a verdict of guilty may be reasonable even if the complainant’s evidence is not corroborated: Pell, at [53].

[94] Because the primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact, (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)), it will not generally be appropriate for this Court to review pre-recorded or recorded evidence to form its own view of the credibility of particular witnesses on the basis of their presentation: Pell at [36]-[38]. Further, this Court must proceed on the basis that the complainant’s evidence was accepted by the jury as credible and reliable: Pell at [39].

[95] In addition, the extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which he or she has been convicted, is constrained. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

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

[96] Further, in certain circumstances, this Court is entitled to take into account its general experience, including in a particular class of case or for particular witnesses. Such experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spiegelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing):

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

[97] Nor is it uncommon for children to be imprecise about time. Apart from their immature minds, they rarely make contemporaneous notes or have resort to the type of written records which adults use to orient certain events in time. In BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101, the applicant argued that E’s (the complainant) failure to recall a particular detail and error about another detail resulted in an unreasonable verdict…”

50. Mr Bolton maintains that the specific inconsistencies to which he has drawn attention effectively strike at the heart of the complainant’s evidence more generally. It may be accepted as a general proposition, by way of example, that it would be unusual for a 6 year old child to be awake, whether in the bath or not, after his parents had gone to bed. Mr Bolton’s submission in this example effectively insists that the jury could not have legitimately put that matter to one side when it came to assessing those parts of the complainant’s evidence that recounted and described a number of sexual assaults in idiosyncratic detail. The obvious difficulty with that submission is that it erroneously fails to take account of the fact that it is a central part of the jury’s task to do just that. I am unable to accept in this case that the asserted inconsistencies, alone or in combination, must have created a doubt about Mr Bolton’s guilt.

Conclusion

51. The jury were able to see and hear the complainant and Mr Bolton give evidence. They were appropriately directed in terms of Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. It is plain that the jury accepted the complainant as credible and reliable. This was a case where the opportunity of observing the complainant and Mr Bolton was distinctly advantageous. I do not consider that, having regard to the whole of the evidence in the trial, that the verdicts were unreasonable.

52. I would make the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

53. WILSON J: I agree with Harrison J that, for the reasons his Honour has given, the verdicts returned by the jury were open on the evidence. The matters raised by the applicant were capable of resolution by a jury, whose members enjoyed the distinct advantage over this Court of having seen witnesses give their evidence. I would add only that the bizarre or extraordinary nature of some of the applicant’s conduct as described by the complainant does not, and in my view cannot, of itself raise a doubt as to the veracity of the evidence. Neither does the apparent recklessness with which the offences were committed, in circumstances where discovery was not impossible, cause me to have a doubt about the complainant’s evidence. It is the long experience of the courts that no criminal sexual conduct which a perverted imagination is capable of conjuring is incapable of commission. It is also the long experience of the courts that those who seek to prey upon children to commit such criminal sexual acts will do so notwithstanding a risk of discovery, and even a high risk of discovery.

54. I agree with the orders proposed by the Presiding Judge.

55. N ADAMS J: I have had the advantage of reading the judgment of Harrison J in draft. I agree with the orders proposed by his Honour for the reasons provided. Like his Honour, I have made an independent assessment of the sufficiency of the evidence adduced at the trial, giving due allowance for the advantage enjoyed by the jury in seeing and hearing the evidence.

56. Matters of credibility are usually quintessential jury issues. It will be an unusual case where this Court will be able to conclude that a complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence: Z (a pseudonym) v R [2022] NSWCCA 8 at [29]. As the High Court observed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53 at [65] (footnotes omitted):

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ... “

57. Clearly, there will be convictions following trials in which the prosecution relied almost solely on the complainant’s credibility in which an appellate court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt. As the High Court observed in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) at [39] (footnotes omitted):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, 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.” (Emphasis added)

58. It is worth noting that in Pell the High Court was satisfied that the verdicts were unreasonable “in light of other evidence”, being unchallenged evidence making it improbable that the offences could have been committed in the manner and time period alleged by the Crown.

59. The applicant contended that this was one of those cases in which the verdicts were unreasonable based on the complainant’s poor memory, inconsistencies in his evidence and the inherent implausibility of aspects of his account. It is to be accepted that the complainant had lapses of memory and there were inconsistencies in some aspects of his evidence. Harrison J has addressed these submissions at [28]-[37] and [46]-[50] above. Neither the fact that the complainant’s memory on some aspects was poor nor the fact that there were inconsistencies in his evidence leads me to conclude that the jury ought to have entertained a reasonable doubt.

60. That leaves the complaint as to the implausibility of aspects of the child’s account; in particular that the applicant had his pants around his ankles, put his penis in the complainant’s face and then “wiggled” his penis in the child’s anus, hurting him, whilst on a couch in the lounge room when seven adults and the complainant’s teenage brother were on a verandah outside socialising.

61. As I observed in Khan v R [2022] NSWCCA 157 at [152], concerning appeals to this Court contending that convictions for child sexual assault offences are unreasonable:

“… [A]n appeal to this Court on a ground that such a verdict(s) is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act invariably involves an attack on the honesty or reliability of the child complainant. In such appeals it is not uncommon for arguments to be put to the effect that the offence(s) could not have been committed because there were other people nearby. In the present appeal reliance was placed on the unlikelihood of the assaults occurring without other members of the Harace house hearing it. I have not found that submission to be of assistance for the reasons explained in Sita v R [2022] NSWCCA 90.”

62. In Sita v R [2022] NSWCCA 90, Beech-Jones CJ at CL (with whom Price J and I agreed) observed the following in response to a similar complaint at [49]-[50]:

“[49]   Fourth, it was submitted that it was inherently unlikely that, with count 8, the applicant would take the risks of sexually assaulting JU in the presence of another child, KK, and also assume the risk of detection from the presence of JU and KK’s grandmother in the house at the time of the offending.

[50]   The difficulty with this submission is that it is replete with assumptions about how and why adults commit child sexual abuse. The premise of the Crown case was that the applicant was sexually attracted to children. If he was so attracted, then it does not necessarily follow that he would only satisfy that attraction without taking a risk of being detected. Such a person may enjoy taking the risk, be confident that they can avoid detection, or simply be unable to overcome their attraction to children. Like so many of these cases concerning settings such as families, schools and churches, the Crown case involved the applicant exploiting his position of trust to gain access to and abuse young children. Such a person who behaves that way may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted by another adult in the house or that a younger sibling who witnessed the assault would complain about it. As was noted by McCallum JA in VP v R [2021] NSWCCA 11 (at [79) ‘[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending’. In one sense, this is all speculative. However, a submission that the alleged conduct was so brazen that it was unlikely is, in itself, speculative and speculative submissions invite speculative responses. At least in this case, the potential that the applicant may have been detected when acting as alleged by count 8 does not support the submission that the verdict was unreasonable.

63. Although I do not consider it implausible that a child could be sexually assaulted whilst other people are in the same house, the complainant’s account in support of counts 4 and 6 was of a slightly different character. Having considered the evidence at trial, it seems to me that this aspect of the complainant’s evidence is capable of giving rise to a doubt about the guilt of the applicant, but I am satisfied that the “jury's advantage in seeing and hearing the evidence is capable of resolving [that] doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494.

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Decision last updated: 28 August 2023