Boyd Seymour (a pseudonym)[1] v The Queen
[2020] VSCA 113
•12 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0139
| BOYD SEYMOUR (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of the complainant and other witnesses.
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| JUDGES: | MAXWELL P, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 April 2020 |
| DATE OF JUDGMENT: | 12 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 113 |
| JUDGMENT APPEALED FROM: | [2020] VCC 809 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted on two charges of committing an indecent act with a child under the age of 16 years and two charges of sexual assault of a child under the age of 16 years – Child witness 12 years of age – Whether trial judge erred in permitting child witness to give evidence under affirmation – Whether child witness had capacity to understand obligation to give truthful evidence – Whether verdict on one of the charges of sexual assault of a child under the age of 16 years unreasonable – Verdict not unreasonable – Leave to appeal granted – Appeal dismissed – R v GW (2016) 258 CLR 108, R v Climas (1999) 74 SASR 411, Evidence Act 2008 s 13 considered.
CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to 3 years’ imprisonment with non-parole period of 18 months – Whether order for cumulation excessive – Offending involved gross breach of trust – High moral culpability – Order for cumulation appropriate – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Ginsbourg | Randles Cooper & Co Pty Ltd |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the joint reasons for judgment of Kaye and Weinberg JJA (‘the joint reasons’). I agree with the orders which their Honours propose. In relation to proposed ground 2 in the application for leave to appeal against conviction, and the proposed ground of appeal against sentence, I agree with the reasons which their Honours give for refusing leave to appeal.
In relation to the first proposed ground of appeal against conviction, however, my reasons differ to some extent from those given by their Honours. As explained in the joint reasons, this ground concerns the competence of the complainant (AK) to give sworn evidence (by affirmation). The contention is that the judge was in error in permitting her to do so.
In my opinion, the starting point for analysis of this complaint is the statutory presumption of competence. Under the Evidence Act 2008, every person is competent to give evidence unless the Act otherwise provides.[2] Specifically, a person is presumed to be competent (‘not incompetent’) to give sworn evidence ‘unless the contrary is proved’.[3] It is well established that this presumption applies to a child of whatever age.[4]
[2]Evidence Act 2008 s 12(a).
[3]Ibid s 13(6).
[4]Peasev The Queen [2009] NSWCCA 136, [7]; RJv The Queen [2010] NSWCCA 263, [15] (‘RJ’).
Accordingly, AK was presumed to be competent to give sworn evidence unless the contrary was proved. As the High Court confirmed in R v GW,[5] the presumption of competence will be displaced only where the Court is satisfied on the balance of probabilities of the contrary.[6]
[5](2016) 258 CLR 108 (‘GW’).
[6]Ibid [14]; see Evidence Act 2008 s 142.
The operation of the presumption was summarised by McClellan CJ at CL in RA v The Queen, as follows:
A person is presumed to be competent unless the contrary is proved. Any question of competence may be raised by the defence … Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities.[7]
[7][2007] NSWCCA 251, [11]. See also RJ [2010] NSWCCA 263, [24] (emphasis added).
On ordinary principles, a party seeking to challenge the competence of a witness bears the burden of raising the issue.[8] In the present case, defence counsel made no submission to the judge, either before or after AK had answered the judge’s questions, that the presumption of competence had been displaced. Nor was any issue raised by the prosecutor.[9]
[8]Neil Williams et al, Uniform Evidence in Australia (LexisNexis Butterworths, 2015) [13–10].
[9]Cf GW (2016) 258 CLR 108, [15].
The silence of counsel would not, of course, prevent a trial judge from investigating the competence of a witness if there were material before the court (for example, a pre-recorded interview with police) which appeared capable of ‘proving the contrary’. In the usual way, the judge would invite submissions from the parties before embarking on such an investigation.
In the absence of material of that kind, however, there is no obligation on a judge to investigate the question of competence, unless it is put in issue. On the contrary, the court is entitled to proceed on the basis of the statutory presumption of competence.
Even where the question arises, the court is not required to satisfy itself affirmatively that the witness is competent. Rather, as the High Court made clear in GW, what is necessary for the presumption to be rebutted is for the judge to reach an affirmative state of satisfaction, on the balance of probabilities, that the witness lacks the requisite capacity.[10]
[10]Ibid [31].
In the present case, as I have said, defence counsel raised no challenge to AK’s competence. This was significant, in my view, given that counsel had had the benefit of the very detailed report of the court-appointed intermediary, assessing AK’s cognitive and communication capability. And he had had the opportunity of presenting his proposed cross-examination questions to the intermediary for her approval, as the judge noted in her ‘ground rules’ ruling under s 389E of the Criminal Procedure Act 2009.
The exchange which appears to have prompted her Honour’s questioning of AK about truth-telling was as follows:
DEFENCE COUNSEL: Your Honour, perhaps my friend can pick up on what I’m saying just about interest of the proceedings occurring fairly and according to law, your Honour may need to go through the process of ensuring that your Honour’s satisfied that …
HER HONOUR: Yes, I think I do need to do that. She understands the difference but I will not be using a bunch of flowers as an example.
DEFENCE COUNSEL: Yes.
(The reference to a ‘bunch of flowers’ was a reference to a question asked of AK during her interview with police for the purpose of ascertaining whether she understood the difference between the truth and a lie.)
It is notable that neither defence counsel nor the judge here identified any reason for thinking that the presumption of competency was, or might be, rebutted. If, as the brief exchange suggests, there was a common assumption that the judge needed to satisfy herself affirmatively of AK’s competence, that assumption was erroneous. Given the statutory presumption of competence, the judge was under no such obligation.
What then occurred between the judge, AK and the intermediary is described in detail in the joint reasons. Following the completion of AK’s answers to the judge’s questions, the following exchange took place:
HER HONOUR: Good, thank you. Are counsel happy with that?
COUNSEL: Yes, your Honour.
As counsel for the applicant (who did not appear at the trial) properly conceded, defence counsel must be taken to have understood that the enquiry which her Honour had just completed was an enquiry of the kind contemplated by s 13(8). Indeed, as already noted, counsel appears to have invited her Honour to take that course. As can be seen, so far from submitting to her Honour that AK’s lack of competence had been proved on the balance of probabilities, defence counsel was content for the trial to proceed and for the witness to be affirmed.
It is possible, of course, to imagine circumstances in which all those involved in a trial — judge, prosecutor and defence counsel — have overlooked material which, on proper examination, clearly demonstrates a witness’s lack of competence. But such circumstances are likely to be rare. That certainly did not occur here. As I have noted, defence counsel had paid the closest attention to the expert evidence about AK’s cognitive capabilities and had given very careful thought to the content of AK’s answers in the recorded interviews, in preparation for cross-examination.
It is unsurprising, in my view, that the defence made no submission that the presumption of competence had been rebutted. For, as the joint reasons demonstrate, there was ample material in AK’s answers in the recorded interviews to demonstrate that she had the requisite understanding. More accurately, that material made it plain there was no reasonable basis for a submission that a lack of competence had been proved on the balance of probabilities. As senior counsel for the respondent succinctly summarised the position, ‘it did not occur to anyone in the courtroom that there was evidence to the contrary’.
For the reasons I have given, the question raised by this ground is not whether it was open to the judge to be satisfied that AK was competent to give sworn evidence. Rather, the question is whether, on the material before her Honour, she was bound to be satisfied that AK’s lack of competence had been proved. Plainly she was not.
KAYE JA
WEINBERG JA:
The applicant was charged on indictment with two charges of committing an indecent act with a child under the age of 16 years (charges 1 and 2), and three charges of sexual assault of a child under the age of 16 years (charges 3, 4 and 5). The offences were alleged to have been committed against his daughter, AK.
After a trial in the County Court, the applicant was acquitted on charge 3 and convicted on each of the other four charges. He was sentenced to a total effective term of 3 years’ imprisonment with a non-parole period of 18 months. The applicant seeks leave to appeal against his conviction and sentence.
The applicant relies on two grounds in support of his application for leave to appeal against conviction, namely:
1. The judge erred in permitting AK to give evidence under affirmation.
2.The verdict of guilty on charge 5 is unreasonable and cannot be supported having regard to the evidence led at the Applicant’s trial.
Background circumstances
AK was born in Australia in 2006. At the time of the offences, she lived with her mother, SK, the applicant, and her elder sister, at their home in the western suburbs of Melbourne. The applicant and SK married in 2003. After the birth of their two children, they lived in Saudi Arabia for some time, before returning to Australia in 2013.
The charges concerned five separate incidents that were alleged to have occurred between April 2016 and December 2017, when AK was 10 or 11 years of age. The evidence of AK, in respect of those incidents, was contained in two VARE interviews conducted on 14 December 2017 and 11 July 2018. In the first VARE, AK described four incidents that were the subject of charges 1 to 4 respectively, and in the second VARE she described the incident that was the subject of charge 5. The offences were not described by her in chronological order. In the course of the first VARE, AK identified an exercise book in which she had written a brief summary of what the applicant had done to her. In the course of the special hearing, in which AK was cross-examined, pages from that book were tendered in evidence.
Charge 1 concerned an incident that was alleged to have occurred in the bedroom of AK’s parents between 27 April 2016 and 31 December 2017, when AK was 10 years of age. At the time of the incident, AK had been relaxing or sleeping in her parents’ bed next to the applicant. She woke up to find that the applicant was lying on top of her and straddling her hips. He rubbed his crotch up and down underneath her crotch through the clothes worn by each of them. AK said that she could feel her vagina shaking, and she was scared.
The incident, that was the subject of charge 2, occurred between 1 November 2016 and 30 June 2017 when AK was 11 years of age. On that occasion, the applicant had asked SK to give him a massage. SK said that she was busy and that she wanted to pray, so she suggested to the applicant that he should let AK give him a massage instead. As a result, AK commenced to give the applicant a massage. They were both dressed. At the commencement of the massage the applicant lay on his stomach. He then rolled onto his back and told AK to straddle his hips and massage his shoulders. The applicant then began thrusting his hips so that AK could feel his crotch rubbing against her vagina. She could hear him breathing deeply. While that was occurring, AK heard her mother’s footsteps coming into the room. In response, the applicant moved AK’s hips over his stomach, so that when SK entered the room she observed AK sitting on the applicant’s chest and rocking back and forth. The applicant appeared to look shocked when SK entered the room. SK told him that that type of massage was for adults.
Charge 3, on which the applicant was acquitted, was alleged to have occurred between 17 July 2017 and 22 September 2017. At the time of the incident, AK was cleaning the family car. As she did so, she heard the ‘deep breath’ of the applicant. At the same time he moved behind AK and put his penis between her vagina and her bottom. AK said that the applicant was shaking and moving his penis fast against her.
The incident, that was the subject of charge 4, was, in fact, the last incident. It was alleged to have taken place on 8 December 2017, but it would appear from the evidence of SK that in fact it occurred on 7 December. It was the first incident described by AK in the first VARE interview.
On that occasion, the applicant had asked AK to play ‘Wrestlemania’ with him in his bedroom. When AK went to leave the bedroom, the applicant blocked her by standing in the doorway. He then put her on the bed and ‘jumped on’ her. He got on top of AK, and rubbed his crotch up and down against hers. At the time he was breathing deeply. As a result of the incident, AK’s vagina felt sore, and when she later went to the bathroom she observed that it was red.
In the course of the special hearing, AK also said that, during the incident, the applicant put his head between her legs. At the conclusion of the incident, AK ran from the bedroom and told her mother what had occurred. When SK spoke to the applicant, he said that what had happened was an accident. SK then gave AK an empty notebook and asked her to write down what had occurred. To assist her with that process, SK gave AK two stuffed toys, a rat and a female mouse, so that AK could act out what had occurred.
The incident, that was the subject of charge 5, was alleged to have occurred between 1 July 2017 and 31 August 2017. In the second VARE (conducted on 11 July 2018), AK said that, on that occasion, the applicant had driven her to the library to get a book, but it was not available. When they returned to the vehicle, they both sat in the back seat, and commenced to play a version of a basketball game, in which the person who dropped the ball was tickled by the other person. Whenever AK dropped the ball, the applicant would tickle her stomach, and while he was doing so, he would put his hand inside her clothing, and tickle her on or near the vagina. She said that he touched her in that way a number of times.
After AK told her mother, SK, what had happened in the last incident (that was the subject of charge 4), AK compiled notes in the notebook given to her by SK. The allegations were reported to police on 14 December 2017, and AK participated in two VARE interviews, on 14 December 2017 and 11 July 2018 respectively. The applicant was questioned by police on 15 December 2017, and he made a ‘no comment’ record of interview.
The proceedings
The evidence-in-chief of AK comprised the two VARE interviews in which she had participated. She was cross-examined in a special hearing in February 2019. At the commencement of the special hearing, the judge gave a series of detailed directions to counsel containing the ‘ground rules’ for questioning AK in cross-examination under s 389B of the Criminal Procedure Act 2009. At the commencement of the special hearing, the judge asked AK a number of questions as to her understanding of the requirement that she tell the truth. AK then made an affirmation, and was cross-examined. During that process, she was assisted by a support person.
The other witness at trial was SK, who also gave her evidence in a special hearing.
At the commencement of her evidence, SK described the circumstances in which the incident, that was the subject of charge 2 (‘the massage incident’), occurred. She stated that on that day the applicant asked her to give him a massage. SK was busy and wanted to pray, so she suggested to the applicant that he should let AK give him a massage. When SK completed her prayers, she went to the bedroom. There she found the applicant lying on his back, with AK straddling him on his chest. She said that AK was moving and she had her hands on the applicant’s shoulders. SK said to the applicant ‘What sort of massage is this? This is a massage for adults that I would do … not her’. In response, the applicant started to give her excuses. At one point, he told her that he had an allergy, which explained why he was breathing heavily.
SK said in her evidence that, on 7 December, she went into the bedroom which she shared with the applicant. She saw the applicant with AK. The applicant turned over quickly and she ‘heard his heavy breathing like he had been having sex’. She asked him what he was doing, and why he was breathing heavily. He responded ‘I’ve got an allergy’. Later, on the same day, AK spoke to SK. AK told her that the applicant had put his head between her legs. SK suggested that it might have occurred accidentally, but AK said ‘No, mum, no’. AK told SK that the applicant had blocked the door. On the next day (8 December) SK wrote on a piece of paper some questions for AK to answer. AK wrote answers to those questions on a sheet of paper, which was also tendered in evidence.
Ground 1
Ground 1 is that the judge erred in permitting AK to give evidence under affirmation under s 13(3) of the Evidence Act 2008. In particular, it is contended, the judge was compelled to find that AK was not competent to give sworn or affirmed evidence.
Before the commencement of the special hearing, AK was assessed by an intermediary, Ms Louise Philpott, who had been appointed to the Panel of Intermediaries in accordance with s 389H of the Criminal Procedure Act. Ms Philpott, a certified practising speech pathologist, provided a detailed report, in which she made a series of recommendations as to the methods by which AK should be questioned. Ms Philpott acted as the support person when AK gave evidence in the special hearing.
At the commencement of the special hearing, the judge put two questions to AK to ascertain whether she understood the difference between the truth and a lie. Her Honour first put to AK that she (AK) had a purple and green nose, to which AK responded that that proposition was a lie. The judge then put to AK that she had black hair, and AK (correctly) identified that as the truth. The judge asked AK ‘do you understand that it’s really important to tell the truth today?’. To that question, AK responded ‘it’s a bit confusing but I may be — let’s say yes’.
The judge sought to put AK at ease with some casual questions about the clothing that she was wearing on that day. The following passage then occurred, which is necessary to set out in full:
HER HONOUR: Good. I am asking you exactly the sort of question that Ms Philpott said not to, but there we go. So do you understand that it’s really important when you’re answering the questions that either Paul or Ash [the prosecutor and defence counsel] ask you today, that it's really important that you tell the truth?
[AK]: Can you repeat it after — can you repeat again?
HER HONOUR: Of course I can. Do you understand that when you’re giving an answer to a question today that what you say is true. Do you understand that’s pretty important?
[AK]: Ah, no, I don’t.
HER HONOUR: Okay, well tell me why you don’t understand that?
[AK]: Because, um, um, – – –
HER HONOUR: That’s okay, I think I’m being a bit confusing. I think I’m going to have another try at being clearer. Okay? I just want to know, do you think it’s important that you make sure that when you’re talking about things today that what you’re saying about those things is correct and true.
[AK]: Oh, yeah.
HER HONOUR: Good. Did I make more sense then?
[AK]: Yeah.
HER HONOUR: Good. So you do understand — well I’m hearing from you is, yes, you do understand that you need to be — you need to make sure you tell the truth today. Is that right?
[AK]: Yes.
HER HONOUR: Good. Okay. And what do you think might happen if you told lies today?
[AK]: Um, wait, did you say the last?
HER HONOUR: I’m sorry. I’m not being very clear today. Ms Philpott, can you help me because I think I’m not doing a very good job of asking questions here today.
SUPPORT PERSON: I can, Your Honour. What would you like me to do?
HER HONOUR: I just want to make sure [AK] understands about how it’s important to tell the truth today and that she understands that telling lies is not a good thing to do today.
SUPPORT PERSON: So [AK] the judge would like to know that you understand it's important to tell the truth today. Do you understand that?
[AK]: Oh yeah, yeah, I understand that one.
SUPPORT PERSON: You do. And it’s important not to tell lies today.
[AK]: Yeah.
SUPPORT PERSON: Not to make things up. Do you understand that?
[AK]: Yes. I do understand.
HER HONOUR: Good, thank you. Are counsel happy with that?
COUNSEL: Yes, Your Honour.
HER HONOUR: Thank you. Thanks very much [AK], and thank you Ms Philpott, that’s great.
An affirmation was then taken from AK, which was filmed and recorded as part of her evidence in the special hearing that was to be put before the jury.
In support of ground 1, counsel for the applicant submitted that the answers that AK gave to the questions asked by the judge, immediately before she was affirmed, were not sufficient to demonstrate that she understood that she was under an obligation to tell the truth. Counsel further submitted that those answers raised doubt as to whether AK understood the importance of telling the truth, which was a necessary requirement for her to be capable of giving affirmed evidence. Counsel contended that the only question, that directly tested AK’s capacity, within the meaning of s 13(3) of the Evidence Act, was the judge’s question as to what AK thought might happen if she told lies. AK did not understand the question and was unable to properly respond to it. It was submitted that the other questions asked of AK, by the judge, fell short of determining whether she understood that she was under a legal obligation to tell the truth.
Counsel further contended that the other evidentiary material before the judge reinforced the conclusion that AK did not understand that she was under an obligation to tell the truth. At the commencement of the VARE interviews, AK gave incorrect or confused answers to questions which were directed to determining whether she understood the difference between the truth and telling lies. While, at the conclusion of each VARE, AK demonstrated that she had some awareness of the potential legal consequences if she did not tell the truth to police, the answers that she gave in the earlier part of each VARE demonstrated that she did not sufficiently understand that her obligation, in giving evidence, was to tell the truth.
Further, it was noted, the intermediary’s report demonstrated that AK had limitations in her capacity to understand complex questions and to respond to them. A number of questions put to AK by the judge in the special hearing, and by the interviewer in the VARE interviews, when assessing AK’s capacity, contravened the recommendations of the intermediary. It was submitted that that consideration added to the inadequacy of the inquiry made by the judge as to the capacity of AK to give sworn evidence under s 13(3).
Counsel noted that although AK’s incapacity to give sworn or affirmed evidence would not have prevented her from giving unsworn evidence, nevertheless, in order that she give such evidence, the procedures prescribed by s 13(5) of the Evidence Act would be required to be strictly complied with. In the absence of such compliance, the trial was not conducted according to law, and thus the convictions on charges 1, 2, 4 and 5 must be set aside.
In response, counsel for the respondent commenced by referring to s 13(6) of the Evidence Act, by which it is presumed, unless the contrary is proved, that a person is not incompetent to give sworn evidence. Counsel referred to the principle stated in a number of authorities, including R v GW,[11] in support of the proposition that in order to overcome that presumption, the court must be satisfied, on the balance of probabilities, that the particular person is not competent to give evidence. At no stage, before AK made an affirmation, did counsel for either side suggest that the presumption had been rebutted, or that AK was incompetent to give sworn or affirmed evidence. Counsel for the respondent submitted that it would be undesirable for an applicant to be able to challenge the competence of a witness to give sworn or affirmed evidence on appeal, when a challenge had not been made as to the witness’s competence at trial.
[11](2016) 258 CLR 108 (‘GW’).
Counsel further submitted that the matters, relied on by counsel for the applicant, did not dislodge the presumption that AK was competent to give sworn or affirmed evidence at trial. The responses by AK to the judge’s initial questioning made it apparent that AK understood the difference between the truth and a lie. Once the judge recast her questions so that they were not confusing, it became clear that AK understood that it was important that she tell the truth. Counsel contended that those responses were consistent with what the witness had said in the two VARE interviews and what she had said in the special hearing. In particular, it was submitted, at the conclusion of each of the two VARE interviews, AK clearly demonstrated that she had an adequate understanding that she had been obliged to give truthful answers during the interview.
Ground 1 — analysis and conclusion
Section 12(a) of the Evidence Act provides that, except as otherwise provided by the Act, every person is competent to give evidence. Section 13 prescribes the test for determining the competence of such a person. It provides:
Competence—lack of capacity
(1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a)the person does not have the capacity to understand a question about the fact; or
(b)the person does not have the capacity to give an answer that can be understood to a question about the fact—
and that incapacity cannot be overcome.
…
(2)A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3)A person who is competent to give evidence about a fact is not competent to give sworn or affirmed evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4)A person who is not competent to give sworn or affirmed evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence or evidence that is not affirmed about the fact.
(5)A person who, because of subsection (3), is not competent to give sworn or affirmed evidence is competent to give unsworn evidence or evidence that is not affirmed if the court has told the person—
(a)that it is important to tell the truth; and
(b)that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c)that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6)It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7)Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8)For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
The structure of s 13 is relevant to the correct construction of its provisions. Sub-section (1) is directed to the capacity of a person to understand a question about a particular fact, and to give a comprehensible answer to a question about that fact. Sub-section (3) is directed to a different issue, namely, the competence of a person to give sworn evidence, that is, evidence given under oath or affirmation. Sub-sections (4) and (5) provide that if a person is not competent to give sworn evidence, about a fact, that person may be competent to give unsworn evidence about that fact, provided that the three preconditions, specified in sub-section (5), have been complied with.
The presumption, contained in sub-section (6), that a person is not incompetent, applies both to sub-sections (1) and (3).[12] In determining whether a person has the requisite capacity, under either sub-section, that presumption is only displaced if the court is satisfied, on the balance of probabilities, that the witness lacks that particular capacity.[13]
[12]Ibid 118 [14] (French CJ, Bell, Gageler, Keane and Nettle JJ); RJ v The Queen [2010] NSWCCA 263, [16] (Campbell JA, with whom Latham and Price JJ agreed) (‘RJ’).
[13]GW (2016) 258 CLR 108, 118 [14].
In the present case, the report of Ms Philpott, the intermediary, noted that AK had some limitations in her communication skills, and that she had difficulty understanding longer ‘chunks’ of information and in processing and understanding complex questions. In addition, Ms Philpott noted that AK had a very limited understanding of abstract language.
In those circumstances, and in view of the age of AK, it was correctly accepted at the trial that, notwithstanding the presumption provided in sub-section (6), it was necessary that the trial judge take appropriate steps to ensure that AK had the requisite capacity prescribed by both sub-sections (1) and (3), and, in particular, to ensure that AK was competent to give sworn evidence (that is, evidence under oath or affirmation). In such a case, the preliminary process, undertaken by the trial judge to determine the competence of AK to give sworn evidence, was important to the integrity of the trial. It has been held, in a succession of cases, in which the procedures, prescribed by the applicable provisions of s 13, had not been complied with in respect of such a witness, that the evidence of that witness was not legitimately before the jury, so that the trial was not, in effect, a trial in accordance with the law.[14]
[14]See, eg, RJ [2010] NSWCCA 263, [21], [40], [48] (Campbell J); SH v The Queen (2012) 83 NSWLR 258, 267 [35] (Basten JA, with whom Blanch and Hall JJ agreed); R v WG [2010] VSCA 34, [35]-[36] (Warren CJ, Nettle and Ashley JJA); MK v The Queen [2014] NSWCCA 274, [72]–[74] (Hoeben CJ at CL, with whom Fullerton and Hamill JJ agreed) (‘MK’).
The inquiry, that is necessary before a person is considered competent to give sworn evidence under s 13(3), is whether that person has ‘the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence’. It is clear, both from the different terms in which s 13(3) and s 13(5) are respectively expressed, and from the authorities, that that requirement includes, but involves more than, the capacity of the person to understand the importance that he or she tell the truth. Specifically, in order to be competent to give sworn evidence under s 13(3), a person must understand that he or she is under an ‘obligation’ to give truthful evidence.
That requirement was discussed by the High Court in GW. In that case, the key prosecution witness was a six year old child in the trial of her father on a charge of committing an act of indecency in her presence. The judge, having questioned the child, was not satisfied that she was competent to give sworn evidence. Accordingly, the judge directed, under s 13(5), that the child give unsworn evidence. On appeal, the Court of Appeal of the Australian Capital Territory upheld a submission that the trial judge had erred by not applying the presumption that the child was competent to give sworn evidence. In turn, the High Court, allowed an appeal by the prosecution against that decision. In doing so, it defined the concept of an ‘obligation’ in s 13(3) in the following terms:
Turning to the respondent’s last submission first, ‘obligation’ in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound — in this case, to give truthful evidence. A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence. Contrary to the respondent's submission, R’s affirmative answer to the question ‘[a]nd do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?’ is not to be understood as necessarily conveying that R had the capacity to understand that, in giving evidence, she was under such an obligation.
There are many ways to explore whether a child understands what it means to give evidence in a court and the concept of being morally or legally bound to be truthful in so doing. Here, it would seem the prosecutor questioned R about her understanding of swearing an oath on the Bible or making an affirmation. Her lack of understanding of either was not determinative but it was not irrelevant to the formation of the opinion that she did not possess the capacity to understand the obligation. The suggestion that it may not have been open to Burns J to be satisfied that R, a six‑year‑old child, lacked that capacity is unsustainable.[15]
[15]GW (2016) 258 CLR 108, 122 [26]–[27].
As stated by the High Court, the ordinary meaning of ‘obligation’ connotes that the person, who has such an obligation, is under a binding duty. In similar terms, the relevant definitions of ‘obligation’, in the Shorter Oxford Dictionary, include ‘the action of binding oneself by oath, promise or contract to do or forebear something’ and ‘a legal or moral constraint, or constraining force or influence … the binding power of a law, moral precept, duty, contract etc’.
Ordinarily, an integral aspect of an obligation at law is the existence of an appropriate sanction for a breach of it. In the case of a young child under the age of ten years, such a consideration might be less appropriate, as such a child is conclusively presumed to lack criminal capacity.[16] Nevertheless, that characteristic of a legal obligation is relevant, as it underlines the point that an obligation necessarily involves the assumption by the obligor of a relevant binding duty.
[16]Children, Youth and Families Act2005 s 344.
In R v Climas,[17] the South Australian Court of Criminal Appeal was concerned with a number of questions stated for its determination by a trial judge concerning the capacity of an eight year old child to give evidence in the trial of an accused person charged with inciting that child to commit an indecent act. Section 9(1) of the Evidence (Miscellaneous) Amendment Act 1999 (SA) provided that where it appeared to a judge that a person ‘does not understand the obligation of an oath’, the judge may permit that person to give evidence without an oath and without formality. Lander J (with whom Millhouse J agreed) described the content of the requirement that the witness understand the relevant ‘obligation’ in the following terms:
Any inquiry therefore under s 9(1), if it arises, is as to whether the witness simply has sufficient understanding of the obligation to be truthful in giving evidence by taking an oath or making an affirmation. It is not an inquiry into the witness’s understanding of an oath or affirmation. Nor is it an inquiry into the witness’s religious beliefs or whether the witness has a belief in God. It is merely an inquiry into whether the witness has sufficient understanding of the obligation to be truthful under an oath or an affirmation. In that respect the Court will simply inquire as to whether the witness understands the meaning of truth and whether the witness understands that in giving sworn evidence there is an obligation to be truthful.
The Act does not indicate what the understanding of the obligation to be truthful entailed in giving sworn evidence is. …
Because of the provision of s 9(2) it must be more than simply an understanding of the obligation to be truthful. That subsection allows for a person who understands the difference between a truth and a lie and also indicates that he or she will tell the truth to give unsworn evidence.
Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated in s 9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. It is not simply the legal obligation which attaches to sworn evidence which is important. Section 242 of the Criminal Law Consolidation Act provides for the offence of perjury for a false statement made under oath. Oath includes an affirmation (s 242(5)(a)). Because of s 5 of the Young Offenders Act 1993 (SA) no child under the age of 10 years can commit an offence. Although a child under the age of 10 years cannot be guilty of the offence of perjury a child under that age can give sworn evidence. That supports the proposition that the obligation to be truthful entailed in giving sworn evidence does not emanate solely from the legal sanction for failing to do so. The obligation arises from the public declaration in taking an oath or making a declaration, the accompanying recognition of the solemnity of that declaration, the recognition of the importance of truthfulness in the proceedings and the acceptance of the moral, and in the case of a person over the age of 10 years, the legal sanctions in failing to comply with that public declaration.[18]
[17](1999) 74 SASR 411 (‘Climas’).
[18]Ibid 431–2 [134]–[137], 419 [44] (Duggan J). See also R v Cheng [2015] SASCFC 189, [16] (Sulan and Peek JJ); R v Sparks [2017] SASCFC 171, [44] (Blue J, with whom Kourakis CJ and Hinton J agreed); R v Cooper (2007) 214 FLR 92, 101 [55]–[58] (Higgins CJ).
Those principles, stated by Lander J in Climas, cannot be applied without qualification to s 13(3) of the Evidence Act. Section 9(1) of the South Australian Act required that the intended witness understand ‘the obligation of an oath’. By contrast, s 13(3) postulates the capacity of the intended witness to understand that he or she is under an ‘obligation to give truthful evidence’. However, as Lander J made clear in Climas, the concept of an obligation attaches to and derives from the solemn promise given by the witness to the court, in the case of the Evidence Act, either under oath or affirmation, to give truthful evidence. It is for that reason that the requirement, in sub-section (3), that the witness have the requisite capacity to understand that obligation, differentiates sub-section (3) from sub-section (5), which is concerned with the circumstances in which a witness may be permitted to give unsworn evidence.
In short, in the present case, it was necessary for the judge to assess and determine whether AK had the capacity to understand that, by making an affirmation to tell the truth, she thereby made a solemn binding commitment by which she was bound to give truthful evidence.
In the case of a young child, it might be difficult for a judge to formulate appropriate questions in order to assess whether the child has the requisite capacity to understand that, in giving evidence, he or she is under such an ‘obligation’ to give truthful evidence. In some instances, a young child might have a limited capacity to adequately comprehend and, in particular, to articulate a response to questions as to his or her understanding of such an obligation. It has been emphasised in a number of the authorities that, in embarking on such an inquiry, the court must use ‘simple and concrete terminology’.[19] That admonition, while sound, may be difficult to implement in a case in which the witness is a young child. Nevertheless, despite those difficulties, as the High Court has made clear in GW, the trial judge must determine, not just that the particular person understands the importance of telling the truth, but that that person also understands that he or she will be under a relevant obligation to do so.
[19]MK [2014] NSWCCA 274, [69]; R v RAG [2006] NSWCCA 343, [26] (Latham J, with whom McClellan CJ at CL and Johnson J agreed).
The submissions by counsel for the applicant, in support of ground 1, are based on two fundamental points. First, it is submitted that the judge erred in concluding that AK had the capacity to understand the importance of telling the truth in her evidence. Secondly, it is contended that the judge erred in concluding that AK had the capacity to understand that in giving sworn evidence she was under an obligation to give truthful evidence.
Under s 13(8) of the Evidence Act, the judge was entitled to inform herself, as she saw fit, in order to evaluate the competence of AK to give sworn evidence in the trial. An examination of the relevant material, including the questions that were asked of AK in the preliminary part of the special hearing, and AK’s answers to them, demonstrates that the trial judge had an adequate basis to be satisfied that AK did have the capacity to understand the difference between the truth and a lie, and to understand the importance of telling the truth in her evidence.
At the commencement of each of the two VARE interviews, the policeman, who interviewed AK, asked her some hypothetical questions in order to determine whether she understood the difference between the truth and a lie. AK’s responses to those questions demonstrated that she did not properly understand the questions, which is not surprising given the limitations in her capacity to understand abstract questions. However, her responses did not indicate that she did not understand the difference between the truth and a lie. On the other hand, at the commencement of the preliminary part of the special hearing, the judge put to AK a series of questions that were expressed in more concrete and less abstract terms. By the answers that she gave to those questions, AK clearly demonstrated that she understood the difference between the concept of the truth and the concept of a lie. She did, however, have some difficulty in responding to questions put to her by the judge as to whether she understood that it was important that she tell the truth in court. She also was unable to respond to the question put to her, by the judge, as to what she thought might happen if she told lies in her evidence. When asked by the support person whether she understood that it was important to tell the truth, she responded appropriately. However, it must be observed, the question that was put to AK by the support person was in the form of a leading question, which of itself was inconsistent with the guidelines specified by the judge in the ground rules hearing.
On the other hand, at the conclusion of each of the two VARE interviews, the interviewer put to AK a series of questions as to what she understood would happen to her if she had told a lie to the police. At the conclusion of the first VARE, she was asked what she understood would occur to her if she had told the interviewer a lie. She responded ‘You’d take me to gaol’. The interviewer (correctly) responded that she would not go to gaol, and asked AK if she understood that she would ‘get in trouble’ if she told lies. AK responded in the affirmative. At the conclusion of the second VARE, the interviewer put similar questions to AK. AK confirmed that she had told the truth during the VARE. She was then asked what would happen to a person who told a lie to the police. She responded:
Oh, like, if somebody tells a lie to police, you’ll — you’ll — you’ll go back — they will court you — like, they will punish you … But if … you’re a child — like, if you’re a child like, they will punish you, like — they won’t put — they won’t arrest you, they’ll, like, punish you … and if you’re an adult they will — they will quickly put you in a gaol.
Based on those matters, the judge was entitled to conclude, not only that AK understood the difference between the truth and a falsehood, but also that she understood that it was important that she tell the truth, both in what she had stated in the two VARE interviews (which constituted her evidence-in-chief), but also in the special hearing. Certainly, given the presumption specified in s 13(6) it was open to the judge to form a conclusion to that effect. That proposition is reinforced by the circumstance that neither counsel at trial raised any concern relating to the responses given by AK to the questions put to her in the preliminary part of the special hearing.
The more difficult question is that raised by the second proposition relied on by counsel for the applicant in support of ground 1, namely, whether it was open to the judge to conclude that AK had the capacity to understand that she was under an obligation to give truthful evidence. In that respect, it will be recalled, AK was unable to answer the question put to her by the judge in the preliminary part of the special hearing ‘what do you think might happen if you told lies today?’. The judge, sensing (probably correctly) that the question was not sufficiently clear, asked the support person to rephrase it. In response, the support person did not ask AK what might occur to her if she told lies, but, rather, asked her if she understood that it was important to tell the truth. While that question was relevant and important, the positive answer to it by AK did not necessarily convey that AK understood that she was under a relevant obligation to be truthful.[20]
[20]GW (2016) 258 CLR 108, 122 [26].
Those questions and answers, however, were not the sole material that was before the judge relating to the question of whether AK had the capacity to understand that she would be under an obligation to tell the truth. At the commencement of the questioning, the judge asked AK if she knew the difference between telling the truth and telling a lie. AK, who had watched the VARE interviews on the previous day, referred to them, and recalled that the interviewer had told her ‘about the truth and a lie’. The reference, by AK, to that aspect of the VAREs, is important. As we have mentioned, at the conclusion of each of the two VAREs, the policeman, who interviewed AK, elicited from her a clear understanding that she would ‘get in trouble’ if she had told lies in the VARE. In particular, in the second VARE, in the passage we have quoted, she understood that, being a child, she would be punished (but not arrested) if she had told a lie.
Those answers by AK revealed that she understood that not only was it important to tell the truth, but also that there was a sanction that would apply if she did not do so. In that way, her answers, at the conclusion of each VARE, demonstrated that she was aware and understood that she had been bound to tell the truth in those interviews.
As previously mentioned, counsel for the applicant submitted that while, at the conclusion of each VARE, AK demonstrated that she had some awareness of the potential consequences if she did not tell the truth to the police, nevertheless the answers to questions, that she gave to the interviewer in the earlier part of each VARE, demonstrated that she did not properly understand that her obligation, in giving evidence, was to tell the truth.
For the reasons already discussed, that submission must be rejected. As we have explained, due to the manner in which those questions were framed, AK, by her responses, revealed that she had not been able to understand the content of those questions. Those answers, by AK, did not demonstrate that she did not understand the difference between the truth and a lie. On the other hand, it was clearly evident, from the answers that she gave to the questions put to her at the conclusion of each VARE, that she not only understood that distinction, but that she also had a clear conception of the consequences to her if she failed to tell the truth. In particular, her answers, reflecting that she would be punished if she did not tell the truth, necessarily conveyed that she understood the distinction between the truth and a lie, and that she understood that she had been bound to tell the truth.
As we have discussed, the questioning of AK by the trial judge, in the preliminary part of the special hearing, did fall short of expressly addressing the question whether AK had the capacity to understand that she had an obligation to tell the truth in her evidence. The questions asked of her by the judge did demonstrate that AK well understood the importance of telling the truth in court. Further, the VARE interviews demonstrated that AK had a clear understanding of the consequences to her if she did not tell the truth. AK had viewed the VARE interviews on the previous day, and she referred to them when she was asked, by the judge, as to her understanding of the difference between the truth and a lie. In those circumstances, although the trial judge did not make an express finding, it was open to her Honour to conclude that AK had demonstrated that she had the capacity to understand that, in giving evidence in the special hearing, she was under an obligation to give truthful evidence. That is, expressed in terms of the applicable onus, it was open to the judge to conclude that it had not been demonstrated that AK lacked the requisite capacity to understand that, in giving evidence, she was under an obligation to tell the truth.
Our conclusion, to that effect, is reinforced by the evidence which AK gave under cross-examination in the special hearing, and the manner in which she gave that evidence. Relevantly, at an early stage in the special hearing, AK was cross-examined about the notes that she had made in the exercise book in answer to the written questions given to her by her mother. Counsel asked AK if she thought she would get in trouble from her mother if she did not write the answers. She responded, in quite a vehement tone:
No, I don’t get trouble if I didn’t write down but I will get trouble if I lie. Like, I wrote something not true.
We have had the opportunity to listen to, and view, a substantial part of the evidence given by AK on the special hearing. We did so, not to assess her credibility,[21] but in order to observe whether she gave her evidence in a manner that was consistent with her having an understanding that she was then giving evidence on a serious occasion, in which she was required to carefully attend, and respond, to the questions that were asked of her according to the best of her recollection.
[21]Pell v The Queen [2020] HCA 12, [35]-[37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
Having done so, and having read the transcript of her evidence on the special hearing, a number of relevant observations can be made. On a number of occasions, AK, when asked a question, was prepared to state that she could not remember a particular fact or circumstance. On some of those occasions, she paused before answering, and appeared to be reflecting and trying to search her recollection. When she answered some other questions, which either challenged her memory, or her understanding, she paused before responding. At one point, when counsel read to her a reasonably lengthy passage from a VARE interview, AK can be observed listening intently and carefully to counsel. When she was unable to understand a particular question, she indicated such a lack of understanding, and, on occasion, she asked counsel to repeat a particular question. On a couple of occasions, when she was asked a question that involved a matter of intimacy, she appeared quite embarrassed, and (at the suggestion of the support person) wrote the answer. On another occasion, when asked such a question, she again evinced real embarrassment, before ultimately giving an answer to the question.
All of those observations, about the manner in which AK conducted herself in the special hearing, reinforced not only that she understood that it was important to tell the truth, but that, having taken an affirmation to do so (which had been described to her by the trial judge as a promise), AK understood that she was bound to tell the truth.
Those observations, concerning the manner in which AK responded to questioning in the special hearing, are relevant. While the assessment, that the judge had to make, preceded the cross-examination of AK, nevertheless, on appeal, the issue of the competency of a particular witness may be informed by the subsequent performance of that witness under oath or affirmation. For example, if a witness, having initially appeared to understand that he or she was under such an obligation, nevertheless conducted himself or herself in the course of cross-examination in a manner that demonstrated a lack of understanding of the binding nature of the oath or affirmation, such conduct would necessarily be relevant to the question whether that witness had the capacity to understand that he or she was under an obligation to give truthful evidence, and thus would inform the question whether, in the upshot, that person was competent to give sworn evidence. Conversely, and equally, the conduct of a particular witness in cross-examination, after giving an oath or making an affirmation, may logically be relevant to an assessment of the question whether that witness was correctly found by the trial judge to be competent to give such evidence.
For the foregoing reasons, ground 1 of the application for leave to appeal must fail.
Ground 2
The issue, raised under ground 2, is whether, on the evidence of AK, the prosecution had established the requisite elements of the offence charged, namely, sexual assault of a child under the age of 16 years.
In order to establish such an offence, the prosecution must prove three principal elements, namely, first, the accused person intentionally touched another person who was a child under the age of 16 years, secondly, the touching was sexual, and, thirdly, the touching was contrary to community standards of acceptable conduct. The submissions of the applicant, in support of ground 2, focussed on the second element, namely, whether on the evidence of AK the jury could find that the touching alleged by AK was ‘sexual’.
Section 35B(2) of the Crimes Act 1958 defines sexual touching in the following terms:
(2) Touching may be sexual due to—
(a)the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b)the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c)any other aspect of the touching, including the circumstances in which it is done.
In support of ground 2, it was submitted that, as a result of the manner in which charge 5 was left to the jury, it could not find that the touching in that incident was sexual based solely on the point of contact made by the applicant on AK’s body. Accordingly, the jury was required to infer that the touching by the applicant was intentionally engaged in for a sexual purpose, that is, as defined by s 35B(2)(b), that the applicant sought or got sexual arousal or sexual gratification from the touching.
Counsel for the applicant submitted that the evidence did not permit the jury to infer, beyond reasonable doubt, that the applicant had that state of mind. In particular, it was submitted, the evidence of AK was that the contact was no lower than the top of the zipper of her jeans, and that it was fleeting, albeit repeated. That contact occurred in the context of the applicant and AK playing a game in a confined space in the rear of the vehicle, in which they were both tickling each other. The applicant was tickling AK mainly on the stomach. Thus, it was submitted, the evidence raised an innocent hypothesis of accidental and non-sexual touching, which could not be rationally excluded by the jury as unreasonable.
In response, counsel for the respondent pointed to the evidence of AK that the applicant had touched her, in the form of tickling, below her stomach area beneath her underpants. In those circumstances, it was submitted, it was well open to the jury to conclude that that touching, of a young child in that way, was both ‘sexual’ and ‘contrary to community standards of acceptable conduct’. The fact that the conduct was repetitive entitled the jury to exclude the hypothesis that the touching was accidental.
The ground of appeal is based on s 276(1)(a) of the Criminal Procedure Act, that the Court must allow an appeal if it is satisfied that the particular verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 5.[22]
[22]M v The Queen (1994) 181 CLR 487, 494–5 (Mason CJ, Dean, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Pell [2020] HCA 12, [44]-[45].
The underlying premise, in the submissions made on behalf of the applicant, is that the jury could not have been satisfied, beyond reasonable doubt, that the applicant touched AK in the genital region pursuant to s 35B(2)(a) of the Crimes Act. Accordingly, it was submitted, in order to convict the applicant, the jury was required to be satisfied beyond reasonable doubt that in tickling AK the applicant sought or got ‘sexual arousal or sexual gratification’ pursuant to s 35B(2)(b). Essentially, it was submitted that, based on the evidence, it was not open to the jury to be satisfied beyond reasonable doubt as to that matter.
For the purpose of determining ground 2, it might be accepted that the jury could not reasonably have been satisfied, beyond reasonable doubt, that the applicant did touch AK in the genital area. In the VARE interview, AK said that the applicant touched her ‘tummy and then – and then down’. When asked ‘Down where?’ she responded ‘Like — like, my vagina’. Later in the interview, she said ‘then quickly he tickled here because — he quickly tickled my vagina because I don’t feel that he touching it cause my tummy is very very, you know, ticklish’.
In cross-examination in the special hearing, it became less clear that AK alleged that the applicant did touch her in the genital area. When questioned about that matter, she drew a sketch, with an arrow pointing below her waistline stating ‘half vagina’. When questioned about that, she said ‘it’s like nearly close to vagina. Like, nearly close’. When further questioned about where she felt the tickle, she said ‘like where the zipper are … like a little bit top of the zipper. That’s where he put the hand in’. The sketch depicted a human torso with a black line under the waistline, but above the crotch area. Written alongside it were words stating that the black line showed ‘were [sic] dad tickled here’.
Based on that evidence, it may be accepted, for the purpose of determining ground 2, that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant actually touched the vagina of AK. Thus, in order to convict the applicant, the jury was required to be satisfied, beyond reasonable doubt, that in tickling and touching AK, the applicant thereby sought or got ‘sexual arousal or sexual gratification’ pursuant to s 35B(2)(b).
The conclusion by the jury, to that effect, was necessarily the product of an inference based on the evidence. In order to convict the applicant, the jury was required to be satisfied that the only reasonable inference, available on the evidence, was that the applicant, in touching AK, did seek or obtain sexual arousal or gratification from doing so. Accordingly, on this application, the applicant must demonstrate that the jury could not have reasonably excluded an innocent hypothesis, namely, that the applicant, in tickling AK, did not seek or get such arousal or gratification.
For the following reasons, we consider that it was well open to the jury to exclude that hypothesis, and to be satisfied, beyond reasonable doubt, that in touching AK in the course of the incident that was the subject of charge 5, the applicant thereby sought or got sexual arousal or gratification from doing so.
In her evidence, both in the VARE and in the special hearing, AK consistently stated that when the applicant tickled her, he put his hand under her clothing, and inside her underpants. In the course of the VARE, after AK said that the applicant had touched her ‘tummy and then – and then down’, the interviewer asked her whether that was ‘on the outside or the inside of your clothes?’. She responded ‘Inside’. She was then asked whether it was on the inside or the outside of her underpants, and she responded ‘My underpants is inside’. The interviewer repeated the question, as to whether the applicant’s hand was inside or outside her underpants, to which she responded ‘Inside’. In cross-examination in the special hearing, when questioned about the sketch, she again stated ‘he puts his hand, like, inside the pants’.
On any view, the evidence of AK was that, in doing so, the applicant placed his hand near her vagina. In cross-examination in the special hearing, she said ‘it’s like nearly close to vagina. Like, nearly close’. Further, and importantly, she said that that occurred on a number of times. When asked in the VARE whether the applicant did it one time or more than one time, she responded ‘More than one time’. When asked ‘How many times?’ she replied ‘He probably did seven times’.
Thus, the evidence of AK was that the applicant tickled her, near the vagina, beneath her underpants, on a number of occasions. Based on that evidence, in our view, it was well open to the jury to be satisfied, beyond reasonable doubt, that, in touching her in that way, the applicant sought or got sexual arousal or sexual gratification. In other words, it was open to the jury to exclude, as a possible hypothesis consistent with innocence, that the tickling engaged in by the applicant was innocent and was neither sexual in intent or effect.
For those reasons, ground 2 of the application for leave to appeal must fail.
Application for leave to appeal against sentence
The applicant was sentenced to a total effective term of three years’ imprisonment with a non-parole period of eighteen months. That sentence was constituted as follows:
Charge # Offence Maximum Sentence Cumulation
1. Indecent act with a child under 16 contrary to section 47(1) of the Crimes Act 1958 10 years 16 months Base 2. Indecent act with a child under 16 contrary to section 47(1) of the Crimes Act 1958 10 years 16 months 9 months 4. Sexual assault of a child under 16 contrary to section 49D(1) of the Crimes Act 1958 10 years 16 months 9 months 5. Sexual assault of a child under 16 contrary to section 49D(1) of the Crimes Act 1958 10 years 4 months 2 months Total Effective Sentence: 3 years Non-Parole Period: 18 months Pre-sentence detention declared: 89 days 6AAA Statement: N/A Other relevant orders:
Declaration pursuant to s 6F of the Sentencing Act 1991 that the applicant is sentenced as a serious sexual offender in respect of charge 4 and charge 5.
Order pursuant to s 464ZF of the Crimes Act 1958 that the applicant undergo a forensic procedure for the taking of an intimate sample consisting of a scraping of the mouth.
The applicant seeks leave to appeal the sentence on one ground, namely, that the order for cumulation in respect of charge 2 is excessive.
In support of that ground, counsel noted that the judge ordered cumulation of nine months of each of the sentences imposed on charges 2 and 4 respectively, notwithstanding that the presumption of concurrency applied in respect of the sentence imposed on charge 2, whereas a presumption of cumulation applied in respect of the sentence imposed on charge 4.
In our view, there is no substance in the submission so made on behalf of the applicant. The determination of the appropriate period of cumulation, or concurrency, in respect of particular charges, is necessarily an imprecise discretionary assessment, based on the particular circumstances of each offence. That assessment is necessarily informed by the principle of totality. As counsel for the respondent has correctly pointed out, the total effective sentence of three years’ imprisonment, for the four charges on which the applicant was convicted, could hardly be described as being manifestly excessive. In light of the gross breach of trust involved in the offending, the vulnerability of AK, and the applicant’s moral culpability for each offence, the total effective sentence, and the non-parole period, each fell well within the range of sentences that might permissibly have been imposed on the applicant. The period of cumulation, of nine months, in respect of charge 2, adequately and properly reflected the additional offending engaged in by the applicant, and his moral culpability for it.
For those reasons, we reject ground 1 of the application for leave to appeal against sentence.
Summary of conclusions
For the foregoing reasons, we would grant the applicant leave to appeal against conviction, but dismiss the appeal. We would refuse the applicant leave to appeal against sentence.
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