BW v The King

[2023] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BW v R [2023] NSWCCA 146

Hearing dates:

17 March 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Before:

Simpson AJA at [1]
Garling J at [97]
Ierace J at [259]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — unreasonable verdict — inconsistent verdict — where applicant had been convicted on two counts but acquitted on four others — where all six counts involved the same complainant — where alleged conduct and circumstances the subject of the counts were similar in many respects — where the prosecution’s evidence was largely and principally that of the complainant — where the applicant gave evidence and denied that the offending conduct occurred — whether verdicts on counts for which applicant had been convicted were unreasonable or could not be supported having regard to the evidence — whether verdicts of guilty on those counts were inconsistent with verdicts of not guilty on other counts — leave to appeal granted — appeal dismissed

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Jury Act 1977 (NSW)

Cases Cited:

Black v The Queen (1993) 179 CLR 44; [1993] HCA 7

Cullen v R [2022] NSWCCA 63

Dansie v The Queen [2022] HCA 25

Filippas v The Queen (2015) 256 CLR 47; [2015] HCA 29

Ganiji v The Queen [2019] NSWCCA 208

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Keen v The Queen [2020] NSWCCA 59

Liberato v The Queen (1985) 159 CLR 507

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

Mackenzie v The Queen (1996) 190 CLR 348

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

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

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Saunders v R [2022] NSWCCA 273

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

Slattery v R [2023] NSWCCA 117

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

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

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

BW (App)
The Crown (Resp)

Representation:

Counsel:
K Stares SC / S McKensey (App)
E Balodis (Resp)

Solicitors:
Criminal Defence Lawyers Australia (App)
The Director of Public Prosecutions (Resp)

File Number(s):

2019/373999

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 August 2021

Before:

Williams ADCJ

File Number(s):

2019/373999

HEADNOTE

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

The applicant was found guilty by a jury, by majority verdict, of one count of indecent assault of a child under the age of 16 years (s 61M(2) of the Crimes Act 1900) (Count 1) and one count of sexual intercourse with a child over the age of 10 and under the age of 14 (s 66C(1)) (Count 2). The applicant was acquitted by the jury of three other counts of indecent assault of a child under the age of 16 years (s 61M(2)) (Counts 3, 5 and 6), and one count of sexual intercourse with a child above the age of 14 and below the age of 16 (s 66C(3)) (Count 4).

Counts 1 and 2 alleged that the offending conduct occurred at an address in Nelson Bay in 2012 or 2013. Count 3 alleged that the offending conduct occurred on a car trip at an unidentified location sometime between a specified date in 2013 and a specified date in 2015. Counts 4, 5 and 6 alleged that the offending conduct occurred at an address in Corlette sometime between a specified date in 2017 and a specified date in 2018.

All six counts involved the same complainant. The alleged conduct and circumstances the subject of the counts were similar in many respects. The prosecution’s evidence was largely and principally that of the complainant. The applicant gave evidence and denied that the offending conduct occurred.

The applicant appealed to the Court of Criminal Appeal his convictions with respect to Counts 1 and 2. He relied upon two grounds. First, that the verdicts were unreasonable or could not be supported having regard to the evidence. Secondly, that the verdicts of guilty on counts 1 and 2 were inconsistent with the verdicts of not guilty on Counts 3, 4, 5 and 6.

Held (granting leave to appeal but dismissing the appeal) (per Simpson AJA and Ierace J, Garling J dissenting):

Per Simpson AJA

1. None of the asserted inconsistencies in the complainant’s evidence cast doubt on her assertions with respect to the first episode, the subjects of Counts 1 and 2. The verdicts of guilty on Counts 1 and 2 are not, for this reason, unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912. [81]

M v The Queen (1994) 181 CLR 487 applied; The Queen v Baden-Clay (2016) 258 CLR 308; Dansie v The Queen [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123 considered;

2. Whilst it has become commonplace, when a jury returns a mix of verdicts of guilty and not guilty of a number of counts on an indictment, to assert that the verdicts of not guilty demonstrate that the jury did not accept the complainant as a truthful witness, and that the verdicts of guilty are therefore inconsistent with that assessment, that proposition has long since been disavowed. [82]

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Ganiji v R [2019] NSWCCA 208; Cullen v R [2022] NSWCCA 63 cited

3. The verdicts of not guilty on Counts 4, 5 and 6 do not signify rejection of the complainant’s essential allegations so much as doubt about the surrounding circumstances. [90]

M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Ganiji v R [2019] NSWCCA 208 applied

Per Garling J

4. In relation to the second ground, there is no inconsistency of a kind which would of itself warrant a finding that the verdicts of guilty on Counts 1 and 2 were thereby unreasonable and ought be quashed on appeal. [242]

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen [2022] HCA 25, applied

5. There exists a reasonable doubt as to the applicant’s guilt on Counts 1 and 2. The doubt is one which the jury ought to have had, even after making all proper allowance for the advantage which the jury had of seeing and hearing all the witnesses give their evidence. Therefore, in relation to the first ground, the applicant’s conviction is unreasonable. [256]

Pell v The Queen [2020] 268 CLR 123; [2020] HCA 12; Ganiji v The Queen [2019] NSWCCA 208; TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen [2022] HCA 25 applied.

Per Ierace J

6. Having regard to the evidence that exclusively concerns the first incident the subject of Counts 1 and 2, the jury’s verdicts on Counts 1 and 2 are capable of being supported by the evidence. [328]

7. There is a pathway to the acquittals by the jury on Counts 3, 4, 5 and 6 that reflects only on the complainant’s recollection of when the assaults occurred. There is no reason to conclude that the jury did not carry out their deliberations in accordance with the trial judge’s directions. [334]

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

JUDGMENT

1. SIMPSON AJA: On 26 November 2019 the applicant was arrested and charged with six counts of sexual offences against the same complainant. The offences were alleged to have been committed on 3 separate occasions between 1 January 2012 and 27 August 2018. On 26 July 2021 the applicant was arraigned in the District Court on an indictment that contained six counts, the details of which are set out below. A trial took place in July and August 2021. On Friday 30 July 2021 the jury returned unanimous verdicts of not guilty on counts 3, 4, 5 and 6. The jury was at that time unable to reach a unanimous verdict on counts 1 and 2. The trial judge gave the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 7, but the jury remained unable to reach unanimous verdicts on those counts. The trial judge then directed the jury, pursuant to s 55F of the Jury Act 1977 (NSW), that it could return majority verdicts on those counts. After 30 minutes the jury returned majority verdicts of guilty on each of counts 1 and 2.

2. On 11 November 2021 the applicant was sentenced to an aggregate term of imprisonment for 5 years with a non-parole period of 3 years, commencing on 8 November 2021. In accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge indicated the sentence he would have imposed in respect of each count on which the applicant was convicted had separate sentences been imposed.

3. The applicant now seeks leave to appeal against the verdicts of guilty. Leave is required because the grounds on which he seeks to rely involve questions of fact or questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). He has not sought leave to appeal against the sentence imposed.

4. I have had the advantage of reading in draft the judgment of Garling J. As I have come to a different view, it is necessary to set out, in some detail, the relevant facts and circumstances, before coming to my reasons for my conclusion that, while leave to appeal should be granted, the appeal should be dismissed.

5. The two grounds asserted by the applicant are intertwined. The first is that the verdicts of guilty on counts 1 and 2 are unreasonable or cannot be supported by the evidence (Criminal Appeal Act, s 6(1)); the second is that the verdicts of guilty are inconsistent with the verdicts of not guilty on counts 3 to 6. To a significant extent, the basis for the contention that the verdicts are unreasonable lies in their asserted inconsistency with the acquittals.

6. By s 578A of the Crimes Act 1900 (NSW), publication of any information that might identify the complainant is prohibited. In order to preserve the anonymity of the complainant, in what follows, all relevant witnesses will be denoted by letters of the alphabet.

Uncontroversial background facts

7. The following I understand to be uncontroversial and is included at this point to avoid complexity in the account of the Crown case that follows.

8. The applicant was born in August 1992. He has an older half-sister, A, who at relevant times lived in Queensland. The applicant also has a younger half-brother, Z, who was born in November 1997. The complainant is the younger sister of Z, and the half-sister of the applicant. She was born in 2003, and was therefore a little over 10 years younger than the applicant. The father of all four (including A) is GW. The mother of Z and the complainant is MJ; MJ is not the mother of A or of the applicant.

9. MJ and GW separated in 2003 or 2004. Z and the complainant continued to live with MJ, in the Port Stephens (NSW) area. GW moved to the Orange (NSW) area for a time, where the applicant’s mother also lived. The applicant also lived in that area, dividing his time between his mother’s home and that of GW, until he obtained his own accommodation.

10. At some time not clear in the evidence, GW moved to the Port Stephens area, where he lived in a house to which I will refer as “the Dowling Street house”. Living in separate accommodation at the same address was a friend of GW known by a nickname it is convenient to abbreviate to “S”. During this time the applicant from time to time visited GW from Orange. The applicant also stayed from time to time with MJ.

11. From August 2008 to September 2016, MJ, Z and the complainant lived at an address in Salamander Bay. The complainant and Z had irregular, but not infrequent, contact with GW. They had bedrooms in the Dowling Street house and stayed there overnight once or twice a week, or occasionally more.

12. From May 2017, MJ, Z and the complainant lived at an address in Corlette, where the family occupied the upstairs. Downstairs was occupied by MJ’s parents and another friend. A spare room in the upstairs section was set up with toys and electronic devices used by Z and the complainant.

The indictment

13. As indicated above, the indictment alleged six counts. Four were of indecent assault on a child under the age of 16 years, an offence against s 61M(2) of the Crimes Act 1900 (NSW). One was of sexual intercourse with a child over the age of 10 years and under the age of 16 years, an offence against s 66C(1) of the Crimes Act; one was of sexual intercourse with a child above the age of 14 years and under the age of 16 years, an offence against s 66C(3) of the Crimes Act.

14. The offences were alleged to have been committed in three separate episodes. The offences the subject of counts 1 and 2, of indecent assault and sexual intercourse with a child over the age of 10 and under the age of 16, were alleged to have been committed at GW’s Dowling Street house, between 1 January 2012 and 31 December 2013. The offence the subject of count 3, of indecent assault, was alleged to have been committed between 15 January 2013 and 16 January 2015, at an indeterminate location in NSW, in circumstances to be outlined below.

15. The offences the subject of counts 4, 5 and 6, of, respectively, sexual intercourse with a child above the age of 14 and under 16 (count 4), and indecent assault (counts 5 and 6) were alleged to have been committed between 6 May 2017 and 27 August 2018, at the Corlette address at which MJ, Z and the complainant lived.

The Crown case

The complainant’s evidence

16. As is usual in cases of sexual offences, the Crown case rested significantly on the evidence of the complainant. Evidence given by MJ and GW provided some context, particularly in relation to the family living arrangements. Importantly, evidence of complaint was given by MJ, and two other witnesses, OW and KI.

17. Pursuant to the relevant provisions of the Criminal Procedure Act 1986 (NSW), the complainant’s evidence was pre-recorded and the recording played to the jury.

18. The complainant’s evidence in respect of each alleged offence may be summarised as follows.

Counts 1 and 2:

19. The complainant’s evidence was that she was in her room at GW’s house watching a movie. She was 9 or 10 years of age at the time. She was on the bottom bunk of bunk beds. She was wearing pyjamas and underwear. The complainant said that the applicant asked if he could watch the movie with her. She assented. The applicant lay down with her and watched the movie. After a time the applicant put his fingers underneath the covers of the bed and started touching her on the outside of her vagina, inside her clothing. This conduct was the subject of count 1 on the indictment (indecent assault). The applicant then pulled the complainant’s pyjama shorts and underwear down to her knees and began licking her vagina. This conduct was the subject of count 2 on the indictment (sexual intercourse).

20. The complainant said that while this was occurring the applicant asked her multiple times if she was “okay”, to which she replied that she was. Eventually the applicant stopped what he was doing and left the room.

21. These were the counts on which the applicant was convicted.

Count 3:

22. The complainant’s evidence was that she, GW, Z, the applicant and (she thought) a friend of Z’s were driving to Queensland to visit A. GW was driving. It was night time. Z’s friend occupied the front passenger seat. The complainant was sitting in the middle of the back seat between Z and the applicant. The complainant and the applicant were underneath a blanket. Z was asleep. The applicant took the complainant’s hand and placed it on his penis, which was “very hard”. The applicant asked the complainant “a couple of times” if she was “okay”. She said that she was. The complainant could not remember how old she was at the time, but the incident occurred when the family lived at Salamander Bay (that is, between August 2008 and September 2016). The applicant was acquitted on this count.

Counts 4, 5 and 6:

23. The complainant’s evidence was that these offences were committed, as part of a single episode, at the Corlette home where she was then living with MJ and Z. (The family lived at Corlette from May 2017.) The complainant said that she was on a day bed in the spare room, under a blanket, playing a computer game called “Minecraft”. She was lying on her right side. The applicant came into the room and asked if he could play the game with her. She said that he could “if you find the spare controller”. He found the device and sat down and, for a time, played the game with her. The complainant said that the applicant then got under the blanket and, after a couple of minutes, began touching the outside of her vagina, initially on the outside of her underwear. He then undid the button and the zipper of her shorts, moved his hand underneath her underwear and started touching the outside of her vagina, rubbing her clitoris. He asked her, multiple times, if she was “okay”. She said that she was.

24. The complainant said that the applicant then “stuck his fingers” into her vagina and began “fingering me”, by which she meant that he was moving his finger “in and outside of me”. This conduct was the subject of count 4 (sexual intercourse with a child between the ages of 14 and 16).

25. The complainant said that the applicant then pulled down his pants, exposed his penis, grabbed her hand and placed it around his penis, which was hard. This alleged conduct was the subject of count 5 on the indictment (indecent assault). The complainant said that the applicant then placed his penis between her legs, rubbing it against the outside of her vagina. This was the subject of count 6 on the indictment (indecent assault). The applicant again asked the complainant if she was “okay” and she again replied that she was. Eventually, the conduct ceased and the applicant left the room.

26. The complainant said that at the time MJ and Z were present in the house, as were the applicant’s then partner B and their two children, who were “staying over”.

Uncharged act

27. The complainant gave evidence of a further event, not the subject of any charge. She said that, in about January 2019, while she was at home, lying on a couch, watching a movie called "Criminal Minds”, the applicant asked if he could watch the movie with her. She said that nobody else was present in the lounge room, but MJ was in her room asleep. Also present in the house was the applicant’s partner, B, and their two children, all of whom were asleep in Z’s room. The complainant said that she had a blanket over her and the applicant also got underneath the blanket and began touching her on the vagina underneath her underwear. She said that the applicant moved his hand up to her vagina, pulled her pyjama pants and her underwear down, and started rubbing the outside of her clitoris. He asked if she was okay, to which she said that she was. She said that the applicant then “stuck his finger inside my vagina” and started “fingering me”. He again asked if she was okay and again she replied that she was. She said that he then started rubbing the outside of her clitoris, and again “stuck his fingers inside my vagina”.

28. The complainant said that after the Minecraft incident, and before the “Criminal Minds” incident, she told her friend, OW. She did not say what she had said to OW.

Other evidence in the Crown case

Complaint evidence

29. Evidence of complaint was given by three witnesses.

(a)    OW

The first witness to give evidence of complaint was an “online friend” of the complainant, OW. Although it is not entirely clear, it does not appear that the complainant and OW ever met in person. Their communication was through digital applications, initially one called “Askip”, and then “Snapchat”. OW’s evidence was that the two had “met” in about January 2019 and communicated either by text or telephone calls.

30. OW said that about a month after they began talking, the complainant had told her “that her brother had done stuff to her”, and that he had raped her (although OW was not able to say that the complainant had used those exact words). She said that the complainant did not elaborate on what she claimed the applicant had actually done. OW said that when the complainant spoke to her of these things, she sounded “scared and upset”, and that her voice “trembled a bit”.

30. OW said that she encouraged the complainant to tell someone of her allegations, but the complainant said that she was too scared to do so.

31. OW also gave evidence of an occasion “around the end of 2019” when she was on the phone to the complainant, when the complainant asked her to stay on the line because her brother had turned up and she was scared that “he was going to do something else”.

(b)   MJ

The complainant’s mother MJ gave evidence that, in August 2019, the complainant told her that she needed to talk to her (MJ). MJ surmised that the complainant was going to say something about the complainant’s then boyfriend, but the complainant told her that “[the applicant] had done something”. She said that the complainant told her that the applicant had touched her “in the wrong places for – over the past”. MJ said “I was just a mess. I didn’t know how to swallow what she’d told me”, that she “clammed up” and “didn’t know how to deal with it” so she called a friend, KI, who came and talked to the complainant.

(c)   KI

KI is the mother of a school friend of the complainant and a friend of MJ. KI gave evidence that, in the evening of 23 August 2019, MJ telephoned her, saying that the complainant had something to tell her, and asked KI to come to the home immediately. KI did so, and had a conversation with the complainant (in the absence of MJ). She said that the complainant told her that she had been assaulted “with fingers”, “down there” (pointing to her crotch area). KI said that the complainant told her that the assaults had been going on since she was about 10, and the perpetrator was the applicant. KI said that the complainant told her that the assaults ceased in the summer of 2019. (The complainant denied having told KI of her allegations).

Other evidence of MJ

33. MJ gave evidence of the various addresses at which the family had lived in the Port Stephens area. The principal significance of this evidence was that it assisted in fixing the dates of the conduct alleged to have constituted the offences the subject of counts 4, 5 and 6 (which the complainant said were committed in the Corlette home at which the family then lived).

34. MJ said that, for a period from late 2018 until early 2019, the applicant, his partner B, and their two children, stayed at the Corlette house “using Z’s room”.

35. MJ also gave evidence that, following the complainant’s account to her, she contacted the applicant by telephone and confronted him with the allegations. She said that the applicant made an immediate and forceful denial; as recounted by MJ, he said:

“What the fuck, Puss, I didn’t – I didn’t fucking do anything about this.”

36. MJ said that she made a second call to the applicant on the same day, again telling him of the complainant’s allegations “that he’d touched her inappropriately”, to which he replied that he was “gobsmacked”.

The evidence of GW

37. As mentioned above, GW is the father of both the complainant and the applicant.

38. GW said that, after living in Orange for a time, he moved to the Port Stephens area where he lived at “the Dowling Street house”. He shared that accommodation with “S”.

39. GW said that Z and the complainant each had a bedroom in the Dowling Street house, each of which was furnished with double bunk beds and each of which had television or DVD facilities. He said that Z and the complainant stayed at the Dowling Street house two and up to four nights each week: arrangements were flexible and cooperative. From time to time the applicant, who was living in Orange, also stayed for a couple of days at a time. He slept on a mattress in the loungeroom. All the children got on well.

40. GW also gave evidence about his daughter A who lived in Bundaberg, Queensland. He said that he visited her intermittently, when he had the funds to do so. Z and the complainant, and, until he got older, the applicant, accompanied him on these trips. GW thought that these trips might have occurred once a year, sometimes twice, three times “if I was lucky”.

41. Although his recollection was vague, GW thought there was one occasion when he took a friend of one of the children. He was unsure whether that was on a visit to A, or on a holiday. He thought that there was probably an occasion when a friend of Z’s accompanied the family.

42. Cross-examination of GW focused attention on two of the family excursions to Queensland. He was first asked about a trip for A’s wedding, which was in early January 2012. GW agreed that, at the time, the applicant was living in Orange, and drove from there to the Dowling Street house, and then to Queensland, after staying overnight. He agreed that the applicant’s then partner N was present on that trip. He agreed that, at that time, the applicant was the only person in the vehicle who held a driving licence, he (GW) having been disqualified. He initially agreed with the proposition put to him that the applicant was the only person driving on that trip. However, when it was then put to him that at no point did the applicant sit in the back seat of the vehicle, he dissented, saying:

“If you want me to be honest, possibly, yes, because I did have a drive every now and again without a licence. If you want me to be honest, I’ll be honest. So, possibly, yes.”

43. GW was then asked about an earlier Queensland trip, for A’s engagement party. He agreed that he and the applicant had driven to Queensland for that function; but when it was put to him that “there certainly wasn’t one of [Z’s] friends on that trip” he answered:

“Well, I can’t recall, they could have been, mate. When I made the statement, I was put on the spot just like now, you know. So, yeah, we have been up there. I can’t recall whether we’ve been up there, I’d have to sit down and think like everyone else would.”

44. The final witness in the Crown case was the officer in charge of the investigation, who gave evidence of the applicant’s arrest, and said that the applicant declined to take part in an interview. He said that the applicant had no criminal convictions.

The defence case

The applicant’s evidence

45. The applicant gave evidence.

46. Prior to the empanelling of the jury, defence counsel told the trial judge that the applicant had “what can be described as a cognitive impairment”. Apart from saying that the applicant’s “attention is quite limited” he did not elaborate on the nature of the cognitive impairment, or its effect on the applicant. It is fair to observe that no cognitive impairment is apparent in the transcript of the trial.

47. The applicant expressly denied each of the allegations made by the complainant.

48. With respect to counts 1 and 2 (offences alleged to have been committed at the Dowling Street house occupied by GW) the applicant said that the complainant did not visit the house very often, because GW liked to drink with his mates and brought them home from the pub, that the house was “in disrepair and needed a lot of work to be liveable” and that MJ did not like the children (the complainant and Z) to go to the house because of its state of disrepair and GW’s lifestyle. The applicant said that he stayed overnight at the Dowling Street house on three occasions only, twice alone and once with his then partner N. He said that in 2012 he visited “not very often at all”, about three or four times per year, when he stayed with the mother (AA) of a friend (BA). There was only one occasion when he stayed at the Dowling Street house at the same time as the complainant. He said that that was when he (the applicant) went to pick up GW to travel to A’s wedding in Queensland in January 2012. The applicant said that N was with him at the time. He said that he, GW, N, and Z travelled together in the applicant’s car and that he was the only driver because GW did not at that time have a licence and that he (the applicant) was not prepared to risk his licence by allowing an unlicensed driver to drive his car. He said that GW did not drive at all.

49. With specific respect to Count 3, the applicant said that he had never travelled to Queensland with one of Z’s friends. His evidence was that the last of the occasions on which he travelled to Queensland was for A’s wedding and that there was no friend of Z’s in the party.

50. Prior to the trip to Queensland for A’s wedding, the applicant had travelled to Queensland on one occasion, for A’s engagement party, about a year or two earlier. In that party were GW, the applicant, the complainant, Z and the applicant’s friend JA. They travelled in GW’s car. Between those two events, he had not travelled to Queensland at all.

B

51. B is the partner of the applicant. She said that they had known each other since they were children, and had attended the same school. They commenced a relationship on 21 April 2013 and began living together 3 days later. Initially they lived in Orange. Shortly after the relationship commenced B became pregnant and gave birth to their first daughter on 4 March 2014. At that time they were living in Old Junee.

52. B gave evidence of the circumstances of herself and the applicant thereafter. She said that the second daughter was born on 27 March 2017 and a third on 11 November 2018. The third daughter had serious medical complications and subsequently died. On New Year’s Eve 2018 the family moved to the Corlette house, where they lived with MJ and her family for a time.

53. The import of B’s evidence was to raise issues about opportunity in the applicant to commit the offences the complainant alleged he had committed.

The grounds of appeal

54. The grounds of appeal are pleaded as follows:

1.   The verdicts are unreasonable, or cannot be supported, having regard to the evidence.

2.   The verdicts of guilty on counts 1 and 2 are inconsistent with the verdicts of not guilty on counts 3, 4, 5 and 6.

Ground One: unreasonable verdict

55. The test to be applied by an appellate court addressing a ground of appeal that a verdict of guilty is “unreasonable or cannot be support having regard to the evidence” was laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and has been repeatedly reaffirmed in numerous cases, including SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; and Dansie v The Queen [2022] HCA 25. Although the salient passages in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M have been reproduced at length in countless judgments of the High Court and this and other appellate courts, they are worth repeating for the purposes of this appeal. Their Honours said:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

…

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contained discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (at 493-495, internal citations omitted)

56. In Baden-Clay significant emphasis was placed upon the constitutional role of the jury in determining questions of guilt. In a joint judgment the Court said:

“65. 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 the jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of [the Queensland equivalent of s 6(1) of the Criminal Appeal Act] 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.

…

66.   With those considerations in mind, a Court of Criminal Appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. [citing M; other internal citations omitted]

57. The present was a case in which the jury had the advantage of observing both the complainant and the applicant give evidence. That advantage must be given full weight. Notwithstanding that, there are cases in which, even accepting that the jury has assessed the evidence of a complainant as “thoroughly credible and reliable” the verdicts of guilty have been held to be unreasonable: see, for example, Pell.

58. Perhaps most recently, in Dansie, in a joint judgment, the court said:

“7   …the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge [in a judge alone trial] relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.”

59. Put shortly, the task of this Court is to make its own independent assessment of the evidence relied on by the Crown in support of the two counts on which the applicant was convicted, bearing in mind at all times the advantage enjoyed by the jury in seeing and hearing the evidence as it was given. In this case it should also not be overlooked that, in respect of four counts, the jury was not satisfied that the applicant had been shown to be guilty.

60. In written submissions on behalf of the applicant in support of ground 1, what were said to be “some unusual features” of the complainant’s evidence were identified. It seems that these were suggested to cast doubt on the complainant’s evidence. To do justice to the applicant’s argument it is necessary to deal with each asserted “unusual feature”.

61. The first and second were:

“[the complainant] didn’t have much to do with the applicant, seeing him only every now and then;

The applicant only visited the house [that being the Dowling Street house] 3-4 times.”

62. These propositions were derived from the complainant’s evidence in cross-examination, in which the complainant agreed that, until the time that the applicant and B moved into the Corlette house in 2018, she really didn’t have much to do with the applicant, and she saw him “maybe three or four times a year”.

63. I find nothing unusual about this evidence. As is clear from the uncontroversial circumstances outlined above, the applicant is 10 years older than the complainant. The evidence was that he was closer to Z than he was to the complainant. At the times relevant to counts 1 and 2 he lived in Orange and visited GW “from time to time”, and stayed on occasions in MJ’s home.

64. The third asserted “unusual feature” was that the complainant gave no evidence of grooming by the applicant. Again, I do not find this unusual. The offences, as described by the complainant, have the hallmarks of opportunistic, rather than planned, offences. Similarly, the fourth feature said to be unusual was that there was no threat made by the applicant to encourage the complainant’s silence. While threats to encourage silence, particularly in the case of very young children, are not uncommon, it is also not unusual for there to be no such threats.

65. The fifth “unusual feature” was that the incident the subject of counts 1 and 2 occurred in a room that did not have a door. This somewhat overstates the evidence. The complainant was asked in cross-examination if she were allowed to have the door to her bedroom closed; she replied that she thought the room may not have had a door. In any event, again, the spontaneous and opportunistic nature of the incident as described by the complainant would not suggest that the absence of a door would have deterred the applicant.

66. The sixth “unusual feature” concerned evidence given by the complainant that her memory had got “a tiny bit better” over time. This was a reference to the identification of the movie the complainant said she had been watching at the time of the applicant’s entry into the bedroom. It was put to the complainant that she had not, in her statement to police, identified the movie, and in cross-examination she had done so. In fact, the complainant said, in answer to a question about what the movie was:

“It might have been Fern Gully. I’m not sure.”

67. I find nothing unusual about the complainant failing to identify the movie in her initial statement. It is far from apparent that she was at that time asked. Nor would it be surprising if her recollection in that respect had improved, she having had the opportunity to give it some thought.

68. The final “unusual feature” upon which reliance was placed was that the complainant could not remember the applicant having a girl friend called “N”. Again, I find nothing unusual about this in the circumstances of this case.

69. I reject the proposition that these “unusual features”, either alone, considered collectively, or considered in conjunction with the matters addressed below, of the complainant’s evidence cast doubt upon her credibility.

70. The second aspect of the submissions was a contention that the complainant’s evidence was internally inconsistent. Six instances of alleged inconsistency were cited.

71. The first of these was that GW did not live at the Dowling Street house “at least from 11 August 2012”. It was said that the complainant’s evidence was that she had “guessed” that detail.

72. In fact, the complainant said that the first incident occurred when she was “maybe 9 or 10” and living at Salamander Bay. That accounts for the time frames in the indictment (1 January 2012-31 December 2013, the complainant having been born in January 2003). There was some evidence that, from August 2012, GW lived at a different address. It was put to the complainant, and apparently accepted by her, that, in her statement to police, she had said that the incident in the car (the subject of count 3) occurred when she was “about 11 years old”; the complainant would have been 11 from January 2014, after GW had moved from the Dowling Street house. The complainant said that, when asked by police where the incident the subject of count 3 occurred, she:

“kind of guestimate … because I panicked and didn’t know what to say”.

73. There is no inconsistency as asserted.

74. It was also asserted that the complainant’s evidence concerning the positioning of herself and the applicant changed. This appears to be a reference to the evidence of the complainant in respect of the uncharged act, when, on the complainant’s account, she was watching the film “Criminal Minds”. Although it is not easy to follow, it appears that the complainant had initially said, in her police statement, that she was lying on her left hand side, and subsequently, having been shown a photograph of the couch on which she said she had been lying, accepted that she must have been lying on her right hand side. The complainant’s response was that she often confused her left and right hands, and that, being shown the photograph, she accepted that she must have been lying on her right side. This anomaly casts no light on the accuracy of the complainant’s evidence in relation to counts 1 and 2.

75. The next asserted inconsistency was said to be that the complainant’s evidence that she was watching a movie in her room at the time of the offences the subject of counts 1 and 2 was not supported by the evidence of GW. This assertion was not further particularised. However, GW’s evidence was that the complainant had a television or DVD player in her room so that she could watch movies. When asked if the applicant ever watched movies in the complainant’s room GW said:

“I can’t recall. He may have, like, a lot of the kids used to go in the bedroom and all jump into bed, and just watch a movie together, you know? So, yeah, possibly, I can’t say – can’t guarantee that, but yeah, so - .”

76. GW was then asked if he recalled at any time seeing the applicant in the complainant’s room watching a movie, to which he replied:

“No, I can’t recall that, but that doesn’t mean it doesn’t happen, like he used to lie on my bed and watch a movie, you know, like, it’s just whatever the kids were doing at the time.”

77. The final suggestions of inconsistency are all concerned with the complaint evidence. First, it was said that the complaint to OW was only that the complainant was “having stuff done to her”. That understates OW’s evidence, who said that the complainant told her that she had been “raped” (although OW was not sure that that term had been used).

78. It was then said that the complainant’s complaint to MJ was only of “inappropriate touching”, as was the complaint to KI (although the complainant denied making any complaint to KI). It is true that the evidence of MJ in this respect was limited to saying that the complainant had told her that the applicant had “touched her, like, in the wrong places”. What cannot be omitted from consideration is that MJ also said that she (MJ) “clammed up” and rang KI because “I was just a mess and didn’t know how to swallow what she’d told me”. The following evidence is pertinent:

“Q. When you say she told you that he’d touched her in the wrong places, did she where he touched?

A. She didn’t tell me specifically at that time, I just cut her off, basically, and snapped.”

79. In these circumstances it is hardly surprising (and certainly not inconsistent) that the complainant did not elaborate further to MJ.

80. It is also incorrect to say that the complainant’s complaint to KI was merely of “inappropriate touching”. The transcript records the following evidence of KI:

“A. I said to her, ‘do you want to talk about?’ and she said, ‘yep’ and I said, ‘Can you tell me what happened?’ and she said she had been assaulted and I said, ‘how?’ and she said, ‘With fingers’. I said, ‘where?’

Q. What did she say, when you said where, what did she say?

A. ‘She said, ‘down there.’ … Point, she pointed down there.

Q. And you’ve just indicating with your finger pointing down –

A. That’s what she did she was sitting –

Q. To your crotch area.”

81. I do not accept that any of what are asserted to be inconsistencies in the complainant’s evidence cast doubt on her assertions with respect to the first episode, the subject of counts 1 and 2. The verdicts of guilty are not, for this reason, unreasonable within the meaning of s 6(1) of the Criminal Appeal Act.

Ground Two: inconsistency

82. It has become commonplace, when a jury returns a mix of verdicts of guilty and not guilty of a number of counts on an indictment, to assert that the verdicts of not guilty demonstrate that the jury did not accept the complainant as a truthful witness, and that the verdicts of guilty are therefore inconsistent with that assessment. That proposition derives from the decision of the High Court in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56. It has long since been disavowed: see, for example, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Ganiji v R [2019] NSWCCA 208; Cullen v R [2022] NSWCCA 63. In MFA the High Court declined an invitation to hold that Markuleski was wrongly decided (see [32]).

83. There are many reasons why a jury may be cautious about convicting an accused person on all counts on an indictment without discarding the evidence of the complainant as credit worthy.

84. A ground of appeal asserting miscarriage of justice by reason of what is said to be inconsistent verdicts arising out of a mixture of guilty and not guilty verdicts is, essentially, a complaint that the verdict or verdicts of guilty is or are unreasonable and cannot be supported having regard to the evidence: MacKenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35; Cullen at [35]. Where inconsistency is said to invalidate a verdict or verdicts of guilty, the enquiry is as to the logic and reasonableness of those verdicts; MacKenzie. Unreasonableness in the case of a verdict or verdicts by reason of inconsistency with another or others must be said to derive from incompatibility of the guilty verdict with the not guilty verdicts. The test is therefore, as set out above, that stated in M. In Ganiji, Basten JA said:

“13.   … Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate ‘inconsistency’ or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended on the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.”

85. Juries are routinely directed that they must consider each count on the indictment individually, with attention to the evidence that supports that count. It is worth stating yet again the passage from the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA:

“34   Since the ultimate decision concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof born by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but requires something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases [including MacKenzie]; it may appear to a jury that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

35    It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges might have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraphs of these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction in one or more counts of sexual offences, when the accused was acquitted on others, is unreasonable, or cannot be supported, having regard to the evidence.”

86. In this case, the starting point is that, in respect of counts 1 and 2, the jury accepted the complainant’s evidence in the face of the applicant’s denials. The verdicts of not guilty on the remaining counts must be seen in the context of the trial. There is no doubt that there were, in the complainant’s evidence, many instances of uncertainty as to detail, principally concerning timing. For example, with respect to count 3, the complainant’s evidence was that the offence was committed during a car trip to Queensland to visit A. The complainant could not remember how old she was at the time, but thought that “maybe” she was in year six at school.

87. The jury were directed that it was “an essential fact” that the Crown needed to prove that the offence was committed between 15 January 2013 and
    15 January 2016, as specified in the indictment.

88. Cross-examination of the complainant, and the applicant’s evidence, concentrated on one family trip to Queensland. That was for A’s wedding, which, the applicant said, was in January 2012. A’s engagement party had been “a couple of years earlier”. Those dates are outside the range of dates specified in count 3. Much was also made of the applicant’s denial of ever having travelled to Queensland with a friend of Z in the car. GW acknowledged the possibility that, on one trip, a friend of Z was a member of the party.

89. It was not necessarily the Crown case, on the complainant’s evidence, that the trip on which conduct the subject of count 3 took place was either for A’s engagement party or for her wedding, but that was the direction in which the cross-examination and the applicant’s evidence went. The applicant said that he had never, after the wedding, travelled to Queensland to see A. In that he was significantly supported by his partner B. If that evidence were accepted by the jury, even as a reasonable proposition, Crown could not establish that that offence took place within the dates specified within the indictment. In my opinion uncertainty about the dates – which the jury were expressly told were essential to the Crown case – explains the verdict on count 3.

90. I am equally satisfied that the verdicts of not guilty on counts 4, 5 and 6 do not signify rejection of the complainant’s essential allegations so much as doubt about the surrounding circumstances. As I have said, the jury were directed to:

“… Look at the evidence in respect of each charge, to see whether that particular charge has been established.”

The jury were also directed to look carefully at the evidence of the complainant before coming to a conclusion.

91. The verdicts of not guilty on these counts do not persuade me that the complainant’s evidence in respect of counts 1 and 2 cannot be accepted.

92. That, however, is not the end of the task for this Court. To discharge the function required by this Court it is necessary to make an independent assessment of the whole of the evidence.

93. There were, plainly, aspects of the complainant’s evidence with respect to counts 3-6 that displayed “uncertainty as to matters of detail”, or on which the complainant has been shown to have had a faulty recollection on some matters. A reading of the transcript suggests that she was at times confused and her evidence was less than satisfactory. She had a poor recollection of the times at which she said certain events occurred. On the critical events, however, she was firm.

94. A compelling aspect of the complainant’s evidence is to be found in the evidence of complaint, particularly the evidence given by OW and KI. Both recalled the complainant being distressed. OW recalled at least the gist of her complaint as being of rape, consistent with the allegation in count 2; KI said that the complainant told her that she had been assaulted with fingers, pointing to her crotch area. Those accounts are essentially consistent with the complainant’s account of the events the subject of Counts 1 and 2.

95. Having made a close examination of the whole of the evidence I am satisfied both that it was open to the jury to convict on counts 1 and 2 and that the Crown established the guilt of the applicant on both counts.

96. I would therefore grant leave to appeal but dismiss the appeal.

97. GARLING J: The applicant applies for leave to appeal in respect of convictions on two of the six counts on an Indictment upon which he was tried by a jury in July and August 2021 before Williams ADCJ in the District Court at Newcastle.

Course of the Trial

98. The summing up of the Judge commenced and concluded on 29 July 2021. The jury first retired to consider its verdict at around 3.20pm on that day. After the jury returned for a few minutes for a very short redirection, it again retired until the proceedings were adjourned for the day. The jury continued its deliberations on the following day.

99. In the course of those deliberations, the jury informed the trial Judge that they had reached a unanimous verdict on Counts 3, 4, 5 and 6. The jury was asked to return to Court shortly after 2pm, when not guilty verdicts were taken from the jury in respect of those four counts.

100. The jury retired to consider the remaining two counts. At the end of the second day, the jury informed the Court, by a note, that it had been unable to reach a unanimous decision on the remaining two counts. His Honour adjourned the proceedings with the jury to return on the following Monday morning, 2 August 2021.

101. Shortly after proceedings resumed, the Court was informed that the jury were unable to reach a unanimous verdict with respect to Counts 1 and 2. The jury returned to Court at the invitation of the Judge at about 10.25am. The Judge then gave a Black direction and the jury again retired. Shortly after 2pm, the jury sent a further note to the Court indicating that they were still unable to come to a unanimous verdict. After consulting with counsel, the Judge gave a majority verdict direction to the jury.

102. Approximately 30 minutes later, the jury returned to Court with a majority verdict of guilty to the first two counts.

103. It is convenient to here set out the six counts. I note that the victim in each case was the same individual, whose identity is, by statute, suppressed. In order to avoid any inadvertent disclosure of information which may identify the complainant, I will use the same pseudonyms which Simpson AJA has used in her judgment.

Count	Offence	Dates	Location
1.	Indecent assault on a child under the age of 16 years (s 61M(2) of the Crimes Act 1900)	1 January 2012 to 31 December 2013	Nelson Bay
2.	Sexual intercourse with a child over the age of 10 and under the age of 14 (s 66C(1) of the Crimes Act)	1 January 2012 to 31 December 2013	Nelson Bay
3.	Indecent assault on a child under the age of 16 years (s 61M(2) of the Crimes Act)	15 January 2013 to 16 January 2015	Car trip to Queensland at an unidentified location
4.	Sexual intercourse with a child above the age of 14 and below the age of 16 (s 66C(3) of the Crimes Act)	6 May 2017 to 27 August 2018	Corlette
5.	Indecent assault on a child under the age of 16 years (s 61M(2) of the Crimes Act)	6 May 2017 to 27 August 2018	Corlette
6.	Indecent assault on a child under the age of 16 years (s 61M(2) of the Crimes Act)	6 May 2017 to 27 August 2018	Corlette

104. On 11 November 2021, the applicant was sentenced to a term of imprisonment of 5 years to date from 8 November 2021 with a non-parole period of 3 years to expire on 7 November 2024.

Grounds of Appeal

105. If granted leave to appeal, the applicant relies upon two grounds, namely that:

1. the verdicts are unreasonable or cannot be supported having regard to the evidence; and

2. the verdicts of guilty on Counts 1 and 2 are inconsistent with the verdicts of not guilty on Counts 3, 4, 5, and 6.

106. There is no application for leave to appeal against sentence.

The Crown Case

107. Given the grounds of appeal, it is appropriate to set out the Crown case before the jury.

108. The complainant’s father and mother were separated. The addresses at which the complainant and her father and her mother were each residing, and the time periods they were there residing, were important to the Crown case.

109. The complainant was born in January 2003 and her mother and father separated after she was born. She had an older brother, Z, who was born a little over five years previously.

110. The applicant was the complainant’s half-brother. She also had other half‑siblings. The complainant lived in the Port Stephens area as did her mother and father, although in separate residences. She generally lived with her mother, but would visit her father, and on occasions, would stay with him overnight. She attended the local primary school and then a local high school.

111. During her primary school years, the complainant, her mother and her brother, Z, lived at a house in Foreshore Drive, Salamander Bay. Her mother’s evidence was that they lived at Salamander Bay from August 2008 until September 2016 (being the period during which the offences in Counts 1 to 3 were alleged to have occurred).

112. The complainant’s evidence was that when she was in Year 8 at high school, she moved to an address at Anna Bay. This would have been in 2016. She lived there with her grandparents and a friend of her mother’s. The complainant, her mother, her grandparents, her mother’s friend and her brother, Z, all then moved to a house at Sandy Point Road, Corlette. The complainant’s mother said that this move occurred on 6 May 2017. The complainant said that it happened when she was in Year 10 (which would have been 2018).

107. Except for a period of about two months whilst the complainant was living at Anna Bay, the applicant and his then partner did not at any time live in the same house as the complainant. However, they did have occasional contact, either when she and her brother, Z, and her father would go to Orange to see the applicant, or when the applicant would visit the Port Stephens area.

108. When the applicant visited the Port Stephens area, it was the Crown case that the applicant would mostly stay over at the house in which the complainant was living, although occasionally he would stay at his father’s house. The complainant said that at no time whilst she was staying overnight at her father’s house did the applicant stay there.

109. After the complainant went to high school, she said that whenever the applicant would visit and stay with her family, he was in the company of his girlfriend, B.

Counts 1 and 2

116. The complainant’s evidence with respect to Counts 1 and 2 was that the conduct occurred at her father’s house. She was unsure of the address of that house but gave evidence that she remembered that a friend of her father’s, ”S”, lived out the back. She said that at that time, she was still living with her mother and brother at Salamander Bay. As earlier noted, the evidence fixed the time the complainant was living at Salamander Bay as being between 8 August 2008 and September 2016.

117. The complainant’s mother was uncertain as to the years when the complainant’s father was living in the house where “S also lived, which was at Dowling Street in Nelson Bay, but said that she thought the complainant was in “maybe Year 2 or 3, so probably about 7 or 8”. The complainant would have been in Year 2 in 2010 and Year 3 in 2011.

118. The complainant’s father, GW, gave evidence that he lived at the Nelson Bay house for approximately two years. Other evidence which he gave established that he had left the Nelson Bay house and was living elsewhere no later than 11 August 2012. This evidence suggests that he was living at Dowling Street for part of 2010, throughout 2011 and for a little over half of 2012.

119. The Crown’s case on Count 1 was that the complainant and the applicant were together at the Nelson Bay house during which time they watched a movie on a TV located in the complainant’s bedroom. In that room, there were two bunk beds. The lower bunk comprised a double bed and the upper bunk comprised a single bed. It was clear from the evidence, and not in dispute, that the complainant had a TV and DVD player in her room at Nelson Bay.

120. The complainant’s evidence was that whilst the complainant and applicant were watching the movie, the applicant put his hand under the bed covers and started touching the complainant on her vagina. At that time, the complainant was wearing pyjamas and underwear. The touching alleged was on the inside of the complainant’s clothes and on the outside of her vagina. The Crown’s case was that the applicant played with the complainant’s vagina for a while and touched her clitoris.

121. In her evidence, the complainant said that this incident occurred when she was “… maybe nine or ten …”, which would suggest that it occurred between January 2012 (when the complainant turned 9) and January 2014 (when she turned 11 years old).

122. Count 1 was constituted by this conduct as amounting to an indecent assault on a child under 16. The jury found the applicant guilty of this offence.

123. The complainant’s evidence was that this interaction continued with the applicant pulling down the complainant’s pyjamas and underwear to her knees. She said that the applicant started licking her vagina and then, after some time, stopped and left the room. The complainant’s evidence was that after the applicant left the room, she continued to watch the movie, which she thought might have been called “Fern Gully”. The complainant did not tell anyone about this interaction. It was this conduct which the Crown relied upon to constitute Count 2 on the Indictment, namely of having sexual intercourse with a child over the age of 10 and below the age of 14. The jury found the applicant guilty of this offence.

124. It is to be observed that for a significant part of the period contained on the Indictment, the complainant was under (and not above) the age of 10 years. To the extent there was any uncertainty about the date or the complainant’s age, the Crown relied on s 80AF of the Crimes Act.

Count 3

125. The Crown’s case on Count 3 was that it occurred at a different time and in different circumstances to the offending conduct in Counts 1 and 2.

126. The Crown’s case on Count 3, which was a charge of indecent assault, contrary to s 61M(2) of the Crimes Act, was that it occurred between 15 January 2013 and 16 January 2015 during a family car trip from the Nelson Bay area to Bundaberg in Queensland.

127. The complainant’s evidence in chief was that she and the applicant were travelling in the back of the vehicle and that whilst that was occurring, the applicant placed her hand on his erect penis. It was the complainant’s evidence that the family was driving in her father’s car to Queensland to visit her older sister, A, and that in the car was her father, GW, the applicant and herself together with her brother, Z, and one of her brother’s friends. Her father was driving. She said she was seated in the middle in the backseat, between the applicant and her brother, Z. She said Z’s friend was sitting in the front seat. She said that what occurred happened under a blanket. The conduct occurred during night-time. The complainant could not remember how old she was or when this conduct occurred. She said that she thought she may have been in Year 6 at school, at which time she would have been 11 years old. This would have been 2014. She said that the applicant asked her a couple of times if she was OK and she had responded “Yes”. The conduct came to an end after the car hit a bump in the road and her hand slipped off the applicant’s penis.

128. In cross-examination, the complainant agreed that one trip to Queensland occurred in September 2011 when, together with her father, the applicant and her brother, Z, she travelled to Queensland to see A. It was initially suggested that another adult, JA, to was in the car and that, because her father was disqualified from driving, he (JA) drove for the whole trip. She agreed with those facts. The complainant agreed that this trip was to visit A and to celebrate her engagement. A’s engagement occurred in 2011.

129. She agreed that in January 2012 there was a further trip to Bundaberg for the purpose of attending her sister A’s wedding and that her father and the applicant were present in the car. She was asked if JA may have been present. She agreed. She was asked if the applicant had driven, and she said that she could not remember. She did not nominate her brother, Z, or his friend as being in the car for that trip.

130. She agreed that there were no further trips to see A in Bundaberg after March 2014 when the applicant’s first child with his partner, B, was born. B gave evidence that she had formed a relationship with the applicant on 22 April 2013 when, after a few days, they moved in together. There was no suggestion that any trip to Bundaberg took place at any time after she became the applicant’s partner.

131. The applicant gave evidence in which he denied that he had at any time engaged in the conduct which the complainant alleged on a car trip to Bundaberg, or at any time at all. The applicant’s evidence was that he had driven to Bundaberg on one occasion with his father, his then girlfriend and the complainant and her brother, Z. He said that the trip occurred in his car and that he drove the whole way. He said that was because his father did not have a license and was unable to drive. He denied that he had ever been on a car trip to Queensland with one of Z’s friends. He also denied that there had been any car trip to Bundaberg at any time after the car trip in January 2012 to attend A’s wedding. He also denied having been to Queensland at all since travelling there for A’s wedding.

132. The jury returned a verdict of not guilty on this Count.

Counts 4, 5 and 6

133. It is convenient to describe the Crown’s case with respect to Counts 4, 5 and 6 together. They are said to have occurred on the one day at the one location, namely at the house at Corlette where the complainant lived with her mother and family.

134. The complainant’s evidence was that her mother and her brother, Z, were also in the house, as was the applicant’s partner, B, and their two young children who were staying over at the house rather than just visiting for a day.

135. The complainant said that she was in a spare room under either a blanket or a doona whilst she played an electronic game called Minecraft. She was lying on a daybed on her righthand side. Her evidence was that the applicant came in and asked if he could join in the game. She told him that he could, so long as he could find a spare controller. He did so, and then played Minecraft with the complainant for a while. The room they were in was a spare room which the complainant also called a toy room.

136. The complainant’s evidence was that after she and the applicant had played Minecraft for a while, the applicant got underneath the blanket. After a couple of minutes, he started touching the outside of her vagina. At the time, she was wearing denim shorts and a top. First, the applicant was touching her from beneath her shorts but outside her underwear. The applicant used his left hand and undid the button and the zip on her shorts. After initially touching her over her underwear, the applicant then moved his hand beneath the applicant’s underwear and started touching the outside of her vagina. She described what occurred in this way:

“He was playing with my vagina for a bit, and he stuck his fingers in. … he was rubbing my clitoris.”

137. The complainant then said that the applicant continued moving his finger inside and outside of her vagina. The applicant was lying down behind her whilst these events were occurring, propping himself up using his arm. On the Crown case, this conduct constituted the offence in Count 4 of sexual intercourse with a child between 14 years and 16 years of age.

138. The complainant was unable to say for how long this conduct continued, but it stopped. A short time later the applicant, according to the complainant, pulled out his penis, grabbed the complainant’s hand and put it around his penis so that she was holding it. After a little while the complainant’s evidence was that the applicant put his penis between her legs and rubbed it up against her vagina. He did so from behind. At that stage, the applicant let his penis remain in place from behind her and the two of them continued to play Minecraft. As they did so, according to the complainant, the applicant’s penis moved back and forth rubbing against her vagina. This conduct stopped at some point, but the complainant was unable to remember how it stopped.

139. The applicant left and the complainant continued playing Minecraft. She stood up from the daybed and rearranged her clothes.

140. It was this conduct that constituted Counts 5 and 6 of the Indictment being offences of indecent assault of a child under 16 years of age.

141. The applicant was acquitted of Counts 4, 5 and 6.

Other Features of the Crown Case

142. A further feature of the Crown case was that the Crown led evidence of an uncharged act which was said to have occurred at a point in time after Counts 4, 5 and 6. According to the complainant, the act occurred in January 2019, when she was lying on a couch in the lounge room watching a television show called Criminal Minds, when she saw the applicant walking out from the kitchen. She said that the applicant and his partner B and their two children were asleep in the house, as was her mother. She gave evidence that the applicant joined her on the couch to watch the movie. She had a blanket over her which the applicant lifted over himself, and after a while, he started touching her vagina under her pyjama shorts and underwear.

143. During this conduct, the complainant said that the applicant also inserted his finger inside her vagina and then moved his finger or fingers in and out of her vagina. The complainant said nothing to the applicant. She was unsure for how long it lasted. At one point the applicant stopped and removed his fingers from inside the complainant’s vagina and asked if she was OK. He then continued rubbing her both inside and outside of her vagina. The applicant then re‑arranged her clothes by pulling them back up. He then got up and went to bed. This was referred to in evidence as the “Criminal Minds conduct” or the “Criminal Minds incident”.

144. Another feature in the Crown case was the complainant’s evidence of making a complaint on a number of occasions. The complainant said that the first occasion on which she complained was to a friend, OW. She said that it was about two months after the Minecraft incident (the conduct constituting Counts 4, 5 and 6) that she sent a message to OW. She said it was before the Criminal Minds incident in January 2019. She communicated with OW by messaging her over Snapchat. According to the complainant’s evidence, she told OW that her brother had “… been inappropriately touching me”.

145. OW gave evidence that she commenced communicating with the complainant initially on Askip and then on Snapchat in January 2019. She said that on a number of occasions, probably around February 2019, she messaged or spoke with the complainant, who told her that “… her brother had done stuff to her …”, “… that he had raped her …”, and that “… it made her scared to be around … him”. OW was not certain that the complainant used the word “raped” and said that she did not remember what words the complainant had actually used.

146. OW also gave evidence of a conversation with the complainant around the end of 2019, probably in November or December, when the complainant told her that she was scared of her brother who had just arrived at the house where she was then living. This communication she said occurred after the first complaint was made to her, and about “say, six months” before she made her police statement in April 2020.

147. In chief, the complainant did not give any evidence at all about this communication. When asked about it in cross-examination, she said that she had lost contact with OW by 2019, but she also said that it was possible that she had had such a communication with OW at the end of 2019. She also said when pressed further that she had such a conversation with OW at the start of 2018. There was no re-examination on this issue.

148. The complainant gave evidence that she spoke with a boy at her school, although she did not give any details of what she had said to this school friend. He was not called to give evidence. This interaction was not relied upon as a complaint by the Crown.

149. The complainant also gave evidence that on 23 August 2019, she spoke to her mother whilst they were together in the loungeroom at the house at Corlette. She described their conversation in this way:

“I walked out and said to her that I need to speak to her and I said, ‘Something's happened,’ and she asked if it was something to do with Jordan. I said no. I said, ‘It's with [the applicant]. [The applicant has] been inappropriately touching me,’ and she said, ‘What?’ in a very loud tone and she said, ‘What do you mean?’ and I said, ‘He's been inappropriately touching me on the vagina and stuff.’”

150. She didn’t give her mother any further details about how she alleged the applicant had been inappropriately touching her. According to the complainant, her mother’s friend, KI was telephoned by her mother and came over to her house. The complainant then spoke with KI. A couple of days later the complainant spoke with police officers.

151. Her mother’s evidence was that at the time this complaint was made to her, the complainant was upset and that she was quiet. She said that when KI came to the house, KI and the complainant sat in the loungeroom. She was not present during that conversation, nor did she hear what had occurred.

152. KI gave evidence that she arrived at the complainant’s house at about 7pm and spoke to the complainant alone. She observed that the complainant was very quiet, was very upset, was red in the face and had been crying. KI asked the complainant to tell her what had happened. The complainant responded by saying she had been assaulted with “fingers” in her crotch area, described as “down there”. She was asked how long it had been going on and the complainant told KI that it had been happening since she was about 10. She identified her brother, the applicant, as the person who had been assaulting her. She added that “it stopped last summer”. KI understood that to be the summer of 2019.

153. A couple of days after this conversation, the complainant spoke with the police. It was separately established that the applicant first spoke with police in August 2019.

Case for the Applicant

154. The applicant gave evidence at the trial and denied that he had engaged in any of the conduct alleged against him.

155. The applicant gave evidence that up until January 2013 he had a partner, N. He said that during 2012, he lived with N in Orange. Except for a period of about a month in January 2013, he lived in Orange in 2013.

156. The applicant said that the house in which he lived with his father for about a month in January 2013 was at Marsh Road in the Bobs Farm area of Port Stephens. It was next to a go kart track.

157. The applicant in his evidence-in-chief said that he had only stayed on three occasions overnight at the Nelson Bay house where his father lived. The visits where he stayed overnight only happened whilst he was in a relationship with N. On two of those occasions, he was there alone, and on the third occasion he was with N.

158. With respect to the occasions on which he stayed at the Nelson Bay house, he said that there was only one occasion when the complainant also stayed the night. He said that that was on the evening before the family drove to Bundaberg in January 2012 to attend his sister’s wedding. On that evening his partner N stayed in the house. The following day, the applicant said that he drove in his car with his father, his partner N, the complainant and the complainant’s brother Z to Bundaberg. The reason he drove was that his father did not have a license. For the whole of the trip, he was the driver and occupied the driver’s seat.

159. On that evening, when he stayed at his father’s house, he and N slept in the complainant’s bedroom. He was uncertain where the complainant slept, but it was not in her bedroom.

160. During his evidence-in-chief, he was asked about the description of the offending in Count 3. He said that he had never been on a car trip to Queensland with a friend of Z’s. He said that he had not been to Queensland since the trip to Bundaberg for his sister’s wedding in January 2012. Prior to that he said that he had driven up to Queensland to attend his sister’s engagement party. That was a trip he took when his father was living in a house in Nelson Bay. He said that he took that trip with his father, the complainant and her brother Z and his friend JA. They travelled on that occasion in his father’s car. He also denied travelling by car to Queensland at any time between the trip to attend his sister’s engagement party and the trip to attend her wedding.

161. The applicant was then asked about the offences which were encapsulated in Counts 4, 5 and 6. He said that the first occasion when he went to at the Corlette house was on a particular games night which he attended with his then partner, B, and their two children. He said that his sister A and her three children also attended. A and her children had travelled down from Bundaberg. The applicant said that on that evening, the complainant stayed with her mother and not in her father’s house where he was staying. He said that on the following day there were a number of other people who attended aa barbeque in a park across the road from his father’s house at Lemon Tree Passage.

The summing up concerning count 3

289. The trial judge directed the jury that the Crown needed to prove that the offence occurred in the indictment period; it was one of the “essential facts”.

Consideration

290. In my view, the analysis of the evidence concerning the opportunity for the offence to have been committed, considered in light of the trial judge’s direction that the indictment period was an “essential fact” of which they had to be satisfied beyond reasonable doubt, reveals a pathway for the jury to an acquittal that does not reflect adversely on the complainant’s credibility, other than as to her uncertainty as to her age at the time.

The evidence concerning the third incident (counts 4, 5 and 6)

291. Counts 4, 5 and 6 were alleged to have arisen from an incident that occurred between 6 May 2017 and 27 August 2018, that is, when the complainant was between about 14 years and 4 months and 15 years and 7 months old, at her family’s residence at Sandy Point Road, Corlette (the Corlette house). The complainant’s mother gave evidence that they moved into the Corlette house on 6 May 2017. It was a two-storey house, which included a spare room in which there was a day bed, a television and an Xbox. At the time, the complainant’s mother and Z, amongst others, were living there.

292. The complainant said, in her evidence in chief, that the applicant and his wife and their two children were visiting them and staying over. She did not recall where in the house they were sleeping. The incident occurred in the spare room. She was lying on her right side on the bed playing a computer game (Minecraft) on a television screen. She was wearing denim shorts and a top. The applicant entered and asked her if he could play too. She responded, “If you can find the spare controller”. He found it, sat on the bed and played the game with her.

293. She said that he lay down alongside and behind her, on his right side. They played Minecraft for a while, then he got “underneath the blanket, I think, and after a couple of minutes, he started touching the outside of my vagina”. She said that he undid the button and zip on her shorts. At first, he touched her inside her shorts and on the outside of her underpants. He then moved underneath her underpants and started touching the outside of her vagina. She said: “He asked me if I was okay, multiple times … I said, Yeah, I’m okay”. She said that he rubbed her clitoris and inserted a finger into her vagina. He then pulled down his pants, grabbed one of her hands so that she was holding his penis, which she felt to be erect. He then removed her hand and placed his penis between her legs, “behind my butt”. He had pulled her shorts halfway down her legs. As he continued to lie on his right side behind her, propped up on his right arm, he rubbed his penis back and forth against her vagina as they played the computer game. At some point this activity stopped; she did not recall why. The applicant left and she heard the toilet flush. She pulled up her clothes and continued to play Minecraft.

294. She said that at the time the applicant entered the room, she was underneath a doona. She was not sure where it was when he was touching her vagina, but did not think she was still under it. They were under it when her hand was on his penis. She was not sure where it was when he was rubbing his penis against her vagina. The applicant was not playing Minecraft when he was touching her vagina. She was playing Minecraft when he was rubbing his penis against her vagina.

295. In cross-examination, the complainant agreed that in her police statement, which was dated 27 August 2019, she stated that the incident occurred about two years earlier. She was asked if the applicant closed the door; she said he did, and agreed that detail was not in her police statement. She agreed that in her statement she said that the applicant rolled her onto her side at one point. When asked if that happened, she said “I don’t know”.

296. The applicant gave evidence that in 2017, he and his family were living at Old Junee. He said that the first time he went to the Corlette house was on the occasion of a family “games night”. He was there with his partner, his two children, his sister from Queensland and her three children. He and his family stayed the night at his father’s house, in Lemon Tree Passage. He was able to fix the date of the games night as about 1 July 2017, from an image on a Facebook post taken on that date at the Corlette house of him holding his younger child, who was about three months old. That image was tendered into evidence. The complainant’s mother was shown the exhibit and agreed that it was taken at the Corlette house.

297. The applicant said that he was in the Nelson Bay area on that trip for three or four days. He slept each night at his father’s residence. On 17 July 2017, he returned to the area to purchase a vehicle from his paternal grandfather. An image of him with the vehicle in his grandfather’s driveway on a Facebook post, dated 17 July 2017, was tendered. He said he posted the image a day or two after the purchase. A bank statement recording a transfer on 17 July 2017 in an amount that matched his evidence of the purchase price was tendered. He said that on that trip, he stayed with his father.

298. The next day, the applicant visited the complainant and her family at the Corlette house. An image on a Facebook post, dated 17 July 2017, of the car he purchased, parked in the driveway at the Corlette house, was tendered. The applicant said that during that visit, the complainant asked him to go for a walk up Mount Tomaree (which I note was about 9.5km away). The complainant’s mother refused permission, saying that the applicant had a long drive back home that day. Instead, he agreed to a request made by the complainant to take her to an EB Games shop to buy an “Xbox Live” card, so that she could play online with the applicant and Z. The shop did not have one in stock. They returned to the Corlette house and he entered his card details in the Xbox to buy the Xbox Live facility. He said there was “a day bed” in the room. The transaction appeared on his bank statement, with the date 18 July 2017. He left the spare room without playing a computer game with the complainant, spent half an hour with Z and departed to drive to Old Junee. He did not visit the Corlette house again until late December 2018.

299. The applicant’s partner gave evidence that the only time she visited the Corlette house before December 2018 was for the games night in 2017. On that visit they stayed overnight at her father in law’s residence. The effect of her evidence was that she did not stay overnight at the Corlette house in the indictment period for counts 4, 5 and 6.

300. The applicant’s version was put to the complainant in cross-examination. She agreed that “very shortly” after she moved into the Corlette House, there was a games night there and that the applicant, his wife, their children and other family members attended. She also agreed that this was the first time that the applicant had been to the Corlette house and that he, his wife and their children did not stay the night. It was put to her that the next time he visited the Corlette house was “a few weeks later”, he stayed at their father’s house and the next day he called into the Corlette house on his way back home to Junee. She responded “possibly”, in response to each of those propositions. It was put that she wanted the applicant to take her up Mount Tomaree, but her mother told her she should not do that, because the applicant had to drive to Junee. She did not remember any of those propositions. She was asked if she remembered that she and the applicant went to an EB Games shop to buy an Xbox Live pass, but the shop did not have any cards. She replied, “Possibly”. She remembered that the applicant entered his credit card details into her Xbox system. It was put to her that after he did that, she purchased Minecraft; she replied “Possibly”. It was put to her that this occurred on 17 July 2017; she replied “possibly”. Counsel corrected the date to 18 July 2017 and she replied, “I don’t remember”. She was asked whether she recalled that after the game was purchased, the applicant did not play it with her; she replied, “I don’t remember”.

301. This exchange occurred:

“Q. Who was home at the time?

A. I don’t remember.

Q. Why did you give evidence earlier that your mother, brother - and that you thought [the applicant’s wife] and [the applicant’s] kids were home?

A. Because I thought they were.

Q. Why do you now say you don’t know?

A. Because I’ve thought about the incident more and now realise who would - like, I’m now guessing who was home. Like, I don’t know. I’m second guessing myself.”

302. She agreed that it was “very rare” for the applicant to visit in 2017.

303. In her evidence in chief, the complainant’s mother said she was “pretty sure” that when she first moved into the Corlette house, the applicant and his wife and children would come and stay. She was also “pretty sure” that he would play the Xbox in the spare room, “with his brother and stuff, and his sister”.

304. The complainant’s mother gave evidence to the effect that there was a games night and, when shown the image from the Facebook post on 1 July 2017, agreed it was about that time. It was put to her that it was the first time that the applicant had been to the Corlette house; she replied “Yeah, probably ‘cause I’d only just moved in”. She did not recall if the applicant returned to the Corlette house about two weeks later or discussion about the complainant and the applicant walking up Mount Tomaree but did recall him taking the complainant to the shops.

Addresses by counsel concerning the third incident

305. The Crown Prosecutor suggested to the jury that the incident occurred on 18 July 2017, when the applicant entered his credit card details into the Xbox console:

“We see, in exhibit 6, that that was 18 July 2017 that he is billed for that. And, [the applicant] gave evidence, that, yes, he was in the room, and he installed the Microsoft Live onto the system, and that [the complainant] was there. He described that there was a daybed in there. So, here we have, in a time frame that is very consistent with what [the complainant] said when it occurred - the Minecraft incident, [the applicant] in the room, with the Xbox, with [the complainant].

…

Members of the jury, when you hear that evidence and you hear the timing, you may well think that that offence occurred on that time that [the applicant] has purchased the Xbox live. The Crown has to prove that it occurred between those dates. That date is between those dates, and that’s a matter for you, as judges of the facts. It’s submitted that you would accept [the complainant’s] evidence beyond a reasonable doubt.”

306. Counsel for the defence submitted that the complainant’s account of what occurred on the bed was implausible, for example, in terms of them lying on their side and the applicant being able to pull down her shorts, and the complainant being able to hold the applicant’s penis if the applicant was lying behind her.

307. Counsel referred to the conflict between the complainant’s evidence in chief that the applicant and his family were staying the night when the incident occurred and the evidence of the applicant and his wife that they did not stay overnight at the Corlette house on any occasion before late December 2018.

The summing up in respect of counts 4, 5 and 6

308. As with the other counts, the trial judge directed the jury that the Crown had to prove beyond reasonable doubt that the offences were committed between the dates in the indictment.

The ‘Criminal Minds incident’

309. The complainant gave evidence that in January 2019, while she was living with her family in the Corlette house, she was again sexually assaulted by the applicant. The applicant and his family were staying with them at the time (there was no dispute between the parties that the applicant, his wife and two children resided with the complainant and her family in their residence for the first few months of 2019). The complainant was by herself in the lounge room, lying on her left side propped up by a pillow, on a couch with a blanket over her, watching a series on the television (Criminal Minds). She was wearing underpants, pyjama shorts and a top.

310. Her evidence was that it was night-time. Her mother, the applicant’s wife and their two children were asleep elsewhere in the house. The applicant walked out into the kitchen and then came into the lounge room and asked the complainant what she was watching. He said he loved that show and asked if he could watch it with her. He sat down at the end of her legs. After a while, he lifted her legs and got underneath the blanket. He pulled her underpants and pyjama pants down and rubbed the outside of her clitoris. He asked her if she was okay, and she replied “Yeah”. He stuck a finger inside her vagina and started “fingering me”. He again asked if she was okay, and she again replied “Yeah”. At one point it hurt her, and he stopped for a while, saying “Okay. Are you okay?” She said “Yeah”. He then resumed rubbing her clitoris and again stuck his fingers into her vagina. After a while, she told him she wanted to go to bed and he stopped. She pulled up her pants and went to bed.

311. In cross-examination, the complainant agreed that she was lying diagonally on the couch. She agreed that she made two statements to police. In the first, she said that the applicant sat down on her left side. When police showed her a photograph of the couch, she changed her account, stating he was sitting at her feet. She said that she changed her version because she realised she was mistaken, that if he had been sitting on her left, he could not have reached across her head to her thigh. She agreed that in the first statement, she did not mention that when the applicant had his finger in her vagina, she told him it hurt, and he stopped. It was in her second statement, which was made seven months after the first statement.

312. In his evidence, the applicant denied that the ‘Criminal Minds incident’ occurred, stating that he was not around in the evenings “most of the time” and except for New Year’s Eve, his wife was there with him every night that they were staying at the Corlette house.

Evidence of complaint

313. When the complainant gave evidence in mid-May 2021, she said she last saw the applicant “Two years ago in January”. She said that “maybe two months” after the third incident and before the ‘Criminal Minds incident’, she told a female friend (who she named and who I will also refer to as OW), via texting on Snapchat, that her brother had been “inappropriately touching me”. She also told a male friend who she named, and who I will refer to as RS. She made a complaint to her mother that the applicant had been “inappropriately touching me”; there was no dispute that she did so, and that the complaint occurred on 23 August 2019. That same evening, she made a complaint to a female friend of her mother’s, who I will also refer to as KI. She was interviewed by police for the first time on 25 August 2019.

314. Witness OW gave evidence that she met the complainant through an App around January 2019. After about a week, they transferred across to communicating on Snapchat in the same month. Their communications were by text and by calling each other. About a month after they started communicating, the complainant told her that her brother had “done stuff” to her, but did not tell her specifically what he had done. These conversations were over a period of days. The complainant sounded “scared and upset”. Her voice “trembled a bit”. Witness OW said she advised the complainant to “tell someone”, but she responded that she was too scared. She said that during one phone call, the complainant wanted witness OW to stay on the phone, because her brother had turned up and she was scared that he was going to “do something else”. She was asked when this conversation occurred, and said “Around the end of 2019, I think … Probably around November, December”. She was asked if she recalled that, or whether it was just her best guess, to which she replied, “Just my best guess”. She said they drifted apart around the beginning of 2020. In cross-examination, she agreed that in her statement to police, which was dated 1 April 2020, she had said that the conversation in which the complainant said her brother had arrived, was “around the end of last year”.

315. The complainant’s mother said that in August 2019, the complainant told her that the applicant had “touched her, like, in the wrong places for – over the past”. She said she cut the complainant off and “snapped” with anger and phoned witness KI, who came over. A few days later she phoned the applicant twice and told him what the complainant had said. He denied the allegation, sounding surprised and angry.

316. Witness KI said that she received a call from the complainant’s mother on 23 August 2019 and went to their house, where she spoke to the complainant, who told her she had been assaulted “with fingers … down there”, pointing to her crotch area. Witness KI asked her how long this had been going on, and she replied: “Since I was about 10”. She said that the applicant had done it. She said, “It stopped last summer”, meaning the summer of 2019. In cross-examination, she agreed that in her statement she stated that the complainant said to her: “He told me it was our little secret”. She agreed the complainant said those words.

317. RS was not called to give evidence. There was no explanation to the jury as to why he was not called.

318. It was suggested to the complainant in cross-examination that in a phone call with witness OW in late 2019, she had said: “My brother is here and I’m scared he’s going to do stuff to me again”. She responded that she did say that, but it was in a conversation at the start of 2019. It was also suggested that in her statements to police she had not alleged that the applicant said to her “It’s our little secret”; she agreed. She was asked: “And that’s because he didn’t ever say anything like that”, to which she replied “No”.

The summing up in relation to the multiple counts, the complainant’s reliability and the tendency evidence

319. The trial judge directed the jury as to how they were to approach their consideration of the multiple counts:

“… these six charges are being heard together because it’s expedient and convenient to so. But at the end of the trial, you’ll be asked to return six separate verdicts. And when you're looking at whether you’re satisfied whether or not these charges have been proved, you look at the evidence in respect of each charge to see whether that particular charge has been established. But you are entitled to rely upon the whole of the evidence that’s been given in order for you to come to a decision in regard to one particular matter.”

320. As to the complainant’s credibility, his Honour said:

“In this case there is only one Crown witness as to the essential elements of these offences and in each case that is the complainant. The facts behind those elements are denied by [the applicant]. You as a matter of common sense need to look carefully at the evidence of the complainant before coming to a conclusion as to whether what she says occurred did, in fact, occur. Of course, her reliability and her credibility are matters for you, the jury, to decide looking at all the evidence in the case.

It is a matter of common sense. Where one person gives a version of events which is in dispute you, as the jury, would be very careful when examining that evidence before being able to say that you are satisfied that what is alleged by that particular witness enables you to be satisfied that what is alleged by the witness actually happened.”

321. His Honour gave the jury a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 per Spigelman CJ at [186]-[191]:

“When you are dealing with one complainant and a number of different offences over a period of time and you come to the conclusion that in respect of one or more that you just do not believe what the complainant has said to you, what you have to do then is you say, ‘Look, we don't believe what she says in regard to counts 4, 5 and 6.’ You have to then go back and consider counts 1 and 2 and 3 or any combination of those and decide, ‘Well, can we really accept her in respect of those matters as well?’ That, again, probably is more common sense than anything else but it is a legal direction that I am required to give you.”

322. The trial judge directed the jury in relation to a tendency that the Crown alleged against the applicant, of a sexual interest in the complainant and that he was prepared to act on that interest. His Honour noted that the Crown sought to establish that tendency through the evidence of the six indicted counts and the ‘Criminal Minds incident’. His Honour said:

“So in regard to the evidence as to alleged tendency you will need to consider the conduct of [the applicant] and decide whether he did in fact conduct himself in the way the Crown alleges. Again you do not look at each act in isolation, but you consider the whole of the evidence and decide what conduct, if any, has occurred. It may well be, if you are satisfied that none of the conduct occurred, then there is no inference that can be drawn. If you think some of the conduct has occurred, then you have got to decide, well, is that conduct sufficient for us to infer that [the applicant] had a sexual interest in the complainant and he acted upon the sexual interest?

…

If you are satisfied that they did happen or some of them happen[ed], then you have got to consider whether you can be satisfied that [the applicant] had that tendency. It is circumstantial evidence that goes to whether or not the complainant can be accepted as a reliable witness. But just because someone might have a tendency to do something it does not mean to say that it is proof of a particular offence. Someone might have a tendency to be sexually interested in someone else, that does not of course mean that they go around committing offences. …

But if you find that the tendency has been established it may assist the Crown to prove that [the applicant] committed the offences, but it is not enough of itself. You do not get to say - well, yes, we are satisfied he has got that tendency, end of the story. You have still got to be satisfied in respect of each particular charge, whether in fact that conduct occurred in the way it has been alleged.”

Ground 1: The verdicts are unreasonable or cannot be supported having regard to the evidence

323. In relation to the first basis of ground 1, namely, that on the evidence that exclusively concerned that ground the jury should have had a reasonable doubt, the applicant submits that the complainant’s allegation in relation to the first incident had features that render it unlikely to have occurred. The complainant had little contact at that time with the applicant, she did not allege that she was groomed, or threatened with consequences if she complained, the allegation was that it occurred in a room that did not have a door, she could not explain why the incident ended, she recalled the name of the movie when giving evidence but did not at the time of her statement to police, and she did not recollect that the applicant had a girlfriend at the time or her name.

324. It was submitted that their father’s evidence did not support the complainant’s contention that she and the applicant watched a movie together in her bedroom, that she had “guessed” her age at the time, and that her complaint to Witness OW, her mother and witness KI did not include an allegation of cunnilingus.

325. The applicant’s evidence was that there was a limited window of opportunity for the offences to occur, since their father had moved out of Dowling Street by August 2012. His partner at the time was present on two of the three occasions that he had stayed at Dowling Street, including the only time that he and the complainant were both there overnight.

Consideration

326. In my view, the jury were entitled to be satisfied beyond reasonable doubt by the complainant’s evidence that the applicant committed the offences and, by applying their everyday life experience, to conclude that he did so opportunistically and with a significant element of risk-taking. Grooming and an established relationship are, of course, not essential prerequisites to committing a child sexual assault. The absence of evidence of a threat is consistent with the complainant’s version that suggests that the applicant believed that what he was doing was consensual, by his repeated inquiries as to whether she was “okay”, and her assurances to him that she was. There is an obvious explanation as to why the activity stopped, namely that the applicant did not want to take the sexual activity with the complainant further than he did.

327. The suggestion that it was a matter of concern as to the complainant’s credibility that she did not recall the applicant’s girlfriend at the time, presumes that she should have, but it was only the applicant’s evidence (uncorroborated by the complainant and their father) that on one occasion his girlfriend stayed at Dowling Street at the same time as the complainant. That the complainant did not refer to an act of cunnilingus in her first complaints of the offending behaviour to witnesses OW, her mother or witness KI, is not, in my view, of any weight at all. The essence of her first expression of complaint was physical sexual connection rather than detail as to the type, frequency and circumstances of the assaults. It was not suggested that she had not included that allegation in her statement to police two days after her complaint to her mother and witness KI, on 25 August 2019. Witness KI’s evidence was that the complainant said that the offending sexual behaviour started when she was “about 10”, which encompasses the timeframe of first incident.

328. Their father’s evidence, as excerpted at [277] above, although not to the effect that he recalled seeing them watching a movie together in her bedroom, equally was not contradictory of that proposition. The complainant’s evidence as to her age at the time of the first incident was consistent.

329. Having regard to the evidence that exclusively concerns the first incident, I am satisfied that the jury’s verdicts on counts 1 and 2 are capable of being supported by the evidence. I move then to the second ground.

Ground 2: The verdicts of guilty on counts 1 and 2 are inconsistent with the verdicts of not guilty on counts 4, 5 and 6

330. The applicant submitted that the incident that led to counts 1 and 2 (the first incident) was factually similar to the incident that was the foundation for counts 4, 5 and 6 (the third incident). Both incidents involved an allegation that the applicant entered a bedroom where the complainant was sitting or lying down under a doona or blanket watching a television; a movie in the first incident and playing Minecraft in the other. The applicant sat or lay down next to the complainant to watch the movie or participated in the game, moved under the blanket or doona and sexually assaulted her. At the time of both incidents there were others elsewhere in the home, so there was a risk of discovery.

331. The applicant submitted that there was “no rational basis” for the jury to have distinguished between the counts arising from the two incidents. The temporal proximity of the first complaint to the third incident, and the significantly longer period of time after the first incident, rendered the evidence in respect of the counts arising from the third incident stronger than the evidence concerning the counts arising from the first incident.

Consideration

332. The nature of the two incidents is similar. Indeed, there are shared features with the second incident and the ‘Criminal Minds incident’, as well. All four alleged incidents involve the applicant, at night, in proximity to other family members, sexually touching or penetrating the complainant under a covering; either a blanket or doona.

333. The complainant’s evidence in chief that the applicant and his family were “staying over” in the house at the time of the incident was contradicted by the applicant and his wife, who said there was no occasion that they did so in the indictment period; although they did stay there for some months from the beginning of 2019, which was four months after the indictment period. Although the complainant later expressed uncertainty about that aspect of her evidence, in my view the jury were entitled to take it into account when applying the trial judge’s direction that they had to be satisfied beyond reasonable doubt that the counts, if otherwise established, occurred within the indictment period.

334. The complainant agreed that the applicant had not been to the Corlette house before the games night and that the applicant and his family did not stay overnight on that occasion. The Crown Prosecutor’s submission to the jury that the offences occurred on about 18 July 2017, immediately after the applicant entered the details of his credit card into the Xbox so that the interactive version of Minecraft could be played, had the difficulty that it was not the complainant’s version of events. Although she recalled that there was a time when the applicant entered those details into the Xbox, she could not recall if, having done so, he then played a game with her. It was not her evidence that he entered those details on the same date as the sexual assaults which, in any event, she said occurred in the night-time.

335. Accordingly, acquittals by the jury on counts 4, 5 and 6 do not necessarily involve a rejection or concern as to the credibility of the complainant in relation to the alleged offences themselves. As with count 3, there is a pathway to acquittals that reflects only on the complainant’s recollection of when the assaults occurred. There is no reason to conclude that the jury did not carry out their deliberations in accordance with the trial judge’s directions that are extracted at [318]–[321] above. As observed in the joint judgment in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in a complainant. In my view, this is such a case.

336. The fact that there are such pathways does not dispose of the application. I have not had the advantage of viewing the complainant’s pre-trial evidence (the Court was not invited by the applicant to do so) or the jury’s advantage of witnessing her viva voce evidence and the evidence of the applicant and other witnesses. However, based on my reading of the transcript, the complainant was convincing in her evidence. The discrepancies between her police statements and her evidence concerning the first and third incidents were readily admitted by the complainant and inconsequential. There was no dent of any significance to her credibility.

337. I agree with the orders proposed by Simpson AJA.

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Decision last updated: 23 June 2023