CF v The King

[2024] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

CF v R [2024] NSWCCA 225

Hearing dates:

29 August 2024

Date of orders:

6 December 2024

Decision date:

06 December 2024

Before:

Harrison CJ at CL at [1]
Ierace J at [5]
Sweeney J at [8]

Decision:

1. Leave to appeal granted.

2. The appeal is dismissed.

Catchwords:

CRIME — Appeals — Application for leave to appeal against convictions — Unreasonable verdict — Child sexual assault offences

Legislation Cited:

Nil

Cases Cited:

M v Queen (1994) 181 CLR 487

Texts Cited:

Nil

Category:

Principal judgment

Parties:

CF (Applicant)
Rex (Crown)(Respondent)

Representation:

Counsel:
T Edwards SC with B Searson (Applicant)
C Curtis (Respondent)

Solicitors:
O’Brien Criminal and Civil Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW)(Respondent)

File Number(s):

2020/111550

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 November 2022 – 8 December 2022

Before:

Coleman SC DCJ

File Number(s):

2020/111550

HEADNOTE

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

The applicant was convicted of seven sexual offences committed against his stepdaughter after trial by jury.

The applicant sought leave to appeal against his convictions on the sole ground that the jury’s verdicts were unreasonable and could not be supported having regard to the evidence.

The Court (Sweeney J, Harrison CJ at CL and Ierace J agreeing) held, granting leave to appeal but dismissing the appeal

Having independently assessed the evidence in the trial, the Court did not experience a doubt about the quality, sufficiency and reliability of the complainant’s evidence. The asserted inconsistencies relied upon by the applicant were minor, or plausibly explained such that their asserted significance was dispelled.

JUDGMENT

1. HARRISON CJ AT CL: I have had the considerable advantage of reading in draft the reasons of Sweeney J.  Having reviewed the evidence at the trial for myself, I am like her Honour left in no doubt about either the quality or sufficiency of the complainant's evidence in support of all counts on the indictment.  The verdicts of the jury are not unreasonable.

2. In particular, the applicant’s particular criticisms of the complainant’s evidence are without substance. As this Court has said on so many occasions, so-called inconsistencies and discrepancies which may at first sight appear to cast doubt upon the evidence of any witness, including the evidence of a complainant in a sexual assault trial, must be viewed in the setting of the trial as a whole.  That is the important context in which, and by reference to which, the jury in this case will have come to assess whether they were satisfied beyond reasonable doubt of the guilt of the accused on any of the charges in question.  It would be a remarkable case in which the evidence of an alleged victim of child sexual assault could not be examined in a way that turned up flaws or imperfections of one kind or another.  Minor mistakes or difficulties with recollection are hardly significant unless they ought to have left a jury with a reasonable doubt about a complainant’s evidence when considered as a whole.  This is not such a case.

3. In the present case, a significant part of the evidence in the trial consisted of the recorded conversations between the complainant and the applicant.  The jury had the distinct advantage of listening to this evidence.  On any view, these were difficult conversations for the complainant, no less so for the applicant.  However, it goes without saying that in considering and assessing the veracity and reliability of the complainant’s evidence, the jury would have had the considerable benefit of listening to this clearly painful discussion with the applicant about their relationship, about the way she had looked up to him for support and to hear the confusion still evident in her mind about why she had been assaulted in the way she alleged.  No doubt included in the jury’s assessment of whether they could accept the complaint’s evidence would have been a consideration of the applicant’s complete failure either emphatically or indeed at all to reject her references to oral and anal sex, a topic about which from the terms of the conversation it seems clear she had difficulty speaking.

4. In my opinion, there is no force at all in the ground of appeal asserting that the verdicts were unreasonable or unsupported by the evidence. I agree with her Honour that leave to appeal should be granted but that the appeal should be dismissed.

5. IERACE J: I have had the benefit of reading the draft judgment of Sweeney J .

6. As a consequence of my own consideration of the evidence in the trial, I agree with Sweeney J's assessments and determinations. While there are uncertainties in aspects of the complainant's evidence, in particular as to dates and whether the acts that are the basis of counts 5 and 6 occurred in the same or different incidents, I do not find that those uncertainties impacted adversely on the reliability of the complainant's evidence as to the sexual assaults.

7. Accordingly, I agree with her Honour's proposed orders.

8. SWEENEY J: CF, the applicant, seeks leave to appeal against his convictions for seven sexual offences against his stepdaughter. He was convicted in December 2022 after a trial before Judge Coleman SC and a jury in Tamworth District Court. The offences date back to 2008 and 2009.

9. The Applicant seeks to rely on one ground of appeal, that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

10. The Applicant's submissions focused on asserted inconsistencies and changes in the complainant’s account.

11. The counts on the indictment alleged the following:

• Count 1 charged an indecent assault, by kissing the complainant on the mouth and putting his tongue into her mouth, between 31 August 2007 and 17 December 2008, when the complainant was under 16, aged 14 or 15.

• Count 2 was a charge of indecent assault of the complainant when she was under 16, namely 14 or 15 years, kissing the complainant on the mouth, between 30 November 2007 and 17 December 2008.

• Count 3 charged sexual intercourse with the complainant when she was aged between 14 and 16 and under the applicant's authority, the allegation being his putting his penis in her mouth, between 30 November 2007 and 17 December 2008.

• Count 4 charged an indecent assault of the complainant who was under the applicant's authority, kissing the complainant on the mouth.

• Count 5 charged sexual intercourse with the complainant when she was aged 16 and under the applicant's special care, the act alleged being putting his penis in the complainant's mouth.

• Counts 6 and 7 each charged sexual intercourse with the complainant when she was aged 16 and under the applicant's special care, both being allegations of penile penetration of her anus.

All of counts 4 to 7 were alleged to have occurred between 31 January 2009 and 17 December 2009.

The evidence in the trial

12. The complainant gave evidence as follows.

13. She was born on 17 December 1992. Her mother met the applicant in 2003, and married him in March 2004. Her mother had two sons with the applicant, born in 2005 and 2007.

14. The complainant regarded the applicant as her father. She helped him with farm work after school and on weekends, from the age of 14. The applicant would come to the complainant's bedroom, sit on her bed and talk to her about the Bible after she went to bed, about four nights each week, for an hour or two. GF, the complainant's mother, also gave evidence that that occurred.

The complainant's evidence about the offence charged in count 1

15. In her evidence in chief the complainant said that one night in 2008, before her birthday, when she was in bed, the applicant came into her room and sat on the side of her bed. He put his hand on her leg, over the bed covers, and ran his hand up her leg to her waist, where he left it. He told her he loved her, and was glad he had met her mother so he could meet her. Then he kissed her on the forehead, then kissed her on the mouth and put his tongue in her mouth. She estimated he kissed her for three minutes. He got up, said "I love you and would never do anything to hurt you" and left the room.

16. She said her mother and brother were in their beds. She said that was the first time the applicant had done anything sexual to her.

17. In cross-examination she maintained the event happened.

The complainant's evidence about the offences in counts 2 and 3

18. The complainant said that on another occasion in 2008, before her birthday, she was in bed at night and the applicant came in and sat on her bed. She was covered by a blanket. He put his hand on her leg and ran it up to her waist. He put his hand under the covers, under her shirt and touched her breasts for five minutes. Then he kissed her on the mouth, and put his tongue in her mouth, for about three minutes.

19. Then he pressed his groin against her face, then took his erect penis out of his pyjama pants and pressed it against her face. He hooked his thumb on to her teeth and opened her mouth, and put his penis in her mouth, for maybe 10 minutes, then he ejaculated in her mouth and removed his penis. Then he went and got a glass of water for the complainant.

20. She said her mother and brothers were in their beds.

21. In cross-examination she maintained the event happened. She accepted that if she had said in her statement of 7 February 2020 that the applicant pulled down the bedsheet that that differed from her evidence about the covers. She agreed that in her statement of 7 February 2020 she said the applicant ran his hand up her shirt but did not say he touched her breasts for five minutes. She agreed that in her statement she did not say the applicant ejaculated when he put his penis in her mouth, but said that did happen.

The complainant's text message complaint

22. The complainant said in January 2009 she went to a Youth Christian camp at Scotts Head. While at the camp she sent a message to her friend, LT.

23. At the time she gave evidence in November 2022 the complainant did not remember the precise text of the message she sent to LT, but she said the topic was that she was uncomfortable with the applicant and her relationship with him. She said she sent the message to LT because his mother worked at the school she and LT attended and she wanted to tell someone that she felt uncomfortable and "it wasn't right", and she wanted someone to know.

24. It was an agreed fact in the trial that LT received a text message from the complainant on 15 January 2009, which he showed to his mother. She wrote the contents of the message on a piece of paper. She later reported it to the principal of the school where she taught and which the complainant attended. The principal reported the matter to the Department of Community Services (DOCS). What LT's mother wrote was in evidence as:

"Anyway Dad got real angry at me the other day Nd he hit me nd then he got more angry coz I started to 2 cry and he did sum otha stuff 2. lyk sexual stuff. wat am I spose 2 do? its not lyk I fucking asked 4 it. Now I have a black eye nd sore ribs. nd can u help me?

25. The complainant said at camp she received a call from her mother and the applicant, both together on the phone on loudspeaker. She said they told her that DOCS had come to their home about the message she had sent to LT. Her mother asked her "why would you make something like that up". The applicant asked was it a cry for attention, was she looking for attention. She said they sounded angry with her and confused, mostly angry. She said she felt "a little bit attacked" and scared that she could not take it back. She said she spoke with her mother and the applicant before she spoke to police.

26. She said the applicant told her she needed to call the police or DOCS and tell them she had told a lie and it was just a cry for attention. She said she had to tell the leader of the camp that she lied, made it up, and she was just looking for attention.

27. She said when she returned home after the camp she spoke to police and told them that she had lied and made it up. She said in evidence what was in the message to LT was not a lie. She said she told police it was a lie because she did not want to "cop anything extra from [the applicant]” and she did not want to upset her mother.

28. The complainant said her mother collected her when she was dropped off by the bus from camp and her mother was frustrated, confused and angry with her for sending the message. She said her mother said the applicant provided for them and gave them money and why would she jeopardise that. She said she apologised to her mother for lying.

29. She said when she arrived home the applicant asked her why she would lie and was it a cry for attention. She said he told her to call the police and tell them it was a lie and she called police.

30. She agreed in cross-examination she did not tell anyone at that time that her allegation of abuse was true.

31. In cross-examination the complainant agreed that she spoke to a police officer in the presence of the camp leader on the phone while she was at the Scotts Head camp, on 16 January 2009. She agreed that when she spoke to the police officer she told him she did not send the text message to LT, and that was untrue. She agreed she told the police officer she was not in any danger.

32. She agreed that on the following day, 17 January 2009, she called the police officer she had spoken to the previous day, and told him she did send the message to LT.

33. In cross-examination the complainant was shown the text of the text message copied out by LT's mother. She said she did not recall sending that message but accepted she did. She agreed that the allegation of a physical assault in the text message was a lie. She did not agree that the allegation in the message of sexual assault was a lie. She agreed she told the police officer that the applicant had not done anything sexual to her.

34. GF, the complainant's mother gave evidence that while the complainant was at the camp in Scotts Head in January 2009 a police officer came to the house and said the school had made a report about the complainant. She said the applicant was angry when the police officer told them that. She could not recall if she and the applicant contacted the complainant after the police officer left. She said when the complainant returned from camp the applicant collected her from the bus. She said she was not allowed by the applicant to collect the complainant. The applicant said he would collect the complainant and he would "sort it out", what the police officer had come to discuss.

35. GF said she did not recall having a conversation with the complainant after she returned home about what the police officer had raised.

36. Senior Constable Andrew Trowbridge gave evidence that in January 2009 he spoke to the applicant and the complainant's mother about a report from DOCS about the complaint by the complainant. Then he spoke to the complainant about 8pm on Friday 16 January and she denied having sent the text message or that anything had occurred. The next day she called him and said she did send the text message. She denied having been sexually assaulted by the applicant. She said she wanted some attention from her father. He said he did not receive any later call from the complainant.

The complainant's evidence about counts 4, 5 and 6

37. The complainant gave evidence in chief that after the camp in January 2009 there were occasions when the applicant came in and sat on the side of her bed at night, after she had gone to bed.

38. She said on the first such occasion the applicant kissed her on the mouth, then he put his penis in her mouth, using his hand to open her mouth, then he took the bedcovers off, rolled her onto her stomach, so she was face down on the bed, and took her pyjama pants off. Then he pressed himself against her back, pushed his groin against her bottom and his chest against her back, while lying on top of her. Then he spat on his hand, put it on his penis, and put his penis in her anus, for maybe 15 minutes. He grabbed her hips and thrust towards her. He ejaculated in her anus.

39. Then he got her a towel and she cleaned herself up, of ejaculate which came out of her anus. Then she put the towel behind her bedroom door, so her mother would not find it.

40. When the applicant put his penis in her anus it felt very painful. The next day she bled a little bit and it hurt to go to the toilet for a couple of days.

41. She said while the applicant had his penis in her anus he said to her "you're sexy" and that she was a good girl.

42. After he brought her a towel he left the room. The complainant said when that incident occurred her mother and brothers were in their beds.

43. In cross-examination the complainant agreed that in her statement she had described the anal intercourse as having occurred on a separate occasion after the occasion of kissing and oral sex, in which the applicant had ejaculated in her mouth; that in her statement she described three events after the Scotts Head camp, whereas in her evidence she referred to them as two events (the second being the subject of count seven).

The complainant's evidence about count 7

44. The complainant gave evidence in chief that there was one other occasion when the applicant put his penis in her anus. It was in 2009, before her birthday.

45. She was in her room at night getting ready for bed. Her mother and brothers were in bed.

46. She said the applicant sat on her bed, kissed her, took the covers off, pulled her pants off, rolled her over on to her stomach, pressed himself against her, spat on his hand, put it on his penis, grabbed her hips and thrust his penis into her anus for 10 to 15 minutes. Then he ejaculated and stopped. When she was cleaning herself up, ejaculate came out of her anus. She said when the applicant put his penis in her anus it hurt, and afterwards there was a little bit of blood, and it hurt to go to the toilet.

47. The complainant said that on the second occasion of anal penetration her bed was in a different position in her room than where it was on the first occasion of anal penetration.

48. In cross-examination the complainant agreed that in her statement she made in February 2020 she said there were two incidents before she went to the camp at Scotts Head, the first in September to October 2007 involving the applicant kissing her and putting his tongue in her mouth, the second in December 2007 involving kissing and oral sex. She agreed that in the statement she said there were three separate incidents in 2008, the first involving kissing and oral sex, and the second and third separate incidents each involving anal intercourse.

49. She agreed she made a further statement to police on 11 April 2020. She agreed that before she made that statement she had told police about sending a message to LT while at camp at Scotts Head. She agreed that police investigated and told her she had made a complaint to LT in 2009, not 2008. She agreed that in her April statement she said the three separate incidents after camp happened in 2009, not 2008. She agreed she did not say in that statement that she may have been mistaken about the dates of the two incidents before the camp in her first statement.

50. In re-examination the complainant maintained that she having been made aware that the camp was in January 2009, not January 2008, there were two incidents before the camp and two after the camp.

The complainant's evidence relied on as "context" evidence

51. In her evidence in chief the complainant identified on a floor plan the bathroom where she showered while the family lived in the house where the offences were alleged to have occurred. She said she could see out of the bathroom window from the shower, and she could see from outside the house into the bathroom to the shower through the bathroom window.

51. She said on one occasion after assisting the applicant with sheep she had a shower and saw the applicant looking at her through the window while she was in the shower. He was between the machinery shed and the meat shed, for about five minutes. He was to the left looking out through the window. She said there were other occasions when she saw the applicant outside the window when she was in the shower.

52. In cross-examination the complainant agreed that in her statement of 7 February 2020 she had said the shower incident happened in 2007, but in her evidence said about 2007 or 2008. She agreed that the applicant must have been to the right of the window not to the left.

53. She agreed that in 2007 the bathroom window had one "probably” opaque pane and one that could be seen through, and the shower door facing the window was opaque. She accepted she must have been wrong about the date range she said the event happened in, but said she was not lying about the appellant's conduct. She agreed the bathroom had been renovated but did not remember when.

54. GF, the complainant's mother, gave evidence that before the bathroom was renovated the windows were clear glass, not frosted or opaque. She agreed the shower had opaque or frosted glass, as shown in a photograph, which was Exhibit 15 in the trial. She agreed an invoice for glass in 2012 related to the bathroom windows.

55. The complainant gave evidence of other events relied on as providing a context for her allegations.

56. She said in 2007 to 2008 when she was helping the applicant with sheep he looked at her and told her she looked "young and fit". She felt uncomfortable.

57. She said in 2009 at Easter the family went on a holiday and stayed at a place where there was a pool. One day when the complainant was on her bed reading a book, after having been at the pool, the applicant came and sat on her bed, rubbed her leg with his hand and said she had a nice tan. In cross-examination she maintained that happened.

58. In 2009 or 2010 the applicant bought an additional farm. The complainant helped him on that farm with cattle. She said on one occasion when she was helping the applicant, one of the cattle tried to charge her so she climbed the fence to be out of the way and the applicant put his hand on her buttocks to try to help her up the fence. She said she was capable of climbing up and over the fence without him having to touch her. She said the act felt sexualised.

59. The complainant said in about 2012 when she was dating a man the applicant took her phone away for about two weeks so she could not text the man.

60. The complainant said when she met her now partner KS in 2015, and told the applicant about the relationship, the applicant wanted to meet KS and did so, alone; he would check the complainant's car to see where she had been and looked at her mobile phone on which she messaged KS.

61. In cross-examination the complainant agreed that the applicant would yell at her, chastise her unfairly and be angry with her during the relevant time.

The complainant's complaint to KS and police

63. The complainant said in February 2020 she told her partner KS that when she was living with her mother and the applicant the applicant sexually abused her. She said she did not tell him details. She said she was upset, crying and a little bit angry when she told him.

64. She said that same day she contacted police. She completed her first statement on 7 February 2020.

65. On 26 March 2020 and 6 April 2020 the complainant made phone calls to the applicant which police recorded. I will address the contents of those calls later.

66. The complainant said that after she was told the applicant had been arrested she made a call to one of her brothers, B. She said her brother told her that the applicant had told him that he and the complainant had had an inappropriate relationship but that he was too young to be told the details.

67. In cross-examination the complainant agreed that when she told KS of the allegations she said to him that she could not remember how old she was when the alleged incidents happened. She agreed she later told him she was under 16 when the incidents happened. She agreed she turned 16 on 17 December 2008.

68. She agreed that she told the police officer that a major trigger in her reporting her allegations to police was that when she spoke to her brother B on the phone, he did not sound like himself, and she felt he was being controlled and manipulated to say he wanted to stay in the applicant's custody, when there was a custody dispute about the boys between the applicant and her and their mother.

69. In cross-examination she denied that she made her complaint to police to assist her mother in a custody dispute between her mother and the applicant over their sons.

70. She denied she had given false evidence about the applicant's sexual and indecent assaults to help her mother in the custody proceedings.

71. GF, the complainant's mother, said she had not tried to involve the complainant in the custody dispute.

72. KS, the complainant's partner, gave evidence of the complainant's complaint to him of "anal and oral sex" by the applicant, and that she was sad and crying when she told him.

73. A police officer named Jack Chapman-Burgess gave evidence of receiving a complaint by the complainant about the applicant on 31 January 2020, beginning at about 7.43pm. He said that the complainant told him she was around the age of 15, 16 or 17 when the alleged sexual assaults happened. He referred to a record he had made at 2.25am the following morning about the complaint. He recalled the complainant complained of forced oral sex and he "believed" she also complained of anal and digital penetration, occurring over 8 to 12 months. He agreed the complainant said she felt her brother B was being controlled and manipulated into telling her he wanted to stay in the applicant's custody and she feared he may be abused by the applicant. He agreed the complainant told him her mother had recently separated from the applicant and was in the "middle of Family Court orders".

The recorded phone calls between the complainant and applicant

74. The jury were told by the trial judge that what the Crown asserted were admissions by the applicant in the recorded phone calls were not relied on to prove specific counts but that if the jury found the calls contained admissions, they were relied on by the Crown as generally supporting the complainant's evidence of sexual contact between her and the applicant.

75. The first phone call lasted for about 1½ hours. The Crown relied on the applicant's statements in response to the complainant's statements, and that he did not question her when she referred to sexual acts. The Crown relied on the following parts of the first call:

Complainant: …one of the main things that I really want to talk about is, is what happened between you and I

Applicant: Yeah

…

C: …lots of the sexual stuff I don't get

A: Yeah

…

C: …in my head it comes up a lot you know… the blow jobs and the anal… I feel that was wrong to start with. Like, you know, you were married and, and I was, I feel like I was just trying to, to make sure that everything was okay. You know, you were strugglin' with mum and I was, I dunno.

A: Well, I guess, um, you and I have got a, …a lot to deal with. And how to do that so that there’s healing…

…

C: You shouldn't have done it. Like, you, you were old enough, you, you knew, and, and you, you’re, you're supposed to… you're supposed to know that’s stuffs is not supposed to happen... Like, you're not supposed to be weak like that. You're not supposed to do it.

A: So many things in our… that's why… I don't know what to say to you in this, in this circumstance, in this, this conversation.

…

A: There was… a lot of things that shouldn't have happened, both of us. And yes, I was responsible for my family, and I did wrong by my family. And, and by you…

…

C: I feel like mum should have… known… was she that fucking blind to her own daughter that she just didn't know that shit was going on. And she didn't know that you weren't in bed with her…

…

C: …like, you know, I'd never do that, for my kids, I'd want to know what's going on. I'd, I'd pay attention.

…

C: …like, I want to confront her. I want to say, why didn't you, the same way that I'm ringing you and say saying why did you…

A: …I was wrong, I was wrong in that period of life and it wasn't just towards you. I was wrong in, wrong in so many ways…

…

C: …a part of me wants to tell her, part of me wants to say what the fuck didn't you, fucking come and do something about it. Why the fuck didn’t you step up, you know. Why, why did you let it all happen?...

A: …Yeah, we know what would happen. We know what would happen.

…

C: …one of the things that I… remembered when I was dealing with my psychologist was when I went on that Scotts Head trip

…

C: And I sent a text message that boy um, and, he told his mum and his mum reported it to FACS. And, you know, FACS was called and they rocked up on, you know, DOCS rocked up on your doorstep…

…

C: When I got home I remember ringing the police and telling them that I just told a fucking bullshit lie. And I look back on it now, and it sort of wasn't, you know. It's sort of, it sort of was true. Do you, do you understand what I mean…

A: Ok

…

C: Do you think that what, what happened was wrong?

A: Yes I do. I'm sorry for everything. I know it's wrong.

…

A: We were... I was wrong, that's my part of why it happened, I was wrong…

…

C: If you don't think… if you don't think that you did wrong by my, then I, I feel like I'm going to have to go to the cops, because you did

…

A: I dunno that, um, you can hear what I'm saying that if that's the case. But I do, I‘ve, I've said the words but I actually feel it…

C: Do you mean, do you mean - - - the way that you spoke to me?

A: I mean everything.

…

A: I mean everything. I mean, I, every, in every way that I failed you.

…

C: …I can't wrap my head around the sexual stuff… like,…

…

C: I was so young…

A: All I know is when we were, when we under the power of Satan we don't do anything right.

…

A: What do you want me to go to the authorities?

…

A: Off my own bat.

C: If you wanted to do that you would already have done it…

A: I would have to have asked you about it.

76. The second phone call, which lasted for about 50 minutes, contained the following:

…

C: …you said that you would, um, go to the police, um… off your own, but what, like, what, what the hell would you say?

A: Well, I have been thinking about it too, um, a lot… You said somethin' to me the other day about, how could something like this happen or, you know, why do, why do we or why did I do it… and I thought, you know what? Ah, I got too close. We got, we got, well, we were very close

…

A: ...I had a chat to 'em [his sons] about it and I told ‘em without being inappropriate that there had been wrong between us, in that we, I was to, at fault and that I was more responsible and older, um, and that one day when they're older they can, they can find out about it but they were, I said that it could, um, could end up very badly, you know, um, and they were, they were very distressed about it

…

A: …do you really want to… destroy me?…

C: …I'm not set out to destroy you… but you destroyed a fucking shitload of me.

…

A: …I want you to know that I know… what happened between us was wrong and that if I could take it back in an instant…

…

A: …the inappropriate, the relationship that we had was, was damaging to you and it was rot, it was damaging to, to everything…

…

C: Then I thought you’d given me a way out by, by saying that you would, you know, do somethin’ off your own bat…

…

A: If you want me to I will, yeah like, if that's what you want.

…

C: You, what are you, can you walk into a cop station and say…

A: I guess so.

…

C: …I historically, well, I dunno.

A: Yeah.

…

A: I could, yeah

A: I could do that

…

A: …I might as well… you know, try and prepare the family for that if that's, if that's where we’re goin’ with it.

Applicant’s submissions

77. Counsel for the applicant submitted that the differences between the original version the complainant gave to police and her evidence in the trial were significant, and were reflected in the differences between the way the Crown opened its case to the jury and the Crown's closing address, particularly in respect of counts 3 to 6. Counsel submitted that the significant differences diminish the credibility of the complainant such that the verdicts are unreasonable. Counsel submitted that the complainant's evidence contained such discrepancies, inconsistencies, and inadequacies and is tainted by a motive to lie such that even allowing for the jury's advantage, there is a significant possibility that an innocent person has been convicted.

78. Counsel submitted as a secondary position that the jury should have been uncertain that the alleged offences occurred within the date range specified in each count of the indictment.

79. Specifically, the applicant relied on the following inconsistencies in the complainant's evidence and changes in the Crown case:

• In respect of count 3 the complainant said for the first time in evidence that the applicant touched her breasts, pushed his groin into her face and ejaculated into her mouth. She had not included those allegations in her statement. Therefore they must have been recent inventions.

• In her first statement to police of 7 February 2020 the complainant had said the conduct the subject of count 3 happened in 2007, whereas in her evidence in chief she said it happened in 2008.

• The complainant said in re-examination there were two incidents before the Scotts Head camp and two after the camp. In her statement of 11 April 2020 she changed the date of the incidents after the camp from 2008 to 2009, because she had been told by a police officer that the text message she sent from camp was sent in 2009. She agreed in cross examination she had changed the year in which counts 4 -7 occured. However, in her April 2020 statement the complainant did not change the dates of the first two incidents from 2007, but in her evidence in chief she said they happened in 2008.

• In her statement of 7 February 2020 the complainant said that there were three separate incidents in 2008, one involving the alleged offences in counts 4 and 5, the second and third involving the conduct the subject of counts 6 and 7. In her evidence in chief she said counts 4, 5 and 6 all happened in one incident, and count 7 in another incident. There was no third incident in her evidence. By combining the acts the subject of counts 5 and 6 into one incident in her evidence in chief, the complainant did not give evidence that the applicant ejaculated into her mouth before the anal intercourse, in which she said he ejaculated. In her statement of 7 February 2020 the complainant said the applicant had ejaculated into her mouth, she held the ejaculate in her mouth and spat it into a towel.

• There was inconsistency between the complainant's evidence about the conduct the subject of counts 1, 2 and 3, and of counts 4 to 6, about whether the applicant pulled the bedsheets back.

• In respect of count 6 the complainant changed the order; from her statement to her evidence, of the applicant taking her pants off and rolling her over.

• Constable Chapman-Burgess, to whom the complainant complained on 31 January 2020, said she told him the assaults by the applicant included digital penetration, but she gave no account of any such act in her statement or evidence.

• There is a doubt about whether the complainant was under 16 at the time of counts 1 to 4 [only counts 1 to 3 pleaded the complainant being under 16] and 16 years old at the time of counts 5 to 7, based on her having said initially to KS she was maybe 17, but changed her mind when she thought about it longer, and having said to Constable Chapman-Burgess she was around 15, 16, 17 or about 16 or 17.

• It was unlikely the applicant, a man of prior good character, would continue and escalate his sexual abuse of the complainant after police had become involved.

• The recorded phone calls do not assist in establishing any of the relevant date ranges on the indictment.

• The complainant had a motive to lie in that her complaint to police and the making of her first statement in 2020 occurred at the same time as her mother was in a custody dispute with the applicant over their sons.

• The complainant's evidence about the bathroom/shower incident, as to whether the applicant was standing to the left or the right of the bathroom window, that the shower screen door was opaque, the bathroom window had blinds, she could not say when, in terms of dates, that incident occurred, was such that the complainant must have told a deliberate lie about that incident.

• The complainant said her mother picked her up from the bus from the Scotts Head camp and drove her home, and expressed anger and frustration about the complainant's complaint about the applicant while at camp. The complainant's mother said the applicant picked the complainant up, and she did not recall talking with the complainant about the complaint. Therefore the jury should have had serious questions about the complainant's credibility based on this evidence.

• In a conversation with police in January 2009, the complainant first said she did not send the message and denied anything had happened with the applicant. In the second phone call she said she sent the message but said she did so to receive attention from her father. She agreed in evidence that that the allegation of physical assault by the applicant in the text message was a lie. The complainant did not recall sending the text message; that is inconsistent with having a recollection of sexual acts to complain about.

Applicable Legal principles

80. In M v Queen (1994) 181 CLR 487 the High Court stated the principles applicable to an appeal on the ground that a verdict is unreasonable:

"The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless, it would be dangerous in all the circumstances to allow the verdict of guilty to stand." [492].

“In most cases, a doubt experienced by an appellate court will be a doubt which a jury also 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." [494].

“If the evidence, upon the record itself, contains discrepancies, displays, inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and to set aside the verdict based upon that evidence." [495].

The principle has been applied in other cases, but it is not necessary to refer to them.

Consideration

81. Having conducted my own independent assessment of the evidence in the trial, I found the complainant's evidence utterly credible. Some of the matters raised by the applicant were very minor. The other asserted inconsistencies, when considered in the context of the evidence, were simply and plausibly explained and their asserted significance evaporated.

82. There was independent evidence of the sending of the text message in January 2009. The time of that event was able to provide a marker for the events which the complainant said happened before and after that camp. That simply and plausibly explains the complainant's changing of the dates of the offences she said occurred after the camp, she having been mistaken about the camp having occurred in January 2008. That is not a matter that is adverse to her honesty, or her reliability more generally.

81. By reference to the time marker of the camp in January 2009 it is apparent that the complainant was aged under 16 in 2008, until her 16^th birthday on 17 December 2008, and she was 16 in 2009 until her 17th birthday on 17 December 2009. Thus there is no basis for any uncertainty about the complainant's age of under 16 as pleaded in counts 1 to 3 and her age of 16 as pleaded in counts 5 to 7, (count 4 not having an age as an element). Statements by the complainant, when she was upset, to KS and police officer Chapman-Burgess, that she was 15, 16 or 17 or 16 or 17 do not give rise to a doubt about the complainant's ages when they can be placed against the independently verified event of the camp in January 2009.

82. The complainant's retraction of her complaint in the text message is completely explicable in the circumstances where the police spoke to the applicant and her mother first, rather than speaking to the complainant, and the applicant and her mother put pressure on the complainant to say that the complaint was untrue and was a cry for attention, the latter of which the complainant told the police officer at the time. That the applicant felt emboldened by having succeeded in having pressured the complainant to retract that complaint, which she had made when she was away from the applicant at camp, is not implausible.

83. The complainant's admission that the allegation she made in the text message, of physical assault by the applicant, was not true does not lead to the conclusion that therefore her allegation of sexual assaults, which she maintained occurred, must be doubted. Rather, in contrast, the admission that the allegation of physical assault was not true supports the veracity of the complaints of sexual assault.

84. That the complainant gave evidence that her mother picked up from camp, and her mother’s evidence was that the applicant picked up from camp is of little significance in assessing the complainant's evidence about the alleged sexual assaults. Indeed, the complainant's mother's evidence that the applicant insisted on collecting the complainant, which would give him another opportunity to pressure the complainant in respect of her complaint, does not detract from the complainant's allegations.

85. As to the complainant putting the three acts the subject of counts 4, 5 and 6 into one occasion rather than two, as in her statement, that does not cause me to have a doubt about her evidence about the acts. She may have been confused about the sequence of the acts but truthful about the acts themselves.

86. The applicant seeks to rely on police officer Chapman-Burgess’ note, made several hours after he received the complaint from the complainant, and to which he referred during his evidence, that the complainant said she had been digitally penetrated by the applicant, which was not an allegation she made. The officer’s note, made several hours after the complaint was made to him, in the early hours of the following morning, may not have been an accurate record of what the complainant said to him earlier. However, if she said that, in circumstances where she was described by KS and Constable Chapman-Burgess as upset when making her complaint, it does not cause me to doubt her evidence about the counts on the indictment

87. In respect of the shower/bathroom incident relied on as context evidence, whether the applicant was on the left side or right side of the window is such a minor difference in the complainant's evidence that it does not cause me any concern about her honesty. The bathroom window was described by the complainant's mother as clear. It appears so in the exhibit photo. The shower screen appears opaque in that same photograph. It was not necessary that the Crown prove this event to prove any of the offences charged. Perhaps the complainant's memory of the shower incident was mistaken. Whatever be the explanation for her evidence about that incident, it does not cause me to have a doubt about her evidence about the conduct in each count on the indictment. As I understand the Crown case, the significance of the shower incident was to demonstrate that the accused had a sexual interest in the complainant. His own statements in the recorded phone calls with the complainant, albeit general, constituted admissions that he had a sexual interest in the complainant and acted on it. He did not refute the specific acts of anal and oral intercourse mentioned by the complainant in the first call.

88. I do not have any doubt about the quality and sufficiency of the complainant's evidence in support of every count on the indictment. The verdicts of the jury are not unreasonable. Therefore, I would make the following orders:

1. Leave to appeal granted.

2. The appeal is dismissed.

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Decision last updated: 06 December 2024