CH v R

[2014] NSWCCA 119

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	CH v R [2014] NSWCCA 119
Hearing dates:	3 April 2014
Decision date:	04 July 2014
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [170]; Adams J at [171]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL - conviction - evidence - whether verdict unreasonable on evidence - jury's rejection of complainant's evidence on other counts - whether evidence for counts the appellant was convicted on had distinguishing features from evidence for other counts - advantage of the jury in seeing and hearing evidence EVIDENCE - admissibility - whether appellate court should view tapes not in evidence at trial
Legislation Cited:	Crimes Act 1900 (NSW), s 66EA Criminal Appeal Act 1912 (NSW), s 6 Jury Act 1977 (NSW), s 55F
Cases Cited:	Dungay v R; R v Dungay [2010] NSWCCA 82 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Still v R [2010] NSWCCA 131
Category:	Principal judgment
Parties:	CH (Appellant) Crown (Respondent)
Representation:	Counsel: G A Brady / P Afshar (Appellant) S Dowling SC (Crown) Solicitors: Nyman Gibson Stewart (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/376708
Publication restriction:	Non publication order of the names of the complainant and accused and any information identifying them
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-03-26 00:00:00 Before: Haesler J File Number(s): 2011/376708

Judgment

1. BATHURST CJ: The appellant, CH, was arraigned on a contravention of s 66EA(1) of the Crimes Act 1900 (NSW) (the Crimes Act) and seven alternative charges. The charges were as follows:

"1. Between 1 September 2007 and 4 August 2011 at Rosemeadow in the State of New South Wales did, as set out in the alternative charges and described offences below, on at least three separate occasions and on at least three separate days, engage in conduct in relation to DH, a child then under the age of 18 years, namely 2 to 6 years, that constituted sexual offences.

Section 66EA(1) Crimes Act 1900

2. Between 1 February 2008 and 6 January 2010 at Rosemeadow in the State of New South Wales did assault DH and at the time of such assault committed an act of indecency on DH, a child then under the age of 16 years, namely 3 to 4 years.Section 61M(2) Crimes Act 1900

3. Between 1 February 2008 and 6 January 2010 at Rosemeadow in the State of New South Wales did assault DH and at the time of such assault committed an act of indecency on DH, a child then under the age of 16 years, namely 3 to 4 years.Section 61M(2) Crimes Act 1900

4. Between 1 December 2009 and 6 January 2010 at Rosemeadow in the State of New South Wales did assault DH and at the time of such assault committed an act of indecency on DH, a child then under the age of 16 years, namely 4 years.Section 61M(2) Crimes Act 1900

5. Between 1 December 2009 and 6 January 2010 at Rosemeadow in the State of New South Wales did commit an act of indecency towards DH, a person then under the age of 10 years, namely 4 years.Section 61O(2) Crimes Act 1900

6. Between 1 February 2008 and 4 August 2011 at Rosemeadow in the State of New South Wales did incite DH, being a person then under the age of 10 years, namely 3 to 6 years, to commit an act of indecency towards CH.Section 61O(2) Crimes Act 1900

7. Between 1 February, 2009 and 4 August, 2011 at Rosemeadow in the State of New South Wales did assault DH and at the time of such assault committed an act of indecency on DH, a child then under the age of 16 years, namely 4 to 6 years.Section 61M(2) Crimes Act 1900

8. Between 1 February, 2008 and 4 August, 2011 at Rosemeadow in the State of New South Wales, did have sexual intercourse with DH a child then under the age of ten years, namely 3 to 6 years.Section 66A Crimes Act 1900."

1. Charges 7 and 8 were added to the indictment at the commencement of the trial of the appellant on 18 March 2013.

1. A jury entered a verdict of guilty on Counts 4 and 5 but acquitted the appellant on the other counts.

1. The appellant has appealed against his conviction on the following grounds:

"Ground 1

That the Jury's verdicts of guilty on Counts 4 and 5 were inconsistent with the verdicts of not guilty on Counts 1, 2, 3, 6, 7 and 8.

Ground 2

That the Jury's verdicts of guilty on Counts 4 and 5 were unreasonable and unsupported by the evidence."

1. The grounds of appeal involve questions of mixed fact and law so leave to appeal is necessary. In my opinion leave should be granted.

1. Because of the nature of the grounds of appeal it is necessary to set out the evidence adduced at the trial in some detail.

The course of the trial

1. The principal witness was the complainant. She was born on 1 February 2005 and thus at the time of the incidents the subject of the counts on which the appellant was convicted was four years of age.

1. The complainant's evidence in chief primarily consisted of three video-recorded interviews with a police officer, Detective Senior Constable Kate Gregory (DSC Gregory). The first two of these interviews took place on 5 and 23 August 2011 at which time the complainant was 6 years of age. The third interview took place some 14 months later on 10 October 2012 by which time the complainant was aged 7. The tapes for the interviews were marked for identification and played to the jury. Transcripts of the tapes were made available to the jury to assist them in their deliberations.

1. The complainant also gave evidence at the trial on 19 March 2013 by which time she was 8 years of age.

(a) The first interview

1. In this interview the plaintiff was shown a drawing of a female figure. She described the vagina as the "pussy cat". She said it was used to "wee and poop".

1. The complainant was asked who was allowed to touch her "pussy cat". She said nobody and initially said no one had touched it. Immediately after that she said "I mean dad touched my pussy cat".

1. Shortly thereafter the following questions were asked:

"Q118 No, O.K. all right. So you said to me when I pointed to your pussy cat that your dad has touched your pussy cat?A Yep and he weed on me.

Q119 And he weed on you?A A-huh.

Q120 ... When did your dad touch your pussy cat?A Before I went to foster care cause of DOCS.

Q121 And where were you when dad touched your pussy cat?A At home.

Q122 O.K. So I wasn't there when your dad touched your pussy cat before foster care when you're at home can you tell me everything that happened from the start to the finish?A Dad touched me in the rude spot and then he weed on me and he kept on touching me only and on me on the other days as well and that's it.

Q123 All right. So when you say your dad touched you on your rude spot, what's your rude spot?A My pussy cat."

1. She said that this incident occurred at her home. She subsequently gave the following answers:

"Q143 O.K. So tell me more about how dad touched you on the rude spot?A I don't remember the rest.

Q144 Why don't you remember?A I don't know 'cause I just forgot.

Q145 O.K. How did he touch you on the rude spot?A With his fingers.

Q146 How did he touch you on the rude spot with his fingers?A Like through my undies.

Q147 What do you mean through your undies?A Like on my undies.

Q148 Do you remember what undies you were wearing?A Purple ones.

Q149 Did they have anything on them?A No, just plain purple undies."

1. Subsequently she stated that her father touched her in the lounge room having woken her up and put her on the lounge. She said he woke her up in the middle of the night. She was then asked these questions:

"Q174 ... and you said it was with his fingers, yes and you said it was through your undies, what do you mean it was through your undies?A On my undies.

Q175 O.K. So was it on the outside or the inside of your undies or something else?A Outside.

Q176 O.K. And what was dad doing with his fingers?A Touching me in the rude spot.

...

Q183 All right. So you said earlier that dad weed on you tell me more about that?A First he wiggle his rude part then he weed on me.

Q184 He What sorry?A He pulled his pants down and wiggle his rude part then weed on me. This is ...

...

Q197 O.K. How do you know he weed on you?A Because I saw white stuff coming out his rude part."

1. Subsequently the complainant said that the appellant took off her night-time pants and told her to lie down with her legs open. She said the appellant touched her on the "rude spot" and "weed" on her on other days, saying one of them was the very next day after the incident she first described. The interview proceeded in the following terms:

"Q262 O.K. Can you tell me everything that happened from the start to the finish?A Well first he touched me in the rude spot with his fingers then he weed on me and that's it.

...

Q269 ... how did he touch you on the rude part?A With his fingers.

Q270 ... How did he use his fingers to touch you on the rude part?A Like, he left my undies on and touched me like that.

Q271 Like what?A Like my undies were on then he touched me.

Q272 Do you remember what colour undies you were wearing this day?A Purple I mean pink.

Q273 Pink. How do you know they were pink?A The very next day was pink.

Q274 O.K. Were you wearing anything else on this day?A In the night no he took my pants off and top off it's against the law.

Q275 It is. So you said he took your top off ...A A-huh.

Q276 ... so how did he take your top off?A He undid the buttons and took my arms out of the arm holes.

Q277 And then what happened?A And then he touched me on the rude spot again.

...

Q281 And when he touched you in the rude spot again was it on the inside, outside, or something else of your undies?A Outside.

Q282 On the outside of your undies. What did you feel when he touched you on the rude part?A It tickled. I farted again.

Q283 Lovely. What, can you tell me what happened after he touched you on the rude part again?

A I can't remember the rest of the story.

Q284 O.K. you said earlier that he touched you on the rude part and he weed again, yeah? How did he wee?A Like he shaked his rude part then he weed on me with my shirt off on my tummy.

Q285 All right. So when you said he shaked his rude part what was he doing?A Trying to wee.

Q286 O.K. So how was he shaking his rude part?A Like with his hands.

Q287 O.K. And what was his hand doing?A His hands were shaking his rude part and then he weed on me.

Q288 O.K. And when, when he was touching you on your rude part was he, and you said he was using his fingers was he using one hand, two hands, or something else?A One.

Q289 And what was he doing with his other hand?A Putting it on his ...

Q290 ... Putting it on what, sorry?A On his rude part."

1. The complainant said that the very last time the appellant touched her on the "rude spot" was two nights before she went to foster care. She remembered that because the next night (after the appellant touched her on the "rude spot") the complainant, her mother and siblings "...had heaps and heaps of fun [and] that was the day before we went to foster care". She said that on that night she had blue undies on. She did not refer at this stage of the interview to the fact that the appellant ejaculated on her, although she was not asked.

1. The complainant finally said in that interview that she thought the appellant had done it to another girl or boy before her because that was how he learnt to do it. She said the appellant did not say he had done it to another girl or boy.

(b) The second interview

1. This interview took place some 18 days after the first. However, the complainant said she initially could not remember the last time she spoke to DSC Gregory. She declined to let DSC Gregory record their conversation. However, she eventually agreed. She said she did not want anyone to know what they talked about.

1. She said that she did not remember telling DSC Gregory that her father had touched her on her "pussy cat". She then said she remembered it "a little bit" and subsequently a "little tiny bit".

1. She was reminded by DSC Gregory that she told DSC Gregory at the previous interview that she remembered her father touching her on the "pussy cat" because the next day she had lots of fun with her mum and siblings and then went to foster care. She was then asked whether she remembered that and said "Well that, that night we had heaps of fun but the night before that that was the last time he touched me".

1. When asked to describe her father touching her on the "rude spot" for the last time the complainant said again she did not remember, but subsequently said she remembered "some stuff". She was asked what she remembered and said that she remembered "[w]hen dad touched us on the rude spot". She was asked these questions and gave these answers:

"Q118 O.K. Can you tell me everything that happened from the start to the finish?A Well I can't remember.

Q119 O.K. Is this one of the times we talked about last time or a different time?A I can't remember that.

Q120 ... O.K. The last time you talked you told me about a time where your dad woke you up in the middle of the night and you were in the bunk in yours and [A]'s room?A In the top bunk.

Q121 You were in the top bunk were you?A And [A] was in the bottom bunk.

Q122 O.K. So was [A] in the bottom bunk when your dad woke you up?A Well we were in different beds, we wasn't in the top bunk and bottom bunk and we were in separate beds. I was in one side of the room where the door was and [A] was in the other side.

Q123 O.K. But you said you were on the top bunk?A Yeah.

Q124 How many beds are in yours and [A] room?A There used to be two.

Q125 Just two beds?A Yeah but now we got a top bunk and bottom bunk.

Q126 O.K. So when, the time when your dad come in and woke you up in your room you said you were in the top bunk?A That I don't remember much of that part but we were in different beds.

Q127 You were in different beds?A And now I remember some stuff.

Q128 What do you remember now?A Well I remember when dad touched us in the rude spot.

Q129 When you say, Dad touched us, what do you mean by that?A I mean me.

Q130 ... O.K. So what is it that you remember?A That when I was three a couple of nights I stayed in my bed without dad waking me up in the middle of the night or touching me on my rude spot ...

Q131 Mmm MmmA ... and then a couple more nights ago he touched me.

Q132 O.K. So can you remember one specific time that dad touched you?A Pardon?

Q133 Can you remember one, one time that he touched you?A The first night.

Q134 The very first time that dad touched you?A No I can't remember.

Q135 O.K. What about the very last time that dad touched you?A Well the very last time he wee'd on me?"

(Names have been anonymised)

1. She said this occurred in the middle of the night and on a lounge in the lounge room which she said "[l]ooks a bit stripy when it's not." She said there was a blanket on the lounge but she could not remember its colour.

1. She was then asked these questions and gave these answers:

"Q159 Was this on the time we're talking about, the very last time or is that on a different time?A That was on the very last time.

Q160 ... O.K. So you said he was wearing a black shirt?A Yes.

Q161 Was he wearing anything else?A I can't remember.

Q162 All right. And you told me last time that dad touched you on your rude part?A Yes.

Q163 What did he touch you with?A His fingers.

Q164 And what did he touch?A My rude spot.

Q165 What were you wearing when dad touched your rude spot?A My pyjamas.

Q166 And did dad touch you on the outside of your clothing, the inside of your clothing or something else?A I can't remember anything else and I had enough.

Q167 And what sorry?A I had enough."

1. Following a break, she was asked these questions:

"Q182 Tell me more about how he wee'd on you?A He wiggled his rude part and then wee'd on me.

Q183 Mmm Mmm.A I can fly like a bird.

Q184 And what did the wee look like?A It looked white.

Q185 And where did the wee go?A On me.

Q186 Where on you?A On my tummy 'cause he took my shirt off.

Q187 What did the wee feel like?A It feels slimy.

...

Q192 O.K. And what happened to the wee?A He wiped it off with a towel. Tell Kate...

Q196 Where did he get the towel from?A From the door.

Q197 What door?A Like it was like the holes underneath the door it was there.

Q198 What do you mean the holes underneath the door?A Like that door has a tiny weeny hole underneath.

Q199 Yeah.A That's what type of hole ...

Q200 O.K.A ... under the door and mum put that towel there so no creatures come in the house or cockroaches.

Q201 OK So what door was the towel on?A The outside door and he took the towel and he wiped it off, up.

Q202 ... O.K. What colour was the towel?A I can't remember but it was a bit white.

Q203 What was white?A The towel.

Q204 O.K. And what did he do with the towel after he wiped off his wee?A He put the towel back where it belonged.

Q205 Which was where?A Near the hole of the door, where it was."

1. DSC Gregory reminded her that she said earlier that her father had touched her 10 times. She was asked how she knew it was ten times and she said because she counted. She said the first occasion was when she was about three. She remembered telling her mother but she could not remember when, although she thought it was about a week after her dad went to his house but she later said it was a week before she went to foster care. She said she told her mother that "daddy touched me in the rude spot".

1. She was shown a drawing of a male body and identified the penis as "his doodle" which she said was used for weeing. She stated that on one occasion the appellant asked her to touch him on his doodle and gave these answers:

"Q291 All right. So you said just before that your dad asked you to touch him on the doodle but you didn't. Can you tell me more about that?A Well he asked me and then I said, No, and he asked me again and I still said, No, then again, then again and I still said, No and that's it. I can't remember anything more.

Q292 ... Can you remember what it was that he said?A No.

Q293 Where were you when he asked you to touch him on the doddle?A Lounge room. I can fly.

Q294 When did he ask you to touch him on the doodle?A In the night. I'm flying back up.

Q295 When in the night?A Middle of the night."

1. She said at the time this occurred he was reading her a story called "The Wishing Chair".

1. Finally in this interview she was asked the following questions:

"Q314 It is too. All right. So you said that dad's touched you on the rude part about ten times?A Yes.

Q315 How many times has dad wee'd on you?A One.

Q316 Just the once. And that was the last time that he touched you. Is that right?A Yeah. Look this can make a noise without it touching anything.

Q317 Wow. All right.A Now can I have my honey sandwich again.

Q318 Yeah just about, have you told anyone about dad asking you to touch his doodle?A No."

(c) The third interview

1. In the third interview the complainant said that she was seven years old. She was able to remember DSC Gregory. She said she had come to talk to DSC Gregory on that day about "when...[CH] took photographs of her rude part". She was asked these questions and gave these answers:

"Q45 All right. All right. So tell me, [DH], what have you come to talk to me about today?A About when [CH] took photos of my rude part.

Q46 And when you say 'rude part' what do you mean?A Like, where he's not meant to.

Q47 O.K. do you have another name for your rude part?A Vagina.

Q48 O.K. And when did [CH] take photos of your rude part?A Once when we went to church he had the, his bike with him and he let me have a ride on his bike and not the others. And then said, 'Let's go onto your mum's bed.'"

(Names have been anonymised).

1. This was the first time the complainant used the word "vagina".

1. The complainant then gave these answers:

"Q50 O.K. So when you got home. Can you tell me everything that happened from start to finish?A Yep. Well, we went to church and then church finished after we had morning tea. And then we had to walk up the hill since we didn't have a car. And then we walked up, [CH] gave me a lift and then he had the keys to the door. So he opened up the door with the keys and then went and said, 'Let's go onto your mum's bed and do stuff.' And I didn't know what he was going to do.

Q51 And what happened next?A Then he pulled my pants down then he did it.

Q52 When you say 'he did it' what did he do?A Take pictures of my rude part.

...

Q59 All right. Do you remember when it was you went to Church?

A Sunday.

Q60 On a Sunday. Do you remember what year it was?A I think it was when I was 5 probably.

...

Q66 O.K. So you told me that you went to church. What did you do at church?A Sang songs and prayed to God and then went home.

...

Q79 Yep. What happened after morning tea?A We walked home and they had to walk, and then [CH], like, took me on a bike ride up the big steep hill and then the ...

...

Q85 How did he give you a lift?A By, like, putting me on the bike with him and then riding home.

...

Q93 O.K. How long was the bike ride to your house?A About one or two minutes.

Q94 O.K. So not very long. All right. And you said [CH] opened the door. How did he open the door?A With the keys.

Q95 Which door did he open?A The front one.

Q96 O.K. And so where was mum and [A] at this point?A Still, like, maybe halfway down, up the hill.

Q97 O.K. So you said before they had to walk. Is that right?A Yeah.

Q98 O.K. All right. And then you told me that [CH] said to go to your mum's bed. Tell me more about that?A Then as he did he pulled down my pants and then did it.

Q99 All right. So how did you get to your mum's bed?A He took me there.

Q100 How did he take you there?A Walked me.

Q101 O.K. And what did you do when you got into, was it in your mum's bedroom or somewhere else?A In my mum's bedroom.

Q102 O.K. So what did you do when you got to your mum's bedroom?A I said, 'No, I don't want to do this.'

Q103 Did [CH] say anything?A No. Well, he said, 'Come on, just do it.' And I didn't even know what he was going to do at that time.

...

Q106 And do you remember what pants you were wearing?A I think they were pink pants.

...

Q108 Did you have anything under your pants?

A Undies.

Q109 Yeah. Do you remember what they look like?A Blue probably.

...

Q113 O.K. So you say he took pictures. How did he take pictures?A Well, he had, like, this camera thing, I'm not sure but it's like a camera. Then he just pressed the button and kept on doing it."

(Names have been anonymised).

1. The complainant said he took six or seven photographs, pointing the camera "down near my rude part".

1. She said when this concluded he told her to quickly pull up her pants and go to her room and not to tell anyone else.

1. The complainant said she received an early present for her sixth birthday in summer on a Saturday and the above incident occurred on the following Sunday. She was then asked these questions:

"Q156 Yep. All right. So what else do you want to tell me about today?

A When he forced me to, like, get my rude part, I mean, my mouth onto his penis.

Q157 All right. And when you say "he" who do you mean?

A [CH].

Q158 And is that the same [CH] we've been talking about?A Yeah.

Q159 And when you say 'his penis' do you have another name for penis?A Rude part.

Q160 And what's the penis used for?A Weeing.

Q161 O.K. And so when did this happen?A I think it was when I, it was younger than before ...

Q162 Ah hmm.A ... when I was about 3.

...

Q165 All right. So I wasn't there when [CH] forced you to put your mouth onto his penis when you were at home in the night. Can you tell me everything that happened from the start to the finish?A Well, when everyone went to sleep and even I went to sleep then he woke me up. Then he said. 'Let's do some things.' And then I didn't know what he was going to do, and then he forced me and forced me to, like, do it. So then I just did it because he forced me. And then he told me not to tell anyone and then that's what he did. And he did that, like, every time I saw him in the night when he slept over."

(Names have been anonymised).

1. She said the first time such an incident occurred was when she was three.

1. She said what occurred on the first occasion was that CH had woken her up and told her to go to the lounge room without waking anybody. She said he was already in the lounge room waiting until she came down. She then said he then told her to open her mouth and he put his penis in it, having told her to close her eyes. She was then asked these questions:

"Q198 O.K. How do you know he put his penis in your mouth?A Because then when I opened up my eyes I saw him standing on the lounge trying to keep it in.

Q199 And you say 'trying to keep it in.' What do you mean 'it'?A The penis.

Q200 Can you stop playing with the microphone please? Thank you. All right. So you said when you opened your eyes he was standing on the lounge. How was he standing on the lounge?A Like, he told me before to, like, sit back and then that, and open my legs, and then, and so he's standing between my legs without him, like, making his feet touch me, like, not making it touch me."

1. The complainant said she said "Get off" and he said "No". She said she tried to push him away but he just kept on coming back. She said that he told her that if she told people he would not give her any more lollies.

1. The complainant said that she thought the appellant forced her to put her mouth on his penis about six or seven other times. She said the last time was when she was five. She said she thought she was five because "mostly everything happened" when she was five.

1. The complainant said the last time this occurred was on a day her mother was out. She described the incident in much the same terms as she described the previous incident. She said that she believed his penis was in her mouth for about 5-10 minutes.

1. Towards the conclusion of the interview she was asked these questions:

"Q314 All right. Ah hmm. Yep. Has anything like this happened with anybody else before?A Well, once I asked my mum if, like, you know, how [CH] wee's on me?

Q315 Yep.A Yeah, if I, once when I was younger I asked if that happened. And then she said, 'My father did it to me and then did it to another child and then the other child then died and I don't know how.'"

1. It is apparent that the complainant gave a different and more elaborate description of the sexual assaults which she said had occurred in the third interview as compared to the first and second interviews. It is also apparent that the information given in the third interview formed the basis of Counts 7 and 8 in the indictment.

(d) The complainant's evidence at trial

1. The complainant was examined and cross-examined after the records of interview were played to the jury.

1. In her evidence in chief she was asked about the incident when she went with the appellant on a bike from church to her home. She said the trip took about two or three minutes.

1. The complainant identified certain photographs inside or outside where she was living when the incidents occurred. She was shown a photograph of the lounge room which contained two lounges but said she did not know exactly where the lounges were at the time but they were near a window. She was pretty sure when she was living there that the lounges were in the place shown by the photograph.

1. She was then asked about the incident where the appellant took photographs of her rude parts. She was referred to the fact she told DSC Gregory that she was turned round and she was looking out the window. She said the appellant was about a metre away from her. She said that when the photographs were taken she was still.

1. She was then asked about the towel which she had referred to in her second interview. She said it was inside the front door, pushed close to the door so that mosquitos and cockroaches did not get in. She identified the door from the photographs.

1. In cross-examination she said she was sure she could remember back to when she was three. She agreed that when the appellant stayed at their home he would sleep in the lounge room. However, she denied that she saw the appellant and her mother sleeping together in the lounge room and said she never saw them nude together in the lounge room. She also denied she ever saw them together in the lounge room when one of them was nude.

1. It was suggested to her, and she denied, that she told one of her foster parents, SS, that "Mum said if I be naughty I'll be allowed to go home".

1. The complainant said she could not remember being told by her mother about a song "Concrete Angel" which she said was about a girl who went to foster care and the foster parents were mean to her.

1. The complainant was referred in cross-examination to her statement in the first interview that at the time of the incidents she described in that interview, she was wearing purple undies. She was asked how she remembered she was wearing purple undies and she said because she had a good memory. She was then referred to the fact she subsequently said they were blue and she thought that might be correct.

1. She was asked whether she remembered which lounge she was on when the incidents took place and she said the bigger one. She said the television was on but the appellant put a cover over her so she could not see it.

1. She was again referred to the first interview where she said the appellant had touched her on her undies. She was asked whether she remembered that or whether she was told to say it and she said she remembered it. She said when the incident occurred she was "sort of laying, sort of sitting" on the lounge and her feet were on the lounge. She was referred to the statement in the first interview (Question 122) that the appellant touched her on the "rude spot" and "weed" on her. She said he was on his knees and he had his penis facing her belly and then he started weeing. She was then asked these questions:

"Q. Was it like, did the wee come out like going to the toilet?A. Yes.

Q. And how long did it take him to wee?A. Well I don't know how long it took. I don't know.

Q. And you say this wee went on your tummy?A Yes.

Q. And that you were dried up?A. What do you mean dried up?

Q. Dad would dry you up, get a towel or something, a shirt or something and dry you?A. Yes.

Q. And then you'd go back to bed?A. Yes.

Q. And this happened when you were three?A. Yes.

Q. And you told -A. It happened quite -

Q. Sorry?A. It happened quite a few times."

1. The complainant was then cross-examined on the incident which she said occurred after she and the appellant came home from church. She confirmed the incident where the appellant put his penis in her mouth occurred in the lounge room and acknowledged she told DSC Gregory that the appellant was standing on the lounge and she was sitting. Notwithstanding that, she denied that it would follow that the appellant's penis was above her head. She also insisted that what occurred happened on a number of occasions and always the same way.

1. She was later asked the following questions:

"Q. I just need, sorry, need to go back just a little bit, I apologise. Just back on the lounge when you said your dad put his penis in your mouth and that you said you - that you told him that you wanted him to stop?A. Hmm.

Q. How were you able to talk at the time when he had his penis in your mouth?A. Well I wasn't actually talking I was putting my hand up as a stop sign."

1. She was then asked these questions:

"Q. Right, so if I was to say to you that your dad never put his rude spot or his penis in your rude spot, your vagina, that that never happened. Would you agree with that?A. Well it didn't happen. He - what he did is everything else, but he didn't put his rude spot on my rude spot.

HIS HONOUR

Q. And [DH] did you ever tell your mum that he did that - put his rude - that he did put his rude spot in your rude spot?A. No I never told her cause it never happened.

DOYLE

Q. Did you ever say that to anyone, that your dad put his rude spot in your rude spot?A. No I didn't say that to anyone because it wasn't the truth."

(Names have been anonymised).

1. It was then suggested to her that she told JT (a foster carer) that the appellant put "his wee wee inside of mine" and she denied it.

1. In re-examination she was asked the following questions:

"Q. When Mr Doyle, the other gentleman here, the other lawyer, was asking you some questions this afternoon about your dad weeing on you and he said 'Was it just like wee?' and you said, you agree that it was, do you remember that?A. Oh, yeah.

Q. All right. You know when you do a wee yourself?A. Mm.

Q. What colour is it?A. Just like yellow liquid.

Q. Can you see through it?A. Yeah.

Q. When your dad weed was it that sort of stuff?A. No it was white slimey stuff."

(e) DSC Gregory

1. DSC Gregory gave evidence of the interviews she conducted with the complainant. She also identified a number of photographs. She said photographs No. 1, 2 and 3 were photographs of the bedroom in which the complainant and her sister used to sleep. She said photograph No 4 showed an upstairs hallway and landing, photograph No 5 the view coming up the stairs and photographs No 6 and 7 the lounge room area. She said that photograph No 8 showed the lounge room looking towards the front door and photograph No 9 a close-up of the front door with a towel at the bottom of it.

1. DSC Gregory said the towel was seized by the police and subjected to DNA analysis. She said that a swab of DNA was taken from the mouth of the appellant and the appellant's DNA had the same profile as the analysis taken from the towel, on which semen had been detected.

1. In cross-examination DSC Gregory confirmed that a complaint was made by JT that the complainant had said to her "My daddy did something bad to me, he put his wee wee inside mine and then he wee'd all over me". She acknowledged that the complainant had never told her that anything of that nature occurred. DSC Gregory also said that the complainant told her she had learned of the song "Concrete Angel" from her mother.

1. DSC Gregory agreed the complainant's house, when she saw it, was a bit of a mess. She said it was not a very nice smelling house and that on the lounge room floor there were lots of dirty dinner plates, clothes, computer-type cords and a keyboard.

(f) The evidence of the complainant's mother

1. The complainant's mother (SB) said that at the time she gave evidence she saw the complainant about once a month. She said that since the complainant was moved from her care in August 2011 the contact was supervised.

1. SB said that she met the appellant in 2002 and formed a romantic relationship with him. However, she said that when she moved into her residence where the offences were said to have been committed, they had separate housing arrangements although the appellant stayed over from time to time normally sleeping on the couch. She said the three-seater couch was always against a window as shown in the photographs although the two-seater couch used to be against another window.

1. SB said she broke up with the appellant in 2006 but their contact remained sexual until March 2009. However, she said that after that she still remained in contact with the appellant. He would stay over at the house on a weekly basis, normally sleeping on the lounge.

1. SB was asked about the towel at the front door and she said it was there to keep the draught and the insects out at night. She said she washed it regularly. She said she recalled that on one occasion when the appellant was staying the night the towel was wet with a very foul smell like someone had urinated on it. She said the wet portion of the towel did not have any particular colour.

1. She said the incident when she noticed the towel was wet took place in 2009. She said she knew that because she was pregnant with her youngest child at the time.

1. SB said that the room in which the complainant slept was set up with bunk beds in 2010 and that the complainant's sister moved in with the complainant in 2011.

1. SB referred to an incident in 2009 when she said she saw the appellant tickling the complainant under the blanket. At the time there was a single bed in the room. She said she recalled the complainant saying "Don't touch my knickies".

1. SB then said that she was told by a number of persons to take the complainant for a check-up. She said she was taken to see a Dr Lim by a friend of hers from church. She said the doctor did not examine the complainant but suggested if a similar incident occurred again, she should take the complainant to a paediatrician.

1. SB said that in 2009 she remembered some persons from the Department of Community Services coming to her house and speaking to her about an allegation that the appellant had touched DH's "dicky". She said she did not know the source of that information.

1. SB said that her daughters were returned to her care in January 2011. She said that the arrangement after that time was that she would bath them but if the appellant was there he would help. She said on those occasions she would put them to bed and the appellant would read them stories.

1. SB was referred to a statement she made to the police about an incident which occurred on 2 or 3 August 2011. She said that on that day she was at home with WB, a person with whom at that time she was in a relationship with (they married in January 2012), and the appellant was at the premises. She said the appellant bathed the children and then started reading them a story called "The Wishing Chair". She said in her statement that after about 20 minutes she went to check on the appellant because she thought he was taking too long to read one chapter but she did not get all the way upstairs as the appellant was coming downstairs in a very rushed agitated state.

1. SB was then asked about events which occurred on 4 August 2011. She said she got a call from a case worker from DOCS, JM. She said the conversation concerned the appellant having supervised visits with the children. She denied she said in that conversation "[CH] is touching his own daughter and you want him to have visit rights" but claimed she said, "[CH] is abusing his own daughter".

1. SB was then asked questions about an incident which she told the police occurred on the same night. She said the complainant said that she needed to tell WB something. She said the complainant was very scared and shaking. She said in her statement she remembered the complainant saying "Daddy wiggled his thing inside me and weed on me". She said the complainant also said "I was watching cartoons and Daddy weed on the lounge". She said the complainant was taken from the house in the early hours of the next morning.

1. SB was cross-examined about a recording she made of that incident on her computer. The recording which SB said was correct became Exhibit 2 in the proceedings.

1. SB said in cross-examination that she knew the complainant was listening to the song "Concrete Angel". She denied telling the complainant it was the foster carers who killed the girl in the song.

1. SB was asked in cross-examination about the sexual relationship she had with the appellant. She agreed that she and the appellant had sexual intercourse in the lounge room, that the appellant used the withdrawal method for contraception and that on occasions after he withdrew he would ejaculate on her stomach. She denied the towel was used to clean up after they had sexual intercourse.

1. SB said in cross-examination that she washed the towel "monthly or a bit more often" in the washing machine with detergent.

1. SB said she never saw the complainant inappropriately touch the children and she was not concerned about the incident when he was tickling the complainant. SB stated that the appellant never went to the Rosemeadow church that was within walking distance of her residence with her.

(g) WB

1. WB gave evidence that on 4 August 2011 he was at SB's residence. He said that about 8.30 or 9.00 pm the complainant came into the lounge room and said that she had something to tell him.

1. WB said that the complainant said "My daddy touched me in my private part". He said she needed to tell somebody.

1. He said that some 15 to 20 minutes later the police arrived.

(h) JT

1. JT gave evidence that she had been caring for the complainant and her sister since about 12 September 2011.

1. She said that on 14 September 2011 she had put the complainant to bed and finished the bedtime story when the complainant whispered to her "My daddy did something bad to me as he put his wee wee inside of mine and then he wee-ed all over me".

1. JT said the complainant then said in her normal voice "I'm very brave. My mummy went through the same thing. It happened when my mum was little. Her dad did the same thing to her. I am very brave. Mum didn't report it till later on, so I'm really brave 'cause I told the police".

(i) Melissa Bohocki

1. Leading Senior Constable Bohocki gave evidence that on the night of 4 August 2011 she attended SB's residence.

1. She said the complainant said to her "Daddy has said that [WB] touches us, so that [WB] would get in trouble. [WB] does not touch us. Daddy touches us". She said the complainant went on to say "Daddy put his rude bit on my rude bit and wiggled it and wee-ed on me".

(j) Jeremy Watherston

1. Mr Watherston was an employee of the Forensic and Analytical Science Services previously known as the Division of Analytical Laboratories. He described DNA, stating that it could be found in saliva.

1. He said he conducted a DNA analysis on a buccal sample, a sample taken inside of the mouth of the appellant, and on a bath towel which was received by the laboratory on 31 October 2011. There was no issue that the buccal sample analysed was that taken from the mouth of the appellant and that the towel in question was the towel which was used to protect the front door of the complainant's mother's house.

1. Mr Watherston said that two semen stains were detected on the towel but DNA testing was unsuccessful on one. In relation to the other stain he said the laboratory was successful in identifying DNA from within the sperm cell contained in that semen and the profile was the same as the appellant's DNA profile, agreeing that it would be expected to be found in less than one in ten billion individuals in the general population.

1. Mr Watherston gave evidence that it was unlikely that the towel had been washed since the semen was deposited on it. He said it was very unlikely the part of the semen which the testing detected, acid phosphatase, would remain after washing. He was unable to put a time frame on how long the DNA had been stored on the towel stating that as long as the towel was stored under ideal conditions the stain could stay there for a matter of years.

1. In cross-examination Mr Watherston agreed that DNA testing had been conducted on a semen stain contained on a brown cushion found on the premises. He said the DNA sample obtained did not match the appellant's profile.

(k) JM

1. JM was a Child Protection Case worker employed by Family and Community Services. She gave evidence that in August 2011 she was the case worker with respect to DH.

1. She said she had a conversation with the complainant's mother on 4 August 2011 in connection with the appellant having contact with his children on 6 August. During the course of that conversation JM expressed concern that WB had stayed over at the house. The conversation took place over the telephone and in the course of it the complainant came on the phone and said "Yeah I talked to him [WB]. I told him my father touched me in my rude parts".

1. In cross-examination JM said that the appellant alleged that the complainant had told the appellant that she liked sleeping with WB.

(l) SS

1. SS was a foster carer for the complainant between 6 January 2010 and 23 May of the same year. She stated that when the complainant was in her care the complainant said on numerous occasions "Mum said if I be naughty I'll be allowed to go home".

(m) The appellant

1. The appellant did not give evidence but an ERISP was conducted between him, DSC Gregory and Constable Jason Darley on 24 November 2011 in the presence of the appellant's solicitor.

1. The appellant said that when he stayed over at SB's residence he usually slept on a lounge or a foldout mattress. He said no one else slept in the lounge room when he was there.

1. He denied that he indecently assaulted the complainant.

(n) The directions to the jury

1. The trial judge gave the following directions to the jury:

"The Crown rely substantially on the evidence of [DH] to prove the critical aspects of its case. In any case where the Crown rely on one witness to prove a case against another, it is important the jury are told that they should exercise caution before they proceed to convict the accused. Unless you are satisfied beyond reasonable doubt that [DH] is an honest, reliable and accurate witness in the account she has given, you could not find the accused guilty. Therefore you should examine her evidence very carefully in order to satisfy yourself that you can safely rely upon her evidence to the high standard required. In a criminal trial that standard is proof beyond reasonable doubt.

...

Because this prosecution turns on whether you accept her in relation to a number of counts and critical matters, there would need to be a good reason for you to accept her on some matters but not on others or reject her on some matters but not others. You must consider each count separately by reference to the evidence that applies to it.

...

Now giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a reason for that outcome as I explained earlier. It is for you to assess [DH's] credibility. As I said earlier the case depends on her evidence and if you have a reasonable doubt concerning the truthfulness or reliability of her evidence then you might say that the Crown have not proved the case beyond reasonable doubt on a count. Now if you have a reasonable doubt concerning her truthfulness or reliability on one or more counts. Any doubt about that count could impact on your consideration of her truthfulness and reliability on the remaining counts. In other words, a reasonable doubt with respect to the complainant's evidence on one count ought to be considered in your assessment of her evidence generally, particularly her credibility."

(Names have been anonymised).

1. The jury requested and were given a copy of the transcript of the evidence of the complainant.

1. At the conclusion of the day on which the judge directed the jury, a juror asked what the position was if a unanimous verdict could not be reached.

1. At the commencement of the following day the jury sent a note, "Jury can't come to a unanimous decision, guidance required". The jury was then given a Black direction. The jury deliberated further but on the following day again stated they required assistance in coming to a unanimous decision. They were then directed that they could bring in a majority verdict according to s 55F of the Jury Act 1977 (NSW). The jury subsequently brought in the verdict to which I have referred.

1. Although the submissions on each ground of appeal overlapped to a large extent, it is convenient to deal separately with the parties' submissions on each ground.

Ground 1

The parties' submissions

1. The appellant accepted correctly that for this ground to be made out he needed to establish that the verdicts were an affront to logic and commonsense (MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 368) and that they would not be set aside on this basis unless there was no rational way of reconciling them with the verdicts of acquittal.

1. The appellant submitted that the verdicts in relation to Counts 4 and 5 were inconsistent with the verdicts of not guilty on the other counts. He submitted that the DNA evidence should not have led to a different result.

1. The appellant submitted there were serious questions concerning the complainant's memory. He pointed to the fact that in the first interview the complainant repeatedly said she had forgotten some matters, including what happened when the appellant "weed" on her. The appellant referred to five instances but it is important to put them in context. The first instance occurred immediately after she told DSC Gregory that the appellant had touched her on her rude part just before she went into foster care. She was then asked the questions and gave the answers referred to in par [13] above, contrary to her stated lack of recollection. Her statement that she did not remember is, in my opinion, consistent with a child seeking to avoid answering the question.

1. The second occasion occurred immediately prior to her giving the answers to which I have referred in par [14] above. Once again despite her statement that she could not remember what happened in the lounge room, she was immediately able to describe what occurred. The same may be said about the third, fourth and fifth occasions which respectively preceded, were during and followed that portion of the interview to which I have referred in par [15] above.

1. Although it is correct as the appellant submitted that the use of the towel was not mentioned in the first interview, the complainant's attention was not directed to this matter by the interviewer. When asked in the second interview "[w]hat happened to the wee?" she volunteered the evidence concerning the towel.

1. The appellant also submitted that the complainant was unable to recall in the second interview the discussion which took place in the first interview. However the occasions referred to by the appellant where the complainant said she did not recall were followed, as described in par [19] above, by the complainant saying she remembered "a little bit". The complainant then went on to repeat the allegations made against the appellant which she had made in the first interview.

1. The appellant also contended that the complainant at the second interview could not recall if the appellant had touched her on the inside or outside of her clothing. Her answers in fact were as follows:

"Q166 And did dad touch you on the outside of your clothing, the inside of your clothing or something else?A I can't remember anything else and I had enough.

Q167 And what sorry?A I had enough.

Q168 You've had enough? Do you want to take a break?A (NO AUDIBLE REPLY)"

A break was then taken and thereafter the appellant answered the questions, although the question of where her dad touched her was not repeated (see par [24] above).

1. The appellant also referred to the fact that the complainant appeared to conflate the two occasions in which the police visited SB's residence and gave inconsistent confused evidence as to the timing of the complaints. He also pointed to the fact that in the third interview she could not remember the last time her father forced his penis into her mouth and that in her cross-examination she said she remembered things which happened when she was three but not when she was four.

1. The appellant also submitted the complainant's evidence was undermined by clear instances of reconstruction from other's statements and guesswork. He submitted that her evidence as to the colour of her underwear was unconvincing. He pointed to the fact that she said she knew she was three years old when the events took place because her mother had told her.

1. The appellant submitted the complainant said that the appellant had touched her on her "rude spot" 10 times but she did not know how she counted the number of these incidents. In fact she said she counted them in her head but when asked if she counted them properly she said she did not know.

1. The appellant also pointed to her evidence in cross-examination that she remembered things now which she did not remember in her second interview and her inability to give clear evidence as to the age of her sister and to clearly recollect SB's residence.

1. The appellant also pointed to what he described as notable inconsistencies in the complainant's evidence. He pointed to the fact that the towel was not mentioned in the first interview and the allegations underpinning Counts 7 and 8 were not made until the third interview. The appellant also pointed to the fact that in the first interview the complainant said there were a number of instances when the appellant "weed" on her but said in the second interview that this occurred only once.

1. The appellant also pointed to inconsistencies in the complainant's evidence as to the timing of her complaint and inconsistencies as to her sleeping arrangements particularly what he described as the inconsistency between her statement in the first interview that she was shaken awake whilst she was in a bunk bed and her statement in the third interview when she said she was sleeping in the "top bunk" when she was three compared with her statement in the second interview to the effect that she was in a separate bed to her sister at the time of the incidents the subjects of Counts 4 and 5.

1. The appellant also pointed to what he described as unsubstantiated assertions by the complainant, in particular the complaint of vaginal intercourse in the recorded conversation of 4 August 2011 (see par [75] above) and the statement by the complainant that the appellant had abused other children.

1. The appellant also pointed to evidence which he submitted contradicted central aspects of the complainant's evidence. He referred in particular to her evidence concerning Counts 7 and 8, her denial that she had complained of vaginal intercourse contrary to the recording made by her mother and the evidence of JT and the inconsistent version of the complaints given by the complainant, SB, WB and JM.

1. The appellant also contended that the complainant could have imagined the relevant events based on things she had witnessed or was told. He pointed to the suggestion that she may have seen the appellant and SB having sex on the lounge using the withdrawal method of contraception, the evidence of WB that he told the complainant she should tell someone what the appellant did so as to stop it happening to other children and what he described as allegations in the first and third interviews that the appellant may have abused or killed other children.

1. The appellant also contended that the complainant's evidence in respect of Counts 4 and 5 suffered from significant difficulties. He referred again to the complainant's lack of recollection to which I have referred above; her evidence concerning the colour of her underwear; the lack of reference to the towel in the first interview; and the suggested inconsistency in her evidence as to the number of times the appellant "weed" on her and where she was sleeping at the time of the incidents.

1. The appellant submitted that the difference in verdicts was unable to be explained by the DNA evidence. He pointed out that the incidents were said to have taken place before 6 January 2010 whereas the towel was seized in October 2011. He pointed out that only one of the two semen stains on the towel could be matched to the appellant's DNA. The appellant submitted that it was clear on the evidence that if the towel was washed between January 2010 and October 2011, semen deposited in late 2009 and early 2010 would not have been detected. In that context it must be remembered that the evidence of SB was to the effect that she and the appellant ceased to have a sexual relationship by March 2009.

1. The appellant submitted that even if the jury rejected the evidence that the towel had been washed, there was strong temporal evidence that the towel could have been used when the appellant and SB were engaged in sexual intercourse using the withdrawal method of contraception.

1. In these circumstances the appellant contended that the DNA evidence could not explain the inconsistencies in the jury's verdict.

1. Counsel for the appellant submitted the case was one where the evidence clearly pointed to the fact that the jury had departed from their obligations (R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [135]). He pointed in particular to the fact that the evidence on Counts 7 and 8 was patently false. He said that contrary to what was submitted by the Crown there could be little doubt the complainant in her third interview and in her statements to SB and JT, was referring to penile/vaginal sexual intercourse. He submitted these statements led to the conclusion that the complainant completely lacked veracity.

1. Counsel for the appellant accepted there was no direct evidence contrary to that of the complainant as to how semen which matched the appellant's DNA ended up on the towel. However, he submitted a contrary inference could be drawn from the evidence of SB as to the manner she and the appellant had sexual intercourse on the lounge.

1. The appellant submitted the other matters relied upon by the Crown in distinguishing Counts 4 and 5 from the other counts, namely the temporal link between the two counts, the fact that the complainant was able to identify with some precision when they occurred and that it was memorable to the complainant because it was the last occasion the appellant touched her rude part, did not assist because the difficulty of following in the first and second interviews when particular incidents occurred. He referred in particular to the fact that the complainant said the appellant only "weed" on her once, but described it in the first interview as the second time he touched her and in the second interview as the last time.

1. The Crown pointed out there was no challenge to directions given to the jury, who were warned of the need to scrutinise the complainant's evidence with care, to consider each charge separately and the need for logical consistency between verdicts. The Crown also submitted there was no general rule that where several offences depend on the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury regarded the complainant generally as an untruthful witness.

1. The Crown submitted that there were four factors which distinguished Counts 4 and 5 from the other counts. First, the presence of the appellant's semen on the towel, second, that Count 4 immediately preceded Count 5, third, the ability of the complainant to identify with some precision the day the incidents occurred and, fourth, that they were memorable to her because it was the last occasion the appellant touched her "rude spot". The Crown pointed to the fact that the complainant said the incident happened the night before she had "heaps of fun", which was the night before she went into foster care and described it as the last occasion the appellant touched her "rude spot" and "weed" on her. The Crown submitted this evidence, given over the course of two interviews, supported the conclusion that the complainant had a reliable memory of this incident.

1. The Crown accepted that the complainant's evidence was inconsistent in some respects and that she often said she did not remember things. It was pointed out that this was drawn to the jury's attention in closing and in the summing-up by the trial judge. It was also submitted that many occasions when the complainant said she did not remember, were in fact instances of her seeking to avoid being questioned.

1. The Crown submitted that the failure to mention the towel in the first interview was not demonstrative of unreliability. It was pointed out that the questioning on Counts 4 and 5 commenced late in the first interview and was directed to fixing a timeframe for the offence, whilst in the second interview she was questioned directly as to what happened during the course of the interview. The Crown pointed out that the complainant referred to the towel the first time she was asked about what happened to the "wee".

1. The Crown submitted that given the complainant's age it was not surprising that she was confused as to the date she told her mother about the incident.

1. The Crown submitted that although the complainant wrongly said in her third interview that she was sleeping in a bunk bed when she was three years of age, her evidence on this question in the first and second interviews was not unreliable. The Crown pointed out that in the first interview she said she was shaken awake while she was in bed. She was asked where her bed "is" and her answer referring to a bunk bed was correct at the date of the interview. The Crown pointed to the fact that in the second interview she stated that she and her sister were in separate beds at the time of the incident.

1. The Crown submitted that the complainant did not allege the appellant abused other children. It was submitted that the evidence relied on did not involve such an allegation. The relevant evidence was in the first and third interviews. In the first interview the following questions were asked and answers given:

"Q344 O.K. So has anything else like this happened with dad?A No, I think dad done it to a another girl or boy before me.

Q345 What makes you think that?A Because if he done it to, I think he done it to a other little girl or boy because he learnt how to do it to me.

Q346 Did dad tell you he done it to another girl or boy?A No.

Q347 Did anyone else tell you that maybe dad had done it to someone else?A [NO AUDIBLE REPLY]

Q348 Has anything like this happened before with somebody else?A I don't know.

Q349 What do you mean you don't know?A I just don't know if he done it to someone else.

Q350 No, No, what about with you, has anyone done something like this to you before?A No, just dad."

Whilst in the third interview the questions and answers were as follows:

"Q316 OK. Has anything like this happened with you before with anyone else other than [CH] your real dad?A I'm not sure if ...

Q317 You're not sure?A I'm not sure if he's done it to other children.

Q318 No, no. Sorry. Has, has anyone else other than [CH] done anything like this to you?A No."

(Names have been anonymised).

1. The Crown submitted that the appellant overstated the complainant's evidence in asserting that she complained to her mother and JT of penile/vaginal intercourse.

1. So far as the towel was concerned the Crown pointed to the fact that Mr Watherston stated that if the towel was stored in ideal conditions, the sperm could have been on it for years. The Crown also noted the comments of the trial judge in his remarks on sentence that the jury were entitled to reject the evidence of SB that she washed the towel regularly given the general state of the premises. The Crown also noted that SB denied it was used to clean up after she and the appellant had sexual intercourse in the lounge.

1. The Crown pointed out that an acquittal did not necessarily mean the complainant's evidence was rejected but rather that on the counts on which they acquitted, the jury was unable to reach a conclusion beyond reasonable doubt. It was submitted that the jury acting consistently must have convicted only on counts supported by evidence additional to the testimony of the complainant.

1. Senior counsel for the Crown also pointed to the fact that the complainant was examined (in re-examination) on the texture of the product discharged on her, in the context where SB stated that she had never seen the complainant come into the room whilst she was having intercourse. She accepted that there were problems with the complainant's evidence submitting that this was the reason there was no conviction on the other counts.

1. Senior counsel for the Crown also submitted that even if the jury concluded the third interview had been corrupted, they would be entitled to accept what the complainant said in the first two, having regard to the DNA evidence.

Ground 2

The parties' submissions

1. Generally speaking the parties were content to rely on the factual submissions on Ground 1 when dealing with Ground 2. The Crown emphasised that the task of an appellant court is not to form its own assessment of the verdict it would reach. It submitted that the principle which informs the court are those set out in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113].

1. The Crown emphasised that 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 the consideration that the jury had the advantage of seeing or hearing the witnesses. In this context it pointed to the fact that the jury had the advantage of seeing and hearing the complainant under cross-examination and hearing the evidence of SB.

Consideration

1. It is evident from the parties' submissions that the grounds of appeal overlap. That is hardly surprising for two reasons. First, s 6(1) of the Criminal Appeal Act 1912 (NSW) refers to unreasonable not inconsistent verdicts. Second, the appellant recognised that the DNA analysis of the towel which identified the appellant's semen on it may provide an explanation for the different verdicts but argued in effect that having regard to the other difficulties with the complainant's evidence, that could not provide a logical explanation for them. That is why counsel for the appellant ultimately accepted in argument that the real issue was whether the verdict was unreasonable.

(a) The relevant principles

1. In MacKenzie v The Queen supra at 366-368 the plurality stated that where factual inconsistency is said to arise by reason of different jury verdicts upon different counts of the originating process, the test is one of logic and reasonableness. Further, if there was a proper way by which the verdicts could be reconciled allowing it to be concluded that the jury performed its functions as required, that conclusion generally will be accepted. It is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (see also Still v R [2010] NSWCCA 131 at [60] and Dungay v R; R v Dungay [2010] NSWCCA 82 at [22]).

1. Appellate courts should generally proceed on the assumption that juries follow the directions of the trial judge (Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] and HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [52] and [353]). As the plurality pointed out in MacKenzie v The Queen supra (at 367) the view may be taken in a criminal appeal that the jury simply followed the instruction to consider each count separately and to apply to each count the requirement that all elements must be proved beyond reasonable doubt.

1. In R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [31] Spigelman CJ emphasised that it was not necessarily inappropriate for a jury to accept the evidence of a witness on one count whilst retaining a reasonable doubt about the commission of other events about which the same witness is the only substantive witness. He stated (at [76]) that there are often numerous explanations for seemingly inconsistent verdicts that do not necessarily derive from the jury doubting the complainant's credibility on all counts. Wood CJ at CL expressed the same view at [212], giving examples at [234]-[235] of circumstances which on the one hand would support an argument that the jury looked with disfavour upon the credibility of the complainant and on the other hand, that there were other possible basis for differentiation.

1. In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the High Court approved (at [32]) the approach in R v Markuleski supra. In the course of their judgment Gleeson CJ, Hayne and Callinan JJ, dealt with the issue of different verdicts in the following terms (at [34]):

"Since the ultimate question 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 borne 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 require 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, and referred to in later cases: 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."

(Citations omitted).

McHugh, Gummow and Kirby JJ adopted a similar approach at [85]-[86].

1. The principles governing the question of whether a verdict should be set aside as unreasonable are well established. In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]-[13] the High Court stated that the approach to be adopted was that laid down by it in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-494. The Court is required to make its own independent assessment of the evidence and if after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury of having seen and heard the witness the Court is left in doubt as to the reasonableness of the verdict, the doubt in most cases is a doubt that the jury should have experienced.

1. It is not enough for a verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury to have reached a different outcome. As was stated by Hayne J in Libke v The Queen supra at [113] for the verdict to be set aside as unreasonable the jury must have had, as distinct from might have had, a reasonable doubt (Gleeson CJ and Heydon J agreeing).

1. However, it not sufficient for a verdict to be reasonable that there was evidence on which a jury could convict. So much is made clear from the passage from M v The Queen supra cited in SKA v The Queen supra at [13]. If after giving full weight to the primacy of the jury the court is left in reasonable doubt as to the verdict, it is only where the advantage of the jury in seeing and hearing the evidence is capable of resolving the doubt can a court conclude there was no miscarriage of justice (see also MFA v The Queen supra at [26] and [53]-[56]).

1. This Court in R v TK supra suggested (at [135] per Simpson J, Latham J agreeing at [204]) that where the unreasonableness is said to be based on the existence of inconsistent verdicts, the issue is not just whether the verdict was open on the whole of the evidence but whether it was open on the whole of the evidence, having regard to all relevant facts and circumstances (including that the jury acquitted on one or some counts), whatever can be discerned as the explanation for the acquittals and whatever insight can be gained into the jury's thinking and reasoning.

(b) Disposition

1. The Crown pointed to four factors which distinguished Counts 4 and 5 from the other counts (see par [129] above). The appellant contended that the DNA evidence on the towel was insufficient to explain the difference in the result and the other matters referred to by the Crown provided little assistance (see pars [126] and [127] above).

1. In these circumstances the disposition of the appeal depends in my opinion on the answer to the following question. Taking into account the advantage of the jury, was it open to them to convict on Counts 4 and 5 on the evidence before them, having regard to the different features of the evidence on those counts, notwithstanding the fact they were unable to accept the complainant's evidence beyond reasonable doubt on the other counts? The question can only be answered by reviewing the whole of the evidence in the manner referred to by the High Court in M v The Queen supra. Such a review is to include but not be limited to the distinguishing features relied on by the Crown and always bearing in mind the doubts the jury must have had on the other counts.

1. It is evident that there were very real difficulties with the complaints made by the complainant in the third interview. The incidents described in that interview, which were the subject of Counts 7 and 8, had not been referred to in the previous interviews which had taken place 14 months earlier. SB stated the appellant had never been to the Rosemeadow church that was within walking distance of her residence with her. Further the complainant's account of the manner that the appellant put his penis in her mouth was inherently improbable. Notwithstanding this the complainant persisted with this assertion in the evidence which she gave at the trial.

1. The appellant also pointed to the evidence of what SB said she heard the complainant tell WB on 4 August 2011 (see par [74] above), the recording of the conversation between the complainant and her mother on the same day which became Exhibit 2 and the statements she was said to have made to JT on 14 September (see par [84] above). The appellant submitted that those statements involved allegations of penile/vaginal intercourse, something which during cross-examination the complainant denied had occurred.

1. In considering these matters it is important to put them in context. The interview of 10 October 2012 took place some 14 months after the first interview. However, the complainant was still only seven years of age and it would be open to the jury to infer that by the time of the third interview her evidence had been corrupted, or at least there was a tendency to exaggerate. It must be remembered that in this context the complainant had already described herself as a "very brave" girl in complaining.

1. It is also important to consider the context of the recording which became Exhibit 2. At the time the complainant was six years of age. The evidence of SB was that prior to the recording she heard the complainant saying to WB "Daddy wiggled his thing inside me and weed on me". By contrast WB said the complainant told him "My daddy touched me in my private part" (see pars [74] and [81] above respectively). The latter is consistent with what she said to JM on the same day (see par [94] above). Further the evidence of SB is inconsistent with the evidence of JM. JM said she spoke to the complaint on 4 August 2011 when a complaint was made, whereas SB does not suggest any complaint was made on that day on the telephone to JM, rather suggesting that the conversation with WB in which DH made a complaint took place after that telephone conversation later that night.

1. In that context Exhibit 2, the voice recording, records the following conversation:

"Complainant: 'Hi'

SB: 'And what happened when you came down what ...[DH]'

Complainant: ...

SB: 'What did you say, tell mummy again please.'

Complainant: 'He touched me through the knickers and he started to ... the rude spot ... in mine ... at me and put his rude spot in my rude spot and he wiggled it.'

SB: 'And what happened then [DH]?'

Complainant: 'And then the next days after'

SB: 'Yes [DH], just hang on'

Complainant: 'He made me ... a ... and he weed on me ...'"

(Names have been anonymised).

1. Thus, the only occasion on 4 August 2011 where there was anything that could be said to amount to direct evidence of an allegation of penile/vaginal intercourse was in the conversation with her mother, a conversation which at the very least contains some suggestions of prompting. The complaints were not repeated in the two interviews which subsequently took place in August of that year.

1. It seems to me in these circumstances it would be open for the jury to accept the complaints made at the first two interviews and to WB and JM, irrespective of whether they had doubt as to whether the complaint made by the complainant to her mother was accurate. This needs to be considered in the context that the complaint denied in cross-examination that she told her mother that penile/vaginal intercourse occurred saying "No I never told her cause it never happened".

1. I have referred to the evidence of JT (see pars [83]-[85] above). That conversation took place after the interview in which she made no suggestion of penile/vaginal intercourse. It would be open to the jury to reject the truth of this complaint, which was in fact denied by the complainant in cross-examination whilst accepting the complaints made at the interview. Once again there is some evidence of the influence of her mother (see par [85] above).

1. I have also referred to the other difficulties with the complainant's evidence (see pars [107]-[112]). The statements of loss of memory are explicable by a desire to finish the interview or avoid questioning. It is also correct that the appellant gave inconsistent evidence as to the colour of the underwear she was wearing at the time of the incident. The fact that she gave inconsistent evidence between her first interview (and in cross-examination at trial) and her second interview, as to how often the appellant "weed" on her, does not alter the fact that the complainant said in both the first and second interviews that the appellant "weed" on her two nights before she first went into foster care.

1. I agree with the submission made by the Crown that the complainant did not state in the first or second interviews that at the time of the incidents the subject of Counts 4 and 5, she was sleeping in a bunk bed (see par [133]). Further, I agree that the evidence referred to in par [134] above does not amount to an allegation that the appellant had abused other children. That was apparent from her answer ("Because if he done it to, I think he done it to a other little girl or boy because he learnt how to do it to me"). Immediately thereafter she denied that the appellant told her he had done it to another girl or boy and she said that she did not know if he had.

1. The description by the complainant of the product of the ejaculation as white in the first interview and white and slimy in the second interview and in re-examination at trial was consistent with the alleged event occurring. SB denied the complainant was in the lounge room whilst she and the appellant were naked, although she accepted it was possible the complainant saw them there after they had had sex. The complainant denied she saw her mother and the appellant nude or sleeping together in the lounge room.

1. There remains the evidence of the DNA analysis of the semen on the towel. The appellant points to the fact that the complainant did not state that she was cleaned with the towel at the first interview. However, she was not asked and she volunteered the information at the second interview. SB stated that the towel was not used to clean up after she and the appellant had sexual intercourse and that she ceased to have sexual intercourse with the appellant in March 2009. In these circumstances the presence of the appellant's DNA on the towel is consistent with the complainant's evidence. Counsel for the appellant accepted there was no direct evidence to the contrary, although he submitted different inferences could be drawn. However, those inferences would involve the jury rejecting the evidence of SB on this point.

1. Having regard to the inconsistencies and uncertainties in the complainant's evidence (although explicable in the case of a young child), the evidence so far as Counts 7 and 8 is concerned and the failure of the jury to convict on those counts and Counts 2 and 3 in the indictment (the other alternatives to Count 1), it would not have been open to the jury to convict on Counts 4 and 5 without any particular features in the evidence which distinguished those counts. However, the DNA analysis, the evidence surrounding it and the relative precision in which the complainant was able to identify when such incidents occurred, present such distinguishing features.

1. The question which remains is whether the distinguishing features are sufficient to enable the jury to accept the evidence of the complainant on Counts 4 and 5 beyond reasonable doubt notwithstanding their failure to be so satisfied on the other counts. In my opinion having regard to the advantage which the jury had in seeing and hearing the complainant as well as in this case the other witnesses, coupled with the objective evidence of the DNA on the towel, it was open to the jury in the sense described in the authorities to come to the verdicts which they reached. In the present case the evidence of the complainant was vital. There is no reason to assume that the jury did not consider each count separately and study her evidence with care as they were directed to do. Having studied the evidence myself and taking into account the advantage possessed by the jury, I am not satisfied that the verdicts were unreasonable or inconsistent with the acquittals on the other counts in the sense of being an affront to logic and reasonableness.

1. It follows that neither ground of appeal has been made out.

1. There is one further matter. We were invited to view video recordings of the interviews of the complainant. It is an invitation I have declined for three reasons. First, the tapes were not in evidence. Second, an appeal is not a retrial but a review of the evidence on the papers in accordance with the principles to which I have referred above. To review the evidence by reference to tapes not in evidence would be to usurp the functions of the jury. Third, a review of the tapes would result in seeing only part of the complainant's evidence and none of the other evidence, a matter which could undermine any assessment. In SKA v The Queen supra the High Court held at [29]-[35] that Simpson J was not in error in declining a similar invitation in this Court.

Conclusion

1. In the result the appeal should be dismissed.

1. HOEBEN CJ AT CL: I agree with Bathurst CJ.

1. ADAMS J: I agree with the reasoning and conclusion of Bathurst CJ.

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Decision last updated: 04 July 2014