Cheung v The The Queen

[2022] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Cheung v R [2022] NSWCCA 168

Hearing dates:

24 November 2021

Decision date:

12 August 2022

Before:

Simpson AJA at [1];
Ierace J at [4];
Dhanji J at [170]

Decision:

(1)   With respect to the application for leave to appeal against conviction:

(a)   Grant leave to appeal.

(b)   Dismiss the appeal.

(2)   With respect to the application for leave to appeal against sentence:

(a)   Grant leave to appeal.

(b)   Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – where applicant convicted by jury of single count of sexual intercourse with a three year old girl – where complaint made in response to leading question of complainant’s parents – whether verdict of guilty open to jury – where video exhibits of complainant’s evidence available to Court of Criminal Appeal – where applicant relied on a number of identified inconsistencies in the evidence – consideration of reliability of complainant’s account

CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced to term of imprisonment – where maximum penalty for offence was life imprisonment – where finding of special circumstances made – whether sentence manifestly excessive – where applicant relied on comparable cases – where assessment of objective seriousness not challenged

Legislation Cited:

Crimes Act 1900 (NSW), s 66A

Criminal Procedure Act 1986 (NSW), Sch 2, cll 84, 88

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 54D

Evidence Act 1995 (NSW), ss 13, 18, 38

Cases Cited:

AT v R [2020] NSWCCA 178

Browne v Dunn (1893) 6 R 67

BT v R [2019] NSWCCA 147

BS v R [2021] NSWCCA 39

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78

EG v R [2015] NSWCCA 21

Koloamatangi v R; Popovic v R (2020) 282 A Crim R 160; [2020] NSWCCA 52

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

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

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

R v GW (2016) 258 CLR 108; [2016] HCA 6

R v King [2009] NSWCCA 117

R v ND [2016] NSWCCA 103

R v Scavera [2016] NSWCCA 145

RC v R [2020] NSWCCA 76

Scott v R [2020] NSWCCA 81

Category:

Principal judgment

Parties:

Wing Hong Cheung (Applicant)
Regina (Respondent)

Representation:

Counsel:
M C Ramage QC; A Cook (Applicant)
C Curtis (Crown)

Solicitors:
Tahota Law Firm (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2019/193122

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

21 December 2020

Before:

Culver DCJ

File Number(s):

2019/193122

HEADNOTE

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

On 21 December 2020, a jury of twelve returned a verdict of guilty in relation to the applicant on one count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act 1900 (NSW). On 14 May 2021, the applicant was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years. The applicant sought leave to appeal against both his conviction and his sentence.

The applicant’s sole ground of appeal against his conviction was that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence at trial. On the application for leave to appeal against his sentence, the applicant’s sole ground was that the sentence was manifestly excessive.

The offence was alleged to have occurred on either 24 or 25 July 2018 in the home of the complainant. The complainant was three years and nine months old at the time. The applicant would habitually attend the home on Tuesdays and Wednesdays to assist his wife, who was a nanny and cleaner for the complainant’s family. This was the case on Tuesday 24 and Wednesday 25 July 2018. The Crown case was that the applicant penetrated the complainant’s vagina with one of his fingers on one of those two dates while he was at the home and alone with the complainant, causing an abrasion to her vagina. The first time the complainant told anyone about the assault was on the night of Thursday 26 July 2018, in response to questioning by her parents. Her account was recorded by her parents on Friday 27 July 2018, in a police interview and in pre-recorded unsworn evidence given prior to the commencement of the trial.

In support of the conviction appeal, the applicant raised several arguments addressing the reliability of the complainant’s evidence and its consistency with other evidence in the trial. These identified difficulties included: the delay in complaint, the circumstances of the complaint, inconsistencies in the complainant’s description of the offence, and uncertainties regarding the foundation for medical evidence as to the injury to the complainant.

In support of the sentence appeal, the applicant submitted that the objective and subjective circumstances of this case rendered a sentence of this magnitude unreasonable. In addition, the applicant relied upon seven cases in which the Court of Criminal Appeal considered offences contrary to s 66A of the Crimes Act.

Held (per Ierace J, Simpson AJA and Dhanji J agreeing), granting leave to appeal and dismissing the appeal:

1. It was open to the jury to find that the applicant was guilty beyond reasonable doubt. On an independent assessment of the evidence at trial and paying due regard to the need to assess the reliability of the complainant’s evidence with caution, the complainant’s account was sufficiently reliable to have satisfied the jury of the applicant’s guilt beyond reasonable doubt: [1] (Simpson AJA); [127]-[136] (Ierace J); [171] (Dhanji J)

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78; Koloamatangi v R; Popovic v R (2020) 282 A Crim R 160; [2020] NSWCCA 52; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, referred to.

1. The sentence imposed upon the application was not manifestly excessive. Considering the comparable cases provided by the applicant and the particular circumstances of the offending, the sentence was not so far outside the range of sentences imposed for this offence that there must have been error: [2] (Simpson AJA); [161]-[167] (Ierace J); [172] (Dhanji J).

AT v R [2020] NSWCCA 178; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; R v Scavera [2016] NSWCCA 145; R v ND [2016] NSWCCA 103; EG v R [2015] NSWCCA 21, referred to.

RC v R [2020] NSWCCA 76; Scott v R [2020] NSWCCA 81; BS v R [2021] NSWCCA 39, considered.

Judgment

1. SIMPSON AJA: The relevant facts and circumstances are fully set out in the judgment of Ierace J, which I have read in draft. Having examined the evidence, I am of the opinion that the verdict of the jury was one that was open. Like Ierace J, I am not left with any reasonable doubt as to the applicant’s guilt.

2. I agree with Ierace J’s proposed disposition of the application for leave to appeal against sentence.

3. I therefore agree with the orders proposed by Ierace J.

4. IERACE J: The applicant seeks leave to appeal his conviction, following a trial before a jury, of a count that between 24 and 25 July 2018 he had sexual intercourse with a girl (“the complainant”) who at the time was under the age of ten years, namely, three years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). He received a sentence of imprisonment of 10 years, with a non-parole period of 6 years. The sole ground of appeal against conviction is that “the verdict of the jury was unreasonable or cannot be supported having regard to the evidence at trial”. In the event that his appeal against conviction is unsuccessful, he seeks leave to appeal against his sentence, the sole ground of appeal being that it was manifestly excessive.

Background to the offence

5. At the time of the offence, the complainant was aged three years and nine months. She had a sibling, an older brother, who at that time was aged five years and three months. They resided with their parents in a double storey residence in a Sydney suburb (“the home”). For the purposes of this judgment, I will refer to the parents by pseudonyms that are unrelated to this matter. I will refer to the parents as John Yang and Mary Yang, and their son as Craig Yang. The family spoke both English and Cantonese in the home.

6. From when the complainant was about one year old, the applicant’s wife, Yvonne Cheung (“Yvonne”), had been employed by the complainant’s parents in two capacities; as a nanny to the complainant, and as a cleaner. From around the complainant’s second birthday, with the consent of the complainant’s parents, the applicant would assist his wife in her duties in the home. The complainant would call Yvonne “Yiyi” and the applicant “Suk Suk”, which are Cantonese words meaning “aunty” and “uncle” respectively. At the time of the offence, the applicant was aged 64 and Yvonne was aged about 56.

7. In July 2018, the applicant’s wife would perform her duties on Tuesdays and Wednesdays. She would drop off Craig at school and pick him up in the afternoons. The applicant would arrive at the home later in the morning and help with the cleaning. He would also cook meals for the Yang family, on Tuesdays, Wednesdays and Fridays. On Mondays, Thursdays and Fridays, the complainant would attend day-care. Her parents would drive her to and from day-care.

8. On Tuesday 24 July and Wednesday 25 July 2018, the applicant and his wife attended the home as usual. The following day, the complainant attended day-care. That night, while being showered by her father, she complained that her vagina was “ouchy”. Later that evening, her mother examined the complainant’s vulval area and discovered an injury with swelling and a laceration. She was questioned by her parents as to how the injury occurred and she said that “Suk Suk hurt me”. The following morning, Friday 27 July 2018, the complainant’s parents questioned her again, this time recording the questioning. The recording was tendered in the trial. Later that day, the parents took the complainant to a children’s hospital for a medical examination. In their car on the way to the hospital, the complainant’s mother again questioned the complainant. She recorded a video of the questioning. The complainant’s parents reported the matter to police, who interviewed the complainant that evening (“the police interview”).

The case for the prosecution

9. The essence of the prosecution case was that the applicant had committed the offence, thus causing the injury, at the home on either the Tuesday or Wednesday, while he was alone with the complainant.

10. The trial commenced on 7 December 2020 before Judge Culver. The applicant made an application to the Court for a trial by judge alone, on the basis that it would avoid the risk of delays or an aborting of the trial if a sufficiently large panel was unavailable due to Covid-19. A panel of sufficient numbers was available and the application was refused. A jury of 12 was empanelled. It retired on 15 December 2020 and returned on 21 December 2020 with its verdict.

The complainant’s account

11. The prosecution case commenced with the tender of a video of the complainant’s pre-recorded evidence, during which the police interview was identified and tendered.

The police interview

12. The complainant was interviewed by Detective Sergeant Monica Barham (“DS Barham”). She said that someone touched her “bum bum” without asking. It was “actually my, that I love”, who she named as “Sook Sook” (as transcribed), who she said is her “grandfather”. Some of her responses were as follows:

“[Q] ... So tell me what happened first.

A He, he touched everywhere when I at the lounge, when I’m sitting, at my room. And when I’m play.

[Q] So what did, when did he touch your bum bum when you were on the lounge?

A When I take off my, my, mmm, when he tell me to take off my, my pants, I take off it.

[Q] When did he tell you to take off your pants?

A Everyday … And we always do it everyday on Tuesdays and Wednesdays.

…

[Q] …So tell me about what happens on Tuesdays and Wednesdays, all the time?

A He, he touch me.

[Q] How does he touch you?

A He just said, don’t listen to my mummy and daddy and he, and don’t tell my mum and dad. And I tell … my mum and dad.

…

[Q] What’s your bum bum used for?

A I was trying to fart at him so I, so he couldn’t do anything to me. So, but he still did want.”

13. The complainant was asked where her “bum bum” was, with the assistance of a drawing which was tendered into evidence. She was handed a sheet of paper that had a diagram of a naked girl, depicting her front on one side and her back on the other. The complainant said she would mark the area with a circle. She marked both sides of the paper, with a circle in the area of the girl’s vagina on one side and her bottom on the other. The diagram was an exhibit in the trial. The questioning continued:

“[Q] … So when [Suk Suk] touched you on the bum bum, what did he touch you on the bum bum with?

A With hands. With hands, ah … with this and this. And he, and one finger … And he doesn’t stop.

…

[Q] What could you feel on your bum bum?

A Um, bad things.

[Q] Bad things. What kind of bad things could you feel?

A Um, bleeding.

…

[Q] It was bleeding? And how did it get bleeding?

A When’s he touch me.

…

[Q] … So who else was there when he touched you on the bum bum? Do you know?

A No.

[Q] Who was … at the house?

A Yi Yi.”

14. The complainant described “Yi Yi” as “grandpa’s friend”. She was a big girl who was younger than her mother (who she said was aged 28) and “littler”. She was questioned further about the touching:

“[Q] … So can you tell me more about … when your pants came off? What happened there?

A When I was … tooking [sic] him I was fight, fighting at him, he still, he still touched me.

[Q] When you were fighting him? Why would you do that?

A I was, um, because I wanted, I, I wanted him don’t touch me, but I … but he still did, so I fight at him, but he still do it …

[Q] OK. Where were you bleeding?

A On my bum bum.

…

[Q] Who put cream on your bum bum?

A My Mummy and Daddy … it be, was ouchy.”

15. Later in the interview, she was asked further questions as to where the touching occurred, as follows:

“[Q] So apart from when it happened on the lounge had that happened anywhere else?

A Yes. ... Everywhere. … Everything where, I’m at home.

[Q] Yeah. Where else?

A At the park. Not at the park …’Cause parks everyone will see me.

[Q] … OK. So where else in your house did that happen?

A I don’t know.

…

[Q] So you said it happened on the lounge, did it happen anywhere else in the house?

A No.

[Q] And did anyone see what happen?

A No. I was bleeding, not bleeding on the, on my bed.

…

[Q] OK. So what about when you got touched on the bum bum, is that ever happened any other time?

A No. No. It just bleed.

[Q] Has [Suk Suk] done that any other times?

A No. Only on Tuesdays and Wednesdays

[Q] … So what happens on Tuesdays and Wednesdays when he does that?

A. He touch it …”

16. The complainant was asked to demonstrate on a doll what “[Suk Suk]” did. She demonstrated, and said, “He’s poking, poking peoples”. She was questioned as to whereabouts he did this, as follows:

“[Q] OK. Tell me about that … whereabouts on your body did you get poked?

A On my bum bum.

[Q] … And who did that?

A Well Suk Suk.

[Q] Yep. And what exactly did he do, can you tell me? So he poked and what did he poke you with?

A With his hand … Um, this hand. This big hand. … And he poke in there, there, because this is in the middle, and my.

…

[Q] And where did he, what happened to his finger when his finger poked?

A Well he nails too sharp.

[Q] His nails were too sharp?

A Yes.”

17. The complainant was asked about the positions of their bodies while this occurred. She said that the applicant was “just standing” and she was “just laying down” on the sofa. She demonstrated lying on her back. When asked where her clothes were, she responded that they were on her, “but my pants was take off”.

18. The complainant was asked what she did after the applicant touched her on the “bum bum”, as follows:

“[Q] … What did you do after that?

A I just tell him to stop, but he didn’t stop.

…

[Q] … so what did you say to [Suk Suk]?

A Don’t, stop it. I don’t like it. But he didn’t stop …”

The complainant’s unsworn evidence

19. On 2 July 2020, when the complainant was aged five years and nine months, she gave pre-recorded evidence before Judge Shead SC of the District Court pursuant to cl 84 of Sch 2, Pt 29 of the Criminal Procedure Act 1986 (NSW). That Part is titled “Provisions relating to child sexual offence evidence pilot scheme”. A witness intermediary took part in the process, pursuant to cl 88. An edited recording of the examination became an exhibit in the subsequent trial (“the pre-recorded evidence”).

Preliminary issues

20. A preliminary issue was the complainant’s competence as a witness, which her Honour considered and determined pursuant to s 13 of the Evidence Act 1995 (NSW). Section 13 provides:

“13   Competence: lack of capacity

(1)   A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):

(a)   the person does not have the capacity to understand a question about the fact, or

(b)   the person does not have the capacity to give an answer that can be understood to a question about the fact,

and that incapacity cannot be overcome.

Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(2)   A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

(3)   A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

(4)   A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact

(5)   A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:

(a)   that it is important to tell the truth, and

(b)   that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and

(c)   that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

(6)   It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(7)   Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(8)   For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.”

21. Her Honour was satisfied on the balance of probabilities that the complainant understood the difference between the truth and a lie, but not that she understood an obligation to give truthful evidence. Accordingly, her Honour determined that, pursuant to s 13(3) of the Evidence Act, the complainant was not competent to give sworn evidence and, following the complainant receiving instructions in respect of s 13(5), that she was competent to give unsworn evidence. Her Honour did not require the defence to comply with the rule in Browne v Dunn (1893) 6 R 67 by putting its case to the witness, in view of the complainant’s limited competence.

The complainant’s account in her unsworn evidence

22. The complainant explained that when she referred to “Yiyi” and “Suk Suk” in the police interview, she meant “Yvonne” and her husband, the applicant. They would care for her at home when she was aged three. She agreed that she had spoken to police when she was aged three and was asked what police spoke to her about. She replied, saying “I spoke about Suk Suk which is Ken, but just in Chinese. … that he hurted one of my private parts, I mean, a private part, which is this”. (At that point, she indicated the vaginal area on a doll.)

22. The complainant agreed that she had recently been shown a video of her police interview, and was asked to indicate on the doll certain body parts that she mentioned in that interview. She pointed to the doll’s bottom for “bum bum”, the doll’s vaginal area for “wee wee” and “pat pat” and chest area for “boobies”.

23. The complainant said that “sometimes” Yiyi would need to wipe her bottom after she went to the toilet after “a weewee”, but she would need to do so after “a poo poo”. She said that “five times” Suk Suk also helped her wipe her bottom after a poo, although when asked if she remembered there being “five times”, she replied “not really”. She said that Suk Suk once gave her a shower, when Yiyi was present.

24. In response to questions asked by defence counsel, the complainant said that when she was aged three and a half, she would “have a sleep in the daytime” and when she did so, she would “Only sometimes” wear a nappy. She said that, when Yiyi was looking after her, she would “sometimes” accompany Yiyi to the shops. She said that she would sometimes go to the park with both Yiyi and Suk Suk or only with Yiyi, but that she never went to the park with only Suk Suk.

25. The complainant was questioned about what toys she played with when she was three and a half years old, at home and at day-care. She had a three-wheel scooter that she rode at home “all the time” and, at day-care, there were “stilts”, a little doll house and a “pretend dolphin”. She was questioned about her mother giving her instructions about the inappropriateness of people touching her “private parts”:

“Q. Did mummy ever say to you that you need to tell her if somebody has touched your private parts?

A. Yes, yes, yes, yes, yessy.

…

Q. When you were three and a half, if somebody did something bad to you, would you tell your mummy straight away?

A. I would tell my mummy straight away but only when she comes back home.

…

Q. Is straight away, as soon as mummy gets home from work that day?

A. Mm-hmm.

Q. Would you tell your daddy too?

…

A. … Yes.

Q. Did you talk to mum and dad about Suk Suk?

A. Yes. I told them that he was a bad man.

Q. When you talked to mum and dad about Suk Suk and him being a bad man, did you tell mum and dad the truth?

A. Yes.”

27. The complainant agreed with the proposition that Suk Suk told her to take her pants off. She described them as long pants, “flower pants, which were yellow”. The applicant put them on her tallboy. They were only off for “a short time”. She said she bled from “a little hole inside my … vagina”. She said that there was “lots of blood … blood on my pants, a bit” as well as on her blankets, the floor, her pillow and on her clothes. She was asked:

“Q. Was there blood on the lounge?

A. We - no, we were upstairs, and there was lots of blood on my bed when I slept, and also on the tallboy.”

28. She was asked:

“Q. … did you talk to [DS Barham] about a fart or farting?

A. No.

Q. Did you fart at Suk Suk when he touched your bum bum?

A. No.”

29. The complainant said that she did not try to fight the applicant but told him to “Stop it”. When he touched her, he was:

“… sitting down on a table. … He moved my table …near my toys, which are near my bed, and … put it next to the tallboy, and then opened my pants, then touched my wee wee multiples of times.”

30. The complainant was asked:

“Q. After Suk Suk touched you, when Mummy got home from work, did you tell Mummy that Suk Suk touched you?

A. Uh-huh.

Q. Did you tell Mummy as soon as she got home from work?

A. Yes, as soon as she - when I was, like, where - what happened when I was trying to go to sleep.

Q. What did you say to Mummy?

A. I said, ‘Suk Suk hurt me in my vagina. … he made it bleed.’”

Mary Yang’s evidence

31. As noted, “Mary Yang” is a pseudonym for the complainant’s mother. She was a clinical rheumatologist and Yvonne was one of her patients. When Ms Yang was pregnant with the complainant, she employed Yvonne as a cleaner in the home. Subsequently, from when the complainant was 10 or 11 months old, Yvonne was also employed as a nanny for both children. Three to six months later, Ms Yang also approved the applicant to assist Yvonne. The applicant and Yvonne became the complainant’s godparents. The only person that the complainant called “Suk Suk” was the applicant.

32. Ms Yang worked four days per week and Mr Yang worked five days per week. The complainant attended day-care on Mondays, Thursdays and Fridays. The routine with Yvonne and the applicant was that Yvonne would arrive, “usually but not always” with the applicant, between 7:30am and 8am. Ms Yang and Mr Yang would leave the home at around 8am to 8:30am and arrive home between 5:30pm and 6pm. Yvonne would drive Craig to and from school, which he would start at 9:35am.

33. It was Yvonne’s responsibility to shower the complainant on Tuesdays and Wednesdays. As to her toileting in 2018, Ms Yang said:

“During the day, she can go to the bathroom by herself. She can urinate and defecate with minimal assistance. So, she does not require a nappy during the day. She will, however, require a nappy when she is, at night, sleeping. During the middle of the day, she does have a nap. We were in the middle of transitioning her to try and make her not wear a nappy during the daytime nap.

… after she defecates, she may require some assistance in wiping her bottom.”

34. When Ms Yang and her husband arrived home from work on Tuesdays and Wednesdays, the complainant would still be awake. They would change her into her pyjamas and put her to bed. “[Every] so often”, Yvonne would have to leave early to look after another family, leaving the applicant alone at the home with the complainant.

35. Ms Yang educated the complainant about her genitalia and the inappropriateness of others touching them, stating that:

“I have made an effort since my children were two years old, each, to teach them about private body parts. I have educated them, specific names, regarding to their vaginas which [the complainant] refers to as her ‘wee-wee’; her breasts which she refers to as her ‘boobies’; her bottom which she refers to as her patpat or her bum-bum. And I have made an effort because of my medical training to make sure they know these body parts are private body parts. And I have made an effort to educate them that these are only to be touched by themselves or mum or dad or grandma. … [In 2018], it will be about once a month. [the complainant] was also going - in, in kindergarten they have these special classes to do the same thing. So I was just reinforcing what he was being taught in school.”

Evidence of complaint

36. Ms Yang’s evidence was that, at the time of the Tuesday and Wednesday in question, in July 2018, the complainant was still having a daytime nap. On the Tuesday, she arrived home before Mr Yang and the applicant was there. On the Wednesday, Mr Yang arrived home before her, and when she arrived, the applicant and Yvonne had left. She did not recall whether she or Mr Yang put the complainant to bed on the Tuesday night, but she put her to bed on the Wednesday night. On that night, the complainant did not report an injury and Ms Yang did not see one.

37. On the Thursday, she would have driven the complainant to day-care and Mr Yang would have picked her up, that being their usual routines.

38. On the Thursday, Mr Yang told her that he was unable to clean the complainant’s “private area with the shower head”. Later, Ms Yang tried to examine the complainant on the change table:

“But that evening was very strange, she would not let me open her legs to put the nappy on her. She was in fact very upset when I ask her to show me her private area.”

39. Ms Yang asked Mr Yang to distract the complainant while she examined her:

“I opened her legs and I saw that there was a cut, a laceration on the left vulva area, upper vulva area, it was swollen and it was bleeding.

Q. When you say, ‘bleeding’ was it actively bleeding at the time you saw it?

A. It was red, there was no active drizzle of blood, but it was a clear laceration that should not be there.”

40. Ms Yang said that the conversation that ensued with the complainant was as follows:

“… So I asked [the complainant] … you’re bleeding down in your wee-wee, what happened?’ [She] said, she was quite distressed at this point, and to be honest, it was quite difficult because she was crying just from me having a look, and she was quite scared.

And I may be paraphrasing at this, at this stage. [She] was hesitant to tell me what happened, I asked her again, ‘… you know we talk about private parts, who is allowed to touch your private parts?’ ‘Mummy, daddy and grandma.’

…

So I asked … her, ‘Where are your private body parts?’ and [she] responded, ‘My wee-wee, my bum-bum, my boobies, and my lips.’

Q. What happened next?

A. I asked her, ‘Apart from mummy, daddy and grandma, who else has touched your private parts?’ [She] said, ‘Yiyi, who wipes my bottom with tissue and Suk Suk, who touches my wee-wee with his hands, which is yucky.’ I asked [her], I asked [her] to clarify, and [she] said the same thing. I asked [the complainant] when Suk Suk would touch her. [She] said, ‘Suk Suk would touch me every Tuesdays and Wednesdays.’

I asked [the complainant], ‘When Suk Suk would touch you on Tuesdays or Wednesdays?’ [She] said, ‘When Yvonne’ as in Yiyi ‘is here or not here, when she is picking Gor Gor up’ which is her brother, up from school. I asked [her], ‘Where would he touch you?’ as in which location he would touch you. [She] responded, ‘In my bed, in the lounge, in the park.’ I asked her, ‘In your bed?’, [she] said, ‘When I’m napping in my bed.’

Q. Did [the complainant] tell you what this touching was, or show you what she meant?

A. She showed me with her hands what he performed, or what he did.

Q. As best as you can remember, what did she show you with her hands?

A. She showed me that he touched her vaginal area, her labial area with the palm of his hands, and gestured, there was a finger into the vagina area or around the area.

Q. As far as the injury and the bleeding itself, what did you do in relation to [the complainant] that night?

A. She was very distressed by it. I put, I put some Sudocrem onto the area. At this point, she was very, very upset. So at this point we put a nappy on her but my husband did ask her similar set of questions.”

41. They put the complainant to bed. The following morning, on Friday 27 July 2018, at about 7:35am they asked her “the same set of questions” which they recorded on a smartphone. Ms Yang again inspected the injury. The conversation took place in a mix of English and Cantonese. The questions were predominantly asked by Mr Yang, although occasionally Ms Yang would ask a question. The video recording and a transcript, which incorporated a translation of the parts spoken in Cantonese, were tendered.

42. Throughout the video, the complainant is seated on her bed, and Mr Yang is addressing her from a crouching position, facing her, so that their heads are at a similar height. The transcript commences with the complainant being asked what her “private parts” are. She lists her “pat pat”, her “booby” and her lips. She is asked:

“[Q] … has anybody touch your private parts?

[A] Uncle.

…

[Q] … has anybody touched your booby?

[A] Uncle has.

…

[Q] Yeah, then who play with your boobies or?

[A] Uncle.

[Q] Right. How did he play with your boobies?

…

[A] He touched my boobies. He don’t touch boobies and he played tag.

[Q] Yeah, he played [tag] with you. Yeah, yeah. He played tag with you?

[A] Yes, and he just touched my booby without ask me.”

43. Over the course of the questioning, the complainant said that “he touched here and touched here”, indicating her chest and the area between her legs, and that the touching occurred in her room or in the lounge. She said that “Auntie” was “doing something” and could not see what “Uncle” was doing. She said that “Uncle” changed her clothes, pointing to a change table off-camera. Mr Yang asked the complainant, pointing to her vaginal area:

“[Q] … Did anyone touch you here, the place where you pee?

[A] When I shower, not take off my clothes, he touch me.

[Q] In the shower?

[A] No, he didn’t shower me.

…

[Q] Who shower you?

[A] Auntie but when I take off my clothes and outside of the shower, Uncle touch me, my boobies.

[Q] Does he just touch you, or does he play with your boobies?

[A] Play.”

44. However, the complainant demonstrated a single stroke with the palm of her hand down her chest, rather than a manipulation of that area. As she sat cross-legged on the bed, Ms Yang placed her hand on the clothing outside of the complainant’s vagina and asked:

“[Q] What about … in your … private part in here, does anyone touch and you don’t like it? Who touch?

[A] Uncle.”

45. She was asked where they were at the time. She responded, “Everywhere”. She was then asked:

“[Q] What do you mean everywhere?

[A] Everywhere he touch me on my pat pat.

[Q] [Ms Yang asks] On your pat pat?

[Q] [Mr Yang asks] On your pat pat here? (patting her bottom as he asked the question)

[A] Yes when I when I –

[Q] Poo Poo?

[A] Poo Poo.

[Q] If you don’t poo poo, um any other time he touch your pat pat, when?

[A] Everyday on Tuesday and Wednesday.”

46. Later in the conversation, when asked if the touching hurt, the complainant nodded. She was asked if she asked him to stop, and nodded, and when asked if he did stop, she shook her head. She was asked:

“[Q] Does, do you think Auntie know about this?

[A] Yes.

[Q] She saw it?

[A] (Nodding)

[Q] But just now I asked you, when Uncle touched you, Auntie was doing something … Or is it the case that Auntie has gone out? So Auntie is at home or Auntie is not at home?

[A] But Mommy, Auntie will tell Mommy and Daddy that Uncle touch my pat pat and boobies.

[Q] So Auntie say she will tell Mommy and Daddy.

[A] (Nodding)”

47. The complainant went on to allege, in response to a series of leading questions, that there were occasions when she and the applicant would walk alone to a park next to her brother’s school. She said that he would take off her pants in order to touch her.

48. Later that morning, Ms Yang and Mr Yang drove the complainant to a children’s hospital. On the way, Ms Yang again recorded a conversation with the complainant. During that conversation, she was asked to demonstrate on a doll what the applicant did. She held her doll upside down and performed a swiping motion with the palm of her hand between the doll’s legs down across the vaginal area from the front to the back of the doll, and then repeated the motion from the back of the doll to its front across the area of the bottom. She was asked:

“[Q] …And can you tell Mummy, does he tell you to tell Mummy?

[C] Yes, no. No. But he told me to tell … but I tell um ma, Yiyi but Yi don’t know what to say but Suk Suk say don’t tell Mummy, but I still tell Mummy and Daddy.”

49. On the Friday evening, that is, on 27 July 2018, the complainant was interviewed by police.

50. In cross-examination, Ms Yang said that the complainant had not specified whether it was on the Tuesday or Wednesday that the applicant had hurt her. On the Thursday night, she had not noticed any bloodstains in the complainant’s underwear that she took off in order to put on her night-time nappy. She said that she had not checked the underwear or other clothing worn by the complainant on the Tuesday or Wednesday. The laundry was done by Yvonne on Tuesday and Wednesday, and she did the washing for Thursday and Friday on Saturday. She did not notice any blood on the complainant’s bed, her bedding, her pillow, her bedroom floor or the tallboy in her bedroom between 24 July and 26 July. Ms Yang said she was unaware of any complaint of pain or discomfort from the complainant when she went to the bathroom to pass urine before going to bed on the Tuesday or Wednesday nights. She was not aware of any complaint of injury made by the day-care centre on Thursday 26 July 2018. Ms Yang said that in July 2018, the complainant could partially dress herself. She may have needed assistance with a dress or a top. Ms Yang was asked:

“Q. Did you notice if there was any bloodstains on clothing, any pants worn by [the complainant] on Thursday 26 July, the evening that you spoke to her?

A. There was the underwear, and there was no blood on that underwear.

Q. Did you notice whether there was any blood on any clothing of [the complainant’s] in the two days before the Thursday when you spoke to her, so between 24 and 26 July 2018?

A. We do our laundry every day. I did not check, and I wish I could have gone back to check, but I did not check, and it’s washed.

Q. As at 26 July 2018, is it the case that the laundry including [the complainant’s] underwear was done on a daily basis, is that your evidence?

A. Tuesdays and Wednesdays I have my nanny coming. So on Tuesdays and Wednesdays, the laundry are done regularly. Thursday, Friday, I don’t have the time to do the laundry. Usually I would then do it on Saturday when I have some time. So our household, at that time, usually the laundry is done Tuesday, Wednesday, and sometime on the weekend, usually on a Saturday.”

John Yang’s evidence

51. As noted, “John Yang” is a pseudonym for the complainant’s father. Whereas Ms Yang’s evidence was that the complainant was having a daytime nap in July 2018, Mr Yang’s evidence was that he did not think she was, although he said that “There might be occasions that she would need to, depends how tired she is”. He said that on rare occasions, he would arrive home to find only the applicant present, since Yvonne had left. He and Ms Yang had agreed with Yvonne that it was okay for her to leave the complainant in the sole care of the applicant while she went to the shops or dropped Craig off at school.

52. Mr Yang gave evidence that the night-time routine on a Tuesday and Wednesday was that the complainant went to sleep between approximately 8:30pm to 9pm. Before then, they would get her to go to the bathroom, change her into pyjamas and put a nappy on her. He said that there would be bedtime reading and then she would be tucked in.

53. On Tuesday 24 July 2018, Mr Yang arrived home first. Initially, he did not recall whether he arrived home first on the Wednesday. However, he was reminded from a recorded phone conversation with the applicant that was played to the jury in his presence (see [58] above) that he had a discussion with the applicant on the Wednesday when he arrived home. He did not recall who put the complainant to bed on either night, but said that she would already have been showered before they arrived home. He did not recall if on either night he observed any injury on the complainant, or if she complained of an injury.

54. On the morning of Thursday 26 July 2018, Mr Yang drove the complainant to day-care. He did not recall whether, on the way, the complainant said anything about a pain or an injury. He picked her up from day-care at around 4:30pm and took her home. He said that:

“… after I pick her up and take her home we would take a shower. I help her shower and that is when, when I first noticed that like she’s always cover her, her private parts, like her vagina and she’s not cleaning by letting me help her and she’s just saying ‘It’s a pain there’. … [She had] two hands cover there. … I see there was a little bit of redness on the outside. I just thought more it could be a infection or something because in the past there was tissues stuck in there before and I thought that could be the case. So … afterwards I told my wife, when she tuck her into bed that night go and have a check just to make sure she’s not getting any infection.”

55. Later that night, when Ms Yang was tucking the complainant into bed, she asked Mr Yang for assistance. Mr Yang gave the following evidence of what occurred:

“…[she] was making loud noise, screaming and things, saying ‘It hurts’ or something so … I quickly run and check what happen. … I remember seeing … there’s tissues on her … there’s blood on it. … [Ms Yang] is asking the question because … I quickly have to go back to [Craig’s] room, tuck him back in before … I close the door and actually come and then I ask questions afterwards. So there are times that [Ms Yang] was asking questions with [her] and I wasn’t there, but it's just for like two minutes or something. … I remember asking her ‘What happen?’, like, ‘You’re bleeding there’ and then she’s, initially she didn’t, she didn’t say, like, she say ‘Someone hurting her’. She didn’t say who. And then, and then I, I ask well, I ask again and then afterwards she say ‘Suk Suk hurt me’ and Suk Suk refers to [the applicant]. … so I ask ‘So is it, is it going to toilet?’ like because I thought at any time … you might be touching there is like going toilet, and she say ‘No because’ and I say ‘Well’, I, I said like ‘Did he use a tissue? Did he like’ and then she say ‘No, he used his hand’ and is like this germs and yucky and other things.

Q. Did [the complainant] say anything about where this had happened?

A. She say bedroom, lounge and park when we, yeah, I did, I ask her where.

Q. Did she say anything about where Yvonne was when it happened?

A. She, I, I think she said, yeah, she’s downstairs when happen.

Q. Did [the complainant] tell you anything that was said to her while this was happening?

A. I, I remember asking her, like, ‘Did, did you tell Yvonne?’ and she said, [she] said she did but Yvonne ask ‘I don’t know what to say to her’ and I, I don’t, I don’t understand what that mean either. So at that time I didn’t think that was anything.

Q. Did [the complainant] say whether anything had been said by the [applicant] during?

A. Yeah, she said ‘Don’t, don’t tell anyone but I’m telling you anyway’.”

56. Mr Yang said that during this conversation with the complainant she appeared “scared”.

57. The following afternoon, Mr Yang arranged to meet with Yvonne, which they did. He told her that the complainant had accused “Suk Suk” of hurting her and her allegations concerning where this had occurred. Yvonne responded that she believed her husband was not responsible.

58. On 23 August 2018, Mr Yang made a phone call to the applicant, knowing that police were recording the call pursuant to a listening device warrant. The conversation took place primarily in the Cantonese language. A recording of the call, together with a written translation, was tendered at the trial.

59. In the call with Mr Yang, the applicant maintained that he had not assaulted the complainant, saying it was not possible that he had accidentally “touched” her. He would even ask her to “wipe herself” after she used the toilet. He said that he had looked after her on the Tuesday and Wednesday:

“…I totally didn’t assault her. It was normal. On Tuesday we went out eating, sometimes I took her to the park. I didn’t assault her. Let alone assaulting her, not even touching her.”

60. The applicant added that there had been “nothing weird on Wednesday. When you came back, I told you what they had done. No problems at all”. When told that the complainant did not want to see him again, the applicant suggested that he be permitted to meet with the complainant, to “see if she is really scared of me”. He also invited her father to “report to the police to investigate”.

61. In cross-examination, Mr Yang agreed that the normal routine was that when they arrived home on a Tuesday and Wednesday, the applicant would have cooked a meal for the family.

62. Mr Yang agreed that the complainant had not complained of discomfort or pain between Tuesday 24 July 2018 and when he showered her on Thursday evening, that is, on 26 July 2018. He also agreed that he did not receive any report of injury from the day-care centre.

63. Mr Yang was asked if he would remember if he had noticed any redness in the complainant’s vaginal area on the Tuesday or Wednesday nights, if he changed her nappy. He responded:

“That’s correct … but normally you wouldn’t be checking that area so closely. Like that’s not the normal changing of nappy. I don’t go and look at that spot.”

64. Mr Yang said that he would not have checked the complainant’s underpants on the Tuesday or Wednesday, saying that he would have put them straight into the laundry basket. If he had noticed blood on her clothing, bed, bedding, or on her bedroom furniture or floor, he said that he would recall it. In the mornings, he would throw her night-time nappy straight in the bin without checking it. If she had complained of discomfort or pain while urinating, he would remember it.

65. Mr Yang retrieved the complainant’s underwear that she had been wearing on the Tuesday and Wednesday from the dirty laundry basket and gave them to police.

The examining doctor’s evidence

66. Dr Lydia Garside, paediatrician, and Dr Rebecca Lee, another doctor, medically examined the complainant on Friday 27 July 2018 at the children’s hospital. A social worker and the complainant’s parents were present as well. Dr Garside utilised a colposcopy, which she described as:

“… a piece of equipment we use in child protection which gives you magnification and light and you're able to see things with a little bit more clarity than the naked eye.”

67. In her report dated 31 July 2018, Dr Garside stated:

“[The complainant] had an approximately 10 to 15 millimetre longitudinal abrasion on the external portion of her right labia minora. There was no active bleeding. There was no surrounding bruising. The abrasion had signs of healing. It was apparent that the abrasion was tender to touch and that traction applied to the labia majora during visualisation of the hymen caused discomfort.”

68. Dr Garside noted that there was “epithelialisation over the injury”, meaning that a scab had started to form over the abrasion. She concluded in her report that:

“The abrasion to the external surface of the labia minora is a non-specific finding. This injury could’ve been sustained accidentally or be the result of sexual assault.”

69. In a later report, Dr Garside described an abrasion as:

“… a disruption of the epidermis, often caused by blunt force trauma with some movement across the skin, such as a scratch. The depth of the abrasion is determined by the amount of force applied, and in this case, the abrasion looked fairly deep and would’ve gone into the dermis, which is beneath [the] epidermis, or beneath the surface of the skin because there are signs of previous bleeding. Having had another look at the images of the video, colposcope, this injury could’ve been a laceration, which could’ve been caused by blunt force trauma alone.”

70. She was asked whether the location of the abrasion was “a usual location for accidental injury abrasion”. She responded:

“So accidental injuries can occur in that position in the genital area, but in this particular case, no such fall or injury or mechanism was described. And there is of course a chance that a child may scratch themselves, but I felt that that was unlikely given the depth.”

71. As to the timeframe of the injury, Dr Garside said that, having regard to the epithelialisation, it was “probably more than 12 hours old, and I’ve given a timeframe of less than five days only because the genital region, especially in a child, heals very quickly”. She agreed that estimating the age of the injury was “not an exact science”. If the injury had been caused by a fall, one would expect bruising around the injury and there was none.

72. Dr Garside said that it was likely that the complainant would have been in pain at the time of the injury, and it would have been bleeding. She would expect that urinating after the injury would have caused a “stinging pain”.

73. In cross-examination, Dr Garside said that self-infliction of the injury was “unlikely but … possible”. In relation to the passage of her report extracted at [70] above, in which she said that there was no history of a fall, she agreed that her report had no history taken from the complainant at all. She agreed that she would have taken the history from the complainant’s mother.

74. Dr Garside was questioned as to how long the injury would have bled for, as follows:

“Q. Now in terms of bleeding are you able to say, and you may not be able to, are you able to say how long an injury of this kind may bleed for?

A. Not, not really, no. It depends on how deep it is. It depends on how much she’s moving. Depends on how many times it’s opened up again. It’s, it’s really very difficult to say.

Q. Would you expect active bleeding to an active injury of this kind in this area to be, would you expect there to be active bleeding two days after the infliction of the injury?

A. I, I don’t think it’s possible to say, dependant on how much she was moving or how, how much traction was applied to the genital area.”

75. Dr Garside qualified her opinion on the age of the wound:

“Q. Is the five day duration a conservative upper end estimate?

A. It’s because I saw signs of healing that I would, I would, yeah, I think it probably is upper end but it depends on how deep it was at the beginning. So it’s difficult to say when I don’t know how deep it was at the beginning.”

76. Dr Garside was asked about a record of the history that she took from the complainant’s mother, in which she placed the mother’s actual words used in italics. A part of the history was an exchange between the complainant and her mother when her mother first noticed the injury, in which she said to the complainant, “it’s bleeding down there”.

The evidence of the day-care director

77. Georgia Krecu was the director of the day-care centre attended by the complainant on Thursday 26 July 2018. She gave evidence that the centre had a policy that all injuries were made the subject of a report. The parents would be given a copy of the report, which they would be required to sign. Parents were called and informed of an injury, unless it was minor, such as “a papercut, a little scratch, something minor like that we would still document, but we wouldn’t call the parent for that, but something else, we would then call”. If a child said that they had pain or an injury, the day-care centre would call the parents and ask if anything had happened. Often, they would ask the parents to collect them. Ms Krecu said that there was no report of an injury to the complainant on 26 July 2018.

78. Ms Krecu was cross-examined as to the toilet arrangements at the day-care centre. The effect of her evidence was that they were “open space” toilets, without doors. The children were permitted to go to a toilet by themselves, but staff members would be nearby.

Evidence of Yvonne

79. The applicant’s wife, Yvonne, gave evidence through an interpreter in the Cantonese language. She confirmed that she had received legal advice as to her right to object to giving evidence pursuant to s 18 of the Evidence Act and declined to exercise that right.

80. Yvonne said that in July 2018 she would work as a nanny to the complainant on Tuesdays and Wednesdays, from 7:30am to around 5pm, although she would stay until one of the parents arrived home. Her husband would arrive at around 10am on those days. She would drive Craig to and from school, taking the complainant with her in the car on the way to school. Craig would have to be at school by 9:15am and would finish at about 3:15pm. The trip between the home and the school would take 15 to 20 minutes. If the complainant was asleep when it was time to pick up Craig, the applicant would stay behind with her. After Yvonne returned home from picking up Craig, she would shower the children, one after the other. She would apply the soap to the complainant and wash her hair. The applicant never assisted her in that task. In the mornings, she would take the complainant to a nearby suburb to have breakfast in a restaurant (“the restaurant”), often accompanied by the applicant. Sometimes, less frequently than once a week, she and the applicant would take the complainant to a nearby park. If it was after school, they would take both children to the park.

81. In early 2018, on Tuesdays Yvonne would leave at 4:45pm in order to get to another cleaning job. She resigned from that job in March or April 2018.

82. Every Wednesday, she would clean the upstairs floor of the home for about half an hour. The applicant would stay downstairs, caring for the complainant. The only assistance that the complainant required with toileting was after “doing a poo”. She would call out to Yvonne to wipe her. The applicant never gave that assistance.

83. On Tuesday 24 July 2018, Yvonne arrived at the home at 7:30am. She took Craig to school and then she drove with the complainant to the restaurant where she met the applicant, at about 10am. After breakfast, they returned to the home. The applicant cooked and then helped her to mop the floor. The complainant did not have a nap on either Tuesday 24 July or Wednesday 25 July 2018. On that Tuesday afternoon, the three of them went together to pick up Craig from school. She was unsure if they visited the park that day.

84. Yvonne said that on the Tuesday, the complainant did not express any pain or discomfort and she did not observe any injuries on her. Yvonne and the applicant were both still at the house when Mr Yang arrived home. Typically, they would discuss how the children were and then leave. This afternoon was no different.

85. On 25 July 2018, the Wednesday, Yvonne again attended the home before meeting the applicant at the restaurant. The three of them then returned to the home. As was typically the case on a Wednesday, she cleaned upstairs for half an hour before lunch while the applicant cared for the complainant downstairs. That was the only occasion that day that the applicant was alone with the complainant. She was unsure if they went to the park that day. Yvonne and the applicant took the complainant with them to pick up Craig from school. On the Wednesday as well, the complainant did not express any pain or discomfort and she did not observe any injuries on her.

86. The complainant’s father was the first parent to arrive home on the Wednesday. The three adults discussed the children.

87. Yvonne was asked if the complainant ever raised a concern with her about the applicant’s behaviour. She responded, “No”. The Crown prosecutor was granted leave pursuant to s 38 of the Evidence Act to ask a leading question of Yvonne about the complainant’s claim to her parents that she had told Yvonne that the applicant had done something to her. That question was as follows:

“Q. I want to suggest that [the complainant] did raise a concern about your husband’s behaviour with you, but you didn’t understand what she was saying. Is that possible?

A. INTERPRETER: No.

Q. I’m suggesting that there was some miscommunication between you and [the complainant] when she told you about her concerns about your husband? Do you agree that that is possible?

A. INTERPRETER: No.”

88. Yvonne said that Mr Yang telephoned her on the Friday and put to her what the complainant had alleged. She said that she told him that she did not believe that the applicant would do what was alleged, and it probably happened at the school. She rang the applicant after that phone call and told him what had occurred. He told her he did not know how that could have occurred.

89. In cross-examination, Yvonne was asked about her family history. She and the applicant had been married for 30 years. They had one child. They came to Australia in 1999 and became citizens in 2001. Throughout the time she worked for Mr and Ms Yang, she also worked full-time the other five days, as a cleaner in a hospital. The applicant told her that he felt sorry for her working so hard seven days a week, and for that reason helped her on the Tuesdays and Wednesdays. The applicant also worked at the home on Fridays, where he cooked meals for the family for the weekend, and cleaned. His assistance with the cooking, cleaning and hanging out the washing gave Yvonne more time with the children. The parents would put the washing in the machine and turn it on, so that all that remained to be done was to hang it out. The applicant was not paid for the help he provided.

90. Yvonne said that the applicant did not take the complainant to the park by himself. He did not shower her, dress her or assist her in her toileting. She only left the complainant with the applicant in the home while she picked up Craig if the complainant was having a nap, which she did not do on 24 or 25 July 2018.

91. Yvonne said that when Mr Yang phoned her on the Friday, she thought back to the Tuesday and Wednesday. There had been no complaint by the complainant on either day, nor had she expressed any pain or discomfort. Yvonne had not seen blood anywhere in the complainant’s bedroom, on her bedding or on her clothing. The complainant did not seem to be scared of the applicant on either day, or act differently towards him.

92. Evidence was elicited from Yvonne as to the applicant’s good character. She described him as “a very kind and nice person and he really loves to help people from his heart”.

Evidence of Detective Sergeant Barham

93. DS Barham gave evidence that the two pairs of the complainant’s underpants that were provided to police were tested for DNA. The applicant’s DNA profile was not detected, and no blood was detected.

The case for the defence

The applicant’s evidence

94. The applicant gave evidence in his trial, through an interpreter in the Cantonese language. He said that he helped with the cleaning and cooking at the home. He had never showered, dressed or undressed the complainant, or wiped her bottom after she had used the toilet. There were only two types of occasions in July 2018 when he was at the home with the complainant and not within the eyesight of his wife. One was when his wife was upstairs cleaning, and he and the complainant were downstairs, and the other was when his wife would leave the home to pick up the complainant’s brother from school, while the complainant was sleeping. The complainant “seldom” had a daytime sleep in July 2018. Before May 2018, his wife had a second job which required her to leave the house on Tuesdays and Wednesdays before the parents arrived home. He would be alone with the children on those occasions.

95. The applicant said that on Tuesday 24 July and Wednesday 25 July 2018, there was no difference in the way in which the complainant interacted with him. On neither day did she complain of any pain or discomfort. On neither day did he see her bleeding or notice any blood in her bedroom or on her bedding. He said that he had never seen the complainant’s vagina or touched her either around the vagina or on her bottom. He denied ever having put his finger inside the complainant’s vagina or in the area around her vagina. He also denied ever touching her in the area of her breasts or kissing her on the lips. He denied ever telling her to take her pants off, or saying the words “Don’t tell mum and dad”. The complainant had never told him to stop doing such things to her. He had never taken the complainant to the park without his wife.

96. In cross-examination, the applicant agreed that there were times when he had to take on the role of looking after the complainant. The applicant was asked whether, when his wife would leave the home early in order to go to her other job and he would be left looking after the children, on occasion the complainant would go to the toilet and require his assistance. He replied that his recollection was that “she never needed or required my assistance”.

97. The applicant was cross-examined about two statements that he made during the recorded phone conversation with Mr Yang in August 2018. The first was the statement: “Even when she finished peeing I asked her to wipe herself”. It was suggested to him that his comment suggested he would talk to the complainant about wiping herself after finishing on the toilet. He responded that he did not remember. The second statement was: “sometimes I took her to the park”. He responded that he had not meant that he took the complainant to the park by herself.

98. The applicant was questioned about the events of Tuesday 24 July and Wednesday 25 July 2018. He said that he was never alone with the complainant on the Tuesday. On the Wednesday, he was alone with the complainant downstairs in the lounge room for about half an hour while his wife was cleaning the upstairs of the home.

99. The allegation that the applicant had touched the complainant on her vagina and caused the injury to her was put to the applicant, which he denied.

Evidence of the applicant’s good character

100. DS Barham gave evidence that the applicant had not previously been charged with a criminal offence.

101. The daughter of the applicant and Yvonne was called to give evidence of his good character. She was aged 28 and had always lived at home. She described his behaviour with children as:

“… careful and honest with children. … He would try and communicate to the child or children if there are children around. … Like he’s really gentle around children.”

102. More generally, she described her father as “honest, gentle, faithful to the family… [and] caring”

103. A former tenant of the applicant and his wife, a 28 year old male, gave evidence that for about three and a half years from the beginning of 2016, he had rented a room in the applicant’s household. He said that, when staying in their house, he observed the applicant around children when family friends were there. He said that the applicant did not hug or carry children “because he was quite old, so I think his attitude towards children is just like any of the generation towards younger generation”. He described the applicant as “a very honest person … he loves helping people and [is] very nice to people”.

104. A family friend of the applicant, aged 47, gave evidence through an interpreter that she had known the applicant for about 20 years. She had four children, and, over those 20 years, their families had regular social contact. In about 2011 or 2012, for a period of about a year, she and her children, who were then aged from five to 11 years old, resided with the applicant and his family. She described the applicant as “a very honest person and … he likes helping people out … A very kind person”.

The trial judge’s directions to the jury

105. The trial judge’s directions to the jury included a direction as to the complainant’s reliability, as follows:

“… the Crown case has [the complainant] as an important witness. The law requires me to give you certain cautions and directions about [the complainant’s] evidence. These cautions and directions are given in every case in which they apply. They are not given in this case because I have formed any view about the evidence. I caution you that the evidence of [the complainant] may be unreliable and for that reason you must approach that evidence with considerable caution for the reasons that I will now outline.

The reasons why the evidence of [the complainant] may be unreliable are:

Firstly, the evidence in this case as to her understanding of the difference between a truth and a lie and the leading nature of some of the questions asked by the police of her in her interview about this topic.

Secondly, the evidence in this case as to whether [the complainant] agreed to tell the truth in the police interview? These are the matters that have been raised in the context of the actual questions and answers by [counsel for the applicant].

Thirdly, the evidence at the end of the police interview, as raised by [counsel for the applicant] as to whether [the complainant] had told the truth during the police interview.

Fourthly, [the complainant’s] lack of understanding that in giving evidence she was under an obligation to tell the truth. You will remember the agreed facts from this morning.

Fifthly, the limited way that [the complainant] could be challenged in cross-examination in this case.

Sixthly, the level of distraction displayed [by the complainant] during the interview with the police and in her evidence in the pre-recorded hearing. You will remember Mr Crown spoke about matters in that regard.

Seventhly, the non-responsive nature of some answers given by [the complainant] in the police interview.

When assessing [the complainant’s] evidence you must remember the cautions and directions I have given to you. If the allegation is unreliable then you cannot find beyond reasonable doubt. The Crown on the one hand says you would regard it as reliable and supported. The defence says not only is it unreliable, it is not supported. That is the essential issue in this trial that you are looking at. You will remember the cautions I have just given you in that regard.”

The application for leave to appeal against conviction

106. The application for leave to appeal relies upon particular aspects of the prosecution case which, the applicant submits, should have left the jury with a reasonable doubt. Those are as follows.

The delay in complaint

107. The injury came to light when the complainant was being showered on the evening of Thursday 26 July 2018 and reacted to the pain or discomfort occasioned by the injury, referring to her vagina as “Ouchy”.

108. Dr Garside’s evidence was that she would expect the complainant to have experienced pain and discomfort on whatever day the injury occurred, “depending on what she was doing”. She considered that urinating would have been painful with such an injury and the contortion involved with putting on a nappy could “possibly” have caused pain, “depending on how much traction was applied”.

109. The applicant submitted that, if the injury had occurred on Tuesday 24 July or Wednesday 25 July 2018, it would be logical to expect that the complainant would have complained on the evening of the injury to her parents, or they would have become aware of the injury, or the complainant would have said something, as she did on the Thursday night. However, Ms Yang was firm that there had been no complaint on the Tuesday or Wednesday and, although Mr Yang initially said he could not recall if the complainant had complained of pain or discomfort on the Tuesday or Wednesday, in cross-examination he was firm that she had not and, if she had made a complaint then, he would have told Ms Yang.

The circumstances of the complaint

110. The applicant noted the evidence to the effect that Ms Yang each month instructed the complainant in who may touch her private parts (specifying that only her parents and grandmother may do so) and the need for her to report to her parents anyone else who does so.

111. The complaint that the applicant had sexually assaulted the complainant was first made in response to a leading question that presumed that someone other than the permitted parents had touched her vaginal area and caused the injury. That question was: “Apart from Mummy, Daddy and Grandma, who else has touched your private parts?”. The complainant replied, saying “Yiyi, who wipes my bottom with tissue and Suk Suk, who touches my wee-wee with his hands, which is yucky”.

Bleeding after the penetration

112. The complainant’s account in the police interview was to the effect that there was a considerable amount of blood as a result of the injury; it was deposited on bedding, the floor, the tallboy and there was “a bit” on her clothes, including her pants. This is at odds with the parent’s evidence to the effect that they did not notice blood on any of these places on the Tuesday or Wednesday.

The complainant’s description of the penetration

113. The jury were directed that, to find the applicant guilty, the Crown was required to prove beyond reasonable doubt that on either Tuesday 24 or Wednesday 25 July 2018 the applicant penetrated the complainant’s genitalia to such an extent that he caused the injury described by Dr Garside. However, the evidence as to the terms of the complainant’s complaint in 2018 was, in some instances, that he had touched her “bum bum” or “pat pat”, being terms that Ms Yang said referred to the complainant’s bottom.

The location of the assault

114. The complainant told her parents, in the recorded conversation that took place in her bedroom on 27 July 2018, that the applicant hurt her in the lounge room and in her bedroom. Later she said that he did so outside the shower and at a park. In the police interview, she said that the assaults occurred in the lounge and in her room. She also said “At the park. Not at the park” and that the only place it happened in the house was “on the lounge”.

Other inconsistencies

115. In the police interview, the complainant’s description of Yiyi, as described in [14] above, was inconsistent with that person being Yvonne. In the same interview, she said she “farted” at the applicant to deter him. In her pre-recorded evidence, she denied that she farted at the applicant. She told police that she fought the applicant, to no avail. In her pre-recorded evidence, she denied that she fought him. She told her parents that the applicant did not shower her. During the police interview, she said that the applicant showered her “sometimes”, and three questions later, that he showered her once.

The plausibility of the complainant’s account

116. The applicant submitted that some of the complainant’s responses on significant issues were simply implausible, giving the following example from the complainant’s pre-recorded evidence:

“Q. Do you know how old you were?

A. I was only three and - and three months old when he first wiped my bottom.

Q . You were three years old and three months old when Suk Suk wiped your bottom.

A. Yes.

Q. Is there any other time that Suk Suk wiped your bottom?

A. Yeah.

Q. Can you tell me anything about any other time?

A. Well, he did wipe my bottom when I was three months old and a half.

Q. When you were three months and a half?

A. And then when I was three years old.”

The complainant’s limited competency to give evidence

117. The applicant relied upon the seven factors identified in the trial judge’s direction to the jury as to the complainant’s potential reliability, in particular, the necessary limit on cross-examination of the complainant in her pre-recorded evidence.

The medical evidence

118. The applicant pointed to the uncertainties in the foundation for Dr Garside’s opinion that the injury could have been up to five days old at the time of her examination. The original depth of the laceration was unknown and that was a determining factor in her estimation. The applicant noted that Dr Garside maintained that self-infliction was a possible cause of the injury.

Conclusion

119. In summary, the applicant submitted that all of these aspects of the evidence, when considered together, would persuade this Court that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493-494.

The respondent’s submissions

120. The respondent submitted that, although the complainant used different terminology to describe what had occurred, her visual demonstrations were consistently to the effect that she was alleging that the applicant had digitally penetrated her vagina. Those visual demonstrations were in the exhibits that comprised videos of her being questioned by her parents, by police, and in her pre-trial evidence.

121. The delay in complaint was explicable on the basis that the complainant said that the applicant told her to not tell her parents. The complaint emerged when she was being showered by her father, and Thursday evening, that is, Thursday 26 July 2018, was the first time since the Monday night that her parents had showered her. Dr Garside said that the injury would not be noticed unless one was looking for it. When her parents put the complainant’s night-time nappy on, on Tuesday and Wednesday nights, it would not necessarily have caused her discomfort; the medical evidence was that it depended on the amount of “traction” involved. The resistance by the complainant encountered by Ms Yang on the Thursday night was in the context of the complainant knowing that her mother was examining the injury.

122. The significance of the absence of blood on the complainant’s clothing and in the house depended, in part, upon how much blood would likely be produced by the injury. There was no medical evidence on that issue. The bleeding could have stopped before her pants were back on. An allowance had to be made for the complainant’s responses on that issue being given in response to leading questions as to where there could be blood. Any blood in the overnight nappy would have been disposed of with the nappy. In any event, Ms Yang said that she did not see blood on the complainant’s underpants on the Thursday night.

123. Although a leading question elicited a response from the complainant to the effect that someone other than her parents and grandma had touched her vagina, there was not a leading question as to that person’s identity. Inconsistencies as to where the touching occurred are to be understood in the context that the applicant alleged that the complainant touched her repeatedly over more than the week in question.

124. The trial judge’s direction to the jury as to the potential unreliability of the complainant’s evidence was a “strong warning”. As was observed in R v GW (2016) 258 CLR 108; [2016] HCA 6, unsworn evidence is not inherently unreliable. It was apparent from the preliminary examination of the complainant that she understood the difference between the truth and a lie.

Consideration

125. In Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, Bathurst CJ summarised the principles applicable to the determination of an unreasonable verdict ground of appeal as follows:

“84   The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]–[14], the court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492–494; [1994] HCA 63, namely that the court is required to make its own ‘independent assessment of the evidence’. 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 having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

85   As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. 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 jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice.

86   In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]–[48].”

126. In Koloamatangi v R; Popovic v R (2020) 282 A Crim R 160; [2020] NSWCCA 52, Bathurst CJ recited that passage and added, at [347]:

“In considering this question, it is also important to bear in mind the fact that the jury is the constitutional tribunal for dealing with contested issues of fact and that the setting aside of a jury verdict is a serious step not to be taken without particular regard to the advantage enjoyed by the jury: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].”

127. The reliability of the complainant’s evidence to the effect that the applicant perpetrated the vaginal injury was an essential element of the case for the prosecution. The material before the jury included three accounts by the complainant in video form that were recorded on the Friday morning and evening. If the jury accepted Yvonne’s evidence that the only time that the complainant and applicant were alone was for about half an hour on the Wednesday, that was, nevertheless, a window of opportunity for the applicant to commit the offence within the time frame that was set by the expert medical evidence as to the age of the injury.

128. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, at [39], the Court said:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (citations omitted)

129. While the complainant gave various locations for the assault within the house and elsewhere, the reliability of that aspect of her evidence has to be gauged against the background that she alleged assaults on multiple occasions. An allowance should be made for exaggeration, imprecision and imperfect memory that is consistent with the complainant’s age and does not necessarily reflect intentional fabrication. The question then becomes whether, allowing for those matters as well as the unsworn nature of her evidence and the constraints upon cross-examination, her account in support of the offence was sufficiently reliable to have satisfied the jury of the applicant’s guilt beyond reasonable doubt.

130. The applicant’s submission that, if the injury occurred on the Tuesday or Wednesday, the parents would have observed blood on the complainant’s clothing or bedding does not necessarily follow. As to the complainant’s underpants, the evidence of Ms Yang and Yvonne was that Yvonne would have done the laundry on the Wednesday. Whereas Mr Yang said that he retrieved the complainant’s underpants that she wore on the Tuesday and Wednesday from the dirty washing, the underpants worn by the complainant on at least the Tuesday would have been washed by the Thursday. In any event, Ms Yang’s evidence was that there was no blood on the underpants that the complainant was wearing on Thursday night, so at least by then the injury was not staining her underpants with blood.

131. It is apparent from the evidence of the initial complaint, which is extracted at [40] above, that at the outset the complainant was asked a question by Ms Yang that presumed that someone other than her parents and grandmother had touched her vagina. The applicant submitted that the form of the question tended to induce a response that another person had caused the injury, rather than it being self-inflicted or brought about by an inanimate object, such as from a fall. Those would have been alternative scenarios that did not involve an outside human intervention, according to the expert medical evidence. While the leading form of the question detracted from the reliability of the complainant’s response, in my view it did not eliminate its reliability.

132. The terms of the complainant’s answer, according to Ms Yang, went beyond naming the applicant. Her answer named two people and included a comment as to her physical reaction to the applicant’s touching which, in my view, is indicative of candour. That answer was: “Yiyi, who wipes my bottom with tissue and Suk Suk, who touches my wee-wee with his hands, which is yucky”.

133. In the course of that initial complaint, the complainant demonstrated the nature of the touching which, according to Ms Yang’s evidence, included the palm of the hand and “a finger into the vagina area”. The following morning, in the videoed conversation in the car, she demonstrated on her doll a sweeping palm action across the doll’s bottom and vaginal area. That evening, during the police interview, she again referred to a hand and “one finger”. She also said, “He’s poking, poking peoples” and “he nails too sharp”, by which, she confirmed, she meant that “His nails were too sharp”. In my view, these specific references to the perpetrator using a finger and having a sharp nail mitigate against the notion that her allegation that a person, other than certain permitted people, caused the injury is unreliable.

129. The complainant consistently, and without hesitation, identified the applicant as the perpetrator. There is no suggestion in the evidence that she harboured negative feelings towards the applicant, prior to her allegation. Indeed, she told police that the perpetrator was someone who she loved.

130. Other than the evidence of the complainant’s parents as to the initial complaint on the Thursday night and what she said to them the following morning before the video camera was activated, the complainant’s accounts were captured on videos which were exhibits in the trial. Accordingly, absent the jury’s assessment of the parents’ evidence in recounting the initial complaint, this Court is placed in the same position as the jury was, in assessing the complainant’s account. Having watched those exhibits, in my view, the complainant is convincing in her claim that a person had caused the injury and that the person was the applicant. That is so despite the need to approach that material with caution for the reasons that were identified in the trial judge’s direction to the jury concerning the complainant’s reliability. Having assessed all the evidence in the trial, that is, the evidence led by both parties, I am not left with a reasonable doubt as to the applicant’s guilt.

131. Accordingly, I would grant the applicant leave to appeal against conviction and I would dismiss the appeal.

Application for leave to appeal the sentence

The remarks on sentence

137. The sentence was handed down on 14 May 2021, on the same day as the sentence hearing. The applicant had been on bail since the day following his arrest until that date, being a period of almost two years and 10 months. He was aged 67 at the time of sentence.

138. The maximum penalty for an offence contrary to s 66A of the Crimes Act (“a s 66A offence”) was life imprisonment: s 66A(1) of the Crimes Act. There was a standard non-parole period of 15 years, as set out in Item 10 of the Table to s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”). The sentence imposed was 10 years, with a non-parole period of 6 years. The ratio of the non-parole period to the total sentence was thus 60 per cent.

139. The Crown tendered an agreed statement of facts, which was effectively incorporated into the remarks on sentence as an overview of the evidence in the trial. Her Honour referred to a victim impact statement that had been written by Mr and Ms Yang that described continuing psychological damage to the complainant by the offence. The sentencing judge noted that the harm caused to the complainant was, regrettably, common for such offences, which underscored the need for the sentence to reflect general deterrence. Her Honour noted that, in terms of s 21A(2)(g) of the CSP Act, the Crown did not contend that the victim impact statement was capable of establishing harm over and above that which would ordinarily be expected as a result of an offence of that type.

140. As to the objective gravity of the offence, the sentencing judge concluded that the complainant’s awareness that the offence was wrong behaviour, her recollection of what occurred and its subsequent impact on her wellbeing meant that the complainant’s age was “a more serious example of the inherent element”.

141. The sentencing judge noted the disparity in the ages of the complainant and applicant, and the fact that the offence occurred in the complainant’s home. Her Honour found that the injury constituted actual bodily harm and caused the complainant pain. It was inflicted through recklessness, rather than being deliberate. Although actual bodily harm was not an “inherent feature” of the offending, it elevated its seriousness. The offence involved a breach of trust “insofar as the victim would be from time-to-time left in the presence of [the applicant] without another adult being immediately in that presence”. The sentencing judge noted that, although the injury caused bleeding, the complainant’s account of there being “blood everywhere” was likely an exaggeration.

142. Her Honour found, to the requisite standard, that the applicant had told the complainant to not tell her parents what he had done. This elevated the seriousness of the offence, although there was no evidence of him threatening the complainant.

143. The sentencing judge found that the offence was part of a course of conduct, although that did not aggravate the offence:

“In the circumstances, I regard that evidence as being supportive of there being a course of conduct such as to deny a finding on the balance of probabilities that this was an isolated incident, but I decline to aggravate the offending by the circumstance of the touching of the breasts with the hand and the kissing of the lips insofar as I cannot say that that activity accompanied the specific offence the subject of the jury’s verdict as opposed to other matters in a more general course of conduct, noting the Crown does not rely on proving any such aggravating feature beyond reasonable doubt.”

144. As to mitigatory considerations, the sentencing judge found, pursuant to s 21A(3)(b) of the CSP Act, that the offence was not part of a planned activity. The applicant had no prior convictions and was a person of prior good character. Although the Crown did not seek to rely upon s 21A(5A) of the CSP Act, namely, that the applicant’s status had assisted him in the commission of the offence, the sentencing judge found that, as noted, his behaviour involved a breach of trust. Her Honour concluded, “In my view, it would not be appropriate additionally to deny [the applicant] the mitigation that flows from prior good character in the circumstances of this case”.

145. The evidence did not allow for a finding that the offence involved more than one act of the insertion of a finger, although it was relevant that the complainant told the applicant that she did not like what he was doing and that she did not want it.

146. The sentencing judge concluded that the objective gravity of the offence fell in the mid-range of seriousness. Her Honour found that there was no evidence relevant to the mitigation of moral culpability and moved directly to consider the evidence as to the applicant’s background, as follows:

“… [the applicant] was born in Hong Kong, being the second of four siblings. At the age of nine he moved to Shanghai with his uncle whilst his parents moved away with his other siblings. [The applicant’s] recollection is that his uncle did not know how to take care of him and instead the neighbours were called upon to assist him. [The applicant] believes he was independent from a young age.

He spoke about a history of financial hardship whilst his parents were employed in a factory during his youth. He described the quality of his relationships with his family concluding, ‘They treated me very well.’ Currently his two brothers reside in Australia. [The applicant] described a history of harsh disciplinary style upbringing by his parents where he said he was hit on his hands with tools for misconduct. There was nothing else of an abhorrent nature raised with respect to [the applicant’s] childhood.

In 1999, [the applicant] arrived in Australia with his wife and daughter to obtain a better life after [the applicant] had suffered a stroke in 1996. In terms of his educational and employment history, [the applicant] described a disrupted and limited educational history. He did not attend high school, but left school to make clothes and work due to the severe financial hardship of the family. He became a tailor. Since his arrival in Australia, he has been employed in various positions such as in tofu and noodle factories.

At the age of 65, [the applicant] retired and reports a pro-social life socialising with friends, attending church regularly and singing with friends. [The applicant] is married to the person described variously as Yvonne or Yiyi or Ms Cheung. Together they have one daughter.

[The applicant] reported close bonds, warmth and affection towards his daughter and wife and described a good relationship. He has been married to his wife for 34 years.

In terms of the psychosexual history, … under a report from psychologist Kim Dilati, it is described that [the applicant] denied the presence of any paedophilic interests towards children, prepubescent children or minors despite the current charge.

[The applicant’s] medical history was described as complicated. In 1996 as noted, [the applicant] was diagnosed with a cerebrovascular accident or stroke which was treated in Hong Kong. He denied the presence of any cognitive difficulties arising from that experience, but he did report persistent weakness on the left side of his body. It is to be noted [the applicant] still drives. [The applicant] otherwise reported suffering from a variety of medical illnesses which are corroborated by the reports ...

[The applicant] has been confirmed to have a history of cerebrovascular or CVA stroke in the right middle cerebral artery territory. It was opined by Dr Tai, GP, on 11 May 2021, that that would have a negative impact and adverse effect on his health. I do not have more detail in that regard from Dr Tai. The health summary sheet … confirms [the applicant’s] experience of CVA in 1996. It also notes he was diagnosed with hypercholesterolemia in 2002 with hypertension. [The applicant] suffers from osteoarthritis in his left knee and in 2016 was diagnosed as suffering from sleep apnoea. He has bilateral cataract condition and hyperuricemia together with spondylosis of his lumbosacral area.

The more recent report, … the letter of Dr Tai dated 13 May, identifies that for [the applicant’s] sleep apnoea, he uses a CPAP machine to assist in his sleep. It is electronically operated and is needed every night. The psychological report notes that [the applicant] otherwise regards himself as healthy and reportedly walks as a form of exercise.

With respect to [the applicant’s] psychiatric history, [the applicant] reported that in 2019 he saw a psychologist around three times following his arrest and the allegation of sexual abuse being brought forward. He reported suicidal ideation following his charges. More recently he has experienced difficulties with sleep, depressed mood, lack of interest in some activities and suicidal ideation due to financial stress and the gravity of the allegations.

He scored in the moderate range for depression and anxiety and in the average range for stress. Testing revealed a tendency to be careless and inconsistent in responding. However, it was also noted that that could be due to a language barrier. It was opined by Ms Dilati that [the applicant’s] results reflect a person with significant difficulties, anxiety related disorders, depression and suicidality. [The applicant] scored within the low range of future violence when assessed for risk of violence. It is noted that that risk is dynamic and changeable.

With respect to the psychopathy checklist revised, it was determined that [the applicant] fell within the low range, indicating he did not meet the cut off for a diagnosis of psychopathy. With respect to the assessment of risk of sexual violence, [the applicant’s] result on the Static-99 placed him in the low risk category. With respect to an assessment of his general risk of sexual violence, he was assessed within the low range, but however scored in the high degree of risk for extreme minimisation or denial of sex offences. [The applicant], as is his right, continues to deny the offence. [The applicant] presented with few risk factors of sexual violence which places him as a low to moderate case prioritisation.

In terms of current diagnosis, Ms Dilati opined that [the applicant] meets the criteria for major depressive disorder and generalised anxiety disorder which appeared to be precipitated by his charges and legal difficulties. It was further opined that [the applicant] presented with more protective factors which are likely to decrease his risk of reoffending, such as having stable accommodation, stable income, and a supportive immediate and extended family. His oldest brother is aware of his charge, but his younger brother and mother are not aware of his charge.

[The applicant] has not sought previous help for the issues which have come to light, however, it is noted that in order to reduce any potential risk factors of sexual violence and avoid an increase in mental health symptoms, [the applicant] will require psychological treatment for at least 12 months. Such treatment should focus on an exploration of resistance, denial, distorted beliefs and the presence of self-deceptive thinking processes. Ms Dilati further opined that if [the applicant] complied with the proposed treatment plan which is detailed in her report, [the applicant’s] prognosis is likely to be promising. As this is [the applicant’s] first offence, it was also opined that the likelihood of his rehabilitation is promising, provided he complies with the long-term treatment.”

147. The sentencing judge noted the efficient manner in which the defence had conducted proceedings. There had been a “focused cross-examination” of the complainant. Her Honour took into account the defence’s application for a trial by judge alone in order to avoid any adjournment due to the Covid-19 pandemic, finding that mitigation was warranted based on the applicant’s attempt to facilitate the interests of justice.

148. Although there was no evidence of remorse, the sentencing judge took into account in the applicant’s favour that during the phone call with Mr Yang, he demonstrated insight that such offending was serious and denied having done “such a terrible thing”.

149. The sentencing judge assessed the applicant’s prospects of rehabilitation as being “somewhat guarded”, since the Court was left with “no understanding as to why [the applicant] committed this offence, especially in the denial of any paedophilic interest”.

150. Her Honour found special circumstances, as follows:

“That is comprised by the circumstances that [the applicant] not only will need a period of supervised rehabilitation, but furthermore because of the experience of [the applicant] in custody with his complicated combination of physical health matters together with necessary treatment for his mental health conditions. I am of the view that his limited language skills, where he is at all time in the proceedings been assisted by a Cantonese interpreter, will mean that experience will be rendered more difficult. Clearly having never been separated from his wife over a lengthy period of marriage, he will find it very dislocating to be separated from his family.

I note [the applicant’s] advanced age. Whilst it is not of such an age as to describe [the applicant] as elderly, I do accept that the Court cannot overlook that each year of a sentence of imprisonment may represent a substantial proportion of life left to an offender when that person is in the second-half of his 60s. Furthermore, I note the decision of R v MAK [2006] 167 ACR 159 that the severity of the sentence increases exponentially as it increases in length, or at least it might be expected to do so. I accept that [the applicant] will experience custody in a more onerous way and that does contribute to the finding of special circumstances, noting also that this will be his first time in custody.”

151. The sentencing judge expressly took into account the applicant’s compliance with bail conditions over a considerable period of time and the impact of the proceedings on his mental health. This was taken into account in the applicant’s favour as a factor relevant to the reduction of both general and specific deterrence. Her Honour also took into account the hardship occasioned to his wife by his incarceration, not as a factor warranting specific mitigation but as a motivating factor for the applicant to rehabilitate. Her Honour said:

“With respect to the purposes of sentence under s.3A of the Crimes (Sentencing Procedure) Act 1999 therefore, I am of the view that from the objective circumstances, so strong would the emphasis be on general deterrence that even with the tempering by way of [the applicant’s] mental health, there is still a need to reflect general deterrence in the sentencing outcome, albeit tempered from the initial position arising from the objective circumstances. With respect to the aspect of specific deterrence, I am satisfied to some extent that has been tempered, especially in light of the assessment of his low risk of reoffending.”

152. The sentencing judge noted that the applicant did not concede that, pursuant to s 5(1) of the CSP Act, no penalty other than imprisonment was appropriate. Her Honour found otherwise, taking into account all of the relevant matters. Her Honour noted that the applicant had handed up statistical material suggesting that a custodial sentence was not inevitable, and made reference to principles identified in BT v R [2019] NSWCCA 147, observing:

“There is a need to reflect appropriately the balance of sentencing purposes under section 3A of the Crimes (Sentencing Procedure) Act 1999 as they apply in this case. I am of the view that, taking into account all of the matters and noting the rather blunt aspect of the sentencing statistics, only a custodial sentence is appropriate and that the section 5 threshold has been crossed.”

The applicant’s submissions on sentence

153. The applicant submitted that, although the sentence imposed, in isolation, might be considered within range for a case in which the objective seriousness was mid-range (for example, in BT, at [4], the sentence imposed for a case for that finding of objective seriousness was 9 years with a non-parole period of 6 years and 9 months), the objective and subjective circumstances of this case rendered a sentence of this magnitude unreasonable.

154. For the purposes of assessing the sentence imposed, favourable objective features were the single act of digital penetration in unplanned and opportunistic circumstances, unaccompanied by any overt act or suggestion of sexual gratification, occasioning a minor injury that was caused through recklessness.

155. Relevant subjective features were the applicant’s prior good character and absence of criminal convictions, his employment history and pro-social lifestyle, his non-abuse of alcohol and drugs and his long marriage and supportive family. In addition, the subjective features that render his prison experience more onerous are his advanced years at the time of sentence, his mental ill-health as a consequence of the prosecution and his conviction, his poor physical health and the consequences of his limited capacity to speak and understand English in a prison setting.

156. The applicant included in his written submissions a table of seven appeals considered by this Court involving offences contrary to s 66A of the Crimes Act, committed since 29 June 2015.

The respondent’s submissions on sentence

157. The respondent noted that the applicant does not challenge the sentencing judge’s assessment of the objective seriousness as being mid-range. It takes issue with the applicant’s assessment of the objective and subjective circumstances that the applicant submitted, nevertheless, mitigates the sentence to a point that the sentence imposed is unreasonable or unjust. As to the applicant’s submission that the unplanned and opportunistic nature of the offending mitigated the offence, the respondent relied upon R v King [2009] NSWCCA 117, at [43], in which this Court noted that: “planning or pre-meditation is not a factor that has any great significance in the evaluation of child sexual assault offences. They are usually opportunistic”. The respondent submitted that, although the applicant was sentenced for a single act of penetration, it was not on the mitigatory basis that it was an isolated act that was out of character. The sentencing judge made no finding either way as to sexual gratification. To the extent that such a finding is mitigatory, there was an onus on the applicant to establish it. No such submission was made.

157. The respondent submitted that the applicant’s subjective circumstances, namely that he is an older offender, with chronic health issues and prior good character, are frequently encountered by sentencing courts in respect of child sexual assault offences. His health issues had not left him with a disability or detracted from what the psychologist described in her report as a “prosocial life socialising with friends, attending church regularly, and singing with friends”.

158. The respondent submitted that it is of note that there were no factors that reduced the applicant’s moral culpability.

Consideration

160. The relevant principles that apply to a determination of whether a sentence is manifestly excessive were stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 by R A Hulme J, at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

161. Each of the seven comparative judgments of this Court that were advanced by the applicant involve sentences, or indicative sentences in the context of aggregate sentences, that were lesser than that imposed on the applicant. However, all of those cases involved points of disparity with the instant case that deprived them of significant utility in demonstrating that the challenged sentence was unreasonable.

162. Of the seven cases, the most leniency attached to RC v R [2020] NSWCCA 76. In that case, this Court (constituted by Hamill J, with R A Hulme and Wilson JJ agreeing), dismissed a Crown appeal against the leniency of a sentence imposed for a count contrary to s 66A of the Crimes Act following a trial. The sentence imposed was a community service order of 18 months duration. Hamill J concluded, at [235], that the sentence was manifestly inadequate and that an appropriate sentence, taking into account the period of community service that the applicant had already completed, was 3 years imprisonment with a non-parole period of 1 year. However, the Court exercised its residual discretion not to interfere with the sentence in view of the Covid-19 pandemic and the applicant’s particular vulnerability to it. That vulnerability arose due to his age (the applicant in question was aged 74 at the time of the offence and 76 at the time of sentence) and a diagnosis of a chronic bronchial condition. The age of the child at the relevant time was five years and 11 months.

163. I will refer to two other cases that were cited, by way of underscoring the inherent difficulties in seeking to demonstrate manifest excess by way of comparable cases. In Scott v R [2020] NSWCCA 81, this Court allowed an appeal against an aggregate sentence that was imposed, following convictions at trial, for three counts of indecency on a child aged under 16 years and a s 66A offence. The indicative sentence for that offence was 5 years with a non-parole period of 3 years. Hamill J, with Brereton JA and Fagan J agreeing, noted, at [140], that the sentencing judge found that each offence fell “substantially below the mid-range of objective seriousness for offences of their kind”. The victim of the s 66A offence was “not well below the statutory age of 10”. Hamill J found, at [150], that it was “an exceptional case both in terms of the objective features and the personal case of [the applicant]”. The fresh indicative sentence for the s 66A offence was 4 years with a non-parole period of 2 years.

164. The applicant also relied on BS v R [2021] NSWCCA 39, which was an application for leave to appeal against the severity of an aggregate sentence that was imposed following a trial for four sexual assault offences. The most serious of those offences was a s 66A offence, the child being seven years old. The indicative sentence for that offence was 4 years and 6 months, with a non-parole period of 2 years and 6 months. Leave to appeal was granted and the appeal was dismissed. The applicant was aged 72 at the time of the offences. The sentencing judge found that, at the time, the applicant was suffering from vascular dementia. As noted by Davies J, with whom Hoeben CJ at CL and Fagan J agreed, at [81]:

“It is apparent from the Remarks on Sentence that, as the applicant acknowledges, the factual findings and the weight to be given to various factors were generally found by the sentencing judge to be favourable to the applicant. It is clear from those Remarks that, had it not been for the causal link between the applicant’s dementia and the offending which his Honour found reduced his moral culpability, the sentence would have been higher.”

165. The maximum penalty of life imprisonment and a standard non-parole period of 15 years denote the seriousness of the commission of an offence contrary to s 66A. The applicant fell to be sentenced on the basis that he was convicted at trial. He had access to the victim, who was aged 3 years and 9 months, through the parents’ decision to trust him and his wife to care for her and carry out other domestic duties in their home. He did not have the mitigatory benefit of a finding that the assault was an isolated incident. Although the sentencing judge appropriately reduced the weight to be given to both specific and general deterrence, the latter consideration remained significant in view of the nature of the offence: EG v R [2015] NSWCCA 21 at [42].

166. This Court has frequently noted the aspect of vulnerability consequent to the victim’s age which is present in s 66A offences and the consequent need for sentencing to reflect general deterrence, denunciation and the protection of the community: R v ND [2016] NSWCCA 103 at [38]-[41]; AT v R [2020] NSWCCA 178 at [86]; R v Scavera [2016] NSWCCA 145 at [66], [67]. The sentence imposed on the applicant was not a lenient one, for a man aged 67 who has some health issues and who is suffering a degree of cultural isolation in prison. However, it followed from his denial of guilt in respect of a victim whose age was well below the maximum age for the offence, in circumstances where he had access as a trusted person to the victim’s home. The total sentence was two-thirds of the standard non-parole period and, following a finding of special circumstances, the ratio of the non-parole period to the total sentence was 60 per cent.

167. I am not persuaded that the sentence imposed was manifestly excessive.

168. Accordingly, I would grant leave to appeal the sentence but dismiss the appeal.

169. I propose the following orders:

1. With respect to the application for leave to appeal against conviction:

   1. Grant leave to appeal.

   2. Dismiss the appeal.

2. With respect to the application for leave to appeal against sentence:

   3. Grant leave to appeal.

   4. Dismiss the appeal.

   170. DHANJI J: I have had the considerable advantage of reading the judgment of Ierace J in draft.  

   171. In relation to the application for leave to appeal against the conviction, I have considered the evidence for myself, including viewing, in accordance with the invitation of the applicant, the video recordings of the complaints made by the complainant’s parents. While some of the conversation in the bedroom is in (what I understand is) Cantonese, critical parts are in English.  I note that the complainant when questioned by her parents, on occasions resisted leading questions.  For example, in conversation in the bedroom she resisted the suggestion he played with her “boobies” in a more elaborate manner demonstrated by her mother.  At times she corrected herself without prompting, notably in the car video, in relation to whether the applicant had told her not to tell anyone. Subject to these observations, the reasons of Ierace J otherwise reflect the basis on which, having considered the evidence, I do not have a reasonable doubt as to the applicant’s guilt. 

   172. In relation to the application for leave to appeal against sentence, I agree with the reasons of Ierace J.  The cases provided by the applicant demonstrate a significant range in the sentences imposed for the offence of which the applicant was convicted.  That range suggests the sentence imposed here was, as Ierace J observes, “not a lenient one”.  It does not, however, establish manifest excess.

   173. I agree with the orders proposed by Ierace J.

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Amendments

12 August 2022 - Coversheet: correction to name of Counsel

Decision last updated: 12 August 2022