CJG v Regina
[2007] NSWCCA 190
•4 July 2007
New South Wales
Court of Criminal Appeal
CITATION: CJG v Regina [2007] NSWCCA 190 HEARING DATE(S): 14 June 2007
JUDGMENT DATE:
4 July 2007JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 34 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - COUNTS CHARGING SEXUAL INTERCOURSE WITHOUT CONSENT AND INDECENT ASSAULT - CONVICTION ON COUNTS CHARGING INDECENT ASSAULT - APPEAL AGAINST CONVICTION - PARTICULAR ADVANTAGES OF JURY INCLUDING VIDEO OF 9 YEAR OLD COMPLAINANT DESCRIBING EVENTS GIVING RISE TO CHARGES - VIDEO NO LONGER AVAILABLE - SINGLE GROUND OF APPEAL ALLEGING VERDICTS OF GUILTY UNREASONABLE - NO INCONSISTENCY IN JURY VERDICTS DEMONSTRATED - SUBMISSION THAT CREDIBILITY OF COMPLAINANT CHILD FATALLY FLAWED REJECTED LEGISLATION CITED: Crimes Act 1900 CASES CITED: M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 196 CLR 348
R v Markuleski (2001) 52 NSWLR 82
Regina v NZ (2005) 63 NSWLR 628PARTIES: CJG v Regina FILE NUMBER(S): CCA 2007/694 COUNSEL: B. Rigg (Appellant)
J. Dwyer (Respondent/Crown)SOLICITORS: Meehan Legal (Appellant)
S. Kavanagh (Respondent/Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3316 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 22/12/04
2007/694
Wednesday 4 July 2007HODGSON JA
GROVE J
SIMPSON J
Judgment
1 HODGSON JA: I agree with Grove J.
2 GROVE J: This is an appeal concerning three counts of an indictment upon which the appellant was convicted following trial before Maguire DCJ and a jury at Campbelltown District Court in August 2004. Sentences imposed by his Honour have expired and the appeal challenges conviction only.
3 The indictment contained eleven counts, two of which pleaded alternatives (counts 6 and 11). Counts 1, 2, 3, 6, 7, 9 and 11 charged sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. The alternative to count 6 charged aggravated indecent assault contrary to s 61M(2) of that Act and the alternative to count 11 charged attempted sexual intercourse with a child under ten years contrary to s 66B. Counts 4, 5, 8, and 10 charged aggravated indecent assault making allegations similar to that comprehended in the alternative charged under count 6.
4 The appellant was found guilty on count 5, on the alternative to count 6 and on count 10, that is on three counts, each charging aggravated indecent assault. He was found not guilty on all other counts.
5 All offences were alleged to have taken place between 11 April and 17 June 2003 in residential premises. These belonged to the complainant’s grandfather and, inter alia, consisted of six bedrooms which were located on upper and lower floors. One bedroom on the upper floor to which was attached an en suite bathroom was occupied by the grandfather and, from time to time, a lady friend of his. Another bedroom on that level was occupied by the complainant’s mother and father and a third bedroom by her four year old brother. The complainant, then aged nine years, occupied a bedroom on the lower floor and, from about November 2002, the appellant, who was a cousin of the complainant’s mother, occupied another bedroom on that lower floor.
6 A bathroom was located on the lower floor which was used by all the occupants with the exception of the grandfather and his friend who had access to the en suite facilities.
7 The bulk of the complainant’s evidence in chief was presented to the jury by the playing of a video interview of her by an officer of the Department of Community Services made on 26 June 2003. The recording was an exhibit in the proceedings which were heard prior to the decision of this Court in Regina v NZ (2005) 63 NSWLR 628. No complaint is made about the admission of the tape into evidence. That tape is no longer available and could not be viewed by this Court and we have been limited to reading a transcript of the interview.
8 It is convenient to mention a further advantage which the jury had and that is that they requested and were taken for a view of the premises. No plan of the premises was tendered but some rough sketches were made by witnesses. There was evidence that there was a defect in the door to the bathroom and that it could not be kept closed. Its juxtaposition with the bedrooms of the appellant and the complainant was canvassed and it can easily be understood why the jury may have considered it desirable to inspect the situation.
9 The challenge to convictions is made on a single ground that they were unreasonable and cannot be supported having regard to the evidence. The approach to be adopted by this Court when such a ground is raised is well established and does not require recapitulation: M v The Queen (1994) 181 CLR 487. The argument by the appellant also touched upon asserted inconsistency between the verdicts of guilty and the verdicts of not guilty on various counts. Again, the principles guiding the approach to be taken are the subject of clear authority: Mackenzie v The Queen (1996) 196 CLR 348. In written submissions on behalf of the appellant it was conceded that the learned trial judge gave the jury a strong direction “as to taking a doubt as to one count in considering the other counts”: R v Markuleski (2001) 52 NSWLR 82.
10 The complainant’s evidence was that the events giving rise to counts 1 to 6 occurred when the appellant entered her room. She located them by reference to the Easter Show in 2003 nominating the night before the visit as the occasion relating to counts 1 and 2, the night of the visit to the Show to counts 3 and 4 and the night following that to counts 5 and 6. She also spoke of other occasions of sexual interference but these were not the subject of charge. All of the other offences charged were described as having taken place in the appellant’s room.
11 In regard to location it should be noted that the evidence was that the appellant, at the urging of the children, frequently engaged in games with them, considerable parts of which took place in his bedroom. The games included hide and seek, and what was described as “blanket roller” which involved rolling the complainant in a blanket whilst she lay on the appellant’s bed and then carrying her and tossing her onto her own bed. The blanket was apparently sometimes also used as a cover in games of hide and seek.
12 It needs to be borne in mind that the descriptions of the alleged offences emanated from a nine year old child. The matter was initially raised by her approaching her mother on Sunday 16 June 2003 when she complained that the appellant had been looking at her while she was in the shower. The mother spoke to the appellant who denied so doing and said he had just been cleaning his room. That there was a defect preventing the bathroom door being securely closed was not a matter of dispute. The next morning, the complainant again spoke to her mother and said that she had not been lying on the previous day and that the appellant had been touching her. In her terms she asserted that he had been touching her “rudey” (vagina). In answer to enquiry she said that the appellant put his hand inside her pants to do so and had done other things described in terms like “he put his tongue on my rudey, sucked on my nipples, played with my bum and stuck his tongue in my mouth”.
13 The appellant was confronted by the mother and she ordered him out of the house. Her evidence was that he originally denied any wrongdoing but when she rejected his protest he acknowledged that he “did it” but did not go too far. He said that he put his fingers in the complainant’s vagina. The mother took the complainant and her brother from the house and directed the appellant to be gone by the time she returned. He complied, taking his belongings with him. Other family members later spoke to the complainant and the following day a report was made to police. Shortly thereafter the interview which became a substantial part of the complainant’s evidence in chief took place.
14 I do not find it necessary to describe the detail of the alleged conduct of the appellant which constituted the charges. It is conceded by counsel for the appellant that, as a matter of law, there is evidence to sustain the counts upon which the appellant was found guilty. That concession is plainly correct.
15 The essential thrust of the challenge on appeal was directed to a demonstration that the credibility of the complainant was so damaged that it would be unsafe to rely upon her testimony which inculpated the appellant. Neither, it was argued, would it be safe to give weight to the admission alleged by the complainant’s mother to have been made by the appellant.
16 It was contended that the credibility of the complainant was undermined by a series of matters and I shall advert to them in the terms in which they were presented. It was submitted that there was no plausible explanation for the delay in complaint.
17 The probable date of the trip to the Easter Show was established as Thursday 23 April and the first incident was said to have occurred on the preceding day. When interviewed on 26 June, the complainant said “He has done it for two months. And I also got too scared to tell my mum, ‘cause, he said, if you tell Mummy I’m going to hate you forever, and that’s all I can remember”. There is a notable coordination between that estimate of two months and the elapsed time between the visit to the Show and the interview.
18 It is necessary to repeat that the jury had a considerable advantage in being able to assess the complainant’s assertions as they saw her make them as depicted on the video. For my part, I find nothing implausible about the reluctance of a child to raise matters of intimacy. It is obvious that she enjoyed participating in the games with her brother and the appellant and it would be scarcely surprising if she was confused by the ambiguity of the appellant’s behaviour, on the one hand as a games companion, and on the other, in his abusive actions upon her.
19 The observation that the complainant was forthright on other occasions does not demonstrate that reticence about these happenings manifests a lack of credibility.
20 The submissions of the appellant refer to the contradiction of the complainant by her mother concerning an occasion of her being exposed to pornography. Although the matter was not extensively explored, it appears that her father kept some material of that nature and she was aware of it being there. Towards the end of the interview (the transcript records questions numbered from 662 onwards) the complainant mentioned that the appellant “Pulled out his rude magazines and his movies” and put them on. She described seeing a naked man and woman and, it appears from the transcript that she gave some demonstration as she said “like that”. She added that once before it had happened (showing a rude video) and her mother had yelled at the appellant and told him never to do that again.
21 The complainant’s mother did not agree with her description of the latter incident insofar it concerned the appellant but she testified that such an incident had happened concerning another male cousin named Brett. The apparent error of identity by the complainant can be accepted but it is not a matter which is, to my mind, fatal to her overall credibility. It appears that such an incident did take place and the error occurred towards what was the end of a very long interview. It was stated by counsel that the video showed that the complainant had a relatively short attention span and she tended to wander from the topic under discussion. A reading of the transcript confirms counsel’s observation.
22 If anything, the contradiction between the complainant and her mother offers some support to the latter’s testimony. The colourful language which she used to dismiss the appellant from the household strongly implied anger towards him for what he was reported to have done but nevertheless she refrained from corroborating the evidence of her daughter on this issue which she would, I expect, have understood could inculpate him. Some criticism was made of the vagueness of the mother’s evidence about what was said from time to time but I gained the impression that it was the mother’s view that her action in ejecting the appellant from the house was self evident demonstration of what had occurred and she regarded the detail of any exchange of words as subsidiary or irrelevant.
23 The fortification of her credibility offered by her declining to corroborate her daughter is not without significance when one comes to consider her allegation that the appellant had, in brief terms, admitted his offending to her.
24 After the report to the police, the complainant was submitted to medical examination. It is common ground that the medical evidence was neutral in the sense of inculpating the appellant, but it may in fact have been of assistance to him in that the doctor detected an anal fissure which could have been caused by a number of things, including infection, constipation, dermatological conditions or even worm infestation. Count 11 was based upon an alleged act of anal penetration or alternatively an attempt so to do, and the complainant agreed that she had not made this complaint until after she learned of the doctor’s finding of the fissure.
25 That late addition of complaint may itself explain the reluctance of the jury to convict on the count but the harbouring of such a doubt does not necessarily translate into a destruction of the credit of the complainant.
26 On this and on the counts alleging sexual intercourse, it is apparent from a question sent by the jury to the trial judge that they were concerned about the concept of requirement that there be proof of penetration. Their deliberations may also have been complicated by trying to apply the notion of penetration to those counts where the allegation was the perpetration of cunnilingus. His Honour did not distinguish those counts when he gave instructions concerning the extent of penetration necessary to sustain a charge of sexual intercourse without consent.
27 The jury note read:
- “In your summary you detailed the difference between sexual intercourse and indecent assault. Can you clarify whether touching vagina is sexual intercourse or only indecent assault or is penetration required?”
28 It is noteworthy that in unprompted descriptions, the complainant expressed herself in terms such as saying the appellant had been “rubbing my rudey”. It is true that, when pressed for detail, in a way which I do not suggest was inappropriate for seeking information from a child about such matters, she spoke of his fingers being “inside” but it is reasonable to infer that the high standard of proof required may have been regarded by the jury as having been reached only to the extent of the spontaneous description.
29 If one accepts that proposition, no point would be served in making an item by item comparison or contrast between counts which resulted in acquittal or counts resulted in conviction.
30 Whilst analysis can detect discrepancies in the detail of the complainant’s testimony, the ultimate question requires focus upon the counts upon which the appellant was convicted. There was ample description by the complainant that the appellant was rubbing her nipples (count 5), rubbing her “rudey” (alternative to count 6) and licking her breasts (count 10) occasions upon which the indictment charged indecent assault. In the circumstances abovementioned there is reason for concluding that the evidence of the complainant’s mother concerning the admission by the appellant was reliable. Neither should it escape notice that the appellant, having had communicated to him the cause for his expulsion from the house, offered no resistance nor did he seek to delay his departure.
31 It was not argued by the appellant that the verdicts of guilty were incapable of being consistent with the verdicts of not guilty but it was submitted that the latter verdicts conveyed a doubt about the credibility of the complainant’s testimony. It is open to perception that the jury, when considering those counts, accorded to the appellant the benefit of doubt whenever they thought imperfection might have been revealed.
32 On examination of the transcript of the interview and the evidence at trial, I am unpersuaded that the verdicts of guilty were unreasonable and that the jury ought to have acquitted the appellant on the three counts above identified.
33 I would dismiss the appeal against conviction.
34 SIMPSON J: I agree with Grove J.
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