Freeman v Director of Public Prosecutions

[2020] NSWDC 280

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Freeman v DPP [2020] NSWDC 280

Hearing dates:

25 May 2020

Date of orders:

04 June 2020

Decision date:

04 June 2020

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 125-126

Catchwords:

CRIMINAL LAW – conviction appeal – two counts of intentionally sexually touching a child – challenges to positive credibility findings of complainant influenced by assessment of her demeanour – whether credibility findings glaringly improbable or contrary to compelling inferences – whether Crown negated reasonable possibility of appellant’s innocence – requirement for assessment of evidence for separate counts

Legislation Cited:

Crimes Act 1900 (NSW), s 66DB
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
Criminal Procedure Act 1986 (NSW), ss 293A, 306U, 306Y
Evidence Act 1995 (NSW), s 18

Cases Cited:

Charara v R (2006) 164 A Crim R 39
Dyason v Butterworth [2015] NSWCA 52
Fox v Percy (2003) 214 CLR 118
Pell v The Queen [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 82

Category:

Principal judgment

Parties:

Director of Public Prosecutions
Mr A Freeman

Representation:

Counsel:
Ms Annie Gunn for the Director of Public Prosecutions
Mr E Kerkyasharian for the appellant

 

Solicitors:

  Solicitor for the Director of Public Prosecutions
Aubrey Brown Lawyers for the accused

File Number(s):

2019/144569

Publication restriction:

Non Publication Order on the name of the complainant, each of the complainants’ family members and persons connected to the complainant, or any information that may identify any of them. Pseudonyms have been used for the name of the complainant, each of the family members of the complainant and persons connected to the complainant.

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Crime

Citation:

Unreported

Date of Decision:

21 January 2020

Before:

Magistrate S Olischlager

File Number(s):

2019/144569

Judgment

INTRODUCTION

1. This is an appeal against conviction of the appellant in the Local Court of New South Wales (Wyong) on 21 January 2020. The appellant was convicted of the offences that on 4 May 2019, at Lake Haven, and on two occasions, he sexually touched the complainant, a child above the age of 10 years and under the age of 16 years, namely 14 years old, contrary to s 66DB(a) of the Crimes Act1900 (NSW).

2. The Crown case was that the complainant knew the appellant all her life. The appellant was known by her as an ‘uncle’. The appellant was related to the complainant’s father (RP). The appellant was engaged to CB. On 4 May 2019, the complainant, the appellant, RP, CB and a friend of RP’s, NKH, attended a football gala day. After the sport, the adults engaged in significant amounts of drinking. In the evening, the adults returned to RP’s home to enjoy some light snacks and entertain themselves with playing pool and listening to music. The complainant had been dropped home earlier. After 11:00pm, the complainant went to her bedroom. The Crown case was that the appellant went into her bedroom and touched her on the vagina (which was sequence 1) and then touched her on her bottom (which was sequence 2). In both cases, it was alleged that the touching occurred on the complainant’s clothing.

NATURE OF THE APPEAL

The form of the complainant’s evidence in chief

3. The appeal to this Court is brought pursuant to s 11 of the Crimes (Appeal and Review) Act2001 (NSW). The nature of the appeal is that it is one by rehearing, on the basis of the Local Court transcripts, supplemented by the exhibits tendered in the Local Court (s 18(1)).

4. In the Local Court, the complainant’s evidence in chief substantially comprised an electronically recorded interview that she gave to the police on 8 May 2019 – 4 days after the alleged incident in question. Such evidence was taken to constitute her evidence in chief and was admissible under ss 306U and 306Y (respectively) of the Criminal Procedure Act1986 (NSW). The transcript in the Local Court indicates that the DVD recording of that interview was played to the Court. The DVD was marked for identification (MFI A). There was no suggestion that I should look at the DVD on this appeal. To do so would be contrary to the orthodox practice in appeals of this kind which do not require this Court to hear and see the evidence of witnesses itself: it is not the role of this Court on review to duplicate the Magistrate’s function in assessing the credibility of witnesses.

5. A written transcript of that DVD recording of that interview was placed before the Magistrate. That written transcript of the recording was also placed before this Court in this appeal; along with the transcript of the evidence of all the other witnesses. No point has been taken in this appeal whether that written transcript of the complainant’s electronically recorded interview does not fall within the meaning of the expression “evidence given in the original Local Court proceeding” and therefore not capable of being considered by me on this appeal. It would be hard to see how an appeal against conviction in a summary trial in the Local Court of a child sex offence could be considered without it; at least where the complainant’s evidence is recorded in the way it was here. The Crown made extensive citation to the evidence in that recorded interview without objection of the appellant. I proceed on the basis that it is appropriate for me to have regard to the written transcript of the complainant’s interview.

6. In addition to the evidence of the witnesses, there was only one exhibit before the Local Court, being a sketch diagram prepared by the complainant of her bedroom where she alleged the incident occurred.

7. There was no application before me for leave to adduce fresh evidence in this appeal (s 18(2)).

Limitations on scope of review

8. For conviction appeals to this Court, reference may be made to the Magistrate’s reasons for judgment: Charara v The Queen (2006) 164 A Crim R 39, per Mason P at [23]. Indeed, the Court’s appellate function cannot be properly exercised without reference to the Magistrate’s reasons: Dyason v Butterworth [2015] NSWCA 52 per McColl JA at [27].

9. It is well understood that in this Court’s appellate function, the Court must give the judgment which it thinks should have been given in the first instance. Contrary to a submission advanced by the appellant’s Counsel, this is not an appeal de novo. In this rehearing, the Court must observe the natural limitations which exist in an appellate court proceeding wholly based on the record. These include the disadvantage that the Court has, when compared with the Local Court Magistrate, in respect of the evaluation of witnesses’ credibility and the ‘feeling’ of a case which the Court, reading the transcript, cannot fully share[1] .

   1. Charara v R (2006) 164 A Crim R 39 at [19], applying Fox v Percy (2003) 214 CLR 118 at [23].

10. Nevertheless, for appeals conducted by way of rehearing, in respect to demeanour-based credibility findings, it is well-established that the contemporaneous evidence, objectively provable facts and apparent logic of events are likely to be of greater weight than demeanour[2] . That is especially so where credibility-based findings are contrary to incontrovertible facts or uncontested testimony, or where they are glaringly improbable or contrary to compelling inferences.

    2. Fox v Perry at [30]-[31]; followed in Pell v The Queen [2020] HCA 12 at [49] (‘Pell’).

THE CROWN’S CASE

11. The Crown case consisted of evidence from the complainant, her father (RP), a female friend and former partner of her father (NKH) and the fiancée of the appellant (CB). NKH and CB were long-standing friends. It was through that friendship that NKH met the appellant. The appellant was related in some way to the complainant’s father. He had known the complainant all of her life. She referred to him as “uncle”. Often she went over to the appellant’s house as he had 5 step-children. The complainant was 14 years old at the time of the events the subject of this appeal. As at 4 May 2019, the complainant was living with her father at Lake Haven.

12. During the day, on 4 May 2019, the complainant’s father and others had been playing or spectating at football. After sharing drinks together, her father, NKH, the appellant and CB returned home in the evening. The complainant had been dropped home, at about 10:00pm, before the rest of them arrived at RP’s house about an hour later. When they came home, her father, NKH, the appellant and CB played pool and resumed their drinking.

13. The appellant had drunk heavily that day: his fiancée, CB, estimated that he had had between 10 and 12 drinks that day.

The complainant’s evidence

14. In her evidence in chief (given 4 days after the events in question) the complainant said that at about 11:15pm, 15 minutes after the group arrived home, she felt tired and wanted to go to bed. She went to say goodnight to her father, NHK, the appellant and CB. These ‘goodnights’ did not happen at the same time. She separately went to the front of the home to say goodnight to the appellant and CB at the front of the home. She recalled giving him and her hugs. She also recalled the appellant saying that he was going to come in to her bedroom to tuck her into bed and say goodnight to her; but responding that “no, there’s no need for that, it’s ok”; but the appellant insisted; so she relented. She said she went to her bedroom and closed the door, drew the blinds and turned the lights out. She went to bed in the clothes that she had been wearing during the day; being a Toukley Hawks shirt and pair of leggings. Her bed was a queen-size.

15. Later in cross-examination, the complainant drew a sketch diagram of her bedroom (Exhibit A).

16. The complainant recalled falling asleep. Under cross-examination, she said she was lying on her left side, with her stomach facing the mirror and with her right leg on top of her left. About 5 minutes later, her incipient sleep was disrupted when she heard her bedroom door open. In her interview, she said she recalled that the appellant approached from the other side. She pretended to still be asleep. She said that, feeling cold, she had snuggled herself up in the blankets. She had a doona on the top of her and a fluffy blue blanket underneath her. She recalled that the appellant lay down next to her on the bed, then got up, and then commented that she was snuggled up in her blankets, before ripping the blankets off and putting the doona over both of them. His pillow was near her pillow.

17. She recalled him asking questions of her as to how old she was and if she was “ok” if he lay in bed with her. She responded that she thought he had said that he was only going to say goodnight to her and that she was 14. She recalled him asking her whether she could look at him, but she told him that she wanted to go to sleep.

18. The complainant recalled that the appellant then touched her private areas, on top of her clothes and asked her if she felt uncomfortable about that or if she liked it. She elaborated that he “started to rub his hands against my vagina... and then he started to move it up to her bum and he just kept... rubbing”. The touching to her vagina and her anus occurred on the outside of her clothing.

19. She recalled the appellant asking her whether she liked it; to which she responded that she did not like it. She recalled telling him to stop, but he would not stop. She tried to shove his hand away, but he came back to touch, and tried to push him out of the bed. This did not work. She asked him to leave her room, but he did not do so. She decided to get up to go to the bathroom to wash her face.

20. When she finished in the bathroom, she returned to her bedroom since she wanted to return to bed. The appellant was standing at the front of the bedroom door (on the left side). She said he was on his mobile phone. The bedroom door was open. When she went in, she closed the door, but the appellant opened it, and pointed out to her that she could not sleep in the clothes she had been wearing during the day; she should get into something else. She recalled that the door was open, but he was outside the bedroom at this point. There was discussion about her dressing gown: the complainant said that she had indicated that it was in the laundry when she knew that was not true. It was in the cupboard in her bedroom. She told him it was in the laundry to get him away from her. She recalled putting it on and walking to the kitchen. The appellant walked out after her.

21. She recalled that her father and NKH were in the kitchen. CB was playing pool. She sat down and recalled that the appellant sat down next to her. She recalled being asked by them whether she was ok, or whether something had happened. She said she was fine, though she knew then that that was untrue. She recalled that the appellant wanted to talk to her privately. She said no. He asked her whether she hated him and she said “yeah”. He wanted to talk to her outside and she said no. Following this, she recalled, he walked out the front with CB.

22. The complainant took this as her cue, whilst she was in the kitchen, to ask NKH whether she could talk to her. Both of them went out the back, whilst her father remained inside. She said she told NKH that the appellant had touched her inappropriately. The complainant asked NKH not to tell her father; however NKH reported her complaint to him.

23. Her father asked her “he didn’t touch you, did he?” The complainant put her head down and said “yeah he did”. Her father went away, she thought, to speak with the appellant. Her father came back, indicated the appellant’s denial of her account.

24. NKH went to speak with her father. Her father returned and said to her that he (the appellant) “better not have touched her”, but the complainant said that he had.

25. Her father went and talked to the appellant. The appellant denied having done anything and said that she was lying. Her father demanded that the appellant leave. There followed a verbal and physical altercation between the father and the appellant. The appellant left the home, being driven by CB, and the complainant has not spoken to him since.

26. The next morning, the complainant spoke with NKH and her father again.

27. She had also spoken of the incident to her school counsellor, and another lady who apparently cared for aboriginal children.

The challenge to the complainant’s evidence

28. In cross-examination, the complainant was challenged about her account of the circumstances leading up to the offending conduct, her description of the offending conduct itself and her complaints that followed that conduct.

29. The complainant accepted that she had stayed at the appellant’s place at least twice before the events in question. She said she was happy to hear that the appellant had been engaged to CB. In terms of her relationship with her father, she accepted that she thought he was quite strict and wished that he was less strict. In the immediate lead up to what occurred in her bedroom, it was put to the complainant, but she denied, that she was angry, or in a sulky mood when her father had told her to go to bed. It was also put, but again denied, to her that it was not uncommon that the appellant might go into her bedroom to say goodnight to her.

30. The complainant was challenged as to her account of the sequence of events leading to the offensive conduct. It was suggested that she had left the lights on and her door was open. She rejected those suggestions. She was asked whether the appellant lay down on the bed first, before he ripped off the blankets, or whether the position was vice versa. She was asked why she did not scream when the blankets were ripped off. She was challenged as to what she meant when she gave her evidence in chief about being touched up top or on the bottom. After reiterating that he had touched her with his hand on her vagina (19/11/19, T 38.25), she said she pushed his hand away. Thereafter an important passage in her cross-examination (19/11/19, T 39.3), which was especially relevant to sequence 2 was as follows:

“Q. So you say in the space of about 10 seconds he said to you, ‘Can you look at me? Can you look at me?’ You said ‘No. I want to go to sleep”, right, and then he said “Are you enjoying this?” And then you said “I am feeling uncomfortable” and you pushed his hand away three times and he pushed his hand all the way through to your bottom?

A: Yes”

31. This question, viewed in context, only concerned the question of whether the appellant had touched the complainant’s bottom: the cross-examiner’s reference to the complainant’s evidence that she was feeling uncomfortable, in response to the appellant asking her whether she was enjoying this, was directed to her previous evidence that he had touched her on her vagina. Further, the reference to her giving evidence of her pushing away the appellant’s hand three times was also evidence of an event, on the complainant’s account, that had happened after she had been touched on her vagina.

32. The appellant’s version of events was then put to her: this was that the appellant had gone to the bathroom, he came into her room a little bit and, whilst she was in bed, asked her what was wrong; and that she responded that it was her trouble with her father. He assured her that everything was fine. She confided in him that she was missing her mother and wished that she lived with her. She asked him whether he would protect or look after her. After this conversation he left the room. But she called out for him. He stood at the door and asked if she was going to sleep in her football jersey. Then he left. The complainant denied all of these matters.

33. The complainant accepted that, in the course of her going into the bathroom, she could see her father and NKH in the kitchen, but she did not complain to either of them at that point. She was also challenged as to some earlier evidence in chief that, having gone into the bathroom, the reason for her to return to the bedroom was so that she could go back to bed. It was suggested that this was inconsistent with her evidence that she went back to retrieve a jumper. The complainant explained that she went back to go to bed but, seeing that the appellant was there, she fetched her jumper. She was further challenged as to the correctness of her conversation with the appellant after she returned from the bathroom. She accepted that she lied to him when she said her dressing gown was in the laundry.

34. Prior to her making complaints, the complainant was in the kitchen with her father and NKH. CB was playing pool. The appellant joined her. It was suggested that the complainant joined in with her father in making fun of NKH. She was not, at least at that point, crying. It was suggested that CB told her off for being disrespectful to NKH. It was suggested that she did not like being ‘disciplined’ by CB. It was then suggested that when she put her head down, it was then that the appellant asked if she wanted to talk to him. It was only after this exchange that she went to talk to NKH. The complainant denied these suggestions.

35. In relation to her complaints, it was suggested that the description she gave to NKH of what occurred – that she was touched up the top and on the bottom – was different to her account of what occurred, of being touched on the vagina and her bottom. In re-examination, the complainant said that she did not perceive any inconsistency: when she gave her account to NKH, she meant that she had been touched on her vagina and bottom. Asked why she was reticent or reluctant to complain to her father, the complainant said that she was scared for the appellant’s sake.

Evidence of complaint

NKH

36. NKH gave evidence that the complainant’s father asked her to go to bed, but that the complainant came out several times. NKH said that she saw the appellant walk down the hallway, in the direction of the complainant’s bedroom. That occurred not long after the complainant went to bed.

36. At the time that the complainant came out to the kitchen, NKH recalled that the appellant and CB were out the front of the home, having a smoke. She recalled that the complainant and she went out the back of the home when the complainant said that the appellant had “touched” her. More specifically, the complainant said that she had been touched “up the top and down the bottom”. Later in cross-examination, NKH said that she asked the complainant what she meant by the reference to ‘bottom’ and the complainant responded that she meant her vagina. She and the complainant hugged. NKH recalled that the father came out. The complainant told her father that the appellant had touched her.

37. NKH gave further evidence of the complaint the next morning. The complainant told her that she had been touched “up top and down the bottom”. The complainant told her that she had been asleep when the appellant went into her room.

38. NKH conveyed to CB the report that the complainant had given her of the incident.

39. There was some confusion in the evidence as to whether NKH said that she was able to see the bathroom from the kitchen. NKH accepted that she had told the police that she could not see the bathroom door.

40. In cross-examination, NKH said that when the complainant joined her and her father in the kitchen, after the time when the conduct occurred, the complainant had made a comment about her. NKH said that she did not take offence at it, but she recalled CB telling the complainant not to speak to her like that. She also accepted that she expressed the opinion to the police that she did not notice anything different about the complainant when she came out to the kitchen. She accepted, also, that the complainant appeared hesitant to tell her father as to what had occurred.

The father’s evidence

42. The complainant’s father (RP) gave evidence that when the complainant returned to the kitchen after she had gone to bed, the complainant sat on the kitchen bench and the appellant sat next to her. RP noticed the appellant trying to engage her in conversation, but the complainant did not appear to want to speak with him. RP could not actually hear what was said because the music was playing.

43. He noticed that the appellant went with CB out the front to have a smoke. It was then that the complainant got up and went to the back of the home. After a period of time, he followed them out there. He recalled seeing the complainant crying.

44. He asked her what was wrong and the complainant told her that the appellant had touched her on her private parts. He then went to the front of the house, passing CB along the way, and then confronted the appellant, asking him whether he had anything to say about the complainant. When he said “no” he went back and asked the complainant to repeat what she had said to him. The complainant reported that the appellant had gone in to her bedroom to say goodnight to her and touched her on her private parts.

45. RP referred to his having the verbal and physical altercation with the appellant, but after that, the appellant went home with CB. After that occurred, he went back to comfort the complainant.

46. RP gave evidence of further conversation with the complainant the next morning. He recalled the complainant telling him that the appellant had come in, laid down next to her and said words to the effect of “I’ll protect you”.

47. Under cross-examination, RP disputed that he had been unsuccessfully trying to get the complainant to bed and could not recall the complainant coming out to complain about the music being on. He did not consider that his daughter was afraid of him, but he accepted that he was a disciplinarian, of sorts. He accepted telling the complainant to say good night to the appellant.

48. RP said that he could see the bathroom from the kitchen. He was in and out of the kitchen playing pool (presumably nearby). He had seen the complainant go into the bathroom, but this was before she went to bed.

49. When the complainant came out, back to the kitchen, RP recalled that the appellant followed pretty quickly thereafter. He did not recall where CB was at this point. RP denied that the complainant sat next to the appellant. Asked whether he was making fun of NKH, RP said he could not recall, although he accepted that he liked to have a laugh. He did not hear the complainant making fun of NKH. Nor did he hear CB chastise the complainant for making fun of NKH.

50. RP thought that the appellant was quite drunk that night.

CB’s evidence

51. In her evidence, CB recalled the complainant coming to the front of the home to wish her and the appellant good night. She also heard the appellant say that he would tuck the complainant in; and heard the complainant say ‘ok’ in response.

52. Later in cross-examination, she said that the music was quite loud, RP had been telling the complainant to go to bed at least three times, but the complainant had complained that the music was too loud.

53. CB also confirmed that the complainant had twice stayed over at the home where she lived with the appellant; back in either January or February 2019 and again on a camping trip in April 2019. On the latter occasion, CB recalled an incident where the complainant had an argument with CB’s youngest son. CB told her off about this.

54. Turning back to the events of 4 May 2019, CB recalled going back into the home, in the kitchen area near the pool table and recalled, further, the appellant going to the bathroom. Under cross-examination, she said she thought that that was for a minute and a half: he needed to go to the toilet. She understood he was going there to tuck her in and say good night to her. She recalled that he was in there for a couple of minutes.

55. She recalled that the appellant came out and she, the appellant, RP and NKH were around the pool and kitchen area. RP and NKH were standing; she and the appellant were sitting around the kitchen bench. She recalled that, thereafter, the complainant came out and sat on the barstool next to the appellant.

56. CB recalled that RP was picking on NKH a little bit and the complainant started to mimic him. CB recalled ‘pulling’ the complainant up on this; to which the complainant, in response, crossed her arms across her chest and got a bit sulky and gave her a dirty look. CB recalled the appellant asking the complainant what was wrong.

57. CB then went out to have a cigarette. Although the transcript is not clear on this point (20/11/19, T 20.30), it appears that her evidence was that she spoke with the appellant and the appellant was asking her what was wrong with the complainant.

58. In cross-examination, CB was asked to confirm if her evidence was that the appellant was present when she told the complainant off, and if the appellant later asked her (CB) separately what was wrong with the complainant. The effect of the evidence was that this sequence was correct.

59. CB recalled RP coming out and demanded to know what the appellant had done to the complainant. When the appellant said he did not know what RP was talking about, RP accused him of touching the complainant. CB heard the appellant say that he would not do that kind of thing. He repeated that a number of times in the altercation with RP that ensued.

60. The next day, CB had a conversation with NKH, but she could not recall the detail of it.

THE APPELLANT’S CASE

61. The appellant elected to give evidence. He started by saying that he was aged 26 and took two hearing aids. He said that they were not with him on the night of 4 May.

62. He recalled that when the group came home after the football, the complainant was at home watching television. As the adults started playing pool, he recalled the complainant arguing with her father about going to bed. He noticed her going back and forth multiple times. Eventually, after he and CB went outside for a smoke, the complainant came outside to wish them good night.

63. The appellant told the complainant that he would be “in to tuck (you) in”. She went back to her bedroom and about 15 seconds later, he walked inside. He went to the bathroom to go to the toilet. He estimated being in there for two to three minutes.

64. He exited the bathroom and looked into the complainant’s bedroom. He noticed her door was still open with the light still on. He said he stood at the door; asking her whether she was okay. He explained that he did this because she thought that the complainant was upset and, further, that this was because her father had yelled at her. He asked her a couple of times whether she was okay, but she did not answer.

65. He then went into the bedroom, standing at the end of the bed. He saw her head come out of the blankets and that she was crying. He gave evidence of a conversation in the following terms:

“I said:      “What’s wrong?”

She said:   “Dad’s upset with me”

I said:   “No, he’s not. No one’s upset with you. You’re ok. Is anything else troubling (you)?

She said:   “Not really”

I said:      “Are you sure?”

She said:   “Sometimes I wish I could live with my mum … Will (you) always protect (me)?

I said:   “Yes, yes of course … All right, well we’re all going home shortly”.”

66. The appellant said that he then left the bedroom. But he recalled the complainant calling out, as he was about half way down the hallway. He went back to her bedroom and stood at the door. He saw the complainant sit up. He asked her whether she was going to sleep in her football jersey that she had been in all day. After the complainant said yes, the appellant asked her whether she had pyjamas. She responded that she had a nightie and he asked her where it was. She said it was in the laundry. He then left the bedroom and went out to the kitchen. He did not stop off in the laundry to look for the nightie. He recalled that the complainant followed him; though he did not see her get out of the bed.

67. The appellant said that he sat on the barstool in the kitchen. He was sitting next to CB. NKH and RP were sitting on the opposite side of the kitchen bench.

68. He recalled that NKH and RP were playing pool. Whilst they were doing so, the appellant recalled that RP started to make fun of NKH. He thought it was because she missed a shot. The appellant recalled NKH said something in response, and then the complainant started to mimic NKH. He recalled that whilst sitting on the kitchen bench, he asked the complainant what was wrong; but she did not say anything.

69. The appellant walked outside to the front veranda. He asked CB why the complainant had “got the shits”. He heard in Court CB’s evidence of her telling off the complainant, but said that he had not heard this at the time: the music was too loud. CB informed him that she had told the complainant off for mimicking NDH.

70. He recalled that as CB went back into the house, RP came out and accused him of touching the complainant. He told RP he denied it. He did not get into the complainant’s bed that night. Nor did he touch her vagina or bottom.

Cross-examination of the appellant

71. The appellant was challenged when he said that he had had 10 drinks during the day. It was suggested that he told hospital staff that he had had 30. He denied telling the hospital that.

72. The appellant accepted that he received the prosecution brief of evidence, containing witness statements. He accepted that he discussed the events with CB.

73. It was suggested that given the volume of alcohol he had consumed that night, his evidence of what occurred had been influenced by what his partner had told him. He disputed that.

74. The appellant was referred to his evidence acknowledging tucking the complainant in. He accepted that he did this aware of her being an adolescent girl but justified doing so because she was upset.

75. He was referred to his evidence that the complainant had come out to wish him good night. That being so, he was asked why it was necessary to go to her room to say good night to her. He reiterated that this was because she was very upset.

76. The complainant’s version of being touched by him was put to the appellant but he denied the correctness of that evidence.

77. In re-examination, the appellant explained that he had previously learnt of the complainant’s age, as he was the only relative at her birthday party that year.

78. The complainant had told the police that her birthday was a date in March.

THE MAGISTRATE’S REASONING

79. The learned Magistrate gave ex tempore reasons for conviction on day 2 of the trial. After summarising the evidence, his Honour’s found that:

1. the complainant’s account was given with a natural, confident (and not uncertain) flow. She appeared confident, young, strong willed and independent; and her evidence was immediate and responsive. She was a witness of truth;

2. the appellant gave his evidence in an adamant fashion. There was nothing in his demeanour to suggest fabrication;

3. to the extent that there were inconsistencies or variations in the complainant’s evidence as to the circumstances in which the offending occurred, these were only relatively minor and did not render her evidence unreliable;

4. the complainant’s account was not intrinsically implausible;

5. the complainant made almost immediate complaints, to NKH and then her father. The way she described those complaints was plausible. This supported her credit and reinforced the Magistrate’s impressions of her demeanour;

6. the complainant’s complaint evidence was partially corroborated by NKH and the evidence of other witnesses who saw her after the alleged offending supported her;

7. the criticisms made on the appellant’s behalf against the complainant did not, in the aggregate, indicate that the complainant had a motive to lie;

8. even on the appellant’s evidence, his admitted conduct in going to bedroom of a 14 year old girl, so as to tuck her in after she had said ‘good night’ to him before was “at least unusual”; if not also implausible and inappropriate;

9. the accused’s evidence on the issue of why the complainant was upset in the kitchen was contrary to other evidence (i.e. that of CB);

10. considering the totality of the evidence, his Honour accepted the complainant’s version of events and was satisfied that the prosecution had made out its case to the requisite standard of proof.

THE APPELLANT’S SUBMISSIONS

80. The appellant’s Counsel noted that the only evidence of the appellant touching the complainant came from the complainant – the appellant himself denied that he did so. This was, in other words, a ‘word against word’ case. In oral submissions, Counsel for the appellant noted that where there was no clear preference, based on demeanour, for preferring the complainant’s version of events over the appellant’s, this added a further layer of doubt on the Crown’s case.

81. The Crown not only had to establish that the complainant’s version was to be preferred over the appellant, but, even if it did, it still had to negate the reasonable possibility that the appellant was innocent of the offences.

82. This, the appellant submitted, the Crown could not do because the complainant’s evidence was riddled with implausibility, dishonesty and inconsistency. Individually, or in combination, the points that the appellant relied upon in his submissions meant that the complainant’s credibility or reliability was so tarnished as to create a reasonable doubt as to the appellant’s guilt. During the course of argument, Counsel accepted that there may have been good explanations that the Crown could provide in answer to each of the points raised by the appellant, but it remained the case that doubt arose through each point and, when the points were viewed in the aggregate, reasonable doubt arose.

83. These characteristics of the complainant’s evidence were said to be manifested in her:

• lying about being unwilling to go to bed and walking in and out of her room several times;

• fabricating her response to being told that the appellant was going to go to her room to bid her good night;

• alleging that the appellant had asked her about her age despite his having recently attended her birthday camping trip;

• implausibly suggesting that the touching took 5 seconds, involving her saying that on three occasions he pressed her finger into her anus;

• giving conflicting accounts as to who left the room first after the alleged assault;

• lying about making fun of NKH and being told off about it by CB; and

• fluctuation between the account of the complaint she first gave to NKH and her eventual evidence of the content of that complaint.

THE CROWN’S SUBMISSIONS

84. The Crown responded to each of these points said to cast doubt upon the credibility and reliability of the complainant.

85. As to her suggested ‘unwillingness to retire’, the Crown accepts that different accounts were given on this point, but even in respect of those witnesses who perceived such unwillingness (the appellant, CB and NKH), they disagreed as to the cause: i.e. whether it was because the complainant was concerned about loud music playing or otherwise. In her oral submissions, Madam Crown disputed any basis for the appellant’s suggestion that the complainant was ‘troubled’. At any rate, the point was, as the Magistrate had found, insignificant.

86. As to the suggested difference in the complainant’s response to the appellant indicating that he would tuck her in, this was a difference only in language; and not the substance in the complainant’s recollection.

87. The Crown further submitted that the circumstance that the complainant did not scream or appear shocked when he ripped off the blanket was not implausible in the context of the close and familiar relationship she had with the appellant.

88. As to her evidence that the appellant asked her about her age, the Crown submitted that it was not implausible that he would do so even if the appellant had known her all his life and had attended her birthday about 3 months before at the Lemon Tree Passage.

89. As to the account of how the touching occurred, the Crown noted that the complainant’s time estimate as to when the misconduct occurred was not given in her evidence in chief but under cross-examination. At any rate, her ability to estimate timeframes had to be assessed in the context of her account of her being touched. If that account was accepted, it would have meant that she would have been in a traumatic state of mind. If the complainant had turned her mind to the question and given an estimate, that itself was likely to be attacked as unreliable. The Crown endorsed what the learned Magistrate had said about a witness’ capacity to measure time was a very subjective matter.

90. As to the suggested inconsistency in her accounts about her intentions of going back into the bedroom after going to the bathroom and the appellant’s movements, although she said that she intended to go to sleep, she changed her mind when she saw the appellant at the door and conjured a reason (the nightie being in the laundry) for why the appellant might move from the bedroom.

91. In relation to her conduct after the touching, where some witnesses had asserted that she had mimicked NKH, although there was evidence against her version, not much turned upon it. NKH could not recall when CB reprimanded the complainant. Madam Crown indicated, in oral submissions, that NKH’s evidence was that she did not feel mocked.

92. As to the appellant’s attacks on the complaint evidence, it was erroneous to say that the complainant was dishonest when refusing to accept that her evidence of being touched “up the top and down the bottom” was different to her version of being touched on both the vagina and her anus. NKH’s interpretation as to what she meant was irrelevant.

93. Generally, the Crown submitted that I should reject the criticisms and find that the complainant was a witness of truth. That being so, the Crown contended that its case in respect to sequences 1 and 2 were established beyond reasonable doubt.

CONSIDERATION

Applicable principles

94. My task on this appeal is to consider whether, on the evidence before him and with the stated limitations on review, the learned Magistrate wrongly convicted the appellant of the two offences.

94. In this case, the Crown’s case depended upon the learned Magistrate’s acceptance of the complainant’s version of events, which was given 4 days after the alleged incident in question; albeit a version tested in cross-examination at the trial 6 months later. In order to fortify the complainant’s credibility and also to enhance the likelihood of her version of events, the Crown also relied upon her complaint evidence, to her father and NKH, on the same evening of the incident. The Magistrate was obliged to consider the accused’s evidence, as well as that of the other witness (CB [3] ) as part of his overall assessment.

    3. At the trial, and as the spouse to the appellant, CB acknowledged her right to object to give evidence as a witness called by the prosecution (Evidence Act 1995 (NSW), s 18(2)), but she waived that right.

95. The learned Magistrate’s reasons plainly indicated that his Honour placed significance on the demeanour of both the complainant and the appellant. The Magistrate was at a clear advantage when forming views of the credibility and reliability of the witnesses. I have noted that the Magistrate gave his decision, ex tempore, after hearing over a day and a half’s testimony. The impressions he formed of the witnesses clearly would have been fresh in his Honour’s mind when he made his decision. Further, not every consideration that was relied upon by the learned Magistrate could necessarily be stated.

96. Certain additional fundamental principles relevant to the adjudication of a person’s guilt in criminal trials are applicable in guiding me in my determination of this appeal:

• the Crown’s burden was to prove the factual elements of the offences beyond reasonable doubt – not necessarily every detailed fact recalled by the complainant, or the other witnesses;

• the trier of fact had to consider each sequence separately, with reference to the evidence relevant to each count. It was not appropriate to take a global approach and reason that because the appellant was guilty or not guilty of one offence, he was guilty or not guilty of the other;

• it was not necessary for the complainant’s evidence to be corroborated for the Magistrate to determine the appellant’s guilt;

• if the appellant’s version of what occurred was accepted, that would mean his acquittal of the offences. But even if the complainant’s version of what occurred was preferred to the appellant’s version, this did not conclude the issue of his guilt: it remained incumbent upon the Crown to prove, beyond reasonable doubt, that the appellant’s version should be rejected as reasonably possible;

• if the Magistrate accepted the complainant’s evidence as credible and reliable, it would have been erroneous for him to consider all the other evidence simply for the purpose of confirming that the complainant’s account was correct[4] . On the premise that he regarded the complainant as credible and reliable, it remained incumbent upon the learned Magistrate to have regard to the evidence as a whole, which evidence might reveal inconsistencies, discrepancies or other inadequacies in the complainant’s version of events, or other evidence, and which might thereby indicate reasonable doubt of the appellant’s guilt, notwithstanding acceptance of the complainant’s credibility and reliability[5] ;

• if the accused had been tried on indictment, a Judge would have been entitled to inform the jury that if there were differences in account between what the complainant said in her evidence in chief and cross-examination which may be relevant to her truthfulness or reliability, such differences may be explicable in light of experience which shows that (a) people may not recall all the details of a sexual offence or may not describe a sexual offence in the same way each time; (b) trauma may affect people differently, including how they recall events; (c) it is common for there to be differences in accounts of sexual offences and; (d) truthful and untruthful accounts of a sexual offence may contain differences and that, in the light of that experience, it was a matter for the jury to determine whether such differences were important in assessing the complainant’s truthfulness and reliability, per s 293A of the Criminal Procedure Act. If it is open for a jury to reason in this way, I see no reason why I cannot reason in a similar way. On a rehearing, with the constraints I have referred to, I am also required to make my own assessment of the facts and am expected to bring to that assessment my own ‘experience’; and

• where, as here, there were multiple counts, if I was to set aside the conviction on one of the two charges, particularly because of a concern of the reliability of the complainant’s evidence, I would need to carefully consider how that conclusion could affect consideration of the other charge[6] .

Was the complainant’s account inherently implausible?

4. Pell at [46].

5. Pell at [39].

6. R v Markuleski (2001) 52 NSWLR 82.

98. Ordinarily, the idea that a family relative, with no prior past history of abuse towards this child, would go into the room of a 14 year old in a home occupied by family relatives, who were entertaining themselves in another part of the house, and sexually touch her, would appear objectively improbable.

99. But the appellant, who had consumed such a considerable amount of alcohol during the day as to call into question his capacity to recall what had occurred at all, gave what the learned Magistrate described, objectively, as “unusual” evidence accepting that (a) he did go into the complainant’s bedroom on (b) the declared basis that he would “tuck (her) in to bed” and/or (c) intended to “say good night to” a 14 year old female adolescent whom had already taken the trouble to go outside and wish him and CB good night not long before.

100. I will return to the point of the appellant tucking in the complainant further below, but in my opinion, the appellant’s admission as to these circumstances gave some cogency to the complainant’s account of the lead up to the alleged offending and, by doing so, also enhanced, to some degree, the credibility and reliability of her account as to what followed. The admissions, in effect, placed the appellant in the complainant’s room – there was no doubt that he had the opportunity to engage in the offending conduct.

The plausibility of the appellant’s evidence

101. It was open to the Magistrate to prefer the complainant’s version and reject the appellant’s explanation that the reason for his doing so was his apprehension that she was upset with her father, a stern disciplinarian, was missing, or that she preferred to be with her mother and/or sought his protection.

102. The ‘upset’ with the father, in the circumstances, appeared to be exaggerated. At its highest, the evidence disclosed a dispute, possibly argument, between RP and the complainant: he wanted her to go sleep; she complained about the volume of the music impeding her from doing so. No ‘discipline’ was being imposed: there were no threats of what RP might do if she did not go to bed. It was open to the Magistrate to prefer, for example, NKH’s evidence rejecting the proposition that RP was “angry” with her, but was merely asking her to go to bed.

103. Similarly, there was no exploration as to what the complainant might want her ‘uncle’s’ protection from or what form of protection that might take.

104. Nothing was put to the complainant about the closeness of the complainant’s connection with her mother or the regularity with which she saw her. There was simply no contact between them for reasons unexplained.

105. As I read the transcript of the evidence, as the Crown’s solicitor advocate had put to him, much of the appellant’s evidence smacked of reconstruction; in the light of his having had access to the prosecution brief of evidence and the benefit of discussions with CB about the events that had occurred that night.

106. It was therefore open to the learned Magistrate to prefer the version of events given by the complainant over the appellant’s version and to consider the latter’s version of events as not reasonably possible.

107. Perhaps recognising these difficulties in the appellant’s account, in this appeal, his Counsel has centred his challenges squarely upon the credibility and reliability of the complainant’s evidence.

The Magistrate’s acceptance of the complainant as a witness of credit

108. This Court must accord respect to the learned Magistrate’s finding as to the complainant’s demeanour when she gave evidence (and his similar demeanour findings in relation to the appellant). At any rate, in this appeal by way of rehearing, the Court is not bound by credibility-based findings of witnesses when faced with matters which, individually, or in combination, might result in a concern about the reliability, or accuracy, of the complainant’s recollections.

109. As explained, the complaint evidence was capable of being regarded by the Magistrate as evidence assisting, in the sense of confirming, the reliability of the account of the complainant being touched by the appellant as well as her credibility generally. When combined with the Magistrate’s assessment of her demeanour, in my view it was open for the Magistrate to find that the complainant was a witness of credit. Absent incontrovertible facts, or compelling evidence to the contrary, the Court is naturally reluctant to interfere with credit-based findings.

110. Notwithstanding this last conclusion, it was not enough for the Magistrate to reason to the appellant’s guilt in relation to both sequences on the basis of: (a) accepting that the complainant was a witness of credit; and (b) preferring her account of what had occurred to the account of the appellant.

The reliability of the complainant’s evidence

111. Going through the points specifically adverted to by the appellant in his Counsel’s submissions, I do not accept that a difference in account as between witnesses as her coming back into the kitchen to complain about the sound of the music and having an argument with her father about her going to bed meant that she was, as the appellant submitted, ‘lying’. It was open to the Magistrate to consider, and I agree, that this was a minor background or contextual detail. Its real significance was to aid the appellant’s case that the complainant was made so angry or sulky by her father repeatedly telling her to go to bed as to make the appellant think that the complainant needed her ‘protection’. The learned Magistrate implicitly found that there was nothing that the complainant said or did which reasonably or actually conveyed to the appellant that such ‘protection’ might take the form of his joining the appellant under her doona: the complainant impressed his Honour as being a “confident, young person”. In other words, his Honour’s finding was affected by a positive view he took of her demeanour. I do not consider the debate as to her mood in going to bed as evidence capable of disturbing that view.

112. There is, in my view, nothing in the appellant’s submission about discrepancies in the complainant’s evidence about whether or not the complainant had indicated that it was ‘ok’ for the appellant to come and tuck her in. Although there was a difference in language, the meaning was clear: she did not want the appellant to tuck her in. The probative value of the evidence was in the appellant’s evidence of his making the suggestion in the first place. It placed the appellant in the bedroom for a purpose (tucking her in), contrary to the complainant’s wishes. The appellant’s Counsel argued that whether this evidence was, as the learned Magistrate found, “unusual” or “implausible” depended upon the nature of the relationship. Counsel noted also that though the appellant’s declaration as to his intention to do this was foreshadowed in front of his fiancée, the fiancée was not challenged and there was no suggestion by the Crown to any of the witnesses that the appellant was engaging in any impropriety simply if, if his account was accepted, he was only intending to tuck the complainant in. Counsel argued that because of special, or what I might describe as subjective circumstances, it was reasonably possible that the conduct of his going in to tuck the complainant into bed was perfectly proper. But this was all speculative in the absence of an evidentiary platform in the appellant’s case as to what the relationship included.

113. I do not perceive material inconsistency in the complainant’s accounts as to her intentions when she exited the bathroom. I agree with the Crown that it was plausible that, having left the bathroom, it was her initial intention to go back to the bedroom but that, seeing the appellant standing at the door, she might say something in an attempt to encourage him to move away; even if that something was false.

114. Even if I was to accept that the complainant had mimicked NKH after the conduct of which she complained, that does not, by itself, manifest a lack of concern in the complainant as to what the appellant had done; and therefore undermined her credibility. Children who are victims of sexual offences may act in a variety of ways which, to a mature adult, may appear curious or strange. It is open to consider that, at least for an initial period of time, the complainant was trying to hold things together; at least whilst the appellant remained in her home. Mimicking NKH over a trivial matter about her missing a shot at pool was one, ostentatious, way of doing that. But even if such conduct might be viewed as curious or an atypical response to being touched by the appellant, there was the countervailing evidence of the complainant’s complaint to NKH and her father. Though there was challenge as to the content of that complaint, which I will return to in a moment, there was no suggestion put to NKH, or the complainant’s father, when they were (respectively) cross-examined, that they were fabricating the evidence that she had complained to them.

115. In relation to the challenge to the content of the complainant’s complaint to NKH, from the perspective of NKH, and even viewed objectively, there may have been ambiguity in the way that the complainant had described that she had been touched. But the circumstance that NKH had understood that the complainant was referring to her breast, or breasts, when reporting that she was touched ‘up the top’ was irrelevant. Even if the complainant meant different things on the subject of being touched ‘up top’ when she complained to NKH and when she gave evidence, when weighing the evidence of the complaining about having complaint, there may have been good reasons for the complainant to provide a less than completely accurate account in her complaint to NKH. NKH was the first person she complained to. The complainant had been, but was no longer in, a relationship with her mother. The evidence did not disclose an especially close relationship with NKH, such that it might be expected that she might naturally confide, in a fulsome way, what had happened to her. She chose to confide in her first, rather than her father, and it is open to infer that this may have been attributable to the dynamics of their relationship. It is open to infer that it may have been a very traumatic, if not difficult, thing for the complainant to disclose to NKH what the fiancée to NKH’s long-standing friend, CB, what she said the appellant had done to her.

116. This brings me to the last point of the appellant’s account of the circumstances constituting the touching. There were two related facets to the appellant’s critique of the evidence. The first was time. As the Crown points out, in her evidence in chief, the complainant was not asked about time. But in my view, even if the Crown did not object to it, the mode of suggestive questioning in her cross-examination as to the phases of time in which events occurred was confusing. At the transcript (19/11/19) at page 36-37, it was apparently suggested that the process of the complainant pushing the appellant’s hands away after he laid down next to her, was 5 seconds. Then it was suggested (19/11/19, T 37-38) that the period of time between the appellant ripping off the sheets and lying on the bed was 10 seconds. Then, in the passage that the appellant placed emphasis upon (19/11/19, T 39), it was suggested there was a period of 10 seconds between the appellant’s question (“Can you look at me?”) and his touching of her bottom.

117. If all this was confusing to me, it would, I expect have been confusing to the complainant as well. At any rate, it is well open to find that the complainant was not likely to be able to accurately recall the timeframe in the circumstances and, further, if she purported to give an accurate recollection of the timeframe, such evidence would intrinsically have likely been unreliable. To a degree, it is open to reject her evidence of the timeframe during which the touching occurred, whilst accepting that the touching had occurred in the manner she described.

118. If the complainant’s account was accepted, then the offending occurred in a furtive manner: there was not only a risk of the complainant crying out; there was probably also a risk of the appellant being detected by the other adults, such as if one of them had gone to the bathroom. I say this on the assumption that the appellant was sufficiently cognisant of what he was doing; as well as a consciousness of the risks. He had much to drink that day. But the assumption is reasonable. None of the adult witnesses gave evidence to indicate that, because of intoxication, he had manifestly appeared incapacitated in a cognitive sense.

119. That being so, the period from which the appellant went into her room until they both left to return to the kitchen (factoring in, also, the period that the complainant went to the bathroom) would have likely have been measured, at most, in only a few minutes. The timeframe for the touching itself would have been less than that; measured more in seconds. Whether it was 10 or 50 seconds, it would have been very hard for the complainant to accurately recall; even when she gave her evidence.

120. The second aspect was the complainant’s account of the offending. The reliability of the complainant’s account of what occurred is affected by timing. Her evidence under cross-examination was that she was sleeping on her side. The sequence she described was that the appellant touched her vagina first (A 128 in the record of interview); then the appellant asked her if she was enjoying that, or whether she felt uncomfortable (A 116). Her account was that he then moved his hand towards her bottom. But she also said that she was pushing his hand away, at least three times. As I read her account, she was still in a side-on position.

121. In a context where the touching occurred: (a) within an indeterminate period, but probably measured in seconds, (b) in a furtive fashion against the risk of detection; and (c) against the resistance of the complainant’s hands, lying in a side on position, in my opinion there is a reasonable doubt whether the appellant touched the complainant’s bottom. Once the appellant had been informed that the complainant did not enjoy his touching her, or did not feel comfortable with him doing so, this verbal indication, as well as her physical resistance (by pushing his hand away three times), there is a reasonable possibility that he would then have unsuccessful in touching her bottom; notwithstanding any attempt by him to do so.

122. In my opinion, the learned Magistrate erred by reasoning from (a) a general acceptance of the complainant’s credit, (b) his being influenced by her demeanour, augmented by her complaints and (c) a preference for her account over the appellant, towards a global approach of assessing the two alleged offences, without conducting a discrete assessment of the evidence for each alleged offence. In doing so, there was the risk, which materialised, that because the Magistrate found that the appellant was guilty of one offence, he reasoned that he was also guilty of the other. This is, in my view, an instance where this Court, engaged in rehearing, may legitimately intervene to overturn credit-based findings. I find that in relation to sequence 2, there is a reasonable doubt as to whether the appellant engaged in the offending conduct. That being so, his conviction on sequence 2 should be set aside.

111. With this conclusion in mind, the question is whether conviction for sequence 1 can be sustained. In my view, it can. Whilst a doubt about the reliability of a complainant’s account of one offence can cause the trier of fact to pause to consider the reliability of the complainant’s account of the other offence, that does not automatically translate to reasonable doubt.

112. It was open to the Magistrate to consider that the complainant was both credible and reliable in her evidence of being touched on the vagina. As I have noted, taking into account the learned Magistrate’s findings about the complainant’s credibility and reliability, based partly upon his assessment of her demeanour, the matters which the appellant relies upon, with the single exception I have indicated, do not render her account glaringly improbable or contrary to compelling inferences as to warrant this Court’s intervention in relation to sequence 1.

ORDERS

125. I order that the conviction for the offence in sequence 2 be set aside. The appeal against the conviction for the offence in sequence 1 is dismissed.

126. The severity appeal hearing is set down for 10:00am on 25 June 2020. The hearing will be conducted by the virtual courtroom.

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Endnotes

Amendments

10 June 2020 - Correction of minor typo.

Decision last updated: 10 June 2020