Godden v The Queen - [2021] SASCA 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GODDEN v THE QUEEN
[2021] SASCA 102
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)
27 September 2021
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Appeal against conviction.
After a trial by jury, the appellant was convicted of maintaining an unlawful sexual relationship with his niece in law. The sexual acts occurred on approximately four occasions between June 2017 and September 2018, when the complainant was 10 or 11 years old. Three of the acts occurred at the appellant’s house when the complainant was being looked after by the appellant’s wife during the school holidays and one of the acts occurred during a family visit to the beach.
The prosecution case included evidence from the complainant, her mother and a complaint witness, who was a school friend of the complainant. The appellant’s mother gave evidence that around the time of the offending, the complainant became reluctant to attend the appellant’s house and told her that she did not want to go there. The prosecution submitted that the complainant started to avoid the appellant as a way of managing the situation she found herself in.
The defence case was that there was no opportunity for the offending. Related to this, the appellant gave evidence during cross-examination of a ‘policy’ that existed between him and his wife that he would not be alone with a family member. The appellant and his wife gave evidence that the policy was instigated because they did not trust the complainant. The real reason for the policy, which was not disclosed to the jury, related to earlier allegations against the appellant.
The appellant appeals against his conviction on the following grounds:
1. The trial Judge erred in his directions as to the evidence of complaint and the conduct of the complainant after and around the time of the alleged offending, including her conduct in the absence of the appellant.
4. The fair trial of the appellant miscarried due to the appellant’s evidence that he did not seek to spend time alone with the complainant and the prosecution address in relation to that evidence.
5. The fair trial of the appellant miscarried due to the procedural unfairness surrounding the manner in which questions from the jury were divulged to counsel and dealt with by the trial Judge.
6. The trial Judge erred in failing to adequately present the defence case.
7. The verdict is unsafe, unreasonable and against the weight of the evidence.
Held per Kelly P and Lovell JA (Doyle JA agreeing), granting permission to appeal on all grounds and dismissing the appeal:
1. The trial Judge adequately directed the jury about how it could and could not use the evidence of complaint.
2. Evidence as to the complainant’s anxiety and reluctance to attend the appellant’s house after or around the time of the offending was led to explain how and why the offending came to an end. The evidence was not relied on for any improper purpose and the jury could not have used the evidence in an impermissible way.
3. The appellant has not suffered any prejudice by not being able to explain the real reason for the policy.
4. The failure to produce further evidence in response to the jury questions could not have led to a miscarriage of justice.
5. It was not necessary for the trial Judge to direct the members of the jury that, in order to convict the appellant, they needed to reject his wife’s evidence. The Judge’s directions in relation to the defence case were adequate.
6. Notwithstanding the flaws in the complainant’s evidence, it was plainly open to the jury to convict the appellant.
Evidence Act 1929 (SA) s 13BA, s 34M; Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Domican v R (1991) 173 CLR 555; R v Perks (1986) 43 SASR 112; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Pell v The Queen (2020) 268 CLR 123, considered.

GODDEN v THE QUEEN
[2021] SASCA 102
Court of Appeal – Criminal: Kelly P, Lovell and Doyle JJA
KELLY P AND LOVELL JA:
Introduction

The appellant, Phillip Godden, was convicted by a jury of maintaining an unlawful sexual relationship with a child, being his niece in law. The unlawful acts were alleged to have occurred on approximately four occasions when the complainant was 10 and 11 years old. Three of the unlawful acts occurred at the appellant’s house, after the complainant was dropped off in the early hours of the morning before the appellant left for work. One of the acts allegedly occurred at a beach when two of the appellant’s children went missing.
The appellant appeals against his conviction. Seven grounds of appeal were initially advanced, however, on 25 February 2021, the appellant informed this Court that he would be pursuing grounds 1, 4, 5, 6 and 7 only. Those grounds are as follows:
1.The fair trial of the appellant miscarried and/or the trial Judge erred in his directions as to the evidence of complaint and the conduct of the complainant after and around the time of the alleged offending, including her conduct in the absence of the appellant;
4.The fair trial of the appellant miscarried due to the appellant’s evidence that he did not seek to spend time alone with the complainant and the prosecution address in relation to that evidence;
5.The fair trial of the appellant miscarried as a result of the procedural unfairness surrounding the manner in which the questions from the jury were divulged to counsel and dealt with by the trial Judge, and the inadequate jury directions given;
6.The trial Judge erred in failing to adequately present the defence case; and
7.The verdict is unsafe, unreasonable and against the weight of the evidence.
On 25 February 2021, the application for permission to appeal on the above grounds was referred to the Court of Appeal by an administrative order.
For the reasons that follow, we dismiss the appeal.
Background
Before turning to the grounds of appeal, it is necessary to set out the evidence that was before the jury in respect of both the prosecution and the defence case.
The prosecution case
The evidence of the complainant consisted of a video interview conducted on 25 September 2018, when she was 11 years old, and the evidence she gave in Court. The complainant was 13 years old at the time she gave evidence in Court on 6 October 2020.
The prosecution case was that the offending occurred on four separate occasions between June 2017 and September 2018. Three instances of offending occurred in the appellant’s house and one occasion occurred at Maslin Beach, when two of the appellant’s children went missing. The circumstances of each instance of offending, according to the prosecution, are set out below.
Offending at the appellant’s house
During the school holidays at the end of 2017 and the beginning of 2018, the complainant’s mother would take the complainant to the appellant’s house each day to be looked after by her aunt, JG, while she was at work. JG was the wife of the appellant and the sister of the complainant’s mother. The appellant and JG lived with their four children.
The complainant would get dropped off at the appellant’s house at around 7.00am each day. The complainant’s mother gave evidence that when she dropped off the complainant in the mornings, the appellant would be the only person awake. The complainant stated that she would enter the appellant’s house through the back door as the front door was usually locked.
On the prosecution case, the three instances of offending at the appellant’s house occurred during the time between the complainant being dropped off at 7.00am and the appellant leaving for work at around 8.00am each morning.
As to the first occasion, the complainant gave evidence that she was sitting on the couch in the lounge room of the appellant’s house playing games on her mobile phone. The appellant sat next to her and pulled her to him. He then touched her on her breasts and vagina, on the outside of her crop top and underwear. The appellant said, ‘Do you like it?’ and ‘Is that okay?’, to which the complainant replied, ‘No, it’s not okay.’ The complainant called out for her cousins before she stood up and the appellant stopped. There is conflicting evidence from the complainant as to the timing of this incident, however it is alleged that it occurred in either February or after April 2018.
The second occasion at the appellant’s house was said to have occurred in exactly the same way as the first occasion. The complainant stated in her interview that it occurred on the couch in the lounge room and the touching was the same. She could not say exactly when it happened.
The last instance of offending was about four to five months prior to the complainant’s interview in September 2018. The complainant gave evidence that she was sitting on the couch at the appellant’s house one morning when the appellant came up behind her and tickled her. The appellant’s children were asleep. The appellant touched the complainant on the vagina and breast area. The complainant gave evidence that, on this occasion, he touched her underneath her underwear and he rubbed her vagina. She tried to move his hands away and call out for help, however the appellant covered her mouth and grabbed her by the wrist.
Offending at Maslin Beach
On the prosecution case, the incident at Maslin Beach occurred between the first and the last occasion of sexual offending by the appellant. On this occasion, the complainant, her mother and other members of their extended family, including the appellant’s family, were at Maslin Beach, when two of the appellant’s children went missing. The complainant gave evidence that she was walking with the appellant looking for the children when they sat down for a rest. The appellant touched her breasts and vagina outside of her crop top and underwear, but under her clothing. When the complainant tried to remove the appellant’s hands, he grabbed her wrist. She then got mad and walked to where the family were.
The complainant gave evidence that this occurred in Easter 2018. However, other evidence, including the evidence of the appellant’s wife, JG, indicated that the occasion when the appellant’s children went missing was on New Year’s Day 2017.
The complainant’s conduct and anxiety
It was the prosecution case that, after the last incident, the complainant’s attitude towards going to the appellant’s house changed. The complainant gave evidence at trial that she did not want to be around the appellant after the last instance of offending and that she never spent time alone with him after that incident. This evidence was led to explain why and how the offending came to an end.
The complainant’s mother gave evidence in relation to this topic. She stated that prior to 2018, the complainant loved visiting the appellant’s house. However, in early 2018, the complainant would become upset and tearful at the thought of going to the appellant’s house and, in particular, staying the night there. On the occasions when the complainant had to stay the night or was there for an extended period of time, she would call her mother and beg to be picked up. As a result, the complainant’s mother made other arrangements for the complainant’s care during school holidays. Significantly, the complainant requested to go to after school care instead of the appellant’s house, despite evidence that she hated after school and vacation care.
The complainant was cross-examined about whether she called her mother and asked to go home when she was staying at people’s houses other than the appellant’s house. The complainant admitted that she did that on most occasions, as she suffered from ‘really bad anxiety’. Defence counsel put to the complainant that the anxiety arose from being away from her mother, and not from the appellant’s behaviour, to which the complainant replied with, ‘yes, but not all that’.
During cross-examination, the complainant’s mother agreed that towards the end of 2017 and into 2018, the complainant would call and ask to be picked up when she was at other people’s houses. As such, this behaviour did not only occur when she was at the appellant’s house.
Complaint evidence
The first person that the complainant complained to was a school friend, AC, now known as SS. She stated that one day at school, she told SS, ‘My uncle is touching me in inappropriate ways and I do not like it.’ This conversation was said to have occurred sometime after the first incident but before the last occasion. The complainant gave evidence that she did not feel like she could tell her mother what was happening.
SS gave evidence via a recorded interview pursuant to s 13BA of the Evidence Act 1929 (SA) (‘the Evidence Act’). The interview was conducted on 30 September 2020, when SS was aged 13. She gave evidence that the complainant told her that she had been sexually assaulted on more than one occasion by a male family member who physically touched her. On a later occasion, the complainant disclosed to SS that she had been touched in the breast area and ‘downstairs in her private part’. SS stated that she could not remember who inappropriately touched the complainant, but she thought it was an uncle or cousin of the complainant.
The evidence of SS was admissible to inform how the allegations came to light. The complaint evidence was also admitted for the purposes of determining consistency on the complainant’s part.
Although no complaint evidence was led from the complainant’s mother, as mentioned above, she gave evidence to support the complainant’s claim that she become averse to attending the appellant’s house.
The defence case
The appellant chose to give evidence. He agreed that the complainant spent time at his house during the school holidays and that he would wake up at 6:30am and leave the house at 8.00am. He stated that he would open the front door for the complainant in the morning. His wife, JG, and their four children would be at home and at least two of his children were ‘early risers’.
The main aspect of the defence case was that there was no opportunity for the appellant to touch the complainant sexually. JG gave evidence that she was awake in the mornings when the complainant was dropped off, that the complainant would greet her, and that the complainant came through the front door and sometimes her mother came into the house with her. Both the appellant and JG gave evidence that sound travelled easily throughout the home, that bedroom doors generally remained open and that the couch in the lounge room could be seen from the kitchen. In relation to the alleged incident at Maslin Beach, JG and the appellant gave evidence that it was New Year’s Day 2017 when the children went missing at the beach, not Easter 2018, as stated by the complainant. JG’s evidence was that the complainant did not go with the appellant to look for his children, but rather stayed with the other children at the barbecue site. Similarly, the appellant denied being alone with the complainant at all on this occasion.
Related to the defence argument that there was no opportunity to offend, there was evidence led about a ‘policy’. During cross-examination, the appellant gave evidence that he and his wife, JG, had a policy that the appellant would avoid being alone with a family member to prevent false allegations being raised against him. This policy had been in place since 2013. The appellant and JG stated that the policy was in place because they did not trust the complainant and felt that she would lie quite often. JG made particular reference to the complainant being overdramatic in the past when the appellant teased her or did not allow her to watch inappropriate television shows. The prosecution’s address in relation to this evidence, and jury questions concerning it, are the subject of ground 4 of this appeal.
In addition to leading evidence to support the lack of opportunity to commit the offending, defence counsel contended that the complainant’s evidence was unreliable, pointing to a number of inconsistencies in her evidence and inconsistencies between her evidence and the evidence of other witnesses. These inconsistencies included, but were not limited to, whether the complainant’s mother went into the appellant’s house in the mornings, which door of the appellant’s house she typically entered through, and the timing of the incident at Maslin Beach. It was also contended that it was extremely unlikely that the appellant would take the time to sexually assault the complainant whilst he and other members of the extended family were out searching for his children at the beach.
In relation to the complainant’s attendance at his house, the appellant agreed that in 2018, the complainant visited his family home less often. However, he attributed this to his wife obtaining employment and the family being busy preparing to sell their family home. He also stated that his children found it hard to tolerate the complainant and did not want her around as often. JG confirmed these contentions in her evidence, stating that she commenced working as a security officer on 1 March 2018 and they were getting the house ready for open inspections in early 2018.
We now turn to consider the five grounds of appeal advanced by the appellant in chronological order.
Ground 1 – Inadequate jury directions
The appellant’s counsel crystallised the complaint in this ground as the failure of the trial Judge to direct the jury adequately as to:
1.the permissible use of the limited complaint evidence; and
2.what was said to be the self-serving equivocal evidence from the complainant and her mother as to the complainant’s anxiety and reluctance to go to the appellant’s house after a period of time.
The need for the Judge to go further than simply direct in general terms in accordance with s 34M of the Evidence Act was said to be required, particularly in view of the way in which the prosecutor sought to deploy the evidence of SS and the complainant’s mother.
The prosecutor, it was argued, repeatedly submitted that there was support for the complainant’s evidence. The appellant pointed to the following passages of the prosecutor’s address:
The second basis for which I submit to you that her account can be accepted beyond a reasonable doubt is that her evidence was supported by other evidence in the case, and in particular that of [SS] and the mother of the complainant.
…
It’s my submission to you that the fact that she complained to [SS], a school friend, initially, that she was the first person to whom she complained, is behaviour which is consistent with what she described to you of what had happened to her and her own attitude to what was going on at the time. It’s also consistent with the fact that she didn’t feel, in the face of all of that, that she could complain to other people in her family, including her mother.
Her evidence is also supported by her mother’s account in a number of ways. You’ve heard that recently so I don’t go through that in all its detail. I suggest to you that you might simply reflect on her mother’s account of taking her there for babysitting and in circumstances where [the appellant] was the one person up in the morning times when she would drop her off there. You will also recall the mother’s clear evidence of a change in the complainant’s attitude to going to that house in 2018. That’s consistent with what the complainant told you; it’s the other side of that story. The complainant didn’t tell her mother what was happening but she simply tried to manage the situation and negotiate her way out of it.
You will recall that both [the complainant] and her mother spoke to the topic of [the complainant’s] anxiety, and in particular on the topic of [the complainant] staying away from home. Some point might be made of that by my learned friend and you must listen to all of the arguments that he makes and consider them carefully. However, it’s my submission to you that in the mix of all of that evidence they were both very clear that her change in attitude at that time was specific to going to [the appellant and his wife’s] house.

In respect of the complaint evidence of SS, counsel for the appellant made two main contentions in written submissions on the appeal.
Firstly, it was contended that the trial Judge failed to direct the jury as to the permissible use of the evidence, being that it could be used to bolster the credibility of the complainant, if the jury was satisfied that it showed consistency of conduct. In determining consistency of conduct, the appellant submitted that the jury should have been directed to have regard to any inconsistencies in the complainant’s account. Reference was made to what was described as ‘important inconsistencies’ between the account given by SS and the complainant’s account as to the timing and content of the complaint.
Secondly, it was contended that the trial Judge failed to direct the jury that the complaint evidence could only be used to show consistency of conduct or bolster credibility in relation to the alleged incidents that occurred prior to the complaint. This called into question the timing of the complaint and the ability for the evidence to relate to the other instances of offending, other than the first act.
The appellant argued that these directions were necessary, particularly in light of the manner in which the prosecution urged the jury to rely on the evidence of complaint as a basis to accept the complainant’s evidence beyond reasonable doubt.
In relation to evidence of the complainant’s anxiety and her mother’s evidence, counsel for the appellant made the following observations.
In respect of the complainant’s assertion that she did not want to go to the appellant’s house anymore, it was argued that the complainant had already agreed that she suffered from generalised anxiety and would often call her mother to pick her up when she was staying at other friends’ houses. This was confirmed by her mother. The complainant’s mother had also said in evidence that it was more inconvenient for the complainant to stay at the appellant’s house in 2018, after the complainant’s mother began working at Kent Town.
Secondly, insofar as the prosecution submitted that there was support for the complainant’s evidence from her mother ‘in a number of ways’, including the fact that the appellant was the only person awake in the mornings, her description of the complainant’s reluctance to go to the appellant’s house in 2018, and the fact that the complainant would go quietly into the house when the main bedroom door was shut, that evidence was contradicted by the appellant and his wife’s account of their morning routine. Their evidence supported the primary defence argument that there was, in fact, no opportunity for the offending as the appellant’s wife was awake when the complainant was dropped off in the mornings.
It was ultimately argued that, despite the prosecutor’s broad submission that there was support for the complainant’s evidence, there was, in fact, no support as to the happening of the necessary sexual acts.
In the appellant’s submission, this highlighted the need for the trial Judge to give specific directions to the jury that the evidence of the complainant’s anxiety and reluctance to go to the appellant’s house could not be used to support the happening of the offences. The appellant further submitted that, in the absence of such a direction, it was plainly open to the jury to impermissibly rely on that evidence.
Discussion
In evaluating this complaint, it is necessary to consider both the Judge’s directions and the way in which the prosecution in fact sought to deploy the evidence complained of. The Judge directed the jury as follows:
I now give you a direction about how you may and how you may not use the evidence of [the complainant’s] complaint to her friend [AC], who is now known as [SS], but I think it is easier if I refer to her as [A].
That was the first time that [the complainant] complained to anybody about what she says [the appellant] had done to her. Let me remind you briefly of the evidence. [The complainant] said in her interview, and you have that before you, that the first person she told was her friend [AC]. She told her on an occasion when the girls were at school. It was before the last occasion of any alleged sexual touching by [the appellant]. [The complainant] told the police officer in the interview that, on that occasion at school, she told [A] that her uncle touched her in inappropriate ways. She did not tell [A] where her uncle touched her.
[A’s] evidence is in Exhibit P5, [A’s] interview with the same police officer. [A] said that the first occasion upon which [the complainant] told her about any sexual abuse was at school on the oval. [A] said she was pretty sure that [the complainant] said it was one of her uncles or her cousins. On a later occasion or occasions the girls talked further about the alleged abuse and it was on some later occasion or occasions that [the complainant] went into a little more depth about what she said happened; that is, after the first complaint at school [the complainant] elaborated upon it telling [A] that she had been touched in the breast area and ‘downstairs in her private part’.
It is important, ladies and gentlemen, that you understand how you may and how you may not use that evidence of [the complainant’s] complaint to her school friend [A]. The evidence is before you for a couple of reasons. First, it is before you to inform you how [the complainant’s] allegations first came to light. It gives you a more complete picture of [the complainant’s] account of what she said happened to her. Secondly, the evidence of her complaint to [A] is before you so that you may judge whether [the complainant] making her complaint demonstrates a degree of consistency on her part. Do the circumstances of her making the complaint appear to you to be consistent with the occurrence of the sexual conduct, the subject of her complaint?
Ladies and gentlemen, you may not use the evidence in this way: the evidence of [the complainant’s] complaint to [A] is not evidence of the truth of what [the complainant] said to [A]. You must have regard to what [the complainant] said in her interview with the police officer and here in court for that purpose. But the evidence of what [the complainant] said to [A] is before you for the purpose I have just mentioned; namely, to demonstrate a degree of consistency of conduct on [the complainant’s] part.
The first thing to be noted is that SS’ evidence of complaint generally demonstrated a degree of consistency of conduct on the complainant’s part.
Given that the appellant was facing a charge against s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA') of maintaining an unlawful sexual relationship with a child, we do not accept that the timing of the first complaint which, on the evidence, was after the first occasion but sometime before the last occasion, matters.
In relation to the directions given as to the permissible use of the complaint evidence, it is clear that the trial Judge, after reminding the jury of SS’ evidence, directed the jury about how they could and could not use SS’ evidence. All of the directions required by s 34M of the Evidence Act were given in the orthodox way. The failure of the Judge to specifically point out that the evidence may be used to bolster the complainant’s credibility does not render the directions given inadequate.
As to the evidence of the complainant’s reluctance to attend the appellant’s house, this evidence was led in the context of the complainant explaining the circumstances in which she last saw the appellant and, while she continued to go to the appellant’s home with her mother, she never spent time alone with him again.
The complainant was cross-examined why, if that was the case, she did not try to avoid the appellant after the first three incidents. When it was put to her that she was really only anxious about being separated from her mother and that her avoidance had nothing to do with her relationship with the appellant, she responded by saying ‘yes, but not all that’.
The complainant’s mother, HM, said that she noticed that the complainant stopped wanting to stay overnight at the appellant’s house from about early 2018. HM also gave evidence that the complainant had asked her to make other arrangements in relation to her child care, which she did whenever she could.
The way in which the prosecution in fact sought to deploy this evidence was made clear by the prosecutor in her opening address. When opening the case to the jury, the prosecutor made it clear that the evidence would be that the complainant started to avoid the appellant after the last occasion as a way of trying to manage the situation that she found herself in.
The whole of this evidence was led to explain how and why the offending came to an end. In light of the appellant’s counsel’s cross-examination of the complainant suggesting she was anxious generally, that evidence was also specifically relevant to rebut any suggestion that the complainant stopped going to the appellant’s house because of her general anxiety and not because of the offending. Contrary to the appellant’s submissions, the evidence was not led as ‘distress’ evidence. It was circumstantial evidence that bore relevance to a fact in issue at trial.
The prosecutor in her closing address did refer to the offending coming to an end and proffered the different explanations of the complainant and the appellant in relation to why that was the case.
Those submissions did not erroneously rely on the complainant’s evidence for any improper purpose.
The fact that both parties relied on aspects of that evidence for their own purposes did not diminish its relevance and admissibility for the purpose sought to be deployed by the prosecution. Depending on the view the jury took of that evidence, it was capable of explaining why the complainant stopped going to the appellant’s house.
For these reasons, we do not accept that the prosecutor sought to deploy the evidence for any improper purpose beyond that permitted by s 34M. Nor do we consider that the jury may have used the evidence in an impermissible way. The purpose of the evidence was made clear by the prosecutor in both her opening and closing addresses.
This ground of appeal is dismissed.
Ground 4 – The policy
Ground 4 is a complaint that the fair trial of the appellant miscarried as a result of the appellant’s evidence that he did not seek to spend time alone with the complainant and the comments of the prosecutor in relation to that evidence.
In order to understand the basis of the complaint in ground 4, it is necessary to set out how it was that the impugned evidence came to be led and the context in which the prosecution addressed the jury about it.
During the course of cross-examination of the appellant, the following exchange occurred between the prosecutor and the appellant:
Q.And your evidence is that you would see the complainant early in the morning from time to time.
A.I would have, yes.
Q.You were alone together at that time.
A.Not particularly, no.
Q.What do you mean.
A.Well, the wife was stirring in the bed, if she wasn’t up already. The door was open. The kids were around. I would avoid spending time with her alone.
Q.You would avoid spending time with her alone.
A.Yes.
Q.Why.
A.We have always kept that as a policy with others, we - while the kids were out doing tennis, coaching for instance, there was always insistence of being more than one person around with the coaches. With [the complainant] we always had the gut feel that she would lie quite a bit and we didn’t trust her.
Q.[Mr PDG], why did you have a policy of not being alone with a family member.
A.My wife had gut feels that things weren’t quite right with [the complainant], as well as any other family member, and we just kept that in mind when we had people around. Didn’t matter whether it was [the complainant] or any other friend of the kids that were around.
Q.Your wife had gut feels about who. What did she communicate to you on that topic.
A.It’s best to be safe than sorry basically. She didn’t want me to be put in a position where I could be accused of doing something that I never did.
Q.When did she say this to you.
A.Just always been a policy. As I said, [the appellant’s daughter] did her tennis - when was that? That was - probably around 2013, somewhere around there. It has been a policy since then.
In cross-examination of the appellant’s wife, JG, the following questions were asked without objection from the appellant’s counsel:
Q.I want to ask you some questions now about a different topic. Did you have a discussion with your husband about a policy, of him not being alone with [the complainant].
A.It was a recommendation that, you know, I discussed with him, yes.
Q.Why.
A.We had issues and I just didn’t trust the situation. Like I - I’m a bit of a worry wart and I didn’t want the opportunity of something being accused of - it was a personal preservation-type concern due to some of the things that would be discussed and talked about from [the complainant].
Q.She never accused him of touching her sexually at the time that you made the policy.
A.No. Sometimes she would complain that he teased her, sometimes some of the things he said she would find too teasing and she would be offended or upset about some of the things he would say.
Q.What were those things.
A.If he particularly said that she wasn’t allowed to do something she would overdramatise that he yelled at her when he didn’t. Like if, you know, if she wanted to, you know, watch something, you know, inappropriate. Like she was obsessed with the show Pretty Little Liars or something that had come out and I thought that was way out of - like way inappropriate so he would make a comment about, you know, not being old enough and she would find offence and she would, you know, say that he was teasing her. It’s hard to describe because she was just very - she would react negatively very quickly, it didn’t take much for her to, I guess, interpret things wrong or become a bit oversensitive to things and I didn’t want him being accused of yelling at her or being mean to her or the boys being mean to her or [FG] being mean to her, you know. So we didn’t really want her alone with anyone, not just [the appellant].
Q.She had never made an accusation of [the appellant] touching her sexually at that point, had she.
A.No, she hadn’t. She had made allegations of him being mean and teasing, and that was enough for me to perhaps want some supervision.
Later, the jury specifically asked a question on that very topic, to which the Judge responded as follows:
The third is ‘What instigated having a policy in place to not have [the appellant] alone with [the complainant]? Give details/recounts’.
Well ladies and gentlemen, you have heard all of the evidence that we are going to hear on that topic and there is no evidence going to what instigated the policy other than the [appellant] having said, and I might be paraphrasing, that he and his wife had a gut feeling that she wasn’t to be trusted. I suspect that will be dealt with in counsel’s addresses. If not, in my summing up to you I will remind you of that evidence or would you prefer that I went to it now?
As foreshadowed by the Judge, both counsel referred to the topic in their addresses. The prosecutor in her address to the jury described the policy as illogical and unfathomable. The prosecutor said:
I move now to the topic of the policy between [the appellant] and his wife that avoided being alone with the complainant. The policy created in part because his wife thought he might be accused of something he didn't do.
This is illogical I submit to you in the face of his wife's evidence that he had never complained to Aunty [JG] about him having done anything in the past. It also sits against logic, and it's a matter for you, members of the jury, as to whether such a policy would be in place between family members, whether that could be brought to bear at 6.30 a.m. in a household when he is the only one up getting ready for work and she is waiting there after being dropped off for babysitting.
It's also, I suggest, quite unfathomable that there would be such a policy in place in the circumstances that the [appellant] described to you including that he was comfortable enough tickling her into her early puberty.
In his address to the jury, defence counsel said:
I say something to you about this policy of not being alone. You heard [the appellant] volunteered that and he explained his reasons why and he referred to coaching his daughter [FG] playing tennis and you might think that people putting themselves in a position like that alone with young children might well want to adopt a policy such as that to avoid precisely this type of thing happening.
The Judge, in his summing up to the jury, dealt with the issue as follows:
Well, ladies and gentlemen, [the appellant’s] case is that on no occasion has he ever touched [the complainant] sexually. He and his wife had a policy that he would avoid spending time alone with [the complainant] because [the appellant’s] wife, [JG], did not want him to be put into a position where he could be accused of doing something that he did not do. He said in his evidence that he and his wife always had a gut feel that [the complainant] would lie quite a bit. He and his wife did not trust [the complainant]. He also told us that he was fond of her and we know that he would tickle her – on his own evidence – playfully.
I am not going to repeat his evidence, but the effect of much of his evidence and of his wife’s evidence I think it was fair to say is that there was no opportunity for him to be alone with her to touch her sexually.
On appeal, counsel for the appellant relied on affidavits of defence counsel at the trial and his instructor. Both counsel then acting for the appellant and the instructor deposed to the fact that before the trial, the appellant had informed them that there was a policy in place of the appellant not being alone with the children. The policy was said to have come about at least partially due to an allegation that he had behaved inappropriately with his daughter in 2009.
Prior to the trial, the appellant had received legal advice as to the potential prejudicial effect of leading evidence of such a policy. The appellant instructed his counsel that he did not wish to put evidence of the policy before the Court or any evidence which could be regarded as discreditable conduct on his part.
On appeal, counsel for the appellant submitted that, notwithstanding that the appellant’s evidence about the policy was volunteered by him, the jury question in relation to it and the prosecutor’s subsequent reliance on it in her address, led to a miscarriage of justice.
It was submitted that the prosecutor’s questioning of the appellant on this topic and her emphasis on the policy in her closing address, was unfair in the sense that in order to establish the truth of his assertion that there was a policy, and the real reason for it, it was necessary for the appellant to disclose evidence of the prior allegations of misconduct in relation to his daughter. Disclosure of this information to the jury would have been highly prejudicial to the appellant.[1]
[1] It was on this basis that an application for a mistrial was made by the appellant. This application was refused by the trial Judge.
Discussion
Having been advised not to mention the existence of the policy, it seems clear enough from the transcript that the appellant nevertheless chose to volunteer it during the course of cross-examination.
There has been no suggestion that the prosecutor, in asking questions about the policy, at that time knew about its existence, although it seems plain enough that the prosecutor must have been aware of the earlier allegations concerning the appellant’s daughter. Indeed, counsel for the Director during the course of argument conceded as much.

As there has been no suggestion that the prosecutor was aware of the policy instigated by the appellant and his wife, we proceed to discuss this issue on the basis that there was no impropriety on the part of the prosecutor in questioning the appellant about the policy once he had raised its existence.
The question that therefore arises is whether the combination of those factors, being the fact that the appellant volunteered the evidence, the fact that the jury asked a question about it, and the fact that the prosecutor commented upon it unfavourably in her address, has led to a miscarriage of justice.
In order to answer this question, the effect of the evidence which was put before the jury needs to be carefully assessed.
During the course of cross-examination, the appellant was challenged about the policy. He gave an answer suggesting an innocent explanation for the policy, at least as far as he was concerned. That explanation was that both he and his wife were worried about the complainant’s truthfulness and that they did not trust her.
No objection was taken to the leading of this evidence at the time. Nor was any objection taken to the evidence of the appellant’s wife, which confirmed that there was such a policy and explained why.
In her closing address, the prosecutor submitted to the jury how unlikely the appellant’s explanation was in light of the appellant’s earlier close relationship with the complainant, and in light of the fact that the complainant had never made any allegation against the appellant prior to the policy being established.
In effect, the appellant complains that he has been prejudiced because to have given a complete answer to the suggestion that there was no policy, the appellant would have had to disclose the earlier allegation which led to the instigation of that policy.
That may well be so, however the evidence which was before the jury was of a policy voluntarily entered into by the appellant and his wife on account of concerns which they had about the complainant’s truthfulness. No evidence concerning the earlier allegation was ever before the jury.
In circumstances where the appellant volunteered the information in the first place for the benefit of his case, we cannot accept that he has suffered any prejudice by not being able to explain the whole truth about why he and his wife had instigated such a policy.
We dismiss this ground of appeal.
Ground 5 – Denial of procedural fairness
The appellant complains under this ground of appeal that his trial miscarried as a consequence of the procedural unfairness surrounding the manner in which the trial Judge dealt with questions from the jury and the inadequacy of the Judge’s directions to the jury in response to those questions. This ground extends beyond the jury question referenced above.
At the conclusion of the defence case, the jury asked a number of questions.
Initially, as will be seen from the transcript below, the Judge read them out to counsel with the jury present, and then responded to the questions without seeking any submissions from counsel:
HIS HONOUR:    Ms Litster and Mr Marcus, I have received the following note from the jury headed ‘Questions’. ‘1. How did the interview with the police ([the complainant]) come about; that is, who took her? 2. When did [the appellant’s wife’s] friend come over (barbecue at beach); [the appellant’s wife] said August, [the appellant] said April. 3. What instigated having a policy in place to not have [the appellant] alone with [the complainant]? Give details/recounts. 4. Yesterday, there was mention of a photo and video evidence to be presented today. No photos presented’.
Ladies and gentlemen, I will go through those one by one. The answer is probably, essentially, the same to each. And I will invite counsel to let me know if they want to make any submission, but please don’t make the submission immediately.
There is no evidence about how the interview between the police officer and [the complainant] came about or who took her there.
With respect to your second question ‘When did [the appellant’s wife’s] friend come over on the barbecue at the beach occasion?’, I think it’s correctly summarised the state of the evidence and there appears to be two different accounts. [The appellant’s wife] having said August and [the appellant] having said April.
The third is ‘What instigated having a policy in place to not have [the appellant] alone with [the complainant]? Give details/recounts’.
Well ladies and gentlemen, you have heard all of the evidence that we are going to hear on that topic and there is no evidence going to what instigated the policy other than [the appellant] having said, and I might be paraphrasing, that he and his wife had a gut feeling that she wasn’t to be trusted. I suspect that will be dealt with in counsel’s addresses. If not, in my summing up to you I will remind you of that evidence or would you prefer that I went to it now?
Lastly, ‘Yesterday, there was mention of a photo and video evidence to be presented today. No photo has been presented’.
The video evidence has been presented and screen shots have been presented. I think that’s the only photographic evidence to be presented and I think counsel must have agreed that [counsel for the appellant] would read out the Facebook messages rather than you being supplied with screen shots of them.
FOREPERSON:    We thought there was mention yesterday of a photo of [the appellant] playing on the beach with two boys.
HIS HONOUR:    Yes, there was, well it hasn’t been produced.
So that is the state of the evidence and you must decide the case on the evidence that is before you only.
After reading the questions to the jury and providing the above answers, the Judge asked counsel for the appellant if he wished to see the jury note, to which he responded in the negative.
After the prosecutor completed her closing address, counsel for the appellant then made an application for a mistrial in respect of the issues agitated in respect of ground 4.
At no point did counsel for the appellant seek to make any further submissions about the jury note, despite being invited to by the trial Judge.
In support of this ground of appeal, the appellant relied on an affidavit from trial counsel and the instructing solicitor, Ms Cousins, as to the availability of further documentary evidence which might have been adduced in response to jury question 2. In particular, counsel referred to a photograph purported to have been taken on 29 April 2018, which shows the appellant present with a number of people, including the complainant, the appellant’s wife and the appellant’s children, on the beach.
The photograph or photographs not tendered were said to be relevant to the complainant’s assertion that she did not see the appellant after the last incident. It was argued by the appellant that this photograph therefore had the ability to undermine the complainant’s credibility and reinstate the appellant’s credibility. The respondent suggested that the material may also be relevant to the discrepancy between the appellant and the complainant’s evidence as to the timing of the incident at the beach.
The affidavit of Ms Cousins demonstrates that the material referred to was in fact in the possession of the appellant all along. In no real sense could this evidence be described as fresh.
However, the critical question which needs to be addressed is whether the appellant’s fair trial was prejudiced by the failure to produce the material which was available.
After analysing the state of the evidence at the conclusion of the trial, we do not consider that the tendering of the material sought to be adduced was capable of doing any more than proving that there was an occasion when the family went to Maslin Beach in April 2018.
Notwithstanding the fact that the complainant told the police in her interview that she did not go to the appellant’s house after the last occasion, she conceded in examination in chief that after the last occasion, she did go there and there may have been other occasions when they went to the beach. In light of that concession, the tendering of yet another photograph would have been of little moment.
In these circumstances, we do not accept that the failure to produce further photographic or documentary evidence after the jury question could have led to a miscarriage of justice.
We dismiss this ground of appeal.
Ground 6 – Failure to adequately present the defence case
We turn now to consider ground 6, which is a complaint that the trial Judge failed to adequately identify the evidence of the appellant’s wife and the other evidence which supported the appellant’s evidence, in summing up to the jury.
In his summing up, the trial Judge dealt with the evidence of the appellant and his wife as follows:
I am not going to repeat [the appellant’s] evidence, but the effect of much of his evidence and of his wife’s evidence I think it was fair to say is that there was no opportunity for him to be alone with her to touch her sexually.
…
[The appellant’s] evidence, and it was also the evidence of his wife, was that the house was a noisy one and that, according to [the appellant], from the kitchen and from a position in the hallway, near the main bathroom, you could see the couch in the lounge, the couch on which [the complainant] said he abused her on the relevant occasions.
…
Ladies and gentlemen, both [the appellant] and his wife said that the date that [the appellant’s children] were missing at Maslins Beach was 1 January 2017. [The complainant’s mother] originally said it was 2018, but in cross-examination she said she could have been wrong and it could have been 2017.
Ladies and gentlemen, I am not going to repeat the evidence of [the appellant’s wife], you heard it yesterday and I am sure you will remember it.
(Emphasis added)
Significantly, with respect to the appellant’s submission that the Judge did not adequately direct the jury that in order to find the appellant guilty, they needed to reject his wife’s evidence, the Judge said:
Ladies and gentlemen, I am about to finish but before I do so, I remind you again that the burden of proof is always on the prosecution. [The appellant] put forward a defence, but he does not have to prove it. The prosecution must disprove it. Even if you reject his evidence, that is not a basis for finding [the appellant] guilty. Before you can convict him, you must be satisfied that the prosecution has proved, beyond reasonable doubt, each element of the offence. You cannot convict him if you think he is probably guilty or if you suspect that he is guilty. That is not enough. You can only convict him if you are satisfied that the prosecution has proved each element of the charge, beyond reasonable doubt.
The obligation on a trial Judge to put the defence case was accurately described in the respondent’s written submissions. What is required is that the trial Judge put the substance of the defence case to the jury and explain its bearing on the charge.[2] How far it is necessary to go must depend upon the circumstances of the case and upon the judgment of the trial Judge. It is not necessary that all arguments and pieces of evidence said to be relevant to the defence case be put. In fact, it is always possible to criticize the omission of reference to some piece of evidence or argument relevant to a defence. However, it is no part of the duty of a trial Judge to argue the case for the defence any more than it is his or her function to argue it for the prosecution.[3]
[2] Domican v R (1991) 173 CLR 555 at 560-561; R v Perks (1986) 43 SASR 112 at 116.
[3] R v Perks (1986) 43 SASR 112, 115-116; Domican v R (1991) 173 CLR 555, 560-561.
The effect of the appellant’s wife’s evidence was, as the trial Judge accurately summarised, to cast doubt on the appellant’s opportunity to offend.
Furthermore, as the Judge repeatedly reminded the jury in the paragraphs emphasised above, both the appellant and his wife gave similar evidence in respect of a number of topics.
Her evidence covered the topics of the date when she commenced work as a security officer, which was relevant to the issue of why the complainant stopped coming to their house as much, the sleeping habits of the household, including the time she, the appellant and the children would wake up, whether the doors to bedrooms would generally be open or closed, how sound travelled in the house, the complainant’s attendance and the circumstances of her arrival at the house, and the reasons for the decline in frequency of the complainant staying at the house. Her evidence also addressed the occasion at Maslin Beach when the children went missing.
Contrary to the submission of the appellant, it was not necessary for the trial Judge to have directed the jury that, in order to convict the appellant, they needed to reject his wife’s evidence. Even if the appellant’s wife was awake, or in her bedroom at the time of the offences, or if there were other reasons for the complainant ceasing to visit the house as frequently, it does not follow that the offending could not have occurred as alleged. As to the appellant’s wife’s evidence that the occasion when the children went missing was in January 2017 and not Easter 2018, the complainant had agreed in cross-examination that the touching on the beach may have occurred on a different occasion when she was at the beach with the appellant and other adults in the family.
There was no error in the Judge’s directions on this topic. It is significant that the evidence of the appellant’s wife was given immediately before closing addresses and the trial Judge delivered his directions the following morning. The Judge’s summing up on the facts was brief but balanced. Further, neither trial counsel sought any further directions on this topic.
In these circumstances, the Judge’s directions in relation to that evidence were adequate.
We turn now to the final ground of appeal, ground 7.
Ground 7 – Verdict unsafe, unreasonable and against the weight of the evidence
The appellant argues that the verdict of the jury is unsafe, unreasonable and against the weight of the evidence.
The principles to be applied in determining this ground of appeal were stated by the High Court in M v The Queen:[4]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted)
[4] (1994) 181 CLR 487, 493.
In Libke v The Queen[5] the Court, per Hayne J (with whom Gleeson CJ and Heydon J agreed) added:
[113]It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
(Citation omitted)
[5] (2007) 230 CLR 559 at [113].
More recently in Pell v The Queen,[6] the Court crystallised the issue as follows:
[39]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.
(Citation omitted)
[6] (2020) 268 CLR 123 at [39].
The appellant’s contention in respect of this ground rests on a number of features of the evidence, which the appellant’s counsel pointed to in argument.
First, she argued that the complainant’s account is implausible bearing in mind the lack of opportunity for the offending at the appellant’s home without any of the other occupants being aware. This is particularly in light of the complainant’s evidence that she yelled out to her cousins during the incidents and there being no evidence of any grooming or demonstration of sexual interest on the part of the appellant prior to the first alleged occasion. With respect to the incident at the beach, the appellant pointed to the implausibility of the fact that the appellant would take time out to sexually assault the complainant during a time when two of his children were missing and everyone was out frantically looking for them.
In addition, the appellant relied on what was said to be a number of inconsistencies between the evidence of the complainant and the evidence of other witnesses. This included the evidence of the complaint witness, SS, and the evidence of the complainant’s mother.
In particular, the appellant pointed to what was said to be a significant conflict between the evidence of the complainant, and the evidence of her mother, the appellant and his wife in relation to the alleged incident at the beach. In this respect, the appellant pointed to the fact that the complainant had said in her interview with the police that one of the sexual acts occurred when her cousins went missing at the beach, whereas the complainant’s mother said that on the occasion when the two children went missing, she asked the complainant to stay with her whilst the others searched. Similarly, the appellant gave evidence that he went looking for the children and denied that the complainant went with him. The appellant’s wife gave similar evidence.
The appellant also highlighted numerous inconsistencies between the complainant’s evidence and the evidence of her mother as to the circumstances in which they attended the appellant’s house in the mornings and whether they entered through the front door or the back door.
Finally, the appellant made reference to inconsistencies in the complainant’s evidence, including the fact that she was inconsistent as to when the incidents occurred, whether she yelled out every time and whether the last occasion occurred on a sleepover or when she was dropped off.
These inconsistencies were said to support the contention that the complainant’s evidence was unreliable.
Discussion
There is no complaint made about the trial Judge’s directions in relation to these matters.
The trial Judge pointed to many of the inconsistencies relied on by counsel and gave the following directions to the members of the jury as to the use they might make of any inconsistencies found:
Ladies and gentlemen, we have heard quite a bit, especially during counsel’s addresses about inconsistencies. So now let me say something to you about what we call inconsistent statements.
You may think that there are some inconsistencies between what [the complainant] said to Brevet Sergeant Attard in the recorded interview Exhibit P1 and what she said when she gave evidence from the witness box in the courtroom. I am going to give you just a couple of examples.
In her interview with Brevet Sergeant Attard [the complainant] said that the ‘beach incident’, as it has been called in the trial, occurred on the occasion that [the appellant’s children] were missing. [The complainant] agreed that, in a statement she made to the police a week or so ago, that she said that the touching on the beach might have happened at another time on another occasion when [the appellant] had taken her to the beach. So that is one possible example of an inconsistency.
Another is perhaps this. In her interview with Brevet Sergeant Attard [the complainant] said that she called out at each occasion that she was sexually touched at [the appellant’s] house. Here in court she said that she only called out on the first and the last of those occasions, and you will remember that she gave evidence of three occasions of sexual touching at [the appellant’s] house.
Well there are a couple of examples of what you may think are inconsistencies. You may well think that there are other inconsistencies. That is a matter for you.
Generally speaking, we expect witnesses to be consistent when they give an account of an event and if they are not consistent then we are inclined to place less weight on what the witness says.
Of course some so-called inconsistent statements might be concerned with such a trivial aspect of an incident that we would not be inclined to have any regard at all to the inconsistency. On the other hand, some inconsistencies may be so fundamental that they would entirely undermine a witness’s evidence and might cause a jury to lose any faith in the witness’s evidence at all.
It is for you to say, in this case, what impact, if any, demonstrated inconsistencies may have on your assessment of the evidence of [the complainant]. When considering possible inconsistencies, if you are satisfied that there are inconsistencies, you are entitled to take into account the circumstances in which [the complainant] made the earlier statement. That is, when she was interviewed by Brevet Sergeant Attard and you may take into account the time which passed between the alleged sexual conduct and [the complainant] giving the interview and giving her evidence here in court. You are also entitled, ladies and gentlemen, to take into account, when assessing [the complainant’s] evidence, her ages, or her age at relevant times. She was not quite 12 when she gave that interview and I am referring to the interview with Brevet Sergeant Attard, the one on disk P1, and you have a copy of the transcript. So, bear in mind her age, ladies and gentlemen.
Ladies and gentlemen, we all know that human memory is frail. We know that memories of our childhoods do become distorted, but you might think that some events in our childhoods are so significant that we do retain vivid memories of them or, at least, vivid memories of aspects of those events, that some events in our childhoods are indelibly impressed upon our memories forever even if we cannot remember the whole of the events of the surrounding detail. You should bear those matters in mind when considering any possible inconsistencies between what [the complainant] said in the interview, what she said to the police last week and what she said when she gave evidence here in court.
On the topic of inconsistent statements, I also remind you of a piece of evidence of [the complainant’s mother]. Her evidence was that, on the occasion of the beach search for [the appellant’s children], she, [the complainant’s mother], thought that [the complainant] had stayed with her, but [the complainant’s mother] went on to say that she could not remember if [the complainant] wandered again off or not. [The complainant’s mother] agreed that in the statement made to police she had said ‘I do remember that [the appellant, the appellant’s wife, the appellant’s daughter and the appellant’s wife’s stepdad] went to look for them. [The complainant] stayed with me’. When asked in evidence if that helped her to remember whether or not [the complainant] stayed with her the whole time during the search, [the complainant’s mother] said no, it did not help her; that she had asked [the complainant] to stay with her, but did not have her eyes on her the whole time. [The complainant’s mother] ended up saying ‘So I can’t affirmatively say that she was there the whole time’.

Importantly, the Judge identified for the jury early in the summing up that the prosecution case really relied upon the evidence of the complainant. The Judge directed the jury as follows:
Ladies and gentlemen, it is obvious in this case that when you are considering your verdict you will have to assess both the reliability and the credibility of the various witness, including of course [the appellant] who gave evidence. In particular you will have to assess the evidence of [the complainant]. The prosecution case turns upon her evidence and you should scrutinise it carefully.
It is apparent that the complainant was confused about dates and the timing of some of the allegations. For instance, the complainant was cross-examined extensively about the occasion at the beach. As already mentioned in this judgment, she admitted that there was some confusion on her part as to whether it had occurred on the occasion when the two cousins went missing or at some other time when she was at the beach with the appellant and the other children. There was no dispute that there were multiple occasions when the appellant and the children were at the beach together.
As to the differences between the accounts given by the complainant and her mother as to the manner of entry to the appellant’s house, the jury were entitled to evaluate those inconsistencies as immaterial. Whether the complainant went through the front door or the back door, and whether her mother came into the house every time or not, were not necessarily material to the credibility of the complainant as to the issue of whether the offending actually occurred.
Furthermore, it is to be noted that it is not unusual in cases where children give evidence for there to be differences or confusion as to the timing of events or the details of surrounding circumstances.
Indeed, one of the reasons for the enactment of s 50 of the CLCA, the offence of maintaining an unlawful sexual relationship with a child, is precisely because it is recognised that children are often unable to particularise individual incidents. For example, in the circumstances here, the fact that the only description the complainant was able to give of one of the occasions was that it happened ‘exactly like the first time’ is hardly surprising.
Moreover, as this Court has frequently recognised, it is not uncommon for offending of this type to occur in circumstances where others are present or nearby or even, at times, sleeping in the same bed. It is a feature of this type of offending that it is often opportunistic and brazen. The offending need not occur following a period of grooming and need not occur when the complainant is completely alone.
Importantly, all of the inconsistencies referred to by the appellant were before the jury. Both counsel addressed in detail about them. Indeed, defence counsel pointed to the inconsistencies and other factors in making the submission that the prosecution could not prove its case beyond reasonable doubt.
Having conducted our own independent review of the evidence, we are satisfied that notwithstanding the flaws in the complainant’s evidence, none of those defects were so powerful or compelling as to require the jury to entertain a reasonable doubt. In our view, it was plainly open to the jury to convict the appellant.
We dismiss this ground of appeal.
Conclusion
For these reasons, we grant permission to appeal on all grounds, but dismiss the appeal.
DOYLE JA: I agree with the reasons of Kelly P and Lovell JA, and the orders they have proposed.