Gray v The Queen

[2020] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gray v R [2020] NSWCCA 240

Hearing dates:

23 July 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Before:

Hoeben CJ at CL at [1]
Johnson J at [2]
Lonergan J at [3]

Decision:

(1) Leave to appeal on ground 1 is refused.

(2) Leave to appeal on ground 2 is granted, but the appeal is dismissed.

(3) Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), an order is made that the applicant’s sentence should recommence on 24 September 2020.

(4) For the purpose of s 18(2) of the Criminal Appeal Act, the Court notes that the period between 2 April 2020 and 23 September 2020 does not count as part of the sentence of imprisonment imposed on 9 October 2019.

(5) As a result of the alterations referred to in [149] to [151], the non-parole period will now expire on 18 April 2021 and the sentence will expire on 18 October 2022.

(6) The earliest date on which the applicant will be eligible for release on parole is 18 April 2021.

(7) The making of these orders confirms the resumption of the sentence imposed in the District Court on 9 October 2019 including the order under s 19 of the Children (Criminal Proceedings) Act that the sentence be served in a detention centre and not a correctional centre for the reasons provided by Haesler SC DCJ as set out at [151].

Catchwords:

CRIMINAL LAW — appeal against conviction — whether miscarriage of justice occasioned by admission of evidence of the complainant — whether complainant competent to give evidence

CRIMINAL LAW — appeal against conviction — whether evidence capable of supporting guilty verdict

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Appeal Rules (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

AZ v R [2018] NSWCCA 294

Hamilton (a pseudonym) v R [2020] NSWCCA 80

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12

R v Basha (1989) 39 A Crim R 337

R v Gray [2019] NSWDC 550

Texts Cited:

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Category:

Principal judgment

Parties:

John Gray (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
C Wasley (Applicant)
B Baker (Respondent)

Solicitors:
Legal Aid Commission (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/359952

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 July 2019

Before:

Haesler SC DCJ

File Number(s):

2017/359952

Judgment

1. HOEBEN CJ at CL: I agree with Lonergan J and the orders which she proposes.

2. JOHNSON J: I agree with Lonergan J.

3. LONERGAN J: On 26 July 2019, following a trial before Haesler SC DCJ and a jury of eleven, the applicant, known in these proceedings as John Gray, was found guilty of an offence contrary to s 66A(1) of the Crimes Act 1900 (NSW), in that he engaged in sexual intercourse with a child under the age of 10 years, between 9 October and 26 November 2017. He was 16 years old at the time of the offending and the victim, known in the proceedings as “Jane”, was 5 years old.

4. The applicant now seeks leave to appeal his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

5. The applicant is the older brother of Jane. The Crown case was that whilst babysitting Jane, the applicant penetrated Jane’s anus with a vibrator (count 1) and masturbated towards her (count 2). The applicant was convicted of count 1, but acquitted of count 2.

6. The applicant appeals against his conviction on two grounds:

1. That a miscarriage of justice was occasioned by the admission of the evidence of the complainant. In particular, the applicant contends that the complainant’s evidence should have been excluded because the complainant was not competent to give evidence; and

2. That the verdict of the jury on count 1 is unreasonable and cannot be supported having regard to the evidence.

7. There was no appeal from the sentence fixed by Haesler SC DCJ: R v Gray [2019] NSWDC 550. His Honour made an order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that there were special circumstances justifying the applicant’s detention as a juvenile offender, despite being aged 18 at the time of sentence. His Honour’s reasons for doing so are set out in [37]-[38] of the remarks on sentence.

8. Because neither ground of appeal raises a question of law alone, the applicant requires leave under s 5 of the Criminal Appeal Act. Further, as counsel for the applicant did not contend that Jane was not competent to give evidence at trial, the applicant also requires leave under r 4 of the Criminal Appeal Rules (NSW).

9. Although expressed as two separate grounds of appeal, it is apparent from the oral and written submissions provided by counsel for the applicant that the grounds are interrelated and that ground 2 is heavily based on what was described by counsel for the applicant to be the “unsatisfactory quality and nature” of the evidence given by Jane, as well as its unreliability.

10. The Crown submits that the applicant has not established either ground of appeal and so the application for leave should be dismissed.

Factual background

11. At the time of the offending, both the applicant and Jane lived with their mother, known in these proceedings as Ms Gray.

12. Ms Gray commenced work with an organisation in July 2017. Her work involved different shifts on different days, sometimes involving her attending work at short notice. She arranged for various people to babysit Jane when she was not at home. On approximately five occasions between October 2017 and November 2017, the applicant babysat Jane whilst Ms Gray was at work.

(i) The complaint by Jane to Ms Gray – 26 November 2017

13. On Sunday 26 November 2017, Jane and her mother had been out shopping. In the car on the way home Ms Gray told Jane that the applicant was coming home and that he would be babysitting her. Jane then volunteered that the applicant had “hurt her” and that he had “put a pink thing in [her] bum”. Ms Gray then asked Jane “What do you mean? What pink thing?”. Jane said “It goes around and around”. Ms Gray asked Jane if she could show it to her when they got home.

14. Ms Gray explained in her evidence that Jane used to call her vagina her “bottom” and that at the time Jane disclosed this information, when asked where he put the pink thing, she pointed towards her vagina.

15. When they arrived home Ms Gray asked Jane if she could show her where the “pink thing” was. Jane went into the laundry to a cupboard underneath the sink and started pulling everything out. Having looked through it, she said “It’s not here”. Ms Gray asked Jane what they did and where they went, and Jane said “[the applicant’s] bed”. She asked whether it was in the applicant’s room and Jane said “In the shed”. Ms Gray asked “What did you do now” and Jane pointed to the door of the shed and said “We go in there”. Ms Gray then asked “What do you do now” and Jane said “We sit on the bed”. Jane went into the shed and sat on the daybed which is in the shed. Ms Gray asked “Then what happens?” and Jane said “The applicant pulls down my pants and he pulls down my undies”. At that point Ms Gray felt she just could not hear any more and went inside to get a drink. She did not ask Jane any further questions about what had happened with the applicant.

16. Ms Gray reported the incident to police at 9:00pm that night and the following day took Jane to be interviewed by police. Ms Gray was not present for the interview.

(ii) The first JIRT interview – 28 November 2017

17. Jane was interviewed by Detective Senior Constable Piggott of the Joint Investigation Response Team (JIRT). Jane confirmed that the applicant was her brother and that she lived at home with her mother and the applicant. She was asked questions about the applicant and whether there was anything about the applicant that she did not like. She said “no”. She was asked “Did something happen with you and with [the applicant]?”. She said “No”.

18. Jane was then asked “Did you tell mummy that the applicant hurt you?” Jane responded “Yeah but he keeps putting that pink thing in my bottom”. When asked where her bottom was, Jane pointed to her anus. She was asked whether she said anything to the applicant when he did that. Jane said “Yeah I say stop”, but [the applicant] says “I’ll keep doing it to you”. Jane said that the applicant got the pink thing from the laundry. She said it was “big, and stripey and round” and that it “turns on”, and that when it is turned on “it feels bumpy”.

19. Jane said that her mother was at work when the applicant had the pink thing. She said that she was in the applicant’s room when this happened. Jane was asked what the applicant does with her clothes when he uses the pink thing. Jane replied “He puts.. he puts my pants down”. Jane said that when he was finished, he put the pink thing back in the laundry. She said it happened “a short time ago” and that her mother was at work when it happened. Jane said that this happened in the applicant’s room. He was on his bed. Jane said that the applicant had his clothes off and Jane could see his bottom. Jane said “He’s got that long thing and he squeeze it”. Jane described the long thing as “His long tail”. She said that the long tail was at the front and that the applicant squeezed the long tail with his hands. (This incident was the subject of count 2. The applicant was acquitted of this count).

(iii) The search at the home – 28 November 2017

20. Following the interview the police attended Ms Gray’s house. They searched the shed and the house. Ms Gray showed the police a box containing sex toys. The box was in a drawer in a cupboard in Ms Gray’s bedroom.

21. In her evidence at trial Ms Gray explained that a vibrator was missing from the box. She explained that the missing vibrator was pink with a black bottom. She said it was 15 to 20cm long, cylindrical in shape and that it had a swirl pattern indented on it. Ms Gray explained that when the vibrator is turned on, it goes around.

22. Ms Gray explained that she did not immediately notice that the vibrator was missing when police first opened the box in the search. When the police pulled out the box, she had stated that everything was in there. When the police were searching the shed, Ms Gray told the police that she had a pink or purple vibrator and that the vibrator was not in the box. Under cross-examination Ms Gray maintained that the pink vibrator was missing. She said that she did not pull everything out of the box when she told the police that everything was there, explaining that when the police were “raiding her house” she was “not thinking through everything properly”.

(iv) The second JIRT interview – 19 July 2018

23. On 19 July 2018 Jane was again interviewed by police (the second JIRT interview). On this occasion she was interviewed by Detective Senior Constable Gill. Also present was a witness intermediary, Ms Julia Kania. Ms Kania prepared a Witness Intermediary Assessment Report (“WIA Report”) dated 10 August 2018 which featured at the trial on the question of Jane’s competence to give sworn evidence and the associated enquiry by the Court under s 13 of the Evidence Act 1995 (NSW), as well as to provide assistance to counsel and to the presiding judge in questioning Jane. Jane had a diagnosis of autism spectrum disorder and a hearing impairment. The report is a subject to which I will return in some detail in examining Ground 1 of the appeal.

24. In that second JIRT interview Jane stated that:

1. the applicant has a long stick from his bottom and wee comes out of it. She said that the long stick is “on the back” but he pulls it to the front and it can stick out.

2. When asked whether she remembered talking to Keira (DSC Piggott), the complainant said “yeah, ‘cause because um [the applicant] used to put the long pink thing in his bottom”. When asked if she could tell more about this, Jane said “because he use, used to, um, after his turn, he, he just put it in my bottom”.

3. When asked what the applicant put in her bottom Jane said ‘the long curly pink thing’. She said that this was the thing that she spoke about with Keira . She said that “it’s all pink, and there’s a little button at the bottom can turn it on but it’s really hard”.

4. Jane said that the applicant got the pink thing from the laundry but that the applicant “hid it so me and my mummy can’t find it.”

5. Jane said that the pink thing was longer than her hand and that the pink thing felt hard and rough when it was in her bottom. She said that she was in the applicant’s shed when this happened, sitting on the applicant’s bed.

6. Jane said that the applicant wiped his bottom with a “lulawipe” and then the applicant “just put our clothes back on”.

25. In that interview Jane was shown pictures of the back and front of a boy and the back and front of a girl. On the picture of the girl’s front, she was asked open questions and was able to identify hair, nose, eyes, hand, boobs, knees and belly. She was able to identify her “private parts” that she said “you keep for yourself”. She was asked what the “private part” does. She stated “it can just stay on you” and “wee comes out of it”. On the picture of the back of the girl, Jane was able to identify the “bottom” and stated that the bottom “makes poo come out”.

26. Relevantly in respect of the picture of the boy, she was able to identify on the front side of the picture [the applicant’s] “privates” which she described as the applicant having “a long stick from his bottom” and “wee comes out of it”. She identified the backside of the picture of the boy as being the same as hers, and “poo comes out of it”.

(v) Evidence at trial

27. At trial, evidence was given by Jane, Ms Gray, DSC Piggott and Associate Professor Katherine Brown from the Illawarra Sexual Health Service.

28. Jane’s evidence in chief was given by way of the two JIRT interviews which were played before the jury. There was some brief evidence in chief and she was cross-examined at some length, although in periods said to be limited to about 20 minutes at a time, in apparent compliance with the suggestions made in the WIA Report.

29. There was also preliminary examination of Jane to allow the trial judge to consider her competence to give evidence on oath. This preliminary examination involved questions of Jane from both the Crown Prosecutor and the trial judge. I will return to this examination in more detail in dealing with ground 1 of the appeal.

30. Katherine Brown had examined Jane on 30 November 2017. She examined Jane’s vagina and anus, and stated that she did not observe any abnormalities to either her vagina or her anus, explaining that a vibrator could be inserted into a child’s anus to a small degree without leaving an injury and that in any event, small injuries and lacerations could heal in a child of this age in as little as seven days. She said that children heal very well, and even when there has been an injury that is quite significant, you would not necessarily see a scar.

31. Ms Gray gave evidence of the complaint by Jane on 26 November 2017, about the police search of the house and some details regarding the missing vibrator which she described as pink and black, kept in the same box as the other vibrators, cylindrical in shape, between 15 and 20 cm long, similar to a penis, with patterns on it like “swirls”, that it was straight, coloured black on the bottom with the rest of it coloured pink. She described the vibrator as able to turn on and off and that it vibrated and had a round dial on the base. It was put to her in cross-examination that there was no missing vibrator, and it was suggested to her that she had given inconsistent descriptions of the missing vibrator. She rejected those contentions. It was also suggested to Ms Gray that it was the Detective who had told her what had happened between Jane and the applicant to which Ms Gray replied, “they confirmed that there was abuse.”

Ground 1: A miscarriage of justice was occasioned by the admission of the evidence of the complainant; her evidence should have been excluded because she was not competent

(i) Principles

32. Sections 12 and 13 are contained in Division 1 of the Evidence Act and are titled “Competence and compellability of witnesses”.

33. Section 12 provides as follows:

Except as otherwise provided by this Act—

(a) every person is competent to give evidence, and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence."

34. Section 13 provides as follows:

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

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

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

and that incapacity cannot be overcome,

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

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

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

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

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

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

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

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

…

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

35. The following summary of the principles concerning ss 12 and 13 of the Evidence Act were accurately and succinctly set out in the Crown’s written submissions:

(i) A person is competent to give evidence unless it is proven otherwise, regardless of the age of the child: ss, 12 and 13(6) of the Evidence Act and Pease v The Queen [2009] NSWCCA 138 at [7]; RJ v The Queen [2010] NSWCCA 263 at [15]. It is erroneous to presume incapacity merely because of the age of the witness: Pease at [7].

(ii) The presumption that a witness is competent to give evidence will be displaced where the court is satisfied on the balance of probabilities to the contrary: TheQueen v GW (2016) 258 CLR 108 at [14]. This determination is a “matter of judgment and inevitably includes assessment and impression”: Pease at [11].

(iii) If a witness does not have the capacity to understand the obligation to give truthful evidence, the witness may give unsworn evidence: GW at [13], [26] and [30], In such a case, where a child has the capacity to give a comprehensible answer in respect of a fact, there is no residual discretion to decline to allow the evidence to be given unsworn: SH v R [2012] NSWCCA 79 at [26];

(iv) Competence to give evidence about a fact is confined to a person's capacity to understand a question about the fact and give an intelligible answer to the question: GW at [13] and [14]. Section 13 provides for a test "based upon basic comprehension and communication skills'': GW at [10], citing the joint report of the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission; see also A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [872].

(v) Where a witness' evidence in chief is given by way of a pre-recorded interview, the witness' capacity is assessed at the time of trial, rather than the time that the interview was recorded: A2 v R at [860] and [865].

(vi) The reliability of answers which a witness might give is different to the capacity of that witness to understand, and appropriately respond to, questions he or she might be asked. As this Court stated in A2 v R at [875], "there is a distinction between an inability to give specific details due to lack of knowledge, absence of memory, or a wish not to provide those details, and an incapacity to understand a question”. See similarly Brown v R [2006] NSWCCA 69 at [24]. If a witness is found to be competent, whether the evidence is or is not reliable is a question for the jury.

(vii) Competency or incompetency is not absolute; a person may be competent to give evidence about a fact but not competent to give evidence about other facts: s. 13(2) of the Evidence Act. For this reason, "[t]he question about whether a person is not competent to give evidence thus needs to be decided on a fact-by-fact basis, or possibly by reference to classes of facts, unless there is reason to believe that, concerning any fact at all concerning which that person might be called on to give evidence, the tests laid down in section 13(1)(a) or (b) are satisfied, and the incapacity cannot be overcome": RJ at [18].

(ii) The evidence and approach taken to determine Jane’s competence

36. By the time of the trial Jane was six years old. Prior to the empanelling of the jury, the trial judge noted that he would have to undertake a voir dire pursuant to s 13 of the Evidence Act. Having observed under s 12 of the Evidence Act that every person is competent to give evidence and then proceeding to raise with counsel the text of s 13 of the Evidence Act, counsel for the applicant stated:

“I raise in terms of – sorry, perhaps I should be more clear. I understand that she’s capable of giving answers to reasonable questions as set out in the two JIRT interviews although…”.

37. The trial judge noted, correctly, that competence needs to be considered at the time of trial rather than at the time of the JIRT interview and then asked whether the issue that needs to be resolved was Jane’s competence to give evidence or her competence to give sworn evidence.

38. The applicant’s counsel responded that the ability to give sworn evidence is clearly an issue and then said “I think realistically, your Honour, she would – she’s capable of giving answers. I can’t go against that when you look at the interview”.

39. The Crown then raised that there was nothing in either of the JIRT interviews or the notes that had been disclosed of the conference Jane had with the Crown to “raise the spectre that Jane does not have the capacity to answer questions”, but that there was a possibility that she would not be willing to answer certain questions, in that she does not want to talk about certain topics, but not that she was incapable of answering any questions.

40. Counsel for the applicant then confirmed that in terms of capacity:

“I thought I had come to the resolution that I can’t press the capacity issue but I can in terms of the sworn/unsworn issue. It’s clearly an ongoing issue.”

41. In those circumstances the trial judge indicated that he would question the complainant in the absence of the jury as to her competence and that he did not require a full “Basha hearing” (a reference to R v Basha (1989) 39 A Crim R 337) on the question of her potential unwillingness to give evidence.

42. The jury were empanelled on the following day. Following the empanelment of the jury, Jane was called to give evidence. She gave evidence by way of closed circuit television. She had a support person present with her. The Crown Prosecutor had previously advised the Court that a witness intermediary would not be attending. There was no objection to this course.

43. Prior to giving evidence before the jury the trial judge questioned Jane in respect of her competence. In that questioning, Jane gave the following answers to the judge’s questions:

1. She agreed that she had never met the trial judge before;

2. She stated that she knew the Crown Prosecutor and that his name was David;

3. She stated that her mother was bigger than her and that [she believed that] her mother was 14 years old;

4. She stated that she could not drive (“Of course not. Kids can’t drive”);

5. She stated that if she had told the judge that she could drive “that would not make the truth”;

6. She stated that if she told the judge that she had come to court by aeroplane that would be “not true”;

7. She said that her mum had told her to tell the truth and that she would do what her mum said;

8. She said that she could see the judge, and David, and another lady “but I forgot her name”. She said that she could also see two other ladies “but I haven’t met them before”.

   44. At this stage, the trial judge stated that he was having trouble getting to questions that would give him “any hint that she understands that she’s got an obligation to give truthful evidence”.

   45. The trial judge then asked Jane a series of questions concerning following rules at school. She agreed that there were rules at school, that it was important to obey those rules, and that it was “a bad thing” not to obey rules, but could not say why it was a “bad thing” not to obey rules. Jane said that she does not lie to her teacher and that she tells her teacher true things. When asked whether she tells “stories” to the teacher, Jane replied “the kids don’t tell stories, the teacher does”. The trial judge then stated “I don’t think she’s competent to be sworn. Do you want to ask more questions?”

   46. The Crown Prosecutor agreed to ask further questions. In answer to those questions, Jane stated that the Crown Prosecutor’s gown was black; that if he said that it was red, that would not be the truth; that a lie is when a person does not tell the truth; that children get into trouble if they tell lies; and that if she (Jane) told a lie in court, she would get into trouble.

   47. After hearing these answers, the trial judge agreed with the applicant’s counsel that Jane’s evidence did not demonstrate that she understood the obligation to tell the truth. The trial judge then asked further questions. In answer to those questions, Jane stated that she would tell the truth. The trial judge told her that if she does not know the answer to a question or could not remember, she could say “I don’t know” or “I don’t remember”. The trial judge asked Jane “What’s my first name?” and Jane responded “I don’t know”. The trial judge then asked Jane “What did you have for breakfast on Saturday”. She responded “I don’t know”. The trial judge asked “Can you remember what you had?” Jane answered “no”. The trial judge then said “So what do you tell me if you can’t remember what you had for breakfast?” Jane responded “I don’t know”.

   48. The trial judge also asked “Are you going to tell us things that are not true?” Jane responded “I don’t know what is the truth and what is the lie”. The trial judge then asked what colour the Crown Prosecutor’s cape was. Jane said that the cape was black. The trial judge asked “Is that true?” Jane answered “I don’t know”. At this point, the support person interrupted to say that the complainant was “getting fiddly”, and the Crown Prosecutor noted that Jane might need a break, as she had been in the witness room for some time.

   49. The trial judge then stated:

“…I formed the view that, even in terms of talking about school, she had trouble accepting that she had an obligation to give truthful evidence, even though she understood that some things were true and some things were false.”

50. The trial judge also noted that Jane may have been distracted.

51. After the break, the trial judge questioned Jane further. In answer to those questions, Jane again stated that she told her teacher the truth at school; that she told the teacher the truth “because I have to listen to her”. Jane said that if she did not know the answer, she would say “I don’t know” and that if she did not remember, she would say “I don’t [remember]”. She said that she knew that what she had to do in court was to “tell the truth”. When Jane was asked “If someone asks you a question that is not true”, Jane said that she would say “It’s not true”.

(iii) The Witness Intermediary Assessment Report

52. A Witness Intermediary Assessment Report dated 10 August 2018 was tendered on the voir dire as to competence. In that report, the author, Julia Kania, explained her role as a witness intermediary. She stated that she had been asked to indicate whether the witness has the ability to communicate, whether a witness intermediary was likely to assist, to advise the advocates on the most effective way of communicating questions and to make any other recommendations as to adjustments to enable the best communication with the witness.

53. Ms Kania stated that she had conducted an assessment of Jane on 30 July 2018, that she had also observed part of Jane’s first JIRT interview and that she had been present during Jane’s second JIRT interview.

54. Ms Kania noted that Jane had a few speech errors (replacement of b/d and th/v substitution) but that her speech was “still highly intelligible”. She stated that Jane had autism spectrum disorder and a hearing impairment (70% hearing loss in her left ear and 30% hearing loss in her right ear). Ms Kania also noted that Jane had been diagnosed with a sensory processing disorder.

55. In respect of Jane’s attention and listening skills, Ms Kania stated that whilst Jane did not maintain eye contact while being interviewed, “this did not negatively impact her ability to respond to questions”. Ms Kania observed that Jane started to fatigue after approximately 20 minutes.

56. As to auditory comprehension and understanding of spoken language, Ms Kania stated that:

(i)   Jane understood concepts of “first, last, after, next and already”. She also understood descriptions such as “long” and “short” and could nominate whether someone was a boy or a girl.

(ii)   Jane showed strengths in communication when giving an open narrative. Ms Kania recommended that question types should invite the opportunity to provide an open narrative wherever possible, and that open ended questions such as “can, is and who, what, when, where and why questions were all comprehensible to [Jane]”.

(iii)   Jane did not respond to questions that did not contain a question marker (e.g. can, is, who, what, when, where and why) when inflected upwards. For this reason, questions posed as a narrative should be avoided.

(iv)   Closed ended questions were “unsuitable” for Jane, as she could not reliably answer with a “yes/no/I don’t know”. Ms Kania noted that this should be re-evaluated closer to the court attendance to see if this has improved.

(v)   Complex language should be avoided as Jane could not reliably ask for clarification or say “I don’t understand”. Again, Ms Kania noted that this should be re-evaluated close to the court attendance to see if this had improved.

(vi)   Jane has poor orientation in time. Reference to days of the week or months of the year should be avoided. Reference to how long ago something occurred should also be avoided. Similarly, reference to how old Jane was at a particular time should be avoided. However, Jane understood “first, then and next”, and that these terms were suitable words to use with her during questioning.

(vii)   Jane could not differentiate between terms that made reference to frequency. For example, Ms Kania stated that Jane used the terms “a lot” and “sometimes” interchangeably.

(viii)   Tag questions (short question forms with “isn’t it?” added as a statement or command) were hard for Jane to understand. Direct questions are more likely to elicit direct answers.

(ix)   Pronouns (he/she) should be avoided and replaced with people’s names.

(x)   Jane should be allowed a minimum of 10 seconds to respond before the question is asked again. Where possible, the question should be rephrased in a simpler style.

(xi)   When Jane was asked a question that had multiple elements or was overly long or complex, Jane tended to only answer part of the question. For this reason, eliminating redundant language from questions will increase the reliability of her responses.

(xii)   Jane could name several colours including blue, yellow, black, green and red, but was unable to identify the colour of something pink in a picture. Ms Kania stated that “In clear depiction on a painting, [Jane] incorrectly labelled a pink house as “white”. Jane may not understand subtleties of some colours visually and may not be reliable when describing what colours are.

(xiii)   Jane does not understand non-literal language including idioms such as “full of beans”, “jog your memory”. This type of language can be ambiguous and confusing.

(xiv)   Jane may not reliably respond to a question type that includes three options (e.g. was the block red, blue or something else?”).

57. In respect of spoken language, Ms Kania stated that Jane was able to express herself using an open narrative. She stated that “what did you do?” and “what happened next?” are both suitable methods to use to support Jane’s recall of events, and Jane is able to further elaborate her responses if probed to do so.

58. Ms Kania stated that Jane “does not correct misunderstandings” and that questions should be clear, direct and unambiguous because Jane does not indicate verbally or through facial expression or gesture when she does not understand.

59. In conclusion, Ms Kania stated that “Despite [Jane’s] specific communication needs, it is in[sic] my opinion that she has the necessary cognitive and communication skills to communicate her evidence in court if appropriately questioned and supported”. Ms Kania provided a table of recommendations to assist the advocates in questioning Jane.

(iv) Competence judgment

60. After hearing the complainant’s evidence on the voir dire and considering the WIA Report, the trial judge ruled that the complainant should give unsworn evidence and delivered reasons for the ruling.

61. In those reasons, the trial judge noted that every person is presumed to be competent, and that no party had raised the specific issue of the child’s competence to give evidence or capacity to understand questions about specific facts or capacity to answer. The trial judge stated that a “considerable degree of care will be required in questioning the witness”.

62. The trial judge made reference to the WIA Report of Ms Kania, and stated that, with the help of that report, he had “formed the view that the witness was competent”.

63. The trial judge further stated that he had formed the view that Jane was not capable of understanding the obligation to give truthful evidence, although she did understand what was true and what was not:

“[The complainant] was then directed by me in terms of s 13(5)(a) and 13 (5)(b), although I took the view that the formulation of words as set out in the Act s 13(5) could not be understood by her and reframed them. Her answers led me to conclude that she understood that she should only answer things that were true if they were in fact true. There was no indication that she would feel pressured to agree with the statement she believed to be untrue”.

64. Accordingly, the trial judge concluded that Jane would be permitted to give evidence, but would not be sworn.

(v) Applicant’s submissions

65. Counsel for the applicant stated that it was “not the applicant’s case that Jane was not competent to give evidence at the trial.” The complaint is that the evidence that she gave demonstrated that she was in fact not competent to give the evidence that she gave, due to her limited comprehension and understanding, and because of that, the admission of all of her evidence led to a miscarriage of justice.

66. It was submitted that the WIA Report had required, for the proper taking of Jane’s evidence, the physical presence of a witness intermediary to assist her in giving evidence. There was no witness intermediary and so the concessions made by counsel for the applicant at the trial stated a position on a mistaken basis. The Court and the Crown did not facilitate the presence of a witness intermediary. Any concession by counsel for the applicant at trial was a limited one in light of what had been said in the WIA Report as to the requirement for the presence of a witness intermediary.

67. The WIA Report raised significant issues which it was not the responsibility of counsel for the applicant to fix. In allowing the evidence to proceed without a witness intermediary, an unfairness was created. Jane’s evidence demonstrated problems not only with matters that went solely to Jane’s reliability, but also and significantly, her lack of understanding of what she was being asked and her comprehension of what she was being asked.

68. It was argued that there were many examples of questions that were problematic for Jane to understand, illustrated by her inability to answer consistently, and providing contrary answers of both “yes” and “no” to the same questions.

69. Lengthy quotes from the evidence were included in the applicant’s written submissions of what were said to be illustrations of “the limitations identified in the WIA Report regarding her capacity to comprehend and communicate in certain circumstances”. It was argued that the following examples, (amongst others), are internally inconsistent responses to closed questions whereby Jane answered a question, then gave an almost immediate and conflicting answer, demonstrating her unreliability.

70. One example given was stating on a number of occasions that Jane has never been in her mother’s bed but then giving evidence that she has slept in that bed a couple of times:

“Q:   Have you been in the bed in there?

A:   No

Q:   You haven’t given mum a snuggle in-

A:   No

Q:   What about in the corner of the room, behind where you say it’s [the applicant], in the corner, what’s that?

A:   A head

Q:   A head?

A:   Head

Q:   The head of the bed, you mean?

A:   Yeah

Q:   But next to the head of the bed, right over in the corner, so can you see where I’m pointing?

A:    That’s – that’s another chest of drawers

Q:   Have you looked in that chest of drawers?

A:   No

Q:   So, have you ever been in mum’s room?

A:   Only to have a sleep in her bed

Q:   So, when I asked you before, have you been in the bed, you told me no. Have you actually been in that bed?

A:   No

Q:   Have you slept in that bed with your mummy?

A:   Only a couple of times

Q:   Have you seen your mummy use that wood chest of drawers? [Jane], I’m just going to ask you some questions about what you said on the TV yesterday again, okay?

A:   Okay

Q:   You talked about a pink thing. What did that look like?

A:   I don’t know

Q:   Did you actually see a pink there?

A:   No

Q:   Did you say yes or no?

A:   No

Q:   No. Did somebody tell you about the pink thing?

A:   No

Q:   So, how did you tell the ladies on the TV yesterday about the pink thing?

A:   I don’t know

Q:   You said that the pink thing was long?

A:   It’s short

Q:   It’s short?

A:   Yeah”.

71. A second area referred to was that Jane was asked further questions about the ‘pink thing’, including its size, and the transcript indicates that she initially demonstrated the length of the ruler, and then smaller than a 30cm ruler, starting bigger and getting smaller in her demonstration. The complainant gave the following evidence regarding the ‘pink thing’ :

“Q:   You said on the TV yesterday that the pink thing was curly?

A:   It was

Q:   What does that curly mean?

A:   It means around and around and around

Q:   Around and around and around. Hey [complainant], can you tell me a bit more about the pink thing, what it looked like?

A:   I don’t any - I don’t know any more about the pink thing

Q:   But did you actually see it with your eyes?

A:   No [the applicant] didn’t let me see it

Q:   Did you see [the applicant] using the pink thing?

A:   No

Q:   Can you draw a picture of the pink thing for me if I gave you some pencils and a piece of paper?

A:   Yes”.

72. A third area of evidence referred to related to the applicant’s room and spying. She agreed that her brother shuts his bedroom door but then says that he does not. She then gave the following evidence regarding never being allowed in the applicant’s room, spying on the applicant, and seeing him naked :

“Q:   When you and [the applicant] lived with your mum at [suburb deleted] did [the applicant] play his Xbox?

A:   I don’t know. He never let me in his room

Q:   When you were at home and it was just you and [the applicant] would he be in his room playing games?

A:   I don’t know because he never let me be in his room. He only does that when he’s getting dressed

Q:   He only does that what, sorry?

A:   When he’s getting dressed

Q:   So, does he shut the door when he’s getting dressed?

A:   Yeah. Instead of getting dressed he plays his game naked

Q:   He plays his game naked?

A:   Yes

Q:   And he won’t let you in?

A:   No. Plus, he didn’t even let me go into his bedroom

Q:   When you were living with him, did you sometimes spy on him?

A:   Yeah, but that was for fun

Q:   How would you spy on him?

A:   I would creep into his bedroom

Q:   Would you look through the door? Let me start that again, that’s a really hard question, that’s my fault. Would you try and look around the door?

A:   There’s nowhere around the door

Q:   How would you spy on [the applicant] when he was in his room?

A:   I don’t know how

Q:   When you were trying to spy on [the applicant] would he shut the door so you couldn’t get in?

A:   No way

Q:   Was the door already shut?

A:   No

Q:   You said before that when [the applicant] was playing games and he doesn’t have any clothes in, is the door shut then?

A:   No. He never shuts the door

Q:   Pardon?

A:   He never shuts the door

Q:   He never shuts the door?

A:   No”.

73. Another area of complaint was stated to be that Jane answered a question in an apparently clear way, only to give further evidence that she did not understand the question, but only when specifically asked about whether she understood the question, for example, the Crown asked Jane is the ‘butt’ and the ‘bottom’ the same or a different thing, and she said ‘a different thing.’ She was then asked if she understands what ‘same’ and ‘different’ means, and she said ‘no.’ Jane gave other evidence regarding whether things were the same or different, for example at (the pink and purple things were different things), but in her second JIRT interview at Q193-A195 she said that the long, curly pink thing and the long stick were the same thing.

74. Jane answered ‘yes’ to a question about whether there were cupboards in her mother’s room, and was then asked, ‘do you know what I mean by cupboards?’ and she replied no.

75. Jane’s evidence about frequency was unreliable, for example, in her first JIRT interview at Q147-A148 she said that the applicant looked after her both a lot of the time and sometimes.

76. It was argued in the applicant’s written submissions at [139] that the extracts referred to identified communication and comprehension needs and Jane’s lack of capacity to seek clarification when she did not understand something, and that this meant it was impossible to ascertain the ultimate effect of her evidence on a range of facts, or what the jury made of it.

77. In respect of the conclusions reached by the trial judge on the competence voir dire, it was submitted that the Court was “diverted by the enquiry as to whether Jane could give sworn evidence as opposed to unsworn evidence under s 13 of the Evidence Act”, and so inadequate consideration was given to the issues raised in the WIA Report.

(vi) Crown’s Submissions

78. The applicant’s submissions conflate two separate concepts; the capacity of a witness to understand and respond to questions about a fact and the capacity of the witness to understand and respond to a question in a particular form.

79. A ground that contends that Jane was not competent because she could not understand the “format of the questions” must be dismissed. The questioning criticised by the applicant on appeal is largely questioning that occurred during cross-examination of Jane by the applicant’s trial counsel.

80. The JIRT interviews and the evidence at trial demonstrate that Jane was able to understand and respond to questions relating to the facts in issue in the trial. In particular she was able to understand and respond to questions concerning:    

1. what the applicant did to her – he put the “pink thing” into her bottom, explaining that her bottom is “where the poo comes out”;

2. What the “pink think” looked like – “long, curly and pink”; “big and stripy and round”; it has a button at the bottom;

3. What the “pink thing” felt like – Jane said the pink thing felt “hard” and “rough”;

4. When it happened – Jane said that it happened whilst her mother was at work;

5. (e)    What the applicant said at the time of the event – Jane said that she said; “Yeah I say stop”, but the applicant “says I’ll keep doing it to you”;

6. Where the applicant obtained the “pink thing” – Jane said that the applicant got the “pink thing” from the laundry.

81. Even if Jane did give inconsistent answers about the location of the event – namely in the applicant’s bedroom or in the shed which had a daybed (and which the evidence indicates was also “his room”), that does not mean that she did not have the capacity to give evidence.

82. The applicant did not contend at trial that Jane did not have the capacity to give evidence about the colour of the “pink thing” although the WIA Report referred to a single misidentification of colour where she incorrectly labelled the colour of a white house in a painting, as pink.

83. There is no allegation that there was any legal error in the trial judge’s determination of competence.

84. The express concessions made by counsel for the applicant at the trial indicated a considered view, after seeing and hearing Jane’s answers in the JIRT interviews, that Jane was competent to give evidence about the facts in issue in the trial.

85. The absence of any objection to Jane’s evidence during or following her evidence indicated that nothing was said by Jane during the course of cross-examination that undermined that view.

86. In short, Jane was presumed by law to be competent to give evidence and the applicant did not establish that this presumption was displaced. Leave to appeal on this ground should be refused.

(vii) Decision

87. The approach of the applicant to this ground of appeal evidences a fundamental misunderstanding of the effect of s 13 of the Evidence Act.

88. What s 13 requires to establish competency is simply an examination of whether the witness has the basic comprehension skills to understand a question and provide an intelligible answer to it. It is in no way an examination of the question of whether a witness’s evidence is credible or reliable.

89. It is purely a question about capacity, not whether a witness has the capacity to understand a particular question that may have been framed in a particular way.

90. If there is indeed an issue to be taken about whether a question is confusing or misleading, s 41 of the Evidence Act is available to deal with that. The question of competence is not dependent on any particular question asked.

91. The proper consideration of s 13 issues may involve consideration on a fact by fact basis, but not on a question by question approach. A witness does not become incompetent because of a question asked and a response to it, which seems to be the premise underlying the applicant’s basis for ground 1 of this appeal.

92. There was no question that Jane was competent to give the evidence that she was called upon to give. Her evidence on crucial issues relevant to count 1 was clear, if bluntly and childishly expressed.

93. Counsel for the applicant at trial acknowledged that she could not say that Jane was not competent. She gave this acknowledgement on three different occasions in the transcript during the exchange about it with the very experienced trial judge.

94. The trial judge conducted a standard competence enquiry and was satisfied that Jane could answer questions of the type that she would need to be able to answer. She met the s 13 competence test. It was noted that she was likely to take the questions very literally, but that does not mean she does not have capacity under s 13.

95. There is no error identified by the applicant in the succinct judgment provided by the trial judge. He properly took into account the WIA Report. At the time he gave judgment, he knew that a witness intermediary would not be physically present with Jane whilst she was giving her evidence. Counsel for the applicant also knew that and took no objection to that course. An experienced judge with experienced counsel could confidently proceed on the basis that Jane could perform the basic tasks required by s 13. The WIA Report provided assistance for counsel and the trial judge for the formulation of appropriately worded questions for Jane.

96. The examples included in the applicant’s written submissions indicate that Jane struggled with some of the cross-examination, because of the way the questions were put. This is unsurprising given her age and the confusing content and context of some of the questions that she was required to answer.

97. A cooperative approach between the trial judge and counsel was pursued to assist in focussing attention on clear questions. The transcript shows that the Crown very properly raised problems with some of the questions in cross-examination, such as the exchange referred to in the applicant’s written submissions at [125]. Contrary to what was argued by the applicant in that part of his written submissions, the Crown was not raising an issue about Jane’s competence or capacity. The Crown was seeking to raise, for cooperative resolution, problems inherent in a long question that had been put in cross-examination that introduced a dual concept. The exchange that follows, set out in the applicant’s written submissions at [125], illustrates the cooperative approach followed, including debate as to the best way to approach the questioning.

98. Despite the way in which counsel for the applicant sought to frame the argument, ground 1 amounts to no more than a submission that some of Jane’s evidence was unreliable. The fact that Jane may have misunderstood certain questions, or given answers that may be argued to be unreliable, is a different issue altogether to the question of competence. The question of reliability is an issue for the jury to consider and evaluate, together with all the other evidence.

99. Ground 1 requires leave to appeal. Because that ground of appeal has no merit, leave to appeal on ground 1 is refused.

Ground 2: The verdict of the jury in relation to Count 1 is unreasonable and cannot be supported having regard to the evidence

100. The principles to be applied in respect of this ground were recently restated by this Court in Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [66]-[68].

“[66] This Ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by this Court is “whether the court 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” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). As stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]), “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”. In Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

[67] This Court must make its own independent assessment of the evidence. It must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494):

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’

[68] In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, as in the present case, the jury’s assessment of the principal witnesses was “vital” (at [23]). Notwithstanding imperfections in the evidence, including deficiencies in recollection and inconsistencies in the evidence, the Court in MFA dismissed the unreasonable verdict ground of appeal noting:

‘There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention (at [96]).’”

101. As stated in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 (“Pell”) at [37]:

“[37] …the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. In this context, the function of this Court in determining whether the verdict of the jury is unreasonable”

102. As observed in Pell the function of this Court is limited:

“[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.”

103. The statements of this Court in AZ v R [2018] NSWCCA 294 at [167]-[168] regarding allegations of child sexual assault, also need to be borne in mind:

“[167] The fact that there is a contradiction or concession by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness. Such concessions do not necessarily dictate that a jury must have held a reasonable doubt; much less should they dictate that an appellate court must overturn the verdicts returned by the jury.

[168] The question turns on a careful examination of the whole of the evidence placed before the tribunal of fact, to determine whether it was open to the jury to be satisfied of an appellant’s guilt beyond reasonable doubt, bearing in mind the jury’s advantage of having sat in the jury box, and observed the proceedings as they took place.”

104. The applicant’s contention is that the jury ought to have had a reasonable doubt as to the guilt of the applicant in respect of count 1 because of the unreliability and inconsistency of Jane’s evidence, the conflict between her evidence and other evidence called at trial, the asserted conflict between the complaint evidence and what she said at the JIRT interviews and the acquittal the jury returned on count 2.

105. It was also contended that overall, Jane’s evidence did not have sufficient cogency and probative force such that the jury could not have entertained a reasonable doubt as to the applicant’s guilt on count 1.

106. In support of these submissions, in effect four particular areas of issue were identified. I will deal with each of them in turn:

1. internal inconsistencies in Jane’s evidence;

2. inconsistency between her complaint evidence and her account given in the JIRT interviews;

3. other evidence of Jane’s mother; and

4. doubt regarding penetration of the anus.

(a) Asserted internal inconsistencies in Jane’s evidence

107. The applicant points to the following:

1. Jane denied telling anybody about the allegation the day after making a disclosure to her mother;

2. Jane incorrectly identified the applicant in the photograph taken in her mother’s bedroom whilst the police search was going on and stated that her mother was angry at the applicant because he was in her bedroom;

3. Jane gave evidence that she had not been in her mother’s bed but then later gave evidence that she had slept in her mother’s bed a couple of times;

4. Jane stated in the first JIRT interview that count 1 occurred in the applicant’s bedroom, and then gave internally inconsistent evidence regarding whether she ever went into the applicant’s bedroom and whether he shut his bedroom door;

5. Jane provided various descriptions of the “pink thing” and then said that the applicant did not let her see it;

6. Jane said that she did not understand what “same” and “different” meant, but also answered a number of questions about whether things were the “same” or “different” in her interview and evidence without seeking clarification.

108. The applicant argued that Jane’s evidence contained so many internal inconsistencies that the jury ought to have been left with a doubt about the effect of her evidence. This submission was accompanied by a list of 25 discrete aspects of the evidence only six of which were relevant to establish count 1. Those are: the location where count 1 occurred, (whether it was in the applicant’s bedroom or in the shed where the evidence indicated he also had a bed); whether the “pink thing”/”long stick”/”long curly pink thing” were the same thing; whether Jane was wearing clothes when count 1 occurred; what she told her mother; whether the applicant put the “pink thing” in, or near, her bottom and did she tell the police about something that actually happened to her (i.e. was she making up a story about something she saw her brother do to himself).

109. The other 19 listed issues, were, in my view matters peripheral to count 1 although many were relevant to count 2. Jane’s description of the acts that comprised count 1 was cogent and specific and in relation to the key elements, consistent. It was well open to the jury to accept it. There was ambiguity surrounding the acts and matters that comprised count 2. The applicant was acquitted of that count.

110. As submitted by the Crown, it is necessary to carefully consider both the questions Jane was being asked and her answers when assessing her reliability. When one does so, it is apparent that Jane’s answers are not such as to undermine her reliability.

108. The denial of “telling anybody” about the allegations was made in the JIRT interview just after Jane had told the questioner that she had told her mother about the assault. The very reason why Jane was at the police station was because her mother had brought her there after she had told her mother what had occurred. In that context, Jane is likely to have understood the question “Have you told anybody about the assaults?” to mean “have you told anybody other than your mother about the assaults?”.

109. In respect of the mistaken identification of the person in the picture looking in Ms Gray’s drawers, it should be noted that the picture, (Exhibit 2), is indistinct. The person in it is clearly not a young child. There are features of the picture, for example, Ms Gray is standing with her hands on her hips with a body posture consistent with anger, where Jane knew that the applicant was not allowed in his mother’s room. This does not demonstrate a “willingness to invent a narrative in which the applicant is doing the wrong thing”. It is a simple mistake. It should also be noted that Jane said that she “really liked” the applicant when she was first interviewed by JIRT.

110. The answers in respect of whether Jane had slept in her mother’s bed were in the context of questions concerning the wooden chest of drawers in her mother’s room. There was ambiguity and confusion in the questions asked. Jane may well have interpreted the questions as asking whether she had been “in bed in the wooden chest of drawers” to which the answer was “no”. When she was asked whether she had ever been in her mum’s room she immediately, and correctly, responded “Only to sleep in her bed”. The next question, “Have you actually been in that bed?” was confusing to her, in particular, in the use of the word "actually", which Jane appears not to have understood. When she was asked “Have you slept in that bed with your mummy?” Jane again responded “Only a couple of times”. That series of questions and answers does not demonstrate that Jane’s evidence was unreliable generally. It just demonstrates that she had difficulty answering complex questions and that her answers to complex questions could at times be unreliable, due to confusion introduced by either the content of the question or the sequencing of the questions.

111. In relation to the questioning about Jane being allowed in the applicant’s room, some confusion was created by the sequencing of the questions. In cross-examination Jane was questioned about the applicant playing his X-Box. In that context she said that the applicant “never” let her in his room. Jane was simply saying that the applicant did not give her free access to his room. Her use of the word “never”, given her age and immaturity should not be understood in the broad abstract concept of “not ever in any context”.

112. There was consistency in Jane’s description that count 1 had occurred in the shed on the daybed. This was also her account given in the second JIRT interview and in the trial. It was open to the jury to find that Jane’s account in the first interview as to the “room” was mistaken.

113. As to the issue of whether Jane “saw the pink thing” the question asked, “Did you see it?”, may well have been understood by [her] as meaning “Could you see the pink thing at the time the applicant put it in her bottom”.

114. The fact that Jane had difficulty engaging in an abstract exchange about what the words “same” and “different” mean, does not lead to the conclusion that she could not reliably use those words, as demonstrated by her later evidence.

115. There is a requirement to assess whether the inconsistencies asserted stem from Jane’s failure to understand the questions being asked. As was made clear in the WIA Report, and as the trial judge and counsel recognised at various stages during the trial, Jane did have some limitations in comprehension which meant that her answers to complex or abstract questions, particularly in a closed form, were at times inaccurate. That fact does not mean that her answers to open-ended simple questions should also be rejected as unreliable. Her apparent understanding of the questions asked must be taken into account in assessing reliability.

116. It is important to note that Jane’s initial complaint to her mother and in particular the first JIRT interview, were conducted by way of open-ended questions in which Jane provided a clear narrative of what had happened with the applicant. It was well open to the jury to accept the reliability of this evidence.

(b) Was there inconsistency between the complaint evidence and the account given in the JIRT interviews

120. The applicant submitted that when Jane told her mother that the applicant had “hurt her” and had put the “pink thing in her bum”, she pointed to her vagina, which Ms Gray indicated Jane also called her “bottom”. It was submitted that this is not consistent with the version that Jane disclosed the next day in the JIRT interview, where she indicated the pink thing was put in her bottom, indicating her anus. It was also asserted that what was disclosed in the first JIRT interview was that count 1 occurred in the applicant’s bedroom and this was different to what she had told her mother.

121. The Crown submitted that when this evidence is carefully evaluated, there is no inconsistency.

122. The nature of the act in her first complaint was clear - Jane told her mother that the applicant had “put the pink thing in her bum”. She pointed to her vaginal area when Ms Gray asked “which bottom?”, but it was evident that she was sitting in the car with her mother driving when she disclosed this. The capacity to distinguish by pointing, between her vaginal area and her anus, would be compromised when sitting.

123. Jane’s evidence was very clear during the first JIRT interview where she described that the applicant “keeps putting the pink thing in my bottom”. When she was asked where her “bottom” was, she pointed to her backside.

124. In the second JIRT interview Jane explained her point even more accurately by describing that the applicant uses the pink thing “in the bottom where the poo comes out of”.

125. As to the location where count 1 occurred, in the complaint to her mother Jane said that it occurred in the applicant’s bed and then stated that it was “in the shed” and took her mother to the shed and sat on the daybed. It is obvious that Jane considered the applicant has two rooms, and that he has a bed in the bedroom within the house, and also has the daybed in the shed. What she said in her first JIRT interview was that the applicant had put the pink thing in her bottom “in his room” and by stating that the room was in the house and agreeing that the applicant sleeps in that room, it did not necessarily mean that it was a reference to the bedroom as opposed to the shed where the daybed was located. In this respect the answers were ambiguous rather than inconsistent.

126. What is important however is that Jane stated in answer to a non-leading question, that count 1 occurred “In [the applicant’s] shed” and described herself sitting on the applicant’s bed when count 1 occurred. There is consistency between her accounts given in response to simple non-leading questions in both the complaint to her mother and in the second JIRT interview.

127. It was well open to the jury to conclude that any arguable inconsistency in her account concerning the location of count 1 was not such as to undermine her reliability.

(c) The evidence of Jane’s mother

128. Complaint is made that there is contradictory evidence by Jane’s mother as to the babysitting arrangements and thus the circumstances in which Jane made the complaint about the applicant.

129. As submitted by the Crown, there is no inconsistency in the evidence on this issue.

130. Ms Gray stated that whilst she was shopping with Jane she received a text from the applicant saying he was coming home that night. In those circumstances, the evidence was entirely consistent with the position that:

1. Ms Gray had originally arranged for her friend Brittany to babysit the complainant, but

2. when the applicant told her that he was coming home, Ms Gray changed her plans, and

3. had not yet cancelled Brittany.

What followed was Ms Gray told Jane that the applicant would be babysitting her, Jane then made the complaint and Ms Gray cancelled Brittany after that.

131. There is simply no inconsistency. Nor was any asserted inconsistency put to Ms Gray during her cross-examination.

132. The submission that the jury ought to have experienced a reasonable doubt about whether a pink or a purple vibrator was missing from the box of sex toys that Jane’s mother kept in her bedroom, can also be put to one side.

133. Ms Gray’s evidence was clear on this point. She first told police that everything appeared to be in the box but then later, whilst the search was still going on, told the police that a pink or purple vibrator was missing. She explained that she “had police at the house going through everything. Raiding my house. Your brain is not really very focused or thinking through everything properly”.

134. There is nothing surprising or suspicious about this. As the Crown Prosecutor submitted at the trial, the experience of having police show her a box of her own sex toys, would have been mortifying.

135. The jury were entitled to accept Ms Gray as a credible witness and conclude that she had not lied, and that she was simply mistaken and flustered when she first looked at the box of sex toys during the police search of her bedroom.

(d) Should the jury have entertained doubt regarding penetration?

136. The applicant makes no complaint regarding the directions the trial judge gave to the jury on this issue. The trial judge stated that “Sexual intercourse, in this case, means the penetration, to any extent, of the anus of the complainant by any part of an object held by the accused.”

137. Nor was any issue taken regarding the way the trial judge directed the jury about the use they could make of Dr Brown’s expert evidence.

138. The applicant argued that the jury should have entertained a reasonable doubt about whether penetration had occurred because, first, he says, Jane was inconsistent in pointing to her vagina rather than her anus or buttocks when she described what had occurred to her mother whilst they were in the car. Second, he asserts that there was inconsistency between the evidence at the trial where Jane answered some questions describing the pink thing “near” her bottom, as opposed to “in” her bottom - “it was nearby my bottom and my butt” when it was in the applicant’s hands, whereas in the JIRT interview, she had described that it was in her bottom. Third, when she drew on the diagram of the girl in the second JIRT interview, Jane drew arrows pointing to the cheeks of her bottom, not to her anus. Fourth, there was no complaint of injury or bleeding, no evidence of injury or bleeding and the medical evidence was neutral.

139. As submitted by the Crown, the trial judge’s instruction to the jury emphasised that it was necessary for them to be satisfied beyond reasonable doubt that the applicant had penetrated Jane’s anus to any degree.

140. Jane’s first statement concerning count 1 was to her mother. She said that the applicant “hurt her”. She then stated that the applicant “put the pink thing in my bum”. She said in the first JIRT interview that the applicant “keeps putting that pink thing in my bottom”. She then added, without prompting, “and it hurts”. She was then asked where her bottom was. She rolled over and pointed to her backside. In the second JIRT interview Jane said that “after his turn he just put it, the long pink thing, in my bottom”.

141. Given this evidence, it was well open to the jury to find beyond reasonable doubt that the applicant had penetrated Jane’s anus with the vibrator.

142. I have already dealt with the reasons why the assertion that Jane pointed to her vagina rather than her anus can be explained by the fact that she was travelling in a car with her mother at that time.

143. Jane’s evidence in cross-examination that the pink thing was “near my bottom”, must be read in context. The applicant’s trial counsel had asked her when the applicant had the pink thing in his hand was it “near his bottom” (emphasis added). In answer to this question, Jane responded “No, it was near my bottom” (emphasis added). Read in context, Jane was not saying that the vibrator only went near her bottom; rather she was disagreeing with the suggestion that the vibrator was only used on the applicant and not on her.

144. The arrows drawn by Jane which appeared to point to the bottom cheeks, (Exhibit 6), must also be viewed in context. She was a six-year-old child provided with a rough depiction of the body of a girl. In this context, the failure to draw a line pointing to the precise location of the anus (which is not pictured), does not indicate that the vibrator was not put inside the complainant's anus.

145. Dr Brown’s evidence made it very clear that there would be no expectation of signs of injury even if there had been penetration. An injury can heal quickly, in as little as seven days, in the body of a child of this age. Dr Brown’s examination of Jane was on 30 November and the latest time that count 1 could have occurred was 23 November.

Conclusion regarding the conviction appeal

146. The assessment of Jane’s reliability, (and her mother’s), was a question for the jury. None of the matters raised have demonstrated that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt of count 1.

147. Having assessed the evidence as a whole, there is no basis upon which to conclude that the verdict on count 1 is unreasonable and cannot be supported.

148. The second ground of appeal has not been made out and must be dismissed.

Conclusion and Orders

149. The applicant was released on bail on 1 April 2020 and has remained at large until the date when judgment is to be given on the appeal.

150. The time during which the applicant is at liberty on bail, pending the determination of his appeal, does not count as part of his term of imprisonment under the sentence imposed on 9 October 2019: s 18(2) Criminal Appeal Act. The Court may make any order that it thinks fit to give effect to s 18, including an order specifying the date of recommencement of the applicant’s sentence: s 28A(2) Criminal Appeal Act.

151. As part of the orders which I propose, the Court should nominate a date for the recommencement of the applicant’s sentence. It is important to note that the Court is not re-sentencing the applicant; it is simply giving effect to the resumption of the sentence imposed by Haesler SC DCJ on 9 October 2019, including his order under s 19 of the Children (Criminal Proceedings) Act, made for the following reasons (R v Gray at [50]):

“I am satisfied that there are special circumstances justifying his detention as a juvenile offender. The evidence establishes that:

(1) Gray is vulnerable on account of his disabilities;

(2) Therapeutic programs counselling by Mr Martino, Psychologist are only available in detention centres;

(3) If he were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, due to the nature of his offence.”

152. The following proposed orders assume the attendance of the applicant today.

1. Leave to appeal on ground 1 is refused.

2. Leave to appeal on ground 2 is granted, but the appeal is dismissed.

3. Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), an order is made that the applicant’s sentence should recommence on 24 September 2020.

4. For the purpose of s 18(2) of the Criminal Appeal Act, the Court notes that the period between 1 April 2020 and 23 September 2020 does not count as part of the sentence of imprisonment imposed on 9 October 2019.

5. As a result of the alterations referred to in [149] to [151], the non-parole period will now expire on 18 April 2021 and the sentence will expire on 18 October 2022.

6. The earliest date on which the applicant will be eligible for release on parole is 18 April 2021.

7. The making of these orders confirms the resumption of the sentence imposed in the District Court on 9 October 2019 including the order under s 19 of the Children (Criminal Proceedings) Act that the sentence be served in a detention centre and not a correctional centre for the reasons provided by Haesler SC DCJ as set out at [151] above.

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Decision last updated: 24 September 2020