GS v The The King

[2022] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GS v R [2022] NSWCCA 225

Hearing dates:

27 June 2022

Date of orders:

19 October 2022

Decision date:

19 October 2022

Before:

Beech-Jones CJ at CL at [1]
Garling J at [61]
Wilson J at [65]

Decision:

(1)   The Applicant be granted leave to raise ground 4 of the notice of appeal;

(2)   The Appeal be dismissed.

Catchwords:

CRIMINAL LAW – conviction appeal – applicant found guilty of one count of sexual assault – trial by judge alone – context evidence as to systemic sexual assault of victim, siblings and cousins by other members of the family – whether verdict was unreasonable and cannot be supported by the evidence – approach to trial by judge alone – asserted inconsistencies and delay by victim in coming forward – ground rejected – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

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

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

Category:

Principal judgment

Parties:

GS (Applicant)
The King (Respondent)

Representation:

Counsel:
Mr P Doyle (Applicant)
Ms M Millward (Respondent)

Solicitors:
Hammond Nguyen Turnbull Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/00102533

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 and s 15A of the Children (Criminal Proceedings) Act 1987, the publication of the identity of the complainant, PS, or any information that identifies her, is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 November 2020

Before:

O’Rourke SC DCJ

File Number(s):

2018/00102533

HEADNOTE

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

The Applicant, GS, for leave to appeal was charged on an indictment that contained one count alleging that he had sexual intercourse with the victim, PS, without her consent and knowing she did not consent contrary to s 61I of the Crimes Act 1900 (NSW). On 9 June 2020, GS was arraigned before her Honour Judge O’Rourke SC sitting without a jury. He pleaded not guilty. On 16 June 2020, her Honour found the Applicant guilty and published reasons for her verdict. He was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 4 months commencing 29 May 2019. His non-parole period expired on 28 September 2021 and he was released to parole on that day. He filed his appeal after his release.

The charge against the Applicant arose out of his attendance at PS’s family’s property at Taylors Flat in February 2010. The Crown alleged that the Applicant drove from interstate and visited those members of PS’s family who lived there for approximately two weeks. The Crown alleged that the Applicant threw PS into the backseat of his car, forcibly removed her clothes and sexually assaulted her by forcing her to have penile-vaginal sexual intercourse.

PS is GS’s niece. She was 17 years old at the time of the offence in 2010. She is legally blind and has never attended school. The trial judge recorded that it was not in issue that PS was continually sexually assaulted from a very young age by various family members, in particular by her father, TS, and her uncle, RS. Her mother “condoned, if not actively encouraged” the sexual assaults. PS said that her mother “used to force [my sisters and I] to have sex with our brothers”. PS “was threatened with violence if she told anyone, including being told that she would be ‘dead’ and ‘have a bullet in her head’.”

PS told police in 2013 that she was sexually assaulted by the Applicant, but later retracted that statement. In 2017 she complained to police about sexual assaults committed against her by her family, but she did not mention the sexual assault by the Applicant. The trial judge noted that at the time PS retracted the 2013 statement, she was living with her mother who “encouraged the male family members to have sexual intercourse with her against her will”.

In an interview with police, PS said that the vehicle in which the assault occurred was a green Holden Commodore. In cross-examination she said it was a green Ford “XR6”. When pressed on this issue, she said “I’d rather not think about [the Applicant’s] car, that’s why I don’t think about it. I don’t remember sorry.”

Although the Applicant’s notice of appeal contained four grounds of appeal, at the hearing of this application only ground 4 was pressed. Ground 4 contended that “[t]he conviction of [the Applicant] cannot be supported having regard to the evidence.”

The issues on appeal were:

1. Whether the guilty verdict was unreasonable and could not be supported having regard to the evidence;

2. Whether any unfairness occurred at trial because of the comparative lack of detail of the sexual assault committed by the Applicant given in the first police interview compared with the greater detail of the assault given by PS in her oral evidence;

3. Whether the victim’s evidence was unreliable due to her failure to mention the sexual assault by the Applicant at an earlier opportunity; and

4. Whether the victim’s withdrawal of the complaints about sexual offences committed by other family members bore upon her credibility or reliability.

The Court held, dismissing the appeal:

As to issue (i) (per Beech-Jones CJ at CL, Garling and Wilson JJ agreeing):

1. It was reasonably open to the trial judge to be satisfied beyond reasonable doubt of the Applicant’s guilt. None of the contentions raised by the Applicant raised any doubt about the Applicant’s conviction (at [55], [59], [61] and [65]).

2. Even if it had been established that the Applicant did not drive a vehicle as described by the victim to Taylors Flat, and to the extent that the Applicant relies on the difference between a green Ford and a green Commodore, in circumstances where the victim said that during the sexual assault that “I’d rather not think about his car”, any inconsistency in the victim’s evidence would only be a doubt that the trial judge’s advantage in seeing and hearing her evidence was capable of resolving (at [55], [61] and [65]).

   Dansie v The Queen (2002) 96 ALJR 728; [2022] HCA 25 applied (“Dansie”); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 considered.

Further, per Beech-Jones CJ at CL and Wilson J (Garling J not deciding):

1. In considering whether a verdict following a judge alone trial is unreasonable and cannot be supported having regard to the evidence, the advantage enjoyed by the tribunal of fact in seeing and hearing the witnesses does not depend on the reasons of the trial judge. The scope of the advantage is not confined by any express statement by the trial judge describing, or even disclaiming, the advantages they enjoyed as such (at [51] and [65]);

   Dansie considered.

As to issues (ii) and (iii) (per Beech-Jones CJ at CL, Garling and Wilson JJ agreeing):

1. The suggestion that the victim gave details of the assault for the “first time” in her evidence was not substantiated. In the family context that she described, her account was not implausible. Given the explanations provided by the victim and the police as to what the police interviews concerned, no doubt was occasioned about the honesty or reliability of PS’s evidence (at [55] to [57], [61] and [65]).

As to issue (iv) (per Beech-Jones CJ at CL, Garling and Wilson JJ agreeing):

1. None of the charges withdrawn by the Director of Public Prosecutions concerned allegations against other family members which involved the victim as the complainant (at [58], [61] and [65]).

JUDGMENT

1. BEECH-JONES CJ at CL: On 9 June 2020, the applicant, GS, was arraigned before her Honour Judge O’Rourke SC sitting without a jury on an indictment that contained one count alleging he had sexual intercourse with the complainant, PS, without her consent and knowing she did not consent contrary to s 61I of the Crimes Act 1900 (NSW). The offence was alleged to have been committed at Taylors Flat in New South Wales between 30 January 2010 and 23 February 2010.

2. The applicant pleaded not guilty. On 16 June 2020, her Honour found the applicant guilty and published reasons for her verdict. He now seeks leave to appeal against his conviction.

3. On 16 June 2020, the applicant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 4 months commencing on 29 May 2019. His non-parole period expired on 28 September 2021 and he was released to parole on that day. He filed this application after his release. There is no application for leave to appeal against sentence.

4. Although the applicant’s notice of appeal contains four grounds of appeal, at the hearing of this application only one was pressed, namely, that the verdict was unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act 1912 (NSW), s 6(1)). For the reasons that follow I would reject that contention.

5. By the operation of s 578A(2) of the Crimes Act, the publication of the identity of the complainant, PS, or any information that identifies her is prohibited (other than in an official law report of the proceedings such as this judgment (Crimes Act, s 578A(4)(d))). To facilitate compliance with that prohibition, this judgment will only identify the various members of PS’s family that are referred to by pseudonyms.

The Crown Case and Evidence in Support

6. The charge against the applicant arose out of his attendance at PS’s family’s property at Taylors Flat in February 2010. The Crown alleged that the applicant drove from interstate and visited those members of PS’s family who lived there for approximately two weeks. The Crown alleged that the applicant threw PS into the backseat of his car, forcibly removed her clothes and sexually assaulted her by forcing her to have penile-vaginal sexual intercourse.

7. The Crown case principally consisted of evidence from PS. PS was born in 1992 and was 17 years old as at February 2010. She was interviewed by police on 31 August 2018 (the “first police interview”) and 19 September 2018 (the “second police interview”). At the commencement of the first police interview, PS described herself as “legally blind” and said her “reading is not great”. PS never attended school. It was accepted that she was a vulnerable person for the purposes of s 306M of the Criminal Procedure Act 1986 (NSW). Pursuant to s 306U(1), her interviews were played to the jury as her evidence-in-chief, which also included further questioning by the Crown. Otherwise, the Crown case consisted of some agreed facts and some brief evidence from various police officers. The applicant did not call evidence at trial.

Background

8. The following matters were either agreed or not disputed during the trial.

9. The applicant was born in 1969. He was 40 years old at the time of the alleged offence in February 2010. As noted, he is the uncle of the complainant and they share the same extended family.

10. A family tree generated from the agreed facts indicates that PS’s grandparents were TS and SS. TS passed away in April 2009 and SS passed away in May 2001. TS and SS had seven children, being RDS (female) born in 1966, KS (female) born in 1967, CYS (female) born in July 1968, the applicant, RS (male) born in 1973, PCS (female) born in 1977 and LS (female) born in 1979. KS is the complainant’s mother. Between 1983 and 2005 KS had 12 children including the complainant. Between 1981 and 2007 RDS had six children. Between 1998 and 2006 LS had five children. One of PS’s sisters had a child born in May 2000. Another of PS’s sisters had three children between 2009 and 2012, although the eldest passed away the year that she was born.

11. In the first police interview, PS told the police, and it was not disputed, that her grandfather, TS, is also her father and the father of all her siblings. She also said that TS was the father of all of RDS’s children and “the father to all the family”.

12. Over a long period, most of the extended family lived on rural properties and led a generally “isolated and insular” existence. From the 1980s until 2009, they lived in regional areas, moving between Victoria, South Australia and northern Western Australia. In late 2009 after the death of TS, much of the extended family including KS, PS, PS’s siblings, RDS and her children, moved from Western Australia to the property at Taylors’ Flat, also known as Boorowa, in New South Wales. The applicant who had been living with them, including PS, remained in Western Australia.

13. The agreed facts referred to various banking records which suggest that someone with access to the applicant’s bank account travelled from Western Australia to Victoria and then to NSW and returned between late February and early March 2010. The agreed facts also note that “Business Records” from the Department of Transport in Western Australia record that the applicant purchased a “brown automatic Mitsubishi Magna Sedan [in] October 2009 and sold it [in] September 2010.”

14. The trial judge recorded that it was not in issue that PS was continually sexually assaulted from a very young age by various family members, in particular her father, TS, and her uncle, RS. KS “condoned, if not actively encouraged” the sexual assaults. PS said that KS “used to force [my sisters and I] to have sex with our brothers”. PS “was threatened with violence if she told anyone, including being told that she would be ‘dead’ and ‘have a bullet in her head’.” The admission of this evidence as “context evidence” was objected to at the trial. It was originally the subject of ground 1 of the appeal although that ground was not pressed.

15. In 2012, a number of children were removed by the Department of Family and Community Services (“FACS”). At some point, the police established Strike Force Hermoyne to investigate the “activities” of the extended family. It resulted in charges being brought against a number of adults within the extended family.

PS’s Evidence

16. As noted, PS relevantly participated in two video recorded interviews with police in August 2018 and September 2019. They formed part of her evidence-in-chief.

PS’s First Police Interview on 31 August 2018

17. During the first police interview, PS answered questions about the structure of her family, the effect of which has already been described. She agreed that she had previously provided a statement to a police officer providing false information about her father’s name but said she was told to say that by her uncle RS and she had been told “[s]ince I remember, way back” not to tell people outside of her family who her father was. PS said that the extended family lived together, generally on the same property but in different “houses”, “caravans”, “tents” or the like according to “family groups.” They all worked together, adults and children, as fruit pickers or as manual labourers. They had moved interstate together en masse on multiple occasions.

18. PS said that, prior to moving to Boorowa, the extended family moved from Halls Creek in Western Australia to Toodyay to allow TS to travel to Perth for surgery. She said they “stayed there for … for like three [to] four years”. She recalled moving to Boorowa when she was about 17 with her mother, KS, and her aunty, RDS, and their “kids”. She said that her aunty LS and her uncle RS stayed in Toodyay for “close to eight months” before they also moved to Boorowa. PS said that RS and TS forced her to have sex with them since she was a child as young as five or six. She said this “happened all the time.” She said that RS forced her to have sex with him when she lived at Boorowa. PS said that a number of males in the femily sexually assaulted the female children including herself and her older sister, TLS, and that her younger sister KDS who was born in 2005 was engaging in sexual activity with her brother BS who was born in 2003.

19. At one point during the first police interview, PS said that she had been sexually assaulted once by the applicant when he visited Boorowa. She said that “[h]e sleeps with me in the back of his car he chucked me in the back of his car.” She added that “[h]e just forced himself on me … took off his clothes” and “[h]e took off my clothes.” PS was asked:

“Q392   And when you say [he] forced himself on you, can you please tell me exactly what happened?

A.   Took my clothes off and he had nothing on spread my legs obviously did it can we stop”.

20. The interviewing officer then asked PS whether she saw the applicant “do that to anybody else”. PS said no. PS then agreed that her mother used to force her to have sex with her uncles and brothers and identified four perpetrators.

21. PS was asked why she had not told the truth when previously spoken to by police, being a reference to her communications with police in 2013 and 2017 noted below. PS said that RS hit her in the eye as a result of her disclosing information to police. (The trial judge found that PS is legally blind as a consequence of the assault on her eye.)

PS’s Further Evidence-in-Chief Following the First Police Interview

22. After the playing of the first police interview, PS was asked further questions about the applicant’s visit to Boorowa by the Crown Prosecutor. PS said the applicant travelled in a car that he bought in Western Australia about a year before her father passed away. PS said that on the day of the alleged offence, the applicant took off his clothes, held her down with her hands behind her back and “[tried] to pull my clothes off while I was fighting against him”. PS said the applicant then inserted his penis into her vagina without her consent. Throughout the incident, PS said that she was saying “no” and was “kicking him, punching him, pulling his hair and everything, [but she could not] get him off.” PS said the applicant’s penis was in her vagina for “[t]en minutes, ten, 15 minutes” before he “chucked my clothes out of the car and he pushed me out and he told me to ‘get’.” PS said the applicant called her an “ungrateful bitch and ... a pig and everything”.

23. PS said that no one heard her calling out because the applicant’s car was parked behind KS’s caravan and its generator was running. PS was then asked:

“Q.   Afterwards did you tell anyone in your family about what had happened?

A.   No.

Q.   Was there a reason why you didn’t tell anyone in your family?

A.   Yes.

Q.   What was that?

A.   I just get a hiding from mum, mum just tell me to shut up and keep my mouth shut.

Q.   At that time when you were living at Boorowa, was there anyone outside your family that you could tell?

A.   No.”

PS’s Second Police Interview on 19 September 2018

24. The recording of parts of PS’s second police interview was then played as part of her evidence-in-chief. Many parts of the interview were redacted. In the part of the interview that was played and tendered, PS told Detective Sergeant Fawcett that from an early age, RS would drag her “[b]ehind the sheds and the stone tank” and sexually assault her. She said that her “Mum and Dad” (i.e., KS and TS) observed this and told her to “keep my mouth shut”. PS said that her father “gave [her] a hiding if I brought it up.” PS said that when she was eight, she tried to run away from home and as a consequence her parents tied her in her room, beat her with a belt, and deprived her of food and water. PS described being sexually assaulted by RS at the various places she lived over time. PS told police that she would “be dead, for sure … I’d have a bullet in my head” if she were to report the incidents. She said that her cousin, CS, had a gun. PS said that when RS was not at the property in Boorowa other family members would “take over” and sexually assault her.

PS’s Further Evidence-in-Chief Following the Second Police Interview

25. After the second police interview was played, PS was asked questions about her movements after the children were removed from the Boorowa property in 2012. PS said that approximately nine months after the children were removed by Family and Community Services she and her mother moved to Orange. PS lived there for about six months before moving to South Australia in 2013. She stated that she stopped living, and ceased contact, with any family members, other than one of her older sisters, from early 2015. PS had not seen the applicant since he visited Boorowa in 2010.

Cross-Examination of PS

26. In cross‑examination, PS agreed that prior to living in Boorowa the family, including the applicant, lived at Toodyay and the applicant did not assault her while they were living there. She said that, at that time, the applicant owned a green “XR6” Ford motor vehicle.

27. PS agreed that she had given a statement to Detective Senior Constable Williams in Swan Hill in 2013 (the “Swan Hill statement”) part of which read:

“I live in Orange … in a cult which involves family together. We don’t go out anywhere, we all stay in the one place and I never went to school … In one year we never seen a person or spoke to anyone. That was approximately two years ago. It’s been four years since dad passed away … I don’t know what’s right or wrong anymore, but I think it’s wrong what my family are doing. All my aunts, uncles, cousins, brothers and sisters are all sleeping together. These family members are all 18, 19 years old and up. There were younger ones doing it too, however they have all been taken out of mum’s care.”

28. PS accepted that in the statement she did not say anything “specifically” about the applicant. PS agreed that, a couple of months after making the Swan Hill statement, DS Williams came to see her in Orange. She denied that she told DS Williams that the things she said in her statement were not true, that she made the Swan Hill statement because she wanted attention, that she was “high” on OxyContin when she made the statement and that she was repeating what she had been told by a ‘Mathew Holloway’, who in turn said that he had been told this information by “DHS” (i.e., FACS).

29. PS remembered speaking to Narellan Police in 2017. She said that at the time she complained to police about her uncle, RS. She disagreed that she told police she had been in an “intimate relationship” with RS since she was a teenager. She agreed she told police that RS had threatened her. She agreed that that she did not tell police in 2017 that she had been sexually assaulted by the applicant. She stated that she did not disclose that until 2018.

30. PS said that the applicant drove the green Ford XR6 when he visited Boorowa. It was suggested to her that she had previously told police that the applicant’s car was a (Holden) Commodore. PS disagreed adding “I’d rather not think about his car, that’s why I don’t think about it. I don’t remember sorry.” It was suggested to PS that the applicant was driving a brown Mitsubishi Magna when he visited Boorowa. PS disagreed.

31. The cross‑examination then probed PS for details of the sexual assault by the applicant. PS agreed that the applicant had an injured leg when he came to Boorowa but said he was not in a plaster. PS said she was walking past the applicant’s car when he grabbed her arm and threw her into the backseat of the car. She did not see the applicant at the time. It was suggested that the first time she disclosed that the applicant called her names was in her oral evidence at the trial but she said she told the interviewing police officer “in one of the interviews”. PS denied making up the alleged assault to “please the police.”

32. PS was asked:

“Q.   And you didn’t tell anyone about this incident until you were interviewed by Rachel Fawcett on 31 August 2018 … is that right?

A.   Yes.

Q.   And Detective Fawcett then interviewed you three more times after that?

A.   Yep.

Q.   And she didn’t ask you anything more about [the applicant], did she?

A.   No, she won’t. Not even after I told her I had two knees to the head, so – I’m sorry.”

Re-Examination of PS

33. In re-examination, PS explained that in 2013 she was staying with her mother in Orange but she did not tell her that she attended the police station. PS said was unable to complete her statement to DS Williams at that time because her mother kept calling her and asking where she was. PS stated that the reason she attended the police station in Narellan in 2017 was to obtain an Apprehended Violence Order against two of her sisters and RS.

Detective Senior Constable Williams

34. DSC Williams took the Swan Hill statement from PS. She then met with the complainant at a police station in August 2013 in Orange. She said that PS did not complete her police statement at the time because she was tired and wanted to go home. When DSC Williams attempted to follow up with PS, she did not answer her phone and no one answered when police attended her home. DSC Williams said that PS later recanted the Swan Hill statement in the terms that were put to her in cross‑examination, as noted above.

Detective Sergeant Fawcett

35. DS Fawcett conducted the first and second police interviews with PS. DS Fawcett said that her first contact with PS was in August 2018 just prior to the first police interview to enquire about PS’s willingness to provide a statement to police to assist their investigation. DS Fawcett said that she was not expecting to receive a complaint about the applicant. DS Fawcett said that she interviewed PS twice after the second police interview but those interviews did not concern any allegation against the applicant.

36. In cross‑examination DS Fawcett denied that in the first police interview she “kept directing [PS] towards” the applicant. DS Fawcett said that she also asked PS about the extended family, property and living conditions generally. She said that she asked PS about RS because “allegations had been made by other family members … I wanted to know if [PS] was a witness to those things.” She said that she ceased asking questions about the applicant because PS was becoming distressed. DS Fawcett agreed that PS said that the applicant drove a “green Commodore” to Boorowa.

Detective Inspector Hales (Officer in Charge)

37. Detective Inspector Hales was the officer in charge of Strike Force Hermoyne. In cross‑examination, she agreed that the applicant had been charged in separate proceedings with a number of offences mainly related to acts alleged to have been committed against his sister’s children. DI Hales agreed that PS was interviewed in August 2018 some weeks after the applicant had provided an alibi notice in relation to other charges indicating that the applicant had not attended the Boorowa property from September 2011 until mid-July 2012. DI Hales agreed that, prior to the first police interview, she had reviewed evidence that “[p]otentially” placed the applicant at the Boorowa property in February 2010. DI Hales denied that the purpose of the first police interview was to obtain evidence supporting allegations against the applicant. DI Hales said that charges had not been laid against RS, although he was the subject of an ongoing investigation.

Statement of Inspector Radford

38. By consent a statement of Inspector Radford from Wagga Wagga Police Station was tendered. He stated that, on 31 May 2012, police visited the Boorowa property and took various photographs (which were tendered at trial). He described the property as a “commune style living arrangement” with over 20 dogs and other animals living on the property on a “remote bush block”. He observed several adults and approximately 20 children to be living on the property in old caravans which smelled of excrement and urine.

The Trial Judgment

39. In light of the sole ground of appeal it is not strictly necessary to describe her Honour’s judgment in detail save that the directions her Honour gave herself are also applicable to this Court’s consideration of whether the verdict was unreasonable and cannot be supported by the evidence. Nevertheless, for the sake of completeness I note the following.

40. The trial judge commenced her judgment by setting out the “principles of law” that her Honour was applying (Criminal Procedure Act, s 133(2)). This included a direction in relation to context evidence as follows:

“The complainant gave evidence alleging other male members of her family sexually assaulted her throughout her childhood (and into her adult life), that this was actively encouraged by her mother and father and she was threatened with violence if she was ever to complain to anyone.

[The trial judge then summarised the evidence in the first and second police interviews on this topic and continued] …

This evidence was led by the Crown as evidence capable of providing some explanation for the fact that the complainant’s account of this particular offence in the 31 August 2018 interview does not indicate any particular signs of surprise on her part. It is also said to be relevant to assessing the fact that she does not say she made any complaint to anyone inside or outside her family afterwards, that given her past experience she could have no expectation of support or assistance from anyone in her family.

I remind myself of the limited reasons that that evidence is placed before me and remind myself that the evidence must not be used for any other purpose. Whether this evidence does assist me as the trier of facts in the ways the Crown suggest it would, and what significance I place on this evidence is a matter entirely for me. That is the only relevance this evidence has to my deliberations.

I must not use this evidence to reason that, because other male members of the … family have behaved in the way described by the complainant then the accused is the type of person who would commit the offence with which he has been charged. I cannot punish the accused for other conduct attributed to other male members of the family by finding him guilty of the charge in the indictment for that reason. That is not the Crown’s argument and it would be contrary to the law and my duty as a trier of fact to use the evidence for a purpose other than the specific basis relied upon by the Crown.

Of course if I do not accept the complainant’s evidence regarding other male members sexually assaulting her and the threats that she was exposed to, then I would reject that evidence, and if I was to reject it because I thought the complainant had been deliberately dishonest in her evidence then I would need to consider how that finding affected the remainder of her evidence.”

41. The trial judge then set out a summary of the evidence which is not relevantly different to that noted above. Her Honour also summarised the submissions of counsel. The applicant’s submissions, as (accurately) summarised by the trial judge, made much of the delay on the part of PS in making allegations against him. He referred to the delay in complaining of “eight plus years”, the fact that she did not complain even after she removed herself from her family in 2015 and that despite speaking to police on several occasions in 2013 and 2017 no complaint had been made concerning him.

42. The trial judge then set out findings of fact and the reasons for those findings (Criminal Procedure Act, s 133(2)). Although her Honour was critical of the manner in which the police interviewed PS, her Honour accepted that the purpose of the first police interview was “to obtain a more general account of the family history and to ascertain” PS’s willingness to speak to the police.

43. Her Honour then addressed the “factors affecting [the] credibility and reliability” of PS’s evidence. Her Honour noted the events surrounding the making and retraction of the Swan Hill statement in 2013 but noted that, at the time of the retraction, PS was living with her mother, being “the same mother who encouraged the male family members to have sexual intercourse with her against her will”. The trial judge then noted PS’s attendance at the Narellan Police Station in late 2017 observing that “[o]n each occasion [PS’s] contact with police was for a specific and different purpose”.

44. Her Honour observed that PS made her allegation some eight years after the alleged incident but then referred to her explanation for the delay as follows:

“The complainant made her allegation some eight years after the incident alleged when she was 25. She stated in the interview that she did not tell anyone before because ‘I’d just get a hiding from mum, mum just tell me to shut up and keep my mouth shut’, something she has been told all her life. When one considers the control her mother had over her life (where she lived, who she lived with, what she did for work, her lack of schooling, her control of finances), and the context evidence, the abuse she had suffered throughout her life, the threats of what would occur to her if she ever told anyone outside the family what was happening, the violence inflicted upon her (which clearly was still in play in 2017 when she went to Narellan Police Station), and her isolation from external influences and the outside world, then one may well consider those ‘good reasons’ for not complaining earlier than she did.”

45. The trial judge then addressed the evidence concerning the type of car the applicant is said to have driven to Boorowa and in which he raped PS. Her Honour was unable to make a determination as to what car the applicant drove but noted that it was established that he did drive to the Boorowa property and slept in his car. Her Honour concluded that the make and model of the car was not a “central aspect” of the case against the applicant.

46. Her Honour then explained her acceptance of PS’s evidence as follows:

“Overall, I find her account simply and matter-of-factly put. I find it compelling, and particularly when one considers the lack of education the complainant has received, the manner in which she was raised and her simple and rudimentary exposure to the outside world. I considered her evidence quite powerful, credible and believable. She did not guild the lily and try to attribute other acts to the accused. Indeed, throughout all of her evidence she clearly stated that nothing had ever occurred previously, nothing since, and she had not witnessed him doing anything untoward [to] anyone else in the family, but that she strongly maintained that this did occur in the way she described, and it occurred at the hands of the accused one night when he was visiting the Boorowa property and was sleeping in his car.”

47. Having made this finding, her Honour was satisfied beyond reasonable doubt that the elements of the offence under s 61I(1) of the Crimes Act were made out and found the applicant guilty.

Ground 4: Unreasonable Verdict

48. As noted, grounds 1, 2 and 3 of the notice of appeal were not pressed. Ground 4 of the appeal contends that “[t]he conviction of [the applicant] cannot be supported having regard to the evidence.”

49. The approach to be adopted on this ground of appeal when the conviction was entered following a trial before a judge sitting alone was recently considered by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 (“Dansie”). The High Court cautioned against an intermediate court of criminal appeal giving “undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty” by considering whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty. This approach was said to have the potential to distract the intermediate court of criminal appeal from its function of determining for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt (at [7]).

50. Consistent with M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63, Dansie describes the function of an intermediate court of criminal appeal considering this ground of appeal as requiring “an independent assessment of the whole of the evidence [and then] ask[ing] itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty” (at [15]). In Dansie it was noted that such a court "will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt” at [15] citing, inter alia, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [82]). Although the intermediate court of criminal appeal must make its own assessment, it “will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings” (at [16]).

51. As for the advantage enjoyed by the trial judge over the intermediate court of criminal appeal in seeing and hearing the evidence at trial, in Dansie it was found that that “will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial” (at [17]). It is notable that that advantage does not depend on the reasons of the trial judge. Thus, the scope of the advantage is not confined by any express statement by the trial judge describing, or even disclaiming, the advantages they enjoyed as such.

52. In Dansie it was found that, as the Crown case was circumstantial and consisted mostly of the transcript of largely unchallenged testimony and the accused did not give evidence, the advantage enjoyed by the trial judge was slight. By contrast, in this case, the advantage enjoyed by the trial judge over this Court was significant. The Crown case consisted of evidence given by the complainant in recorded format and in person before the trial judge. It was tested in cross-examination.

53. Thus, in a case such as this, this Court’s assessment proceeds upon the assumption that the evidence of PS was assessed to be credible and reliable, as it in fact was, but then examines the record of the trial “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” (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]).

Applicant’s Submissions and Consideration

54. The brief written submissions in support of this ground note the reliance by the Crown on PS’s evidence and accurately described her as a “vulnerable witness due to cognitive difficulties”. The submissions contended that PS’s complaint against the applicant was “inexplicably delayed”, that she gave detailed evidence of the alleged offence occurring “in a green SX Commodore which was not correct”, that her “evidence of the date of the incident was incorrect” and that she “gave detail[s] of her allegation in evidence for the first time which was implausible.” It was submitted that it was implausible that the applicant in his “fleeting and only visit … having never assaulted [PS] before, would have committed [the] offence.”

55. None of these contentions cause me to have any doubt about the applicant’s conviction. The delay in PS’s complaint was explained in considerable and persuasive detail by the context evidence. It was not established that PS’s evidence that the offence was committed in a green Commodore or a green Ford was incorrect. It was only demonstrated that the applicant happened to own a brown Mitsubishi Magna. It was not established that he did not drive a green Commodore or green Ford on the trip to Boorowa. Even if it had been established that he did not drive that vehicle to Boorowa, and to the extent that the applicant relies on the difference between a green Ford and a green Commodore, in circumstances where PS said that during the sexual assault that “I’d rather not think about his car”, that inconsistency would only be a doubt that the trial judge’s advantage in seeing and hearing her evidence was capable of resolving. Otherwise, the suggestion that PS gave details of the assault for the “first time” in her evidence was not substantiated. In the family context that PS described, her account was not implausible.

54. In oral argument further complaints were raised. Thus, it was contended that there was something unfair about the trial because of the comparative lack of detail of the sexual assault committed by the applicant given in the first police interview compared with the greater detail of the assault given by PS in her oral evidence. It is unclear how this complaint relates to this ground of appeal and, in any event, it is untenable. No application was made to the trial judge concerning this aspect of the evidence such as the delivery of further particulars or an adjournment. To the contrary the applicant’s counsel sought to use the relative lack of detail of the alleged sexual assault given in the first police interview to his client’s advantage by suggesting that it was indicative of PS’s vague and unreliable memory, notwithstanding the supposed efforts of the police to orientate the interview towards incriminating the applicant.

55. It was also contended that PS’s unreliability was demonstrated by her failure to mention the sexual assault by the applicant in the Swan Hill statement made in 2013 and when she approached the police at Narellan in 2017. Again, given the explanations given by PS and the police as to what those interviews concerned, this does not occasion any doubt on my part about the honesty or reliability of PS’s evidence.

56. Lastly, the applicant referred to PS withdrawing complaints about sexual offences committed by other family members as something bearing upon her credibility or reliability. This appears to be a reference to the matters that were originally sought to be raised by ground 3 of the notice of appeal which concerned fresh evidence. As noted, ground 3 was abandoned. In any event it was accepted on behalf of the applicant that none of the charges which were withdrawn by the Director of Public Prosecutions concerned allegations against other family members which involved PS as the complainant.

Conclusion

59. Upon a review of the whole of the evidence I consider that it was reasonably open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt. The evidence adduced by the Crown was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the sole count on the indictment.

Proposed Orders

60. I propose the following orders:

1. The Applicant be granted leave to raise ground 4 of the notice of appeal;

2. The Appeal be dismissed.

   61. GARLING J: I agree with the orders proposed by the Chief Judge, and subject to the reservation expressed below, with his reasons.

   62. Having examined the whole record of the trial, I was not left with any doubt about the applicant’s conviction. It follows that like the Chief Judge at [59], I have concluded that it was reasonably open to the trial Judge to be satisfied beyond reasonable doubt of the applicant’s guilt.

   63. I wish to reserve my position on the issue of the way in which this Court in carrying out its statutory function under s 6(1) of the Criminal Appeal Act 1912, with respect to an unreasonable verdict ground, reasons to a conclusion that the advantage enjoyed by a judge, when conducting a trial without a jury, of seeing and hearing the witnesses give the evidence removes any doubt which it might otherwise have, includes or excludes reliance on the trial Judge’s reasons.

   64. For that reason, I express no view on the matters discussed by the Chief Judge in [51] of his reasons.

   65. WILSON J: Having considered the evidence led at trial, including as to both sufficiency and quality, I agree with the Chief Judge at Common Law that it was open to the trial judge, sitting as the tribunal of fact, to be satisfied of the guilt of the applicant beyond reasonable doubt: Dansie v TheQueen [2022] HCA 25. I also agree with his Honour’s observations at [49] – [53] concerning the approach to be taken in matters where the verdict returned by a judge sitting without a jury is subject to challenge on appeal.

   66. I see no reason to do other than agree with the conclusion of the trial judge. and would also dismiss the appeal. I agree with the orders proposed by Beech-Jones CJ at CL.

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Decision last updated: 19 October 2022