Heathcote v The King - [2023] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HEATHCOTE v THE KING
[2023] SASCA 68
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
15 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against conviction.
On 1 March 2022, a jury convicted the appellant of two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The complainant was, at all relevant times, a child under the age of 14 years.
At the time of the alleged offences, the appellant was sharing a two storey townhouse in an Adelaide suburb. The appellant occupied one bedroom, his brother, K, occupied another, and the third bedroom was shared by a man, SW, and his then 11 year old son, IW. The complainant and her older sister, A, were friends with IW. The appellant, having regularly visited their house, already knew both the complainant and A.
On 18 April 2020, the complainant and A had a playdate with IW, at the townhouse. Although unplanned, the complainant and A ended up sleeping over. The complainant slept in the appellant’s bed. A slept in IW’s room. The prosecution alleged that the appellant left the townhouse late on the evening of 18 April 2020. The complainant was using a laptop computer belonging to the appellant on his bed, where she fell asleep. The appellant returned to the townhouse in the early morning of 19 April 2020 and went to his bedroom, at which point the complainant woke up. She used the bathroom and then went back to sleep. According to the complainant, the appellant came back to the bedroom a couple of hours later. He then touched her chest (Count 1) and inside and outside her vagina (Count 2). The prosecution case, based on the complainant’s account of events, was that the appellant touched the complainant five or six times in the region of her chest, and about three or four times on the inside of her vagina. According to the complainant, she told the appellant to stop what he was doing to her. Eventually, she fell asleep again.
On the morning of 19 April 2020, the complainant awoke and, after climbing over the appellant who was asleep, she telephoned her paternal grandmother, MH and sent her a series of texts to the effect that the appellant ‘touched’ her. MH contacted her mother, the complainant’s great grandmother, PO. Later that day, the complainant accompanied PO to her (PO’s) home, where she told PO that the appellant had touched her breasts and between her legs. The matter was reported to police. On 8 May 2020, the complainant participated in a prescribed interview.
The appellant was interviewed by police later that day at the townhouse. The appellant denied the allegations that he had touched the complainant’s chest and vagina in unequivocal terms, describing them as ‘a load of bullshit’ and ‘an outright lie’.
The appellant now appeals the conviction, on the grounds that:
(1)The learned trial judge erred in his directions to the jury regarding the lack of an internal medical examination.
(2)The learned trial judge erred by failing to direct the jury on how to approach the complainant’s s 13BA interview with the police.
a.      The learned trial judge erred by failing to direct the jury regarding the absence of cross examination of the complainant.
b. The learned trial judge erred by failing to direct the jury regarding the inconsistencies in the complainant’s s 13BA interview with police, between that and other witnesses, including the complaint witness.
(3)The learned trial judge erred in failing to direct the jury that the prosecution’s case rested solely on the evidence of the complainant and that the jury would need to be satisfied of both her reliability and credibility to the requisite standard.
(4)The verdict was unreasonable or cannot be supported having regard to the evidence, given, either singularly or in combination:
a.      The implausibility of the allegations of the complainant, particularly in relation to the timing of both acts complained of, given the unchallenged evidence of other prosecution witnesses.
b.      The inconsistencies in the evidence of the complainant, particularly, in relation to the nature of the touching referrable to Count 2.
c.      The lack of positive identification by the complainant of the person alleged to have touched her and the ‘process of elimination’ used to identify the accused.
d.      The inconsistencies between the evidence of the complainant and the content of the complaint.
e.      The inconsistencies between the evidence of the complainant about the adults remaining at the premises and the evidence of other prosecution witnesses.

Held (by the Court), granting permission on Grounds 2, 3 and 4 but dismissing the appeal:
1.The trial judge’s direction regarding the lack of an internal medical examination was in terms favourable to the appellant.
2.In the circumstances of the present case, the judge was not required to say more than he did in his summing up about the inconsistencies in the complainant’s evidence.
3.While a direction that the prosecution’s case rested solely on the evidence of the complainant would not have been incorrect and is frequently given, its absence in this case does not give rise to a miscarriage of justice.
4.After evaluating and weighing the competing evidence that was adduced at the appellant’s trial, the jury was entitled to accept as honest and reliable the account given by the complainant.

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 13BA, 35L(5), referred to.
Carr v The Queen (1988) 165 CLR 314; Dansie v The Queen (2022) 96 ALJR 728; GAX v The Queen (2017) 91 ALJR 698; Fitzgerald v The Queen (2014) 88 ALJR 779; Liberato v The Queen (1985) 159 CLR 507; Longman v The Queen (1989) 168 CLR 79; Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Robinson v The Queen (1999) 197 CLR 162; RPS v The Queen (2000) 199 CLR 620; R v Baden Clay (2016) 258 CLR 308; R v Hillier (2007) 228 CLR 618; R v Murray (1987) 11 NSWLR 12; SKA v The Queen (2011) 243 CLR 400; TKWJ v The Queen (2002) 212 CLR 124; Tully v The Queen (2006) 230 CLR 234; Weragoda v The Queen [2021] SASCA 123; Zaburoni v The Queen (2016) 256 CLR 482, considered.

HEATHCOTE v THE KING
[2023] SASCA 68
Court of Appeal – Criminal: Bleby and David JJA, Mazza AJA

THE COURT: The appellant was convicted after a trial by jury in the District Court of two offences of aggravated indecent assault upon the complainant, a female, who was, at all relevant times, a child under the age of 14 years.[1] The offences were alleged to have occurred in the one incident, sometime in the morning of 19 April 2020, when the complainant was 11 years old and the appellant was 59 years old. Count 1 alleged that the appellant touched the complainant’s chest. Count 2 alleged that the appellant touched the complainant’s vagina.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
At trial, the key issue for the jury to decide was whether the prosecution had proved beyond reasonable doubt that the appellant had touched the complainant as alleged. The prosecution’s case depended upon the jury being satisfied beyond reasonable doubt that the complainant’s testimony on this issue was honest and reliable. The appellant elected not to give or adduce any evidence in his defence. However, he relied upon the denials he gave in a video‑recorded interview with a police officer on 8 May 2020.
The grounds of appeal
The appellant appeals against his convictions on four grounds. As amended, the grounds are as follows:[2]
[2] See AB 66.
(1)The learned trial judge erred in his directions to the jury regarding the lack of an internal medical examination.
(2)The learned trial judge erred by failing to direct the jury on how to approach the complainant’s s 13BA interview with the police.
a.The learned trial judge erred by failing to direct the jury regarding the absence of cross examination of the complainant.[3]
[3] This particular was abandoned by the appellant. See appellant’s written submissions [17].
b.The learned trial judge erred by failing to direct the jury regarding the inconsistencies in the complainant’s s 13BA interview with police, between that and other witnesses, including the complaint witness.
(3)The learned trial judge erred in failing to direct the jury that the prosecution’s case rested solely on the evidence of the complainant and that the jury would need to be satisfied of both her reliability and credibility to the requisite standard.
(4)The verdict was unreasonable or cannot be supported having regard to the evidence, given, either singularly or in combination:
a.The implausibility of the allegations of the complainant, particularly in relation to the timing of both acts complained of, given the unchallenged evidence of other prosecution witnesses.
b.The inconsistencies in the evidence of the complainant, particularly, in relation to the nature of the touching referrable to Count 2.
c.The lack of positive identification by the complainant of the person alleged to have touched her and the ‘process of elimination’ used to identify the accused.[4]
d.The inconsistencies between the evidence of the complainant and the content of the complaint.
e.The inconsistencies between the evidence of the complainant about the adults remaining at the premises and the evidence of other prosecution witnesses.
[4] This particular was abandoned by the appellant. See appellant’s written submissions [56].
A single judge gave permission to appeal on Ground 2 as it had been originally formulated. The single judge referred the question of permission to appeal in respect of Grounds 1 and 3 as originally formulated (now Grounds 1 and 4) to the hearing of the appeal. Permission has not yet been granted on Grounds 2 or 3 in their present form. An extension of time to appeal was required. The respondent did not oppose the application.[5] The Court granted an extension of time at the hearing.
[5] Respondent’s written submissions [1].
The trial
The jury was empanelled on the afternoon of 21 February 2022, and delivered its verdicts on 1 March 2022. A considerable amount of time was taken up in the trial with matters that did not concern the jury and which are not the subject of this appeal. In all, the evidence spanned three sitting days.[6] None of the testimony was lengthy or complicated, and the issues in contest were clearly defined for the jury by counsel.
[6] 23, 24 and 25 February 2022.
The prosecution case at trial
At the time of the alleged offences, the appellant was sharing a two‑storey townhouse in an Adelaide suburb. The living areas, including the kitchen, were downstairs. Upstairs, were three bedrooms and the bathroom. The appellant occupied one bedroom, his brother, K, occupied another, and the third bedroom was shared by a man, SW, and his then 11‑year‑old son, IW. The complainant and her older sister, A, were friends with IW.
The complainant and A were living with their father, B, who was separated from their mother. B was a friend of SW. B also knew the appellant and K. The appellant, having regularly visited their house, already knew both the complainant and A.
On 18 April 2020, the complainant and A had a playdate with IW, at the townhouse. Although unplanned, the complainant and A ended up sleeping over. The complainant slept in the appellant’s bed. A slept in IW’s room.
The prosecution alleged that the appellant left the townhouse late on the evening of 18 April 2020. The complainant was using a laptop computer belonging to the appellant on his bed, where she fell asleep. The appellant returned to the townhouse in the early morning of 19 April 2020 and went to his bedroom. The complainant said that she woke up when the appellant returned to the bedroom. She said that she recognised his voice. After she woke up, she went to the toilet. As she did so, the complainant walked past the appellant. Upon her return, she got back into the bed and fell asleep.
According to the complainant, the appellant came back to the bedroom a couple of hours later. He watched television for a while. He then touched her chest (Count 1). The appellant then touched her, inside and outside the area in between her legs, which she described in a number of ways, but was clearly her vagina (Count 2).[7] It was not suggested at trial that if the touching the subject of Count 2 occurred, it did not occur on the complainant’s vagina.
[7] See the drawing made by the complainant, exhibit P3.
The prosecution case, based on the complainant’s account of events, was that the appellant touched the complainant five or six times in the region of her chest, and about three or four times on the inside of her vagina. According to the complainant, she told the appellant to stop what he was doing to her. Eventually, she fell asleep again.
According to the complainant, on the morning of 19 April 2020, she awoke and, after climbing over the appellant who was asleep, she telephoned her paternal grandmother, MH. At just after 10.00 am, she sent a series of text messages to MH. Screenshots of the text messages were tendered at trial.[8] In the text messages, the complainant said, ‘I need to tell you something important’, that she was scared to tell her father what had occurred and, later, ‘Am being touched by a man around 40 ‑ 50[.] I was so scared’.
[8] Exhibit P9; T 182 - 183: AB 172 - 176.
MH contacted her mother, the complainant’s great‑grandmother, PO. PO went to the complainant’s house. A short time later, the complainant arrived home. Later that day, the complainant accompanied PO to her (PO’s) home, where she told PO that the appellant had touched her breasts and between her legs. The matter was reported to police. On 8 May 2020, the complainant participated in a prescribed interview. This interview was later admitted as the evidence‑in‑chief of the complainant, pursuant to s 13BA of the Evidence Act 1929 (SA).[9]
[9] By order of Davison DCJ, 28 June 2021.
Later on 8 May 2020, the appellant was interviewed by police at the townhouse. A video‑recording of this interview was played to the jury and tendered as part of the prosecution case.
In the interview, the appellant gave an account of the relevant events of 18 and 19 April 2020 to this effect. The appellant said that he left the townhouse at about 11.30 pm on 18 April 2020. He said that he had had enough of the complainant and A fighting. The appellant told the police that he and his brother, K, went to Steve’s (Stephen Mind) place, where he stayed all night, before returning to the townhouse at about 6.30 am. The appellant said that when he got there, he went up to his bedroom and saw that the complainant was in his bed. The appellant said that he had ‘words’ with SW about the complainant’s presence in his bed. The appellant then returned to his bedroom, where he passed out. He told the interviewing officer that he had been awake for the previous two or three days.
The appellant said that when he got up, the complainant was not in the bed. He said that he went downstairs, where he saw the complainant and A.
The appellant denied the allegations that he had touched the complainant’s chest and vagina in unequivocal terms, describing them as ‘a load of bullshit’ and ‘an outright lie’.
The defence case
As explained by defence counsel in his closing address to the jury,[10] the defence case was that the evidence adduced by the prosecution fell short of establishing the appellant’s guilt beyond reasonable doubt.
[10] T 358 - 369.
The focus of the closing address was the credibility of the complainant’s account of events as described in her s 13BA interview. Defence counsel made submissions as to both the form and content of the interview. As to its form, defence counsel submitted to the jury that the complainant’s account of events had not been adequately tested by the interviewers. Defence counsel pointed out that the complainant had not been specifically asked whether or not what she had said was the truth, and whether the offender was the appellant.
As to the content of the interview, defence counsel submitted that the complainant’s account lacked detail. Defence counsel also submitted that the complainant initially said that the offences were committed between 1.00 am and 2.00 am on 19 April 2020, but later in the interview said that they were committed between 3.00 am and 4.00 am. Defence counsel submitted, in substance, that the complainant’s timing was contradicted by the appellant in his police interview, and by the statement of Mr Mind and the evidence of SW, which, in combination, supported the appellant’s account that he was not at his home during either of the periods nominated by the complainant.
Defence counsel submitted that the jury could not be satisfied beyond reasonable doubt of the element of identity because the complainant’s statements that the appellant was the person who touched her were only an assumption on her part, based on a process of reasoning by the complainant which eliminated all of the other adult males in the household, apart from the appellant.
Defence counsel highlighted that the complainant gave inconsistent answers in her s 13BA interview as to whether the appellant had touched her over or underneath her clothing and whether, in respect of Count 2, his fingers had entered her vagina.
Defence counsel suggested that the appellant may have, when he passed out on his bed, unconsciously, while tossing and turning, touched the complainant on her chest, which she either misconstrued or exaggerated.
Defence counsel drew the jury’s attention to the statement made by the complainant in her s 13BA interview that she slept on top of the blankets in the appellant’s bed because it was hot. Defence counsel pointed to agreed evidence, based on the Bureau of Meteorology records for 18 and 19 April 2020, that showed that neither day could be said to have been hot.
The evidence adduced at trial
The evidence adduced at trial comprised:
(a)the prescribed interviews with the complainant, A and IW, which formed the entirety of their evidence;
(b)evidence given by the complainant’s father and SW in relation to events on the day before and the day of the offending;
(c)evidence given by the complainant’s grandmother and great‑grandmother, primarily in relation to complaint;
(d)evidence of police witnesses, which included various exhibits, including prescribed interviews and the interview with the appellant;
(e)a statement of Stephen Mind, which was, by consent, read to the jury; and
(f)a statement of agreed facts in relation to the temperature on 18 and 19 April 2020.
This evidence will be referred to in greater detail in dealing with Ground 4.
The evidence of the complainant, A and IW was not the subject of cross‑examination

Unusually, the three child witnesses, being the complainant, A, and IW, were not subjected to cross‑examination. The appellant’s very experienced trial counsel made no application to cross‑examine these witnesses, either at a special hearing on 28 June 2021 or at trial. Defence counsel informed the trial judge:[11]
I’m not instructed to make any application to cross‑examine any of the three child witnesses.
[11] T 11.
The trial judge described this as ‘rather surprising’.[12] It is clear from defence counsel’s subsequent exchange with the trial judge, and his closing address, that defence counsel adopted, as a deliberate forensic strategy, an approach of impugning the credibility of the complainant by highlighting the ‘very significant inconsistencies in her evidence … both to identity and the actual acts themselves’, rather than by seeking to confront the complainant in cross-examination with the alleged inconsistencies.[13]
[12] T 11.
[13] T 13.
During the hearing of this appeal, counsel for the appellant (who was not trial counsel) eschewed any point that the appellant had suffered a miscarriage of justice as a result of the failure by defence counsel to cross‑examine the complainant, and confirmed that the failure was a deliberate forensic decision by defence counsel.[14] It was not argued that the forensic decision was objectively unreasonable or that there was no valid reason for failing to cross-examine the appellant.[15] None of the grounds of appeal suggest that the appellant has suffered any miscarriage of justice as a result of the failure, which importantly appears to be consistent with the appellant’s instructions to his counsel. Further, we note that particular (a) of Ground 2, which originally alleged that the learned trial judge erred by failing to direct the jury regarding the absence of cross‑examination of the complainant, was abandoned.
[14] Appeal T 5 - 6.
[15] See TKWJ v The Queen (2002) 212 CLR 124 [74] - [85] (McHugh J).
Ground 1 - directions regarding medical examination
The relevant background to Ground 1 is as follows.
Between 19 April 2020 and 8 May 2020, the complainant lived with, and was in the care of, her great‑grandmother, PO. On 8 May 2020, the complainant participated in the s 13BA interview, during which she said, in respect of Count 2, that the appellant inserted three or four fingers inside her ‘parts’.[16] The complainant also said that when the appellant touched her ‘parts’, she did not really feel any pain and that she sustained no injury.[17] Later in the interview, the complainant said that she did not remember feeling any pain. The interviewer asked her, ‘how far did the hand go when he was on your private?’, to which the complainant responded, ‘[p]retty far’. The interviewer asked, ‘did the hand go, um, inside you?’, to which the complainant said, ‘not really’.[18]
[16] Complainant’s interview, AB 95, lines 418 - 419.
[17] Complainant’s interview, AB 81, lines 149 - 152.
[18] Complainant’s interview, AB 91, lines 347 - 354.
Under cross‑examination, PO agreed that on 9 May 2020, she received a telephone call from Detective Brevet Sergeant McGilchrist, the lead investigating officer in the case,[19] in which she asked whether the complainant would be prepared to undertake a medical examination. PO said that the complainant refused to be medically examined, adding that, ‘She [the complainant] was too frightened’.[20] No medical examination of the complainant was carried out.
[19] T 296.
[20] T 207.
In his closing address, defence counsel reminded the jury of PO’s testimony on this point, and submitted to the jury that they ‘may think it’s strange’ that no medical examination was conducted.[21]
[21] T 368.
The trial judge referred to the absence of a medical examination of the complainant at two points in the summing up in the context of directing the jury not to speculate about evidence that was not adduced at trial. The first such direction was given early in the summing up and was in these terms:[22]
I want to say something to you on the topic of evidence that was not led.
It has been suggested in this case that there could have been a medical examination of the complainant and evidence given in court about the result of any medical examination.
Well, I direct you, ladies and gentlemen, that you must decide the case on the evidence that has been called. You should not speculate on what a medical examination might have shown, and what a medical expert might say in court about it. You should decide this case on the evidence that has been called.
If you are of the view that the case has not been proved beyond reasonable doubt, then obviously if you have a reasonable doubt you must acquit. And if this doubt arises because a certain test was not done, well so be it.
But you do not know if a test would necessarily show damage, for example, if a finger went into the complainant’s vagina. We have no evidence in this case about whether, if the finger did go in the vagina, it caused pain, or how much pain, or how far the finger went in, or if it went in forcefully or not.
So you must base your verdict on the evidence that has been heard in court, and not speculate about potential other witnesses or other evidence. But, as I said, at the end of the day you must be satisfied beyond reasonable doubt before you can convict.
[22] AB 47 - 48.
Then, towards the end of the summing up, his Honour said, while summarising the defence case:[23]
She’s an 11‑year‑old child. It would be interesting to know, says [defence counsel], upon a vaginal examination whether there was any damage to the inside of her vagina given she was not very old, but she did not want an examination.
Well, as I have already told you, ladies and gentlemen, you should not speculate about what witnesses that are not called might have said. But if the failure to do a rather obvious test or investigation occurs and that helps you to have a reasonable doubt then so be it. You have a reasonable doubt, you must acquit.
Ladies and gentlemen, if an internal examination had taken place maybe this issue about whether a finger went inside her would have been laid to rest. On the other hand, as I said to you, do you necessarily know if a finger in the vagina, even of an 11‑year‑old girl would do damage? And in order to find guilt here you do not have to be satisfied beyond reasonable doubt that a finger entered the vagina, you just simply have to be satisfied beyond reasonable doubt of all of the elements of the offence, including that there was an application of force in circumstances of indecency. And an application of force obviously could be putting a finger in the vagina, putting the finger outside the clothing on the area of the vagina, or many things in between.
But anyway, [defence counsel] quite candidly says to you that, ‘Well he’s not saying that it’s not indecent assault to touch someone on the outside of the vagina, outside of the clothes, or similarly outside of the breasts, outside the clothes’, what he is saying to you is that you should have so much doubt about what the complainant is saying about the matter because it indicates that the complainant herself is unsure about it, and you cannot be satisfied beyond reasonable doubt of what the complainant says.
[23] AB 55.
Ground 1 - the appellant’s submissions
Unsurprisingly, the appellant does not criticise the general direction to the jury not to speculate about evidence that was not led at trial. The appellant accepts that it would have been impermissible for the jury to speculate about what might have been found if the complainant had been medically examined. As explained by the appellant’s counsel in the oral hearing, the gravamen of Ground 1 is a complaint that his Honour did the very thing he warned the jury not to do, that is, to speculate when he said to the jury:
But you do not know if the test would necessarily show damage, for example, if a finger went into the complainant’s vagina. We have no evidence in this case about whether, if the finger did go in the vagina, it caused pain, or how much pain, or how far the finger went in, or if it went forcefully or not.
The appellant complains that this ‘speculation’ was, in essence, a submission on behalf of the prosecution.
Ground 1 - the respondent’s submissions
The respondent submitted that the directions were not erroneous. The respondent observed that defence counsel’s submissions on the absence of a medical examination of the complainant were ‘somewhat oblique’ and that it was appropriate for his Honour to give the specific directions he gave concerning the absence of a medical examination of the complainant. The respondent submitted that his Honour did not engage in speculation. The respondent noted that defence counsel did not request any redirection on this issue at the trial.
Ground 1 - disposition
In our opinion, Ground 1 is without merit.
In his closing address to the jury, defence counsel raised the issue of the complainant’s evident refusal to submit to a medical examination some three weeks after the commission of the alleged offences. Although defence counsel did not explicitly invite speculative reasoning about what such an examination might reveal, a jury might reasonably, in response to defence counsel’s submission, be tempted to go down that path. His Honour was correct to direct the jury in a way which was designed to prohibit any such reasoning. Contrary to the appellant’s submissions, his Honour did not himself engage in speculation in the impugned portion of the summing up. His Honour did no more than, quite properly, instruct the jury that there was no evidence to show that a medical examination would have revealed anything which would have assisted the jury to find the appellant had inserted his fingers into the complainant’s vagina. His Honour’s directions were not a submission on behalf of the prosecution, and could not reasonably be understood in this way.
Favourably to the appellant, his Honour expressly left open to the jury the possibility that the absence of a medical examination of the complainant may give rise to a reasonable doubt as to the appellant’s guilt. In the circumstances of this case, where the complainant said that she had not suffered any pain as a result of the alleged digital penetration of her vagina, nor had she suffered any injury, and where the request for the medical examination was made almost three weeks after the alleged offence, it is far from clear that the absence of a medical examination was a matter of any relevance in the case. It is unnecessary to decide whether the direction was appropriate. However, on any view, the direction was, as we have said, favourable to the appellant.
Permission to appeal on this ground should be refused.
Grounds 2 and 3 - general legal principles
Grounds 2 and 3 allege errors on the part of the trial judge by failing to give directions about aspects of the complainant’s evidence. Ground 2, as argued, alleges that his Honour failed to direct the jury regarding internal inconsistencies between the complainant’s s 13BA interview with police and inconsistencies with the testimony of other witnesses. Ground 3 alleges that his Honour erred in failing to direct the jury that the prosecution’s case rested solely on the evidence of the complainant and that before convicting the appellant, the jury needed to carefully scrutinise her evidence to be satisfied of both her reliability and credibility.
There is no rule of law or practice which requires, in every case where there are inconsistencies or where proof of an offence relies on the uncorroborated evidence of a witness, that specific directions on such matters are required. A judge is only bound to give an instruction or warning where, in the circumstances of the particular case, such an instruction or warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[24] Longman v The Queen;[25] and Tully v The Queen.[26]
[24] Carr v The Queen (1988) 165 CLR 314, 324 - 325 (Brennan J).
[25] Longman v The Queen (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[26] Tully v The Queen (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
It is the possibility of a miscarriage of justice which determines both the occasion for giving a direction and its content. Where no such direction is needed to avoid a miscarriage, none need be given. See Weragoda v The Queen.[27]
[27] Weragoda v The Queen [2021] SASCA 123 [21].
As Gaudron ACJ, Gummow, Kirby and Hayne JJ said in RPS v The Queen:[28]
Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
(Emphasis in original; footnotes omitted)
[28] RPS v The Queen (2000) 199 CLR 620 [41].
Having set out these general principles, we now turn to consider each of Grounds 2 and 3, which overlap to some extent.
Ground 2 - alleged failure to direct about inconsistencies
As we have already indicated, defence counsel made much of the alleged inconsistencies between statements made by the complainant in her s 13BA interview and that of other witnesses. We have already referred to some of these alleged inconsistencies. Defence counsel addressed the jury in detail about them.
It is unnecessary to repeat all of the inconsistencies alleged by defence counsel in his closing address. The main inconsistencies are those referred to earlier in these reasons, at [20], [22] and [24].
His Honour’s summing up was not silent as to the alleged inconsistencies of the appellant and how any inconsistency might impact on the credibility of the complainant.
In the general directions his Honour gave about the truthfulness and reliability of witnesses, his Honour directed the jury that among the matters that they were required to consider was ‘how the witnesses’ evidence fits in with other evidence in the case which you find to be convincing’.[29]
[29] AB 47.
In the course of his Honour’s directions as to the evidence of initial complaint by the complainant, his Honour directed the jury to the effect that complaint evidence was relevant both to ‘consistency of conduct’ and ‘lack of consistency of conduct of the complainant’.[30] As to inconsistency, his Honour drew the jury’s attention to the complainant’s complaint to PO and whether that complaint was consistent or inconsistent. His Honour said:[31]
You heard the complainant went to her [great-grandmother, PO’s] house on the evening of the offending and told her that while sleeping in the bed of the accused at [the townhouse] at about 3.00 am the accused got into bed and she was touched over her clothes on her breasts and between her legs.
Now it is a matter for you as to whether the complaint demonstrates consistency, or on the other hand demonstrates inconsistency, or perhaps you regard it as entirely neutral, it is neither one thing nor the other.
Is it what you might expect the complainant to say if what she says happened was true? In that case it might give you more confidence in accepting the complainant’s evidence. On the other hand it might demonstrate inconsistency, and the circumstances in which it occurred might cause you to be doubtful about the incidents having happened at all.
[30] AB 48.
[31] AB 48 - 49.
His Honour summarised, in detail, the prosecution and defence cases. In doing so, his Honour reminded the jury that the prosecutor had accepted that in certain respects, the complainant’s evidence was inconsistent. However, his Honour reminded the jury that the prosecution case was that despite the inconsistencies, the complainant was ‘pretty adamant’ that she had been touched on the breasts and in the area of her vagina.[32]
[32] AB 53.
In reminding the jury of the defence case, his Honour referred to various inconsistencies alleged by defence counsel and the defence arguments in respect of them, including: that the answers the complainant gave about the time when the offences occurred was ‘all over the place’;[33] that the complainant gave ‘a series of different answers’ as to whether the appellant touched her under or over her clothing; and whether he had put his hand or his fingers inside her vagina or not.[34] His Honour concluded his summary by encapsulating the defence case in this way:[35]
Whatever way you look at it, the prosecution has not proved its case beyond reasonable doubt. There are too many inconsistencies as to when it occurred and as to whether the touching was over the clothes, under the clothes, on the vagina under the clothes, in the vagina, etc, so you should acquit is the final submission made by [defence counsel].
[33] AB 54.
[34] AB 55.
[35] AB 56.
Defence counsel took no exception to any aspect of the summing up, including the matters to which we have just referred. The only matter defence counsel raised with his Honour was to request that the jury have a transcript of the complainant’s s 13BA interview to assist them to follow the recording of the complainant’s evidence.[36]
[36] AB 57 - 58.
Ground 2 - appellant’s submissions
In support of Ground 2, the appellant asserted that the complainant’s evidence, indeed the entire prosecution case, was ‘riddled with inconsistencies’.[37] It was submitted that of particular importance in this case were the ‘obvious inconsistencies on the face of the prosecution’s case’. The appellant submitted that there was a need for ‘some direction by the judge’, given that the prosecution did not ask any further questions in examination‑in‑chief to clarify the complainant’s evidence, and there was no cross‑examination of her.[38]
[37] Appellant’s written submissions [21].
[38] Appellant’s written submissions [24].
In her oral submissions before this court, counsel for the appellant, when asked to state with precision the direction his Honour ought to have given, submitted that there ‘should have been some identification of those areas of inconsistencies which impact[ed] on her [the complainant’s] unreliability’.[39] When asked which inconsistencies should have been identified, counsel for the appellant said:[40]
[T]he main ones, in my submission, were the lack of clarity about whether it was over or under and that is in relation to both count 1 and count 2. She was back and forth in relation to that issue.
The other one is in relation to whether the touching was inside or outside her vagina. These were both topics that were covered quite extensively by the questioner. The other one that counsel referred to was [the] hot night.
In my submission, the crux of the unreliability in relation to the particular inconsistencies go to the heart of the offending.
[39] Appeal T 18.
[40] Appeal T 18.
Ground 2 - respondent’s submissions
It was submitted on behalf of the respondent that having regard to the general directions his Honour gave and bearing in mind that his Honour did, in summarising the defence case, refer to the inconsistencies now said by the appellant to be the most significant, his Honour was required to do no more, and that no error has been established.
Ground 2 - disposition

The trial judge gave orthodox and unchallenged directions about how the jury was to approach the task of assessing a witness’s credibility, including by having regard to, in effect, the witness’s consistency with other evidence adduced in the trial and accepted by the jury. His Honour also gave directions that before the jury could convict the appellant, it had to ‘positively accept’ the evidence of the prosecution beyond reasonable doubt.[41] The jury would have understood these directions as applying to the complainant.
[41] AB 56.
As we have pointed out, his Honour gave specific directions to the jury about the alleged inconsistency between the complainant’s evidence and her initial complaint to her great‑grandmother, and that if the jury found that there was such an inconsistency, it may give rise to a reasonable doubt as to the appellant’s guilt.
His Honour fairly and accurately summarised defence counsel’s submissions and, in doing so, referred to the alleged inconsistencies counsel for the appellant emphasised in her oral submissions to this court.
Having regard to his Honour’s direction as a whole, including the matters that we have just referred to, it would not have been lost on the jury that an important aspect of the defence case was the attack on the complainant’s credibility based on the alleged inconsistencies. In our opinion, there was no perceptible risk that the jury would have failed to understand that it was required to evaluate the alleged inconsistencies in their assessment of the complainant’s evidence.
We do not accept the submission that the directions the appellant now says should have been given were made more necessary by the fact that the complainant was not the subject of further examination‑in‑chief or any cross‑examination, bearing in mind that the absence of cross‑examination was a decision evidently made by defence counsel, on instructions, for forensic reasons.
Finally, while not immediately fatal to the success of Ground 2, it is a significant factor that experienced defence counsel did not take any exception to the summing up, and did not seek a direction from his Honour of the kind the appellant now contends should have been given.
In the circumstances of the present case, his Honour was not required to say more than he did in his summing up about the inconsistencies in the complainant’s evidence.
While we grant permission to appeal on Ground 2, the ground has not been made out.
Ground 3 - did the learned trial judge err by failing to direct the jury that the prosecution’s case rested solely on the evidence of the complainant?
The focus of the cases run at trial by the prosecution and the defence was upon the credibility of the complainant. Plainly, the jury could not convict the appellant unless it was satisfied beyond reasonable doubt that the complainant’s testimony, to the effect that she had been touched on her breasts and on her vagina, was true.
As we have already said, his Honour gave the jury comprehensive and correct general directions about the assessment of witnesses. It would not have been lost on the jury that these general directions applied to the complainant. His Honour said:[42]
I want to say something to you about the assessment of witnesses. In ascertaining the facts in this case you will have to evaluate the evidence which has been placed before you. This involves, among other things, a consideration of how much weight you can place upon the evidence of the various witnesses.
In assessing any witness as to truthfulness and reliability you will need to have regard to your own impressions of the witness gathered by watching and hearing that person in the witness box, or on the video in the case of witnesses who gave evidence that way, the intrinsic likelihood or unlikelihood of the story that the witness tells. You will need to consider the manner in which the witness gave his or her evidence; how the relevant story stood up under cross‑examination, how the witness’s evidence fits in with other evidence in the case which you find to be convincing and any other factors which commend themselves to you.
You should remember that witnesses vary in background, age, degree of intelligence, education, personality and character. You must make allowances for personal qualities and characteristics. Some witnesses are more nervous than others, some are better educated than others, some more articulate than others and so on. You must do your best to make allowances for all these aspects in assessing a witness.
Of course, you do not have to accept or reject all that a witness says without qualification. You may find that a witness whom you generally regard to be acceptable says something which you cannot accept. Should that occur, you do not have to reject the whole of the evidence of that witness. He or she may be honestly mistaken about some matter, while being entirely reliable about other matters.
But the factors which I have mentioned are only guides to assist you in ascertaining the facts, and what is important above all else in deciding a case is that you bring your common sense and your experience of the ways of the world to bear in deciding how far each witness is being truthful and reliable.
[42] AB 47.
His Honour then gave a direction about initial complaint, which was both comprehensive and correct. That direction, as we have already stated, concerned the complainant, and dealt with issues of both consistency of conduct and inconsistency as to the complainant’s testimony and that of PO. His Honour directed the jury that inconsistency may give rise to a doubt about whether the alleged incidents happened at all.
His Honour correctly directed the jury as to the elements of the offence, including the elements of assault.
His Honour, as we have already said, comprehensively summarised the prosecution and defence cases. In doing so, his Honour focused on the submissions made by counsel concerning the credibility of the complainant.
Finally, the trial judge gave a Liberato[43] direction, as follows:[44]
In a moment I’m going to ask you to retire to consider your verdicts. You should clearly remember it is not enough that you disbelieve the accused beyond reasonable doubt. Before you can convict him you must positively accept the evidence of the prosecution beyond reasonable doubt both as to its truth and as to its accuracy, at least in respect of the elements of the offences charged that are under your consideration before you could return a verdict of guilty in relation to those charges. I remind you that the accused does not have to prove anything.
[43] Liberato v The Queen (1985) 159 CLR 507, 515.
[44] AB 56.
This direction plainly applied to the testimony of the complainant.
The appellant submitted that ‘the entirety of the prosecution’s case was dependent upon the jury’s acceptance of the truthfulness and reliability of the complainant’s evidence’.[45]
[45] Appellant’s written submissions [29].
The appellant submitted that the abolition of the requirement to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of the alleged victim does not exclude the necessity for a judge to direct a jury to scrutinise with great care the uncorroborated evidence of an alleged victim of a sexual offence, where such a direction is necessary for the fair trial of the accused. While the appellant accepts that such a direction is not always necessary, the appellant submits the direction should be given where the circumstances of the case, and the way that the trial was conducted, necessitated that such a direction should be given to avoid a miscarriage of justice.[46]
[46] Appellant’s written submissions [30].
The appellant asserted that in the circumstances of the present case, the general directions given by the trial judge were insufficient, and that his Honour was required to give a Murray[47] direction to the effect that the evidence of the complainant must be scrutinised with great care before a verdict of guilty is delivered. The circumstances said to justify the necessity to give such a direction appears to be, on the appellant’s case, that the entirety of the prosecution’s case was dependent upon the jury’s acceptance of the truthfulness and reliability of the appellant’s case, which was not, as to the alleged touching by the appellant, corroborated.
[47] R v Murray (1987) 11 NSWLR 12, 19.
It was submitted for the respondent that while it is true that the complainant’s evidence was the sole evidence upon which the jury could find that the appellant had touched her as alleged in the two counts, her evidence was supported, in significant respects, by other witnesses in relation to the surrounding circumstances of the offending, including in relation to the opportunity to offend, some of the events which occurred after she woke up on the morning of 19 April 2020, and the evidence of initial complaint.[48]
[48] Respondent’s written submissions [48].
The respondent submitted that by the general directions given by his Honour, in the context of a case where it was clear that the only witness as to the conduct which made out the indecent assaults was the complainant, it must have been apparent to the jury that the complainant’s evidence had to be accepted beyond reasonable doubt before it could convict.[49]
[49] Respondent’s written submissions [53].
It was submitted that this was not a case where a direction to scrutinise the complainant’s evidence with great care was required. Further, there was no request by defence counsel for such a direction to be given.
Ground 3 - disposition
By the enactment of s 34L(5) of the Evidence Act, the requirement for a judge to warn a jury that it was unsafe to convict an accused on the uncorroborated evidence of the alleged victim was abolished. The abolition of this requirement did not exclude the necessity for a judge to direct a jury to scrutinise with great care the uncorroborated evidence of an alleged victim of a sexual assault, where a such a direction was necessary to ensure a fair trial of the accused. In Weragoda,[50] this court (Doyle & David JJA, Stanley AJA) stated that there was no rule of law or practice which required a Murray direction to be given in every case where proof of an offence relies on the uncorroborated evidence of a witness. A direction is only required in order to avoid a miscarriage of justice in the particular case.
[50] Weragoda [21].
In Robinson v The Queen,[51] Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ referred with approval to what was said in Murray. In that case, in which there was no evidence of an early complaint, their Honours identified a number of factors which, when taken together with the absence of corroboration, required a warning to be given to the jury to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.[52]
[51] Robinson v The Queen (1999) 197 CLR 162.
[52] Robinson [25] - [26].
In our opinion, the present case did not require such a warning. Our reasons for this conclusion are in combination as follows.
This was a short trial. The central factual issue was whether the appellant had touched the complainant’s breasts and vagina as the complainant alleged. The only witness who could give evidence on these matters was the complainant herself. This circumstance would have been blindingly obvious to the jury. The events occurred in the course of one, brief, incident. A complaint was made within hours of the commission of the alleged offences. There was no apparent forensic disadvantage to the appellant. The complainant knew the appellant well and although at trial there was some issue about her identification of him, given her knowledge of the appellant, identification was not an issue of real importance.
The whole defence case was focused on the complainant’s credibility. The defence made much of the inconsistencies to which we have already alluded, and other matters said to give rise to a reasonable doubt as to the complainant’s credibility.
The trial judge’s general directions, referred to in [68] and [72] above, were sufficient to convey to the jury that it could not convict the appellant without deciding that the complainant’s evidence as to being touched on the breasts and on the vagina was true.
There is no special or particular feature of the complainant’s evidence that required a warning of the kind now contended for by the appellant.
Although not fatal to the ground, it is significant that trial counsel did not seek a Murray direction.
While a direction of the kind now contended for by the appellant would certainly have not been incorrect, and is frequently given, its absence in this case has not given rise to a miscarriage of justice. While we give permission to appeal on Ground 3, the ground has not been made out.
Ground 4 - were the verdicts of guilty unreasonable or unable to be supported on the evidence?
Ground 4 - legal principles
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported: M v The Queen;[53] Zaburoni v The Queen;[54] and GAX v The Queen.[55]
[53] M v The Queen (1994) 181 CLR 487, 492 - 493 (Mason CJ, Deane, Dawson & Toohey JJ).
[54] Zaburoni v The Queen (2016) 256 CLR 482 [56] (Gageler J).
[55] GAX v The Queen (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.[56]
[56] M (492 - 493); SKA v The Queen (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
An appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).[57]
[57] SKA [22], [24].
The appellate court’s task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.[58]
[58] Morris v The Queen (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
An appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused:[59]
… must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[59] M (493).
In Pell v The Queen,[60] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury’s verdict was unreasonable or insupportable having regard to the evidence:
Secondly, 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 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.
(Footnote omitted)
[60] Pell v The Queen (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
An appellate court examines the trial record to ascertain whether, despite the jury’s advantage in having seen and heard the witnesses in the context of the evidence, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
An appellate court’s function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged.[61] The critical issue is ‘whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to such advantage as the [jury] can be taken to have had by reason of having seen and heard the evidence at trial’.[62]
[61] Dansie v The Queen (2022) 96 ALJR 728 [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).
[62] Dansie [16].
The ultimate question for an appellate court must always be whether the appellate 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.[63]
[63] M (494 - 495); R v Hillier (2007) 228 CLR 618 [20]; Fitzgerald v The Queen (2014) 88 ALJR 779 [5]; R v Baden‑Clay (2016) 258 CLR 308 [66].
The setting aside of a jury’s verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported as a serious step. Trial by the appellate court is not to be substituted for trial by the jury.[64]
[64] Baden‑Clay [65] ‑ [66].
An appellate court’s reasons must disclose its assessment of the capacity of the evidence to support the verdict.[65]
[65] SKA [22] - [24].
The nature and extent of an appellate court’s task, in a particular case, will be informed by factors such as:
(a)the elements of the offence;
(b)the accused’s defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the jury;
(f)whether the trial was by judge alone (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
Summary of the evidence
The complainant
The contents of the complainant’s s 13BA interview included the following.
At the time of the interview, the complainant was 11 years old. At its commencement, she indicated her understanding of the difference between telling the truth and lying. She said that she would tell the truth.[66]
[66] AB 72, lines 10 - 12.
The complainant said that something happened to her during a sleepover at a friend’s house on a Saturday or Sunday in April 2020. The complainant said that she had been allowed to sleep in a man’s room. She said the man told her that he was going to a friend’s house. Later, in the middle of the night, the man returned.[67] The complainant said that she thought it was around 2.00 am or 3.00 am when the man came back, but she was not sure of the time. She said that she thought it was around this time because she had gone to bed at around midnight and had slept for only one or two hours, before she woke up.[68] The complainant said that when she woke up, it was not ‘dark, dark, dark like it was [at] 1 or 2 [am] so kind of 3 or 4 [am]’.[69]
[67] AB 75, lines 50 - 54.
[68] AB 75, lines 56 - 60.
[69] AB 75, line 60.
The complainant identified the persons who were living at the house at the time as her friend, IW, his father, SW, the appellant, and the appellant’s brother, K.[70] She said that on the night in question, SW was not home. She thought that K and IW were asleep in another room and A was downstairs on the lounge.[71]
[70] AB 75 - 76, line 64.
[71] AB 76, line 76.

The complainant identified the man in the room in which she slept as the appellant. She said that she had known him for ‘about a year, no maybe less but [sic] a year’.[72] The complainant described how the appellant knew her father, and that he came over to her house ‘two times a week, maybe three’.[73]
[72] AB 76, line 70.
[73] AB 76, line 74.
The complainant described how the appellant came back in the middle of the night. She said she heard footsteps coming up the stairs. She said that she first realised it was the appellant when she heard his voice. Next, she said the door was opened and she thought that he grabbed something from a cabinet.[74] The complainant said that she saw the appellant when she got up and went to the toilet. She then returned to the bed and fell asleep.[75]
[74] AB 77, lines 90 - 94.
[75] AB 78, lines 96 - 98.
The complainant said that a couple of hours later, the appellant came back into the bedroom. She said that she knew it was him because she saw him. She said:[76]
Cos the tv was on so you could see him, um the hall way light was on so I could see him clearly, that’s how I saw him.
[76] AB 83, line 190.
At this point in the s 13BA interview, the interviewer, Detective Brevet Sergeant Walsh, asked the complainant to tell him ‘more about what happened’.[77]
[77] AB 78, line 107.
The complainant replied, ‘He started touching me in places’. When asked by Detective Walsh where she had been touched, the complainant said, ‘Around the chest’.[78] When the complainant was asked to draw on a diagram where she had been touched, she drew around the area of her chest and then her vagina. When asked by Detective Walsh how she was touched, the complainant said that she was not quite sure.[79]
[78] AB 78, lines 108 - 110.
[79] AB 79, line 118.
The complainant said that when the appellant touched her chest, he did so with his hand under her clothing. She said that he ‘did it for like an hour’. The complainant said that she told the appellant to stop a couple of times. Eventually, she fell asleep.[80] The complainant said that in the morning, she got up and spoke to PO (her great‑grandmother). Next, the complainant said that she spoke ‘normally’ to her grandmother. After hanging up, the complainant said that she texted her grandmother, telling her ‘what happened’.[81]
[80] AB 80, line 128.
[81] AB 80, line 134.
Detective Walsh returned the complainant’s attention to the fact that she had drawn a circle in the area between her legs, which she called her ‘parts’. The complainant, when asked what she felt when the appellant touched her between her legs, said:[82]
Um, I’m not really sure, I just felt scared, didn’t what to do.
[82] AB 81, line 156.
The complainant said that when the appellant touched her ‘parts’, she did not feel any pain or suffer any injury.[83]
[83] AB 81, lines 149 - 152.
The complainant said that the appellant touched her between her legs with his hand ‘inside and out’.[84] Although she was pressed for more detail about what the appellant did with his hand, the complainant was unable, at this point, to provide any detail. However, she repeated that while the touching occurred, she felt ‘scared’.[85]
[84] AB 82, line 166.
[85] AB 82, line 172.
After a five‑minute break, upon the resumption of the interview, the complainant drew a sketch of the bedroom she slept in.[86] While doing so, the complainant said that she slept ‘on the blankets … cos it was hot that night’.[87]
[86] Exhibit P4.
[87] AB 86, lines 242 - 244.
Detective Walsh then sought, as he put it, ‘a little bit more detail’ about what had happened to the complainant.[88] Detective Walsh referred the complainant to her drawing.[89] The complainant said that the appellant touched her over her clothing.[90] She circled, on the drawing, areas of ‘bad touching’, including on her chest and her vaginal area. When she was asked how the appellant touched her ‘parts’, she said that the appellant used both his hand and fingers, but ‘mostly fingers’.[91] The complainant said that the appellant touched her ‘over my clothing’.[92] Detective Walsh sought further clarification on whether the touching occurred over or under the complainant’s clothing. The complainant said, ‘Over my clothing mostly’,[93] and added, ‘Yeah, sometimes under my clothing but not as much’.[94]
[88] AB 88, line 289.
[89] Exhibit P3.
[90] AB 88, line 296.
[91] AB 89, line 304.
[92] AB 89, lines 308 - 310.
[93] AB 90, line 332.
[94] AB 91, line 334.
Detective Walsh asked the complainant, ‘How far did the hand go when he was on your private?’, to which the complainant responded, ‘Pretty far’. Detective Walsh then asked, ‘Did the hand go um inside you?’, to which the complainant replied, ‘Not really’.[95]
[95] AB 91, lines 351 - 354.
The complainant said that the appellant’s hand went from under her clothing to over her clothing five or six times in the area of her ‘parts’.[96]
[96] AB 92, lines 359 - 366.
After a second break in the interview, Detective Walsh asked the complainant, ‘Did fingers ever go inside of you?’, to which the complainant replied, ‘Yeah’. She said that this happened ‘three to four times’.[97] The complainant said that three or four fingers went inside her, but she was not quite sure how long this lasted.[98]
[97] AB 94, lines 406 - 409.
[98] AB 95, lines 418 - 423.
The complainant said that she asked the appellant to stop touching her ‘parts’ on two occasions.[99]
[99] AB 96, lines 431 - 439.
Towards the conclusion of the s 13BA interview, the complainant gave a description of the appellant, stating that he ‘looks like he’s in his 50s’, and that he was ‘skinny and tall’ and had ‘no hair’.[100]
[100] AB 98, lines 468 - 480.
Just before the conclusion of the interview, the appellant said that she did not feel good when people brought up what had happened to her.[101]
[101] AB 100, lines 512 - 514.
Evidence of MH
MH testified to this effect.
MH said that she was the grandmother of the complainant and A. The complainant A usually refer to her as ‘grandma’. MH’s mother, PO, is usually called ‘Oma’.[102]
[102] T 181.
MH testified that on 19 April 2020, she received some text messages from the complainant, which were ‘concerning’.[103] Some weeks later, she provided screenshots of the text messages to the police. The text messages were tendered in evidence at the appellant’s trial as exhibit P9.[104]
[103] T 182.
[104] T 183.
The first message was received by MH at 10.04 am on 19 April 2020, and read:
It’s me [the complainant] I need to tell you something important.
Other text messages followed from the complainant, including messages in which she stated:
Am been [sic] touch [sic] by a man around 40 ‑ 50 I was so scared.
And:
Dad knows him
And:
Am at is [sic] house he lives with two older guys one[‘]s a dad and they are so nice and one of the guys have [sic] a son that’s my friend.
And:
They don’t know there [sic] just think I had a nice sleep.
And:
I want to go home.
MH testified that she contacted PO and asked her to go to the complainant’s house.[105]
[105] T 185 - 187.
Evidence of PO
PO testified that the complainant and A are her great‑granddaughters.[106]
[106] T 195.
PO testified that on 19 April 2020, her daughter, MH, contacted her at about 10.30 am. As a result of the call, PO went to her son’s house, where the complainant and A lived.[107]
[107] T 197.
About 20 ‑ 30 minutes after she arrived, the complainant arrived at the house. The complainant was driven there by someone PO did not know.[108] The complainant’s father rushed to the car. The complainant told her father ‘no, dad, that’s [K]. He’s okay, you know, it’s not him … it’s [the appellant]’.[109] PO described the complainant as being ‘pale and obviously not her normal self’. PO added that the complainant was ‘quite reserved and … was quite shaky and upset, not crying but then she’s a child with a lot of self‑control’.[110]
[108] T 198.
[109] T 198.
[110] T 199.
PO said that the complainant stayed with her for about five weeks, after 19 April 2020.[111]
[111] T 199.
The complainant told PO that, on the night in question, the appellant, at about 3.00 am, touched her between her legs and her breasts.[112]
[112] T 200.
Under cross‑examination, PO agreed that the complainant had told her that the touching occurred ‘over her clothes’.[113] PO acknowledged that on 9 May 2020, one of the investigating police officers telephoned her, asking if the complainant would be prepared to undertake a medical examination. PO said that the complainant refused the request, adding that ‘she [the complainant] was too frightened’.[114]
[113] T 205.
[114] T 206 - 207.
Evidence of IW
The salient parts of IW’s s 13BA interview are as follows.
IW was interviewed on 8 May 2020. At the time, he was 11 years of age.
He recalled an occasion in April when A and the complainant had a sleepover. He recalled that A gave the complainant a black eye.[115] After this, he and A went into his bedroom and watched television. Eventually, they both went to sleep in his room.[116] IW recalled that the complainant was in the appellant’s room, but said that the appellant went out at ‘maybe 10 to 11 o’clock’ but he was not really sure what time.[117]
[115] AB 105, line 86.
[116] AB 105, lines 88 - 92.
[117] AB 105, lines 95 - 100.
IW said that the complainant slept in the appellant’s room ‘by accident’.[118] He explained that the appellant had said that he did not want the complainant to sleep in his room.[119]
[118] AB 106, line 114.
[119] AB 106, line 108.
IW said that he got up between 7.00 am and 7.30 am.[120] He said that in the morning the door to the appellant’s bedroom was fully open.[121] He saw both the complainant and the appellant asleep on the bed, in the appellant’s bedroom. IW said that the complainant was sleeping on the window side of the bed, while the appellant was sleeping on the side of the bed nearest the door to the bedroom.[122]
[120] AB 108, line 146.
[121] AB 112, lines 224 - 225.
[122] AB 112, lines 228 - 241.
Evidence of A
The salient features of A’s s 13BA interview are as follows.
At the time of the interview on 29 May 2020, A was 12 years old. She recalled that the night in question was ‘cold’.[123] A said that she slept in a different room to the complainant. She did not see anything.[124]
[123] AB 119, line 83. See also AB 122, line 153.
[124] AB 119, lines 85 - 87.
A recalled that on the Sunday morning, the complainant appeared ‘happy’ and ‘fine’ and then called PO to come pick her up.[125]
[125] AB 119, line 89.
According to A, during the night in question, SW was ‘missing’ and did not come home until about midnight, by which time the appellant had left the house. A recalled that the complainant slept in the appellant’s room.[126]
[126] AB 122, line 149 - AB 125, line 223.
A said that when she woke up, she went downstairs and saw the complainant sending text messages to Oma.[127]
[127] AB 126.
According to A, the appellant was a frequent visitor to the house in which she and the complainant lived. She said that the appellant kept coming to the house after school, ‘pretty much everyday’ and ‘giving us stuff’, including clothes and jewellery.[128]
[128] AB 129, lines 297 - 299, 307 ‑ 311; AB 130, line 316.
A recalled that the appellant left the house ‘after dinner’ on the Saturday. She did not see him until the following morning.[129]
[129] AB 139, lines 504 - 509.
Evidence of SW
Initially, SW thought that the sleepover, on which the alleged offences occurred, took place on a school night.[130] Later, in cross‑examination, he accepted that the relevant events occurred on a weekend.[131] SW said that when the complainant arrived at the townhouse, the appellant was at home. The appellant went out at around teatime, between 5.00 pm and 6.00 pm. SW said the appellant left with his friend, Stephen Mind. According to SW, the appellant returned the following day at around7.00 am.[132]
[130] T 219.
[131] T 237 - 238, 245.
[132] T 220 - 221.
SW said that he did not leave the townhouse the night that the complainant and A stayed over.[133] He recalled that the complainant was in the appellant’s bedroom, using the appellant’s laptop computer. Eventually, she ‘passed out’ in that room.[134]
[133] T 221, 232.
[134] T 222 - 223
SW said that after the children went to bed, he cleaned the house. At around 3.30 am ‑ 4.00 am, after cleaning the house, he went downstairs and watched television.[135] Later, in cross‑examination, he agreed that he told the police, in a statement, that he had finished cleaning between 7.00 am and 7.30 am.[136]
[135] T 224.
[136] T 247.
SW said that the appellant and his brother, K, arrived home around 7.00 am.[137] SW said he was in the lounge room when they arrived home. SW said that the appellant went upstairs to his room.[138] SW said that the appellant called for him to go upstairs, which he did. The appellant yelled at him because the complainant had been in his room. According to SW, the complainant was, at the time, downstairs.[139]
[137] T 221.
[138] T 226.
[139] T 227 - 228.
In SW’s examination‑in‑chief, he agreed that at no stage did he see the complainant and the appellant in bed together.[140] However, in cross‑examination, he agreed that the appellant collapsed on top of the bed while the complainant was in the bed, but she was awake. SW said that the complainant then got up and walked downstairs.[141]
[140] T 228.
[141] T 248 - 249.
Statement of Stephen Robert Mind
By agreement, the statement of Stephen Robert Mind, dated 11 May 2020, was read to the jury.[142] Although the statement referred to events which occurred on 15 and 16 April 2020, it was accepted that Mr Mind was in fact recalling events which occurred on 18 and 19 April 2020. In the statement, Mr Mind said that at about 11.00 pm on what was agreed to be 18 April 2020, the appellant and K came to his house ‘to hang out’. Mr Mind recalled that the appellant had ‘maybe one or two bourbons’. Mr Mind recalled the appellant and K leaving his house between about 4.30 am and 5.00 am.
[142] T 311.
The trial judge instructed the jury that Mr Mind’s statement should be treated ‘just like the evidence of any other witness. The truth of it or not is entirely a matter for you like all the other evidence in this case’.[143]
[143] T 333.
Agreed fact as to the temperature on 18 and 19 April 2020
By consent, an agreed fact was read to the jury, as follows:[144]
It is agreed that on 18 April 2020 the maximum temperature recorded by the Bureau of Meteorology as read at [location] was 19.4 degrees and the minimum temperature on the same day and same location was 12.15 degrees. … With respect to 19 April 2020 the maximum and the minimum temperatures from the same location were 22.2 and 9.7.
[144] T 312.
His Honour directed the jury that the agreed fact could be accepted as true.[145]
[145] T 313.
The appellant’s record of interview
The salient parts of the appellant’s video‑recorded record of interview are as follows.
The appellant was interviewed by police, under caution, at his townhouse, commencing at 9.10 pm on 8 May 2020.
The appellant said that he remembered what he was doing on the evening of 18 April 2020 and into 19 April 2020.[146]
[146] AB 145, line 61.
The appellant said that on the evening of 18 April 2020, the complainant and A were fighting.[147] He said that SW came home at about 11.30 pm. The appellant told SW, ‘I can’t deal with this’.[148] He and his brother, K, then left the townhouse.[149] The appellant estimated that he left the townhouse at around 11.30 pm.[150] The appellant told the interviewing police officer that he went to Mr Mind’s house, where he stayed ‘all night’.[151]
[147] AB 147 - 148, lines 102 - 114.
[148] AB 149, line 136.
[149] AB 150, lines 153 - 160.
[150] AB 147, line 98.
[151] AB 145, lines 64 - 66.
The appellant said that he returned to the townhouse the following morning at about 6.30 am.[152] When he returned, SW was downstairs, cleaning.[153]
[152] AB 151, line 176.
[153] AB 151, line 178.
The appellant said that he and SW then walked upstairs to the appellant’s bedroom. The appellant saw that the complainant was asleep on his bed. According to the appellant, he said to SW:[154]
What’s she doing in my bed, I’d said to you that fucken make sure that she was out.
[154] AB 151, line 182.
The appellant then said that he passed out on the bed. The appellant said, based on what he had been told by SW, that he was asleep for approximately 40 ‑ 45 minutes.[155] He then went downstairs. There, he saw that the complainant and A were there, and that it was ‘just like normal’.[156]
[155] AB 152 - 153, lines 201 - 204.
[156] AB 153, line 206.
The appellant said that before he passed out, the complainant was in his bed, under the covers.[157] He said that the complainant was asleep when he entered his bedroom.[158]
[157] AB 154, line 224.
[158] AB 154, line 230.
The appellant explained that when he got home, he was ‘buggered’, having been up for two or three days.[159] He said that he did not have any contact with the complainant when he was lying next to her in bed, but said he would not remember because he was asleep.[160]
[159] AB 156, line 271.
[160] AB 155 - 156, lines 253 - 256.
The appellant emphatically denied the allegations when they were put to him by the police, describing them as an ‘outright lie’ and ‘bullshit’. He speculated that the complainant made the allegations because she was supposed to tell her father about her fighting with A and about her black eye, but she lied to him when she got home.[161]
[161] AB 157 - 159.
The appellant said that he did not think his appearance had changed since the night of the alleged offence, other than that his hair had grown out a bit. The appellant said that he had short hair, usually shaved to a Number 1. He said that he last shaved it about four months ago.[162]
[162] AB 169 - 170, lines 492 - 511.
Evidence of B
B testified that he was friends with SW, and that he knew the appellant and his brother, K. B said that the appellant visited his house every few days, with SW, and that he had seen the appellant talk to, and joke around with, both his daughters.[163]
[163] T 267 - 269.
B said that he did not have any contact with his daughters on the night of 18 and 19 April 2020.[164]
[164] T 276.
On the morning of 19 April 2020, the complainant returned home with K. He said that the complainant appeared pretty distraught and shaken up. The complainant did not want to speak to him at the time, and wanted to speak to her Oma.[165]
[165] T 276 - 277.
The police officers involved in the investigation
The jury heard evidence from Detective Brevet Sergeant Walsh,[166] Detective Brevet Sergeant McGilchrist,[167] and Detective Brevet Sergeant Van Donderen.[168] Only Detective Walsh and Detective Van Donderen were cross‑examined.
[166] T 110 - 179.
[167] T 296 - 307.
[168] T 288 - 295.
It is unnecessary to summarise in detail the evidence of these witnesses. The prosecution tendered, through Detective Walsh, the s 13BA interview of the complainant[169] and a number of exhibits, including drawings she made in the course of the interview.[170] The prosecution also tendered, through Detective Walsh, a booklet of 25 photographs taken of the alleged crime scene on 7 May 2020.[171]
[169] T 112, exhibit P1.
[170] Exhibits P3, P4.
[171] T 165, exhibit P7.
In cross‑examination, Detective Walsh was asked about the temperature on the night of the alleged offence. He agreed that he did not check to see whether it was a hot or cold night.[172] He could not recall whether there was any heating in the appellant’s bedroom, nor did he enquire whether there was any heating in the downstairs part of the townhouse.[173]
[172] T 178.
[173] T 178.
Detective McGilchrist monitored the s 13BA interview with the complainant. She recalled that, at the time of the interview, the complainant was wearing a pair of black leggings or tights.[174] Detective McGilchrist also conducted the interview with the appellant. Detective Van Donderen conducted the s 13BA interview with A.
[174] T 297.
Ground 4 - the appellant’s submissions

The focus of the appellant’s submissions was that there were ‘several irreconcilable differences’ between the complainant’s account and evidence given by other prosecution witnesses.[175] These ‘irreconcilable differences’ were essentially captured in the particulars to Ground 4.
[175] Appellant’s written submissions [39].
In support of particular (a), which alleges that the complainant’s allegations are implausible having regard to the complainant’s evidence as to the timing of the alleged offences and how that sits with the evidence adduced from other witnesses on this subject, counsel for the appellant said that the argument was not so much about the precise time at which the incident occurred. Rather, the implausibility arises from the fact that the complainant testified to the effect that the complainant said that the offences were committed when it was dark and not in the morning, when it was light. Further, counsel for the appellant observed that the complainant’s account described how the appellant came back to the house in the middle of the night, got something from a cabinet in the bedroom, and that a couple of hours later, he returned to the bedroom, watched television, and then the offences occurred.[176]
[176] Appeal T 27.
Counsel for the appellant points out that the complainant’s evidence in respect of the matters referred to above was unsupported and, indeed, she submitted, contradicted by other evidence adduced by the prosecution, including that of SW, who said that the appellant returned around 7.00 am, and the statement of Stephen Mind, who said that the appellant left his house around 4.30 am ‑ 5.00 am.[177] In relation to particular (b), counsel for the appellant submitted that the complainant’s evidence, about whether she was touched over or under her clothing, in relation to each count was plainly inconsistent. Counsel for the appellant accepted that, given the complainant’s age, it was to be ‘entirely expected’[178] that an 11‑year‑old child would not be able to provide a lot of detail about whether she was touched inside or outside or her vagina, or how far fingers penetrated her, but the same cannot be said in relation to under or outside clothing.[179]
[177] Appeal T 27 - 28.
[178] Appeal T 31.
[179] Appeal T 31.
With respect to particular (d), counsel for the appellant emphasised the inconsistencies in the complainant’s evidence and, in particular, that the complainant told PO that the touching had occurred over her clothing.[180]
[180] Appellant’s written submissions [57] – [58]; appeal T 32.
Finally, in support of particular (e), counsel for the appellant drew attention to the evidence of the complainant which was inconsistent with the unchallenged evidence of SW to the effect that he did not leave the townhouse. Counsel for the appellant accepted that this contention was not, as she put it, ‘a particularly weighty submission’.[181]
[181] Appeal T 32.
Ground 4 - respondent’s submissions
The respondent submitted that while there were some inconsistencies as between the evidence of the complainant and other evidence adduced at trial, it was nevertheless open to the jury to find the appellant guilty of the offences.
In substance, the respondent submitted that the allegations of the complainant were not implausible in relation to the timing of the alleged offences. None of the inconsistencies alleged by the appellant were such as to give rise to a danger that the appellant was wrongly convicted.
In relation to particular (a), it was submitted that the time estimate given by the complainant should not be viewed inflexibly as a necessarily accurate pinpointing of the time of the events.[182] It was also submitted that the complainant’s account as to timing was not implausible in the context of the evidence of other witnesses. In this regard, the respondent points out that the complainant’s evidence, that when the events the subject of the charges occurred it was dark, but not as dark as the middle of the night, would be consistent with the appellant having arrived back at the townhouse from visiting Stephen Mind sometime after 5.00 am on 19 April 2020. The respondent submitted that the evidence of SW as to the appellant’s arrival at the townhouse at approximately 7.00 am, and other evidence that he gave, was unreliable.[183]
[182] Respondent’s written submissions [63].
[183] Appeal T 38 - 45.
The respondent submitted as to particular (b) that, having regard to the complainant’s age and the sensitive nature of the issues she was questioned about in the course of her s 13BA interview, her inconsistency about whether she was touched over or under her clothing did not impair the complainant’s reliability or credit such that a verdict of guilty could not be returned.[184]
[184] Respondent’s written submissions [80].
The respondent also submitted that there was nothing in the alleged inconsistencies the subject of particulars (d) and (e) which would cause this court to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
Ground 4 - disposition
Neither party submitted that this court should view the video recording of the complainant’s s 13BA interview (or, indeed, any of the s 13BA interviews) having regard to the statements made by the High Court in Pell.[185] Thus, the jury had the distinct advantage, not enjoyed by this court, of seeing and hearing the account of events given by the complainant.
[185] Pell [32] - [39]; appeal T 28 - 29, 45 - 46.
Having regard to the jury’s verdicts, we must proceed upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. Nevertheless, notwithstanding that assessment, if we are satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to the appellant’s guilt, the ground of appeal is made out.
A good deal of the evidence given by the complainant was uncontroversial. There was no contest that the complainant and her sister, A, slept the night at the townhouse on the weekend of 18 and 19 April 2020. It is accepted that the complainant went to sleep in the appellant’s bedroom, on his bed, alone. It is uncontroversial that the appellant left the townhouse with his brother, K, and went to Stephen Mind’s house. They returned to the townhouse sometime in the morning of 19 April 2020. Whenever the appellant returned to the townhouse that morning, it is not disputed that he went upstairs to his bedroom and lay on the bed, for some period of time, with the complainant. It is plain that the complainant sent text messages to her grandmother on the morning of 19 April 2020, after the alleged commission of the offences, including a text message in which she said:
Am been [sic] touch [sic] by a man around 40 ‑ 50 I was so scared.
Later on the morning of 19 April 2020, the complainant was observed by her great‑grandmother and her father to be shaky, upset and distraught. There is no dispute that the complainant told her great‑grandmother that the appellant had touched her between her legs and on her breasts.
Thus, while the only evidence of the actual touching the subject of the charges in the indictment came from the complainant, there was undisputed evidence that the appellant had the opportunity to commit the offences, and that the complainant made a prompt complaint about what she said the appellant had done to her.
It cannot be overlooked that, at the time of the alleged offences, the complainant was a young girl, aged 11 years. On her account of events, she was intimately touched by an adult man, much older than her, who was a friend of her father, whom she knew. The alleged touching took place in an unfamiliar bedroom, while she was alone, in the early hours of the morning and while she was asleep. The alleged event would have understandably scared her and made her feel uncomfortable. In these circumstances, it would be reasonable for a jury to conclude, if the alleged touching occurred, that the events were emotionally distressing for the complainant and were apt to cause confusion as to matters such as timing and how the touching occurred and its manner.
Against this background, we now turn to the particulars of the ground of appeal. We will deal with them sequentially.
As to particular (a), the complainant was imprecise in her s 13BA interview about the time she thought that the appellant returned to the bedroom on the morning of 19 April 2020. Initially, she thought that he returned around 2.00 am or 3.00 am, but she said she was unsure of the time. Later, she said that the appellant returned at about 3.00 am or 4.00 am, when it was dark, although it was not as dark as it was at 1.00 am or 2.00 am. She said that the charged acts occurred a couple of hours later, after she had gone back to sleep, which would, if the complainant was purporting to give exact, or reasonably exact, times, be between 5.00 am and 6.00 am.
The appellant contends that the complainant’s account of the time the appellant returned to the townhouse (about 3.00 am or 4.00 am), and, accordingly, the time the offences were committed, was implausible because it was inconsistent with the evidence of the appellant, SW and Stephen Mind.
Based on Mr Mind’s statement, the appellant did not leave his house until between about 4.30 am and 5.00 am. The appellant said that Mr Mind’s house was approximately a 10‑minute drive from the townhouse.[186] Taking the appellant’s approximation together with Mr Mind’s statement, the appellant would have returned to the townhouse between about 4.40 am and 5.10 am.
[186] See appellant’s record of interview, AB 161, line 344.
According to the evidence of SW, the appellant did not return to the townhouse until about 7.00 am.
Moreover, the appellant repeatedly said, in his police interview, that he did not return to the townhouse until about 6.30 am.
While counsel for the appellant acknowledged the respondent’s argument that a child as young as the complainant might not accurately estimate the precise time at which events occurred, it was submitted that the discrepancies in time were nevertheless of some significance. Of more importance, on the appellant’s case, was that the complainant referred to it being dark when the appellant returned to the room, which would be inconsistent with the evidence given by SW and the appellant, which suggested that the appellant returned to the townhouse at a time (about 6.30 am or 7.00 am) when it would not have been completely dark.
Moreover, the complainant described a chain of events which occurred over what she said was a period of a few hours after the appellant’s arrival at the townhouse,[187] which appears at odds with the evidence of the appellant and SW, both of whom testified to the effect that, within a short time of the appellant arriving at the townhouse, he fell asleep in his bed.
[187] The complainant said that the appellant came back into the bedroom a ‘couple of [hours] later’: AB 78, line 100. In regard to the alleged offending, she said he ‘did it for like an hour’: AB 80, line 128.
We do not accept the appellant’s submissions that the matters raised in particular (a) must lead to the conclusion that the complainant’s evidence about the alleged touching was implausible.
Having regard to the complainant’s age and the circumstances referred to at [192] above, her estimates as to time, both as to when particular events occurred and how much time elapsed between events, was, understandably, likely to be inaccurate. It was open to the jury to conclude that any such inaccuracy did not derogate from the accuracy and reliability of the complainant’s account of what the appellant actually did to her, namely touching her chest and vagina.
Of perhaps greater significance was the reliability of the complainant’s testimony that when the appellant returned to his bedroom, it was dark.
Based on Stephen Mind’s statement, the appellant would have arrived back at the townhouse between about 4.40 am and 5.10 am. Although no evidence was adduced at trial as to the time of sunrise on 19 April 2020, the jury, applying its own experience, would have realised that if the appellant had returned to the townhouse between these times at that time of year, it would have been dark outside. Thus, the statement of Stephen Mind, to this extent, is supportive of the complainant’s statement that it was dark when the appellant returned to the townhouse.
The complainant’s evidence was contradicted by the statements of SW and the appellant, who testified to the effect that the appellant returned to the townhouse at, on the appellant’s version, about 6.30 am, and on SW’s version, about 7.00 am. On either version, the jury might reasonably conclude, if it accepted this evidence, that it was not completely dark.
However, on our analysis of the evidence, it would have been open to the jury to reject the evidence of both SW and the appellant as to the time at which the appellant returned to the townhouse from Stephen Mind’s house.
The evidence of both SW and the appellant is inconsistent with the unchallenged evidence of Stephen Mind. As we have already noted, according to the appellant, Stephen Mind’s house was about 10 minutes away from the townhouse. The appellant did not say in his interview that he went somewhere else after leaving Stephen Mind’s house. Accordingly, the appellant’s statement that he returned to the townhouse at about 6.30 am appears incorrect, as does SW’s evidence on this point.
SW’s evidence was, as the respondent submitted in this court, internally inconsistent and contradicted in significant respects by the evidence of other witnesses, such that it was well open to the jury to conclude that his evidence was, as a whole, unreliable and therefore ought not to be given any weight. These contradictions included:
(a)SW initially gave evidence to the effect that the complainant and A stayed overnight on a school day. In cross‑examination, he agreed that the sleepover occurred on a weekend.
(b)SW said that he did not leave the townhouse at all after the complainant and her A were dropped off or overnight. This evidence was contradicted by the complainant, A and the appellant, whose evidence was to the effect that for some period while the children were at the townhouse, SW was not present.
(c)SW initially said, in his evidence, that he cleaned the house until about 3.30 am or 4.00 am, after which he watched television. In cross‑examination, he agreed that he had told the police that he stopped cleaning at between 7.00 am and 7.30 am.
(d)In his examination‑in‑chief, SW accepted that at no stage did he see the complainant and the appellant together in bed. In cross‑examination, he said that the appellant collapsed on top of the bed, while the complainant was in the bed but awake.
(e)SW initially testified that when the appellant and K returned home, they went upstairs to their rooms. SW said that the appellant called him up to, in effect, admonish him about the complainant having been in his room. At this point, SW said that the complainant was not in the room, but had gone downstairs. In cross‑examination, he said that the complainant was still in the appellant’s bed.
On our assessment of the trial record, it was well open to the jury to conclude, consistently with the evidence of the complainant and the statement of Stephen Mind, that the appellant returned to the townhouse when it was dark, between about 4.40 am and 5.10 am, contrary to the evidence of the appellant and SW. Further, IW’s evidence was that, after he got up between 7.00 am and 7.30 am, he saw both the complainant and the appellant asleep on the bed. Thus, it was open to the jury to infer that, contrary to the effect of the evidence of SW and the appellant, the appellant and the complainant could have been together, in the appellant’s bedroom, for a period of a few hours, which was consistent with the version of events given by the complainant.
For these reasons, we reject the propositions put by the appellant to the effect that the complainant’s allegations were implausible and incapable of acceptance beyond reasonable doubt, having regard to the matters identified in particular (a).
In our opinion, particular (b) has not been made out.
We accept that the complainant’s evidence about whether she was touched on her chest and vaginal area over or under her clothing was inconsistent and somewhat confusing. However, having regard to the complainant’s age and the circumstances in which the alleged touching was said to have occurred, referred to at [192] above, it was open to the jury to conclude that the complainant’s inconsistent and somewhat confused answers on this subject in the s 13BA interview were understandable.
Counsel for the appellant properly acknowledged in her submissions to this court that given the complainant’s age, she might not reasonably be expected to be able to give a lot of detail about the alleged touching, particularly the touching of the vagina, and whether that occurred inside or outside of her vagina or, if there was any penetration, the depth of that penetration. Counsel for the appellant submitted that the position was different as to whether the touching occurred outside or inside the complainant’s clothing. Counsel for the appellant submitted that the complainant would have been able to provide details as to whether the touching occurred over or under her clothing. We do not accept this submission. In our opinion, a jury might reasonably conclude that the complainant, having been touched as she alleged, might not have perceived, or if she had perceived it, accurately recalled, whether she was touched over or under her clothing, or both. It would also be open to the jury to take the view that when the complainant’s evidence was viewed as a whole, what was important was that they were satisfied beyond reasonable doubt that the appellant touched her chest and her vagina, and that whether or not the touching occurred over or under her clothing was not a matter which materially affected their assessment of the complainant’s credibility on this issue. Further, despite some inconsistency as to how the appellant touched her, the complainant was consistent in stating that she was touched on the chest and vagina.
We now turn to particular (d).[188]
[188] Particular (c) was abandoned.
It will be recalled that, under cross‑examination, PO said that when the complainant told her about the alleged offences, she said that the touching occurred ‘over her clothes’. As the appellant points out, this is inconsistent, in part, with what the complainant said in her s 13BA interview.
For the same reasons given in respect of particular (b), the inconsistency was explicable and not a matter of any real significance.
As to particular (e), as we have already observed, SW’s evidence, to the effect that he did not leave the townhouse at all while the children were present, was inconsistent with the evidence of not only the complainant, but also the evidence of A and the appellant. It was open to the jury to accept that SW was not always at the townhouse, as he stated. In any event, as counsel for the appellant accepted in her oral submissions, particular (e) was not a matter of great weight.
There are several other specific matters to be considered in respect of Ground 4. The first is the question of the appellant’s identity. At trial, the appellant put in issue whether the Crown had proved the element of identity. It was argued that the complainant’s identity of the appellant was based on a process of elimination; being that the complainant only identified the appellant as the perpetrator because no other male in the house could have committed the offences. Initially in this appeal, the appellant maintained this position. Indeed, it was the basis of the now abandoned particular (c) of Ground 4.

In case there is any doubt about this issue, the appellant was correct to abandon particular (c) because it is clear from the complainant’s s 13BA interview that she identified the appellant as the perpetrator, not only by some process of elimination, but by having heard and seen him on the night in question against the background that the appellant frequently visited the house in which the complainant and A lived. It will also be recalled that according to A, the appellant gave both her and the complainant presents, including clothes and jewellery. As such, any notion that the complainant mistakenly identified the appellant as the perpetrator is fanciful.
The second matter concerns the statement made by the complainant in her s 13BA interview that the night in question was ‘hot’, whereas the agreed fact read to the jury, based on the records of the Bureau of Meteorology, would suggest that the night of 18 and 19 April 2020 was not hot.
In her s 13BA interview, the complainant said that on the night of the alleged offences, she was not wearing pyjamas because she had not expected to be sleeping over at the townhouse. Instead, she went to bed wearing her casual clothes.[189] Later, she said that the clothes that she wore on the night in question were exactly the same clothes that she was wearing at the interview.[190]
[189] AB 79, line 120.
[190] AB 85 - 86, lines 237 - 240.
It is unclear from the complainant’s s 13BA interview that when she referred to it being ‘hot’, she was referring to the outside temperature or whether, because of the clothing she wore, she felt hot. There was no evidence as to whether there was any heating in the townhouse or, specifically, in the appellant’s bedroom, and, if there was, whether it had been turned on. Regardless of these issues, it was open to the jury to form the view that any difference in the evidence between the complainant and the Bureau of Meteorology records was insignificant.
The final matter to be considered was the appellant’s record of interview. It cannot be overlooked that the appellant strongly denied any wrongdoing. In order for the jury to convict the appellant, it was necessary for the jury to reject these denials. In our opinion, it was well open to the jury to reject his denials.
As we have already pointed out, there is a material inconsistency between the appellant’s account of events and the statement of Stephen Mind. According to the appellant, he stayed ‘all night’ at Mr Mind’s house, and he returned to the townhouse on the morning of 19 April 2020 at about 6.30 am. However, according to Mr Mind’s statement, the appellant left his home at between 4.30 am and 5.00 am.
To our minds, the difference is considerable and significant, given that on Mr Mind’s version, it is highly likely that the appellant would have returned to the townhouse when it was dark.
It would have also been open to the jury to regard the appellant’s account of what he did when he saw the complainant in his bed as implausible. On the appellant’s version of events, he did not want the complainant sleeping in his bed, and was annoyed that she had done so. On his version, having seen that the complainant was in his bed, it would have been expected that he would have demanded her immediate removal. Instead, he ‘passed out’ onto the bed, next to the complainant. It might be thought that the appellant, even if he had been up for two or three days as he stated, was not so fatigued that he could not have demanded that the complainant leave the room. It would have been open to the jury to consider this evidence to be contrived and unbelievable.
After evaluating and weighing the competing evidence that was adduced at the appellant’s trial, and bearing in mind that the jury had the advantage, not enjoyed by this court, of seeing and hearing the evidence and, in particular, the recordings of the accounts given by the complainant and the appellant, the jury was entitled to accept as honest and reliable the account given by the complainant. This account was supported in a number of respects as to its surrounding circumstances by other evidence and by the recent complaint evidence. In our opinion, the jury was entitled to reject the exculpatory evidence of the appellant and SW. The inconsistencies and other alleged defects in the evidence of the complainant do not, on proper analysis, either singularly or in combination, require the conclusion that the jury must necessarily have entertained a doubt about the appellant’s guilt. In our opinion, the verdicts of guilty on counts 1 and 2 were not unreasonable. The verdicts were supported by evidence, which the jury was entitled to accept. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, we do not have a reasonable doubt as to the appellant’s guilt. It would not be dangerous to permit the verdicts to stand.
For these reasons, while we give permission to appeal in respect of Ground 4, the ground has not been made out.
Conclusion and orders
None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed. The orders that we make are as follows:
(1)Permission to appeal is granted on Grounds 2, 3 and 4.
(2)Permission to appeal on Ground 1 is refused.
(3)The appeal is dismissed.