Hugo (a pseudonym) v The Queen

[2021] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hugo (a pseudonym) v R [2021] NSWCCA 99

Hearing dates:

1 March 2021

Date of orders:

17 May 2021

Decision date:

17 May 2021

Before:

Gleeson JA at [1]
Harrison J at [81]
Bellew J at [82]

Decision:

(1)   Grant leave to appeal against conviction.

(2)   Appeal allowed.

(3)   Quash the conviction of the appellant on count 1 and set aside the sentence imposed in the District Court on 8 March 2019.

(4)   In lieu, direct a verdict of acquittal be entered on count 1.

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against conviction – question of mixed fact and law – where applicant convicted of one sexual offence against a child and acquitted of multiple similar offences against that child and another – where guilty verdict depended on complainant’s credibility – whether guilty verdict unreasonable having regard to inconsistency with acquittals on other counts – whether acquittals necessarily indicate the jury had a doubt about complainant’s credibility – Criminal Appeal Act 1912 (NSW), s 6(1)

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), ss 61M(2), 578A

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases Cited:

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

R v Roos [2019] NSWCCA 67

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category:

Principal judgment

Parties:

Hugo (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Evers (Applicant)
C Young (Respondent)

Solicitors:
Katsoolis & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/383183

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of, or any matter which could identify the complainants, is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 February 2019; 1 March 2019

Before:

Norrish QC DCJ

File Number(s):

2016/383183

Judgment

1. GLEESON JA: This is an application for leave to appeal against conviction. The applicant, who has been convicted of one sexual offence against a child, and was acquitted of multiple other similar offences against that child and a second child, contends that the guilty verdict was unreasonable having regard to its inconsistency with the acquittals on the other counts relating to the first child.

2. The complainants, S and K, are the applicant’s nieces. At the time of the alleged offending, S was aged between 8 and 10 years and K was aged between 6 and 13 years. The applicant cannot be named by reason of s 578A of the Crimes Act 1900 (NSW); “Hugo” is a pseudonym.

3. The charges relating to S involved five counts of aggravated indecent assault (counts 1, 2, 5, 7 and 9) and two counts of having sexual intercourse with a child of or above the age of 10 years and under 14 years (counts 6 and 8).

4. The charges relating to K involved two counts of aggravated indecent assault (counts 3 and 13) and four counts of having sexual intercourse with a child under 10 years (counts 4, 10, 11 and 12).

5. On 9 November 2018, the jury returned verdicts of not guilty on counts 2-13 (on count 12, the verdict was by way of direction) and a guilty verdict on count 1 in relation to S on a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act.

6. On 8 March 2019, the applicant was sentenced by Judge Norrish QC to 15 months imprisonment, with a non-parole period of 7 months. On the same date, the trial judge released the applicant on bail pending the outcome of his conviction appeal.

Ground of appeal

7. The sole ground of appeal - that the verdict of the jury was unreasonable – invokes s 6(1) of the Criminal Appeal Act 1912 (NSW), which relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence”.

8. The applicant’s argument was confined to the submission that the guilty verdict on count 1 was unreasonable having regard to its inconsistency with the acquittals on the other counts relating to S (counts 2 and 5-9). The applicant requires leave to appeal as this ground involves a question of mixed fact and law: Criminal Appeal Act, s 5(1)(b).

Principles

9. In MacKenzie v The Queen (1996) 190 CLR 348 at 366-368; [1996] HCA 35, Gaudron, Gummow and Kirby JJ stated a number of propositions on inconsistent verdicts, including: (a) the applicant bears the obligation of establishing inconsistency between verdicts; (b) the applicable test is one of logic and reasonableness; (c) if there is a proper way by which the verdicts may be reconciled and there is some evidence to support the verdict said to be inconsistent, then an appellate court should not substitute its own opinion of the facts for one which was open to the jury; and (d) it is to be kept in mind that the jury may simply have followed the judge’s instructions to consider separately each charge, or that the jury took a merciful view of the facts upon a charge: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ)

10. Thus, in determining whether convictions are unreasonable, the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility. If an explanation for the acquittals can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least on that basis: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128], [130] (Simpson J, McClellan CJ at CL and Latham J agreeing). See also: R v Roos [2019] NSWCCA 67 at [42]-[45] (Gleeson JA, Harrison and Davies JJ agreeing.

The evidence and the circumstances of this case

11. Counts 1 and 2 relating to S were alleged to have occurred at Trangie between June 2005 and October 2006. Counts 3 and 4 relating to K were alleged to have occurred at Trangie between August 2005 and September 2006.

12. In about October 2005, the applicant commenced living with his sister’s family at Trangie, in western New South Wales. His sister is the mother of three young girls, S and K, and their older sister D. At the time, S was aged 7 years, K was aged 5 years and D was aged 10 years. The applicant was aged about 18 years.

13. According to Centrelink records, S, K, and D lived with their mother at an address in Trangie from 12 August 2005 to 7 September 2006. The applicant lived at the same address in Trangie for part of that period, from 21 October 2005 to 22 May 2006.

14. At times, the applicant assumed responsibility for his sister’s three children when she was away from the house visiting her partner who was incarcerated at Bathurst Gaol. A list of dates on which the mother visited Bathurst Gaol in the period October 2005 to March 2006 was in evidence as Ex 5 at trial. The mother’s partner was released on parole on 13 March 2006. At times after this date, the mother was away from the house at Trangie when she visited her partner in Matraville.

15. Counts 5-9 relating to S were alleged to have occurred at Maroubra in the period between May 2008 and April 2009 when S was aged 10 years. There were three separate alleged incidents at Maroubra: counts 5 and 6 involved one incident, counts 7 and 8 involved a second incident, and count 9 involved a third incident. Counts 10-13 relating to K were alleged to have occurred at Maroubra: counts 10-12 between November 2006 and September 2010 and count 13 between September 2013 and September 2014.

16. In September 2006, S, K, and D moved with their mother to Maroubra and resided with the children’s maternal grandmother. Centrelink records showed the girls’ mother living at another address at Matraville from 8 September to 16 September 2007, at the grandmother’s house in Maroubra from 17 September 2007 to 7 March 2010, and at an address in Port Botany from 10 January 2011 and later in Rockdale, with no further records thereafter. The girls’ mother gave evidence that she lived at her mother’s house at Maroubra from about September 2007 to July 2009; that she had a volatile relationship with her mother and at some stage got “kicked out of the house”; and that she had very little contact with S and K after 2009.

17. Centrelink records showed the applicant residing at a different Maroubra address from 23 May to 9 August 2006, at the grandmother’s house in Maroubra from 10 August 2006 to 6 September 2006, at an Eastlakes address from 7 September 2006 to 21 March 2007, at the grandmother’s house in Maroubra from 22 March 2007 to 9 July 2007 and at a Casula address from 10 July 2007 to 30 November 2013.

Initial complaint

18. At the trial, S gave evidence of the circumstances in which the alleged offending was first reported to others. In early 2015, S’s younger sister, K, called her and asked if the applicant had touched her when she was younger. S met K that weekend where they discussed the matter without going into detail. S mentioned to K that things happened at her “nan’s house” in the backyard (at Maroubra) when “we were playing hide and go seek”. She did not say anything about what happened at Trangie.

19. Subsequently, K ran away from home and went to her aunt’s home at Casula, where K made a report to her aunt. The aunt rang S to confirm whether K’s allegations were true, and S confirmed they were. The aunt then reported the matter to police. The aunt gave evidence of a phone call with S in which she asked S “[i]s it true what [K] is saying about [Hugo]?” and S answered “[w]hatever [K] said is true”. S first made a statement to police on 5 March 2015. She made a further statement to police on 29 June 2016.

The complainant’s evidence

20. S gave evidence at an earlier trial on 18 October 2018, in which the jury was discharged. The video recording of her evidence at the earlier trial was played to the jury in the following trial and the transcript of her evidence was marked MFI-16.

Count 1

21. According to S, the first occasion she recalled being touched indecently by the applicant occurred in 2006 when she was 8 years old. Her mother was not present at the Trangie house having told her that she was visiting her partner in gaol. S’s elder sister, D, was also not present in the house on the relevant evening. S watched a television programme, “The Simpsons”, with her sister, K, in the lounge room before going to bed in “my own bedroom”; her sister K was in the bedroom opposite. Although S would usually share a room with K, she was sleeping in D’s room that evening, which was opposite her usual bedroom. She described the room as having a lamp without a shade as it was broken when S and K were playing roughly.

22. S gave evidence of feeling somebody touching her face whilst in bed and opening her eyes to see the applicant. The applicant leant down on the side of the bed and put his hand underneath the blanket, touching S’s legs and vagina for a couple of minutes, and also kissing her and putting his tongue in her mouth. S said “I just was very still. I didn’t move” and she didn’t know what was happening as it was the “first time anything like this had ever happened to me”. After a couple of minutes, the applicant left the room.

23. Two diagrams drawn by S during her police interview on 29 June 2016 were tendered at trial as Exhibit 3. One depicted the bedroom at the time of count 1, including the positions of S and the applicant. The other depicted the layout of the Trangie premises. The room identified in that diagram by S as “my room” was consistent with other evidence as to the location of D’s room at Trangie.

24. The defence put to S in cross-examination that there was only one occasion when the elder sister, D, was absent from the Trangie house. S agreed and said, “Yes, and she was away a week”. D gave evidence of an occasion when she went to see her father for “roughly about three days” before her mother brought her back to Trangie but could not specify what month that occurred.

25. In cross-examination, S gave evidence that she had told the legal representatives for the Crown in the week before the trial that her memory was that her mother was pregnant with her sister, M, at the time of the first incident. M was born on 28 December 2006 (Ex 5). S agreed that her mother did not become pregnant until March 2006. She said that her mother had a “bump”, although “not a large one”. When challenged in cross-examination, S gave the following evidence:

Q.   So you say your mother is pregnant and you could see that she was pregnant?

A.   Yes.

Q.   And that is the child who was born on 28 December 2006?

A.   Yes.

Q.   And you claim that these offences took place at a time when your mother was visiting [***], her partner, in gaol?

HER HONOUR:   When she said she was visiting.

DAVENPORT

Q.   When she said she was visiting her partner in gaol?

A.   Yes.

Q.   I suggest that those two things just cannot have happened together?

HER HONOUR

Q.   So it is being suggested that those things didn’t happen together; do you agree or disagree with that?

A.   I disagree because this is my memory of what I remember and I can’t – I can’t change my memory or I can’t – this is what’s happened and this is what I remember. So yes, I agree.

Q.   You?

A.   Disagree sorry. I disagree.

Count 2

26. S gave evidence that she was “pretty sure” that the next incident was the day after count 1. She described playing with the applicant’s dog when he asked her to feed her mother’s pet bird. According to S, the applicant and S went to a storage area of the Trangie premises where a bird was kept in a cage. This area was shown on the diagram drawn by S as near the kitchen. After opening the bird cage to clean it, the applicant grabbed S and kissed her face. The applicant was “groping” S’s body and rubbing her vagina. As the applicant started to pull S’s pants down she began to cry so he opened the door and let her out. According to S, the applicant said that if she told anyone he would hurt S or her mother.

27. There was conflicting evidence from other witnesses as to whether there was a bird at the premises whilst they lived at Trangie. S’s mother gave evidence of a galah which lived in a cage and needed to be fed. The older sister, D, gave evidence that there was no bird at Trangie, although she recalled her mother having a galah “a long time before we moved to Trangie”. The applicant gave evidence that he was “99.9% sure” that there was no bird at Trangie. The younger sister, K, did not remember a bird at Trangie.

28. S gave evidence that whilst they were living at the Trangie premises, apart from the conduct the subject of counts 1 and 2, the applicant “acted normal like nothing happened”, “[h]e acted like … the good uncle”.

Counts 5 and 6

29. S gave evidence of playing “hide and seek” with the applicant and her sister, K, at the Maroubra premises of her grandmother. According to S, the applicant asked her to go with him to a storage area under the house. S recalled there was “nothing in there. It was all open”. The applicant then started rubbing S’s body and vagina, as well as kissing her face (count 5). The applicant then put his hand in S’s pants and “forcefully stuck his finger” inside S’s vagina for a couple of seconds (count 6). S was standing up in the storage area and the applicant was on his knees. S recalled the applicant asked “[w]ho’s the best uncle?” and said that he would hurt S or her mother if she told anyone. When K called out, the applicant opened the door and pushed S out.

Counts 7 and 8

30. S gave evidence that the second occasion at Maroubra was “the same basically” as the prior incident and occurred a matter of “weeks” after counts 5 and 6. Whilst playing hide and seek with S and K, the applicant found S and took her to the storage area. The applicant closed the door and was feeling “all over” S’s body and kissing her face (count 7). The applicant then asked S to lay down, before pulling her pants down and licking S’s vagina for a couple of minutes (count 8). S did not know whether the applicant’s tongue went inside her vagina. After a couple of minutes, the applicant stopped, opened the door and let S out. When asked why she went with the applicant to the storage area S said she was in “play mode and I didn’t think and I just, went with him”.

Count 9

31. S gave evidence that she was “pretty sure” the next incident was a couple of days after the previous incident, however she added that “I was very young and it is very blurry so I can’t remember dates and how far apart the incidents were”. She was playing hide and seek but hiding in a different location; under a table outside her grandmother’s bedroom window. When the applicant found her they went to the storage area. S explained “I trusted him, I guess I didn’t think it was going to happen again”. The applicant then touched S’s vagina, bottom and breasts and was trying to pull her pants down (count 9). S heard her older sister, D, banging on a gate, and the applicant stopped.

32. S said she only played hide and seek at the Maroubra premises with the applicant on the three occasions when they went to the storage area under the house. S said that D would not play these games. D gave evidence that she played hide and seek once, before the family moved to Trangie.

33. S gave evidence that she had told her younger sister, K, not to hide in the storage area because it was “dark and scary in there and it had spiders”. K confirmed in her evidence that she played hide and seek with S and the applicant at the Maroubra house, and that S had told her not to hide underneath the house.

34. S rejected the suggestion by counsel for the defence that the applicant did not live at Maroubra. She said the applicant was back and forth from her aunt’s house in Casula as he would have arguments with her and then return to Maroubra. She said that the applicant did come and stay and his “stuff” was there, so she was under the impression he was living there.

35. There was conflicting evidence concerning the dimensions of the storage area under the grandmother’s house, whether it contained a pipe and whether it was empty. S said the storage area was quite large, she could “stand almost fully” but she did kneel a little bit, and that the applicant could not stand and had to be on his knees. K said that she was unable to stand up or kneel in the storage area. K said that the applicant had to crawl into the storage area.

36. In cross-examination, S was shown photographs of the storage area at the Maroubra premises containing bikes and bike parts (Exhibit 1). S said “[t]hat storage area wasn’t used for anything”, the bikes and bike parts were never there, and that she did not ever recall seeing a water pipe hanging 15 centimetres from the ceiling of that space. S did not agree that the storage area was a very confined space, although she agreed that in terms of height, a child could not stand in there, they would have to crouch.

37. K gave evidence about the photographs in Exhibit 1 that “it wasn’t so full. Like all the bikes and everything were pushed to the back”, but remembered the pipe being on top of her head. D said that when she lived at Maroubra there were bike parts in the storage area.

38. The jury were taken on a view to the Maroubra residence and the storage area. The edited video of this view became Exhibit 6.

Defence case

39. The applicant gave evidence at trial and denied each of the allegations. As to the alleged offending at Trangie, the applicant said that his sister (the girls’ mother) would usually visit her partner on weekends and would be gone for three to four nights. He said that his sister was away for two weeks shortly after her partner was released from gaol, and that after he was released she would visit him at Matraville.

39. The applicant said that he was not living at the grandmother’s house in Maroubra in 2008; he was living in Casula with his father, and that lasted until 2013 when he returned to the grandmother’s house in Maroubra. He said that, having moved to Casula on 10 July 2007, he did not go to the grandmother’s house “pretty much” for three years, that is, from that year until 2010. He said he visited the grandmother’s house at Maroubra only once between 2007 and 2013 to see how his mother was, and he did not play “hide and seek” on this occasion. He said that he placed the items shown in the Exhibit 1 photographs in the storage area between 2000 and 2001.

Directions given to the jury

41. The trial judge instructed the jury to consider each count individually and to consider whether the elements were made out in respect of each individual count. This direction was provided to the jury both in writing at the time of the deliberations and orally during the summing up.

42. The trial judge gave the jury a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290), both in writing and orally:

If you have a reasonable doubt about the truthfulness of a particular complainant, leading to a verdict of not guilty on a particular count relating to that complainant, that can be taken into account in determining whether the prosecution has proven the guilt beyond reasonable doubt of the accused in respect of another count dependent upon that witness’ evidence.

43. After noting that neither party had referred in closing submissions to the issue of whether the mother was pregnant at the time of the offending the subject of counts 1 and 2, the trial judge instructed the jury that this “is an issue that goes directly to the credibility of the complainant’s account in respect of the events giving rise to counts one and two”.

44. The trial judge instructed the jury that the Crown had the onus of proving that the accused did not have an “alibi” in relation to counts 5-9 relating to S, given his evidence that he did not reside at or attend the residence at Maroubra in the period of time between 1 May 2008 and 30 April 2009, and that the contents of Exhibit 5 provided evidence that he was not resident at that address during that period of time.

45. The trial judge also instructed the jury not to compromise their verdicts.

46. No complaint is made in relation to the summing up or the directions given by the trial judge.

Ground 1 – unreasonable verdict – inconsistency

Applicant’s submissions

47. The applicant submitted that the Crown case on each charge relating to S relied solely on her evidence: there were no witnesses to the events alleged other than S and no contemporaneous complaint by S, and no certainty surrounding the dates of the offences that she alleged. In these circumstances, it is clear that the Crown case relied entirely on S’s credibility. The only additional evidence was the Crown’s reliance upon tendency evidence. The applicant submitted that on a careful comparison of the evidence, the conviction on only one of the seven counts relating to S demonstrates irreconcilable inconsistency, and no reasonable jury, applying their minds properly to the facts, could have properly arrived at that conclusion: MacKenzie.

48. In oral address, counsel for the applicant drew attention to difficulties with S’s evidence that were said to be significant and which went to her credibility on all counts:

• on count 1 relating to the location and timing of the alleged offending, including whether S’s mother could have been visibly pregnant before the applicant left the Trangie house in May 2006;

• on count 2 relating to the location of the alleged offending and the pretext of feeding the bird at the Trangie house; and

• on counts 5-9 relating to the location of the alleged offending in the storage area under the Maroubra house, the dimensions of the storage area, and whether it was empty or contained a water pipe.

49. The applicant submitted that the evidence given in relation to count 1 was not more detailed, more precise or inherently more plausible than the evidence given in relation to counts 2 and 5-9, and there was no rational basis for the jury to give a different verdict on count 1. It was submitted that the acquittals were attributable only, or principally, to doubt about the credibility of complainant S.

50. In oral reply submissions, the applicant submitted that it is very difficult to separate the reliability of S’s evidence concerning the location of the offences the subject of counts 5-9 from her credibility, because if the jury had concerns about S’s lack of knowledge of the pipe and the dimensions and appearance of the storage area under the Maroubra house, that would suggest that S was not only unreliable but also not credible in terms of whether she had been in that storage area at all. It was submitted that it was far more likely that the jury had a doubt that S was credible when she said that she was in that storage room with the applicant.

Crown submissions

51. The Crown submitted that count 1 can be distinguished from the other counts relating to S on four grounds: (1) it involved a clear and detailed recollection of the first incident in time; (2) at a location which the applicant accepted he had resided in with the family; (3) in a bedroom described by S consistent with other evidence at trial; and (4) at a time when both her older sister D and her mother were absent from the premises, which was supported by other evidence.

52. Contrary to the applicant’s submission concerning the evidence in relation to count 1 (see [49] above), the Crown submitted that the evidence on count 1 was more detailed than on the other counts because S was able to place the incident as first in time and describe her physical reaction to the touching, being that she remained very still and gave evidence of her thought processes at the time. Further, the Crown submitted that this was comparable to S’s evidence in relation to the other counts where S was just “pretty sure” or “very blurry” with details.

53. The Crown submitted that the acquittals on the other counts relating to S were explicable upon the basis of the reliability of S’s evidence and cast no doubt on the credibility of S’s evidence on count 1. As to count 2, the Crown said that the conflict in the evidence as to whether there was a bird at the Trangie house was a reasonable explanation for the jury being unable to reach a conclusion of guilty beyond reasonable doubt. As to counts 5-9, the Crown pointed to the applicant’s alibi, as to which the jury were directed by the trial judge, and the conflicting evidence about the storage area as providing a reasonable explanation for the jury’s not guilty verdicts, without concluding that S was determined by the jury to be a dishonest witness on those counts.

54. The Crown also submitted that insofar as S could not remember matters of detail on counts 2 and 5-9, such as the bird at the Trangie house, the dimensions of the storage area and the pipe and the bike parts in the storage area underneath the Maroubra house, this only impacted her reliability and not her honesty.

Reasoning

55. It is convenient to address the acquittals in the order of the alleged offending at Trangie and Maroubra.

Count 2

56. Contrary to the position taken by the Crown in closing submissions at trial – that the conflicting evidence concerning the bird was “pretty much irrelevant” – the Crown correctly accepted in this Court that count 2 required the jury to consider the conflicting evidence about whether there was a bird at the Trangie house. That concession was properly made.

57. The Crown case relied on S’s evidence that feeding the bird was the pretext given by the applicant for asking S into the storage room. That pretext provided both the opportunity and the location for the applicant to be alone with S when the alleged offending occurred. Moreover, the Crown put to the jury in closing submissions that all counts relating to S depended on her credibility and that the jury should reject the accused’s evidence that there was no bird at the Trangie house.

58. Whilst the jury may have had doubts about the reliability of the conflicting evidence of the mother and D as to whether the mother kept a bird at the Trangie house, the acquittal on count 2 is not explicable, as the Crown suggested, on the basis that the conflict in the evidence as to the bird was a reasonable explanation for the jury being unable to reach a conclusion of guilt beyond reasonable doubt. This is not a case where the evidence showed some faulty recollection by S of some matters of detail in relation to the alleged offending. S’s evidence linked the alleged offending to the applicant’s pretext of feeding the bird in the storage room. That pretext was an essential part of S’s account of this alleged offending. The acquittal on count 2 necessarily indicates that the jury did not believe S, or at least that there was a want of confidence in her evidence on this count.

Counts 5-9

59. The Crown case on counts 5-9 relied upon the evidence of S which linked the location of the alleged offending to the storage area under the Maroubra house when the applicant was playing games of hide and seek with S and K between 2008 and 2010. It was those occasions and that location which, on the Crown case, provided the opportunity for the applicant to be alone with S when the alleged offending occurred.

60. The defence case challenged the Crown case on two bases, each of which challenged the credibility of S’s evidence: first, as to timing, whether the applicant was actually at the grandmother’s mother’s house in Maroubra between 2008 and 2010 when the alleged offending occurred; and, second, as to location, specifically the dimensions and contents of the storage room under the Maroubra house.

61. On the issue of timing, which was relevant to the applicant’s alibi, the Crown had to prove beyond reasonable doubt that the applicant did not have an alibi. The jury were directed in relation to this by the trial judge: see [44] above. The Crown case relied upon the evidence of S, which was supported by K’s evidence, that the applicant had at least visited Maroubra on the occasions when S and K said they were playing hide and seek. That the applicant visited the Maroubra house on at least three occasions between 2008 and 2010 was not a matter of detail on which S had shown some uncertainty.

62. Insofar as the Crown suggested that the applicant’s alibi was a reasonable explanation for the acquittals on these counts, the mere fact that Centrelink records showed the applicant living at Casula at his father’s address during the time of the alleged offending between 2008 to 2010 did not mean that the applicant was not capable of visiting his mother at Maroubra between 2008 and 2010. So much was properly accepted by counsel for the applicant in this Court.

63. On the issue of location, whether S was taken to the storage area under the Maroubra house when playing games of hide and seek with the applicant squarely raised the credibility of her evidence that the storage area was “open”, that she could almost stand up under the house, and her denial that the bike parts were there as depicted in the photograph in Exhibit 1.

64. That S did not recall the overhead pipe in the storage area under the Maroubra house was not a matter which might have been viewed by the jury as uncertainty as to matters of detail. The jury had the benefit of a view of the Maroubra house when assessing the evidence of S, who did not recall the pipe. S’s evidence also conflicted with the evidence of K, that K had to crawl under the pipe in the storage area, that she could not stand up or kneel, and could only sit up if she bent her head down to avoid the “pole” overhead.

65. The acquittals on counts 5-9 cannot be explained, as the Crown suggested, on the differences between the evidence on these counts compared to the evidence on count 1. Both parts of the Crown case on these counts – that the applicant did not have an alibi and that the offending occurred in the storage area as described by S – relied upon an acceptance of S’s evidence of the detail of the alleged offending when playing games of hide and seek at Maroubra between 2008 and 2010, and her description of the location where she was hiding when the alleged offending occurred, which suggested a familiarity with that area, specifically that she could stand almost fully”, that the storage area under the house was empty and that she could not recall the overhead pipe.

66. As indicated, the Crown put to the jury in closing submissions that all counts relating to S depended on her credibility; that included the evidence of S in the preceding paragraph above. The aspect of S’s evidence which was “blurry”, and thus might have been considered by the jury as unreliable, was the timing of the offending during this period, being the specific dates and how far apart the incidents were.

67. The acquittals on counts 5-9 necessarily indicates that the jury did not believe S, or at least that there was a want of confidence in her evidence on these counts.

The guilty verdict on count 1 depended on S’s credibility

68. The credibility of S’s evidence was critical to the conviction on count 1; specifically, on the issues of the location and timing of the alleged offending. As the Crown put to the jury in closing address at the trial, the case was “really one person’s word against the other”.

69. As to location, S had initially provided police with a diagram of the Trangie house in 2016 that suggested she slept in a different room to her younger sister, K, labelling the bedroom where the offending allegedly occurred as “my room”, which contained her clothes cupboard and had her toys and “stuff” on the floor, and a different room as “K’s room”. However, during cross-examination S accepted that she slept in a shared bedroom with K, and the room identified as “my room” on the sketch plan was in fact her elder sister, D’s, bedroom.

70. Accepting, as the Crown submitted, that S identified D’s room as “my room” in the context of providing the diagrams in relation to the “first incident” when D was not present in the Trangie house and S was sleeping there, the 2016 diagrams squarely raised the credibility of S's evidence that there was an occasion when she was alone with the applicant in D’s bedroom when the alleged offending occurred.

71. As to timing, counsel for the applicant pointed to three aspects of S’s evidence as impacting upon her credibility. First, that although S initially suggested in her evidence-in-chief that her elder sister, D, was often away from Trangie, both D and the applicant gave evidence that there was only one occasion when D was away from Trangie, a proposition that S ultimately accepted during cross-examination.

72. Second, S gave evidence that at the time of the first incident her mother was pregnant with M to another man, and was obviously so, because she could see the baby bump on her mother’s stomach. M was born on 28 December 2006. According to Centrelink records, the applicant had moved away from Trangie by 22 May 2006 at which time, according to the applicant’s submission, the mother could have been no more than two months’ pregnant and unlikely to be “showing”.

73. Third, and related to the previous matter, according to S’s evidence, at the time of the first incident, her mother told her she was away visiting her partner in gaol, but her partner was released on parole on 13 March 2006, a little over nine months before the birth of M. The submission continued that her mother could not have been visiting her partner in gaol at a time when she was pregnant.

74. In oral argument, counsel for the applicant fairly accepted that S’s evidence as to what her mother told her did not mean that her partner was in fact in gaol when she visited him, and that there was evidence of the mother visiting her partner in Matraville after he was released on parole; the relevant period when the alleged offending could have occurred at Trangie was a time period up to 23 May 2006 when, on the evidence, the applicant left Trangie.

75. The Crown accepted in this Court that the mother could not have been noticeably pregnant with M at a time when her partner was released on parole on 13 March 2006. However, it was submitted that it was available to the jury to conclude that the mother was beginning to show visible signs of pregnancy by 22 May 2006 when the applicant left the Trangie premises, and certainly by 7 September 2006 when S moved from Trangie.

76. Whilst counsel for the defence did not outline to the jury in his closing address any specific issues with S’s accuracy in relation to count 1, including her memory of her mother being pregnant, the latter issue was squarely raised by the trial judge in his summing up as going directly to the credibility of S’s account in respect of the events giving rise to both counts 1 and 2: see [43] above.

77. In convicting the applicant on count 1, the jury must be taken to have found the evidence of S on count 1 to have been not only reliable, but also credible.

Conclusion

78. Having considered the evidence at trial, I am satisfied that the acquittals on counts 2 and 5-9 necessarily indicate that the jury had a doubt about S’s credibility; either her evidence on those counts was disbelieved, or there was a want of confidence in her evidence on those counts: MFA v The Queen at [34]. Keeping firmly in mind that it is not the role of the appellate court to substitute its own opinion of the facts for one which was open to the jury, I do not consider that there is a logical and reasonable explanation for the acquittals, other than that the acquittals are attributable only, or principally, to doubt about S’s credibility.

79. In these circumstances, the guilty verdict is unreasonable because it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on count 1 notwithstanding their unwillingness to convict him on the other counts relating to S.

Orders

80. Accordingly, I propose the following orders:

1. Grant leave to appeal against conviction;

2. Appeal allowed;

3. Quash the conviction of the appellant on count 1 and set aside the sentence imposed in the District Court on 8 March 2019;

4. In lieu, direct a verdict of acquittal be entered on count 1.

81. HARRISON J: I agree with Gleeson JA.

82. BELLEW J: I agree with Gleeson JA.

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Amendments

17 May 2021 - Order 3 made on 17 May 2021 varied by deleting the concluding words “15 February 2021” and inserting “8 March 2019” in their place.

Decision last updated: 17 May 2021