JJS v The State of Western Australia
[2014] WASCA 136
•30 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JJS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 136
CORAM: MARTIN CJ
PULLIN JA
BUSS JA
HEARD: 5 FEBRUARY 2014
DELIVERED : 30 JULY 2014
FILE NO/S: CACR 60 of 2013
BETWEEN: JJS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :[Suppressed]
Catchwords:
Criminal law - Appeals - Verdict unreasonable or cannot be supported by evidence - Unsafe or unsatisfactory - Turns on own facts
Criminal law - Practice and procedure - Prosecution - Duties of a prosecutor
Criminal law - Practice and procedure - Summing up - Comments by judge on evidence
Criminal law - Practice and procedure - Juries - Fatigue - Jury capable of assessing its own capacities
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 321(2), s 321(4), s 321A
Criminal Procedure Act 2004 (WA)
Result:
Leave to appeal refused in respect of all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D L Armstrong
Respondent: Ms L Petrusa SC
Solicitors:
Appellant: D L Armstrong
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
B v The State of Western Australia [2011] WASCA 114
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Cooper v The State of Western Australia [2010] WASCA 190
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Goedecke v The State of Western Australia [2013] WASCA 25
Hill v The Queen [2003] WASCA 177
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227
Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Livermore v The Queen [2006] NSWCCA 334; (2006) 67 NSWLR 659
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Murray v The Queen [2002] HCA 72; (2002) 211 CLR 193
R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
R v Callaghan [1993] QCA 419; (1994) 2 Qd R 300
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Wood [2012] NSWCCA 21; (2012) 84 NSWLR 581
Roberts v The Queen [2002] WASCA 64
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Table of Contents
MARTIN CJ.............................................................................................................................. 6
Summary
Background
The prosecution case
Ground 1 - unsafe and unsatisfactory verdict
The evidence
The defence case
The specific incidents
The first specific incident
Events immediately preceding the first incident
Summary of the evidence relating to the fireworks
The second alleged incident - the first occasion of sexual intercourse
The third alleged incident - kissing at the appellant's house when interrupted
Alleged incident 4 - kissing while cleaning the appellant's car
Alleged incident 5 - kissing at the foreshore
Alleged incident 6 - kissing at the house in a place proximate to the town
Alleged incident 7 - sexual intercourse in the Landcruiser
The general relationship between the appellant and M
The text messages
M's erratic behaviour
Summary of the evidence
Particular (a) - inconsistency in the evidence of the complainants relating to the alleged first incident.
Particular (b) - the fireworks display
Particular (c) - inconsistent evidence - the blue Suzuki
Particular (d) - lack of detail in M's evidence
Particular (e) - the text messages
Particular (f) - evidence as to the termination of the relationship
Summary in relation to ground 1
Ground 2 - the prosecutor's closing address
The duties of a prosecutor - general principles
Particular 2(a) - the text messages
Particular 2(b) - the date of the fireworks display
Particular 2(c) - the complainants' evidence as to the fireworks display
Particular 2(d) - the effect of access to the prosecution case
Particular 2(e) - reading the prosecution case
Particular 2(f) - child witnesses inexperienced in giving police statements
Particular 2(g) - M's erratic behaviour
Ground 3 - the directions of the trial judge to the jury
Balance
Ground 4
Conclusion
PULLIN JA.............................................................................................................................. 58
BUSS JA................................................................................................................................... 58
The facts and circumstances of the alleged offending and the evidence at trial
The grounds of appeal
Ground 1: the State's case at trial
Ground 1: the defence case at trial
Ground 1: the particulars of the ground
Ground 1: the proper approach by an appellate court to a ground of appeal which alleges that a verdict of guilty is unreasonable or cannot be supported
Ground 1: the proper approach to the evaluation of the competing evidence of complainant M and complainant C, on the one hand, and the appellant and his partner (complainant M's eldest sister), on the other
Ground 1: particulars (a) and (b): its merits
Ground 1: particular (c): its merits
Ground 1: particular (d): its merits
Ground 1: particular (e): its merits
Ground 1: particular (f): its merits
Ground 1: conclusion
Grounds 2, 3, and 4
The outcome of the appeal
MARTIN CJ:
Summary
The appellant, JJS, appeals from his conviction of engaging in persistent in sexual conduct with M, a child under the age of 16 years, and of indecently dealing with C, a child of or over the age of 13 years and under the age of 16 years. The appellant was convicted of those offences following trial by jury in the District Court of Western Australia. At that trial the appellant was acquitted, by the verdict of the jury, of a charge of sexually penetrating C when she was between the age of 13 and 16 years.
There are four grounds of appeal. The first asserts that the verdict of the jury convicting the appellant on the two charges to which I have referred should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence. The second ground alleges that there was a miscarriage of justice as a result of the prosecutor's closing submissions which it is alleged were unfair, unbalanced and prejudicial to the appellant. The third ground alleges that there was a miscarriage of justice by reason of a misdirection by the trial judge on a factual issue. The fourth ground of appeal alleges that there was a miscarriage of justice because the jury were allowed to deliberate on their verdict until 10.15 pm in the evening. For the reasons which follow, leave to appeal should be refused on all grounds, and the appeal dismissed.
Background
The appellant was between 21 and 22 years of age between September 2008 and February 2009, when the offences of which he was convicted allegedly took place. He was living with his partner in a house (the appellant's house) in a Western Australian regional town. The appellant's partner is the older sister of M. During the relevant period, M was 12 years of age. M had known the appellant for several years and often stayed over at the appellant's house. M also brought friends to stay over with her at the house. One of those friends was C. During the relevant period, C was 13 years of age.
The prosecution case
In relation to the count of persistently engaging in sexual conduct with M, the prosecution relied upon her evidence to the effect that she was in a sexual relationship with the appellant between October 2008 and February 2009, and frequently engaged in sexual intercourse with him during that period. The State also relied upon seven distinct incidents which were alleged to have occurred during that period. The incidents alleged by the State were:
1.In October 2008, during an annual festival, the appellant went to a park in the town with M, C and PN, a young boy who was a family friend, in order to participate in events associated with the festival. The question of whether they went to watch, and did in fact watch a fireworks display associated with the festival was a contentious issue on the evidence, and has been agitated on appeal. The prosecution alleged that after returning PN to his parents, the appellant returned to the appellant's house with M and C. The prosecution alleged that the appellant's partner was out for the evening. The prosecution further alleged that the appellant purchased and supplied alcohol for the two girls and that they became intoxicated. The prosecution adduced evidence from the complainants to the effect that the appellant kissed both girls intimately and exposed his penis to M and digitally penetrated her vagina. The evidence with respect to the appellant kissing C intimately was the basis of the charge of indecently dealing with C, of which the appellant was convicted. On the prosecution case, these incidents marked the commencement of the sexual relationship between the appellant and M.
2.On another occasion at the appellant's house when the appellant's partner was absent, the appellant and M had sexual intercourse in the lounge room. According to M, this was the first occasion upon which she had sexual intercourse. She and the appellant then moved to the shower where they again had sexual intercourse.
3.On another occasion at the appellant's house when the appellant's partner was in the house but believed to be asleep, the appellant lifted up M so that her legs were around his waist and kissed her. However, they were interrupted and almost caught by the appellant's partner before anything further occurred.
4.On another occasion at the appellant's house when the appellant's partner was inside the house, M and her friend, TN, were helping the appellant to clean his car. M and the appellant sent text messages of a sexual nature to each other and then the appellant kissed M. The State ultimately abandoned the assertion that the kiss constituted a sexual act for the purposes of the charge of persistent sexual conduct, but relied upon the evidence led on this topic for the purpose of establishing intimacy or close connection between the appellant and M.
5.On another occasion when TN, M and the appellant were at the foreshore of the town, M and the appellant kissed passionately, and with open mouths.
6.On another occasion during the summer school holidays, M falsely told her parents that she was going to the house of her friend TN. However, instead she was taken by the appellant to a house in a place proximate to the town where they kissed before she was returned to her home because her family had noticed that she was not where she said she would be.
7.In about January 2009, M left her home at night in order to meet the appellant who drove her to sand dunes where they had sexual intercourse in the back of his Landcruiser vehicle.
In addition to the evidence led with respect to these specific incidents, the prosecution relied upon M's evidence to the effect that she and the appellant had sexual intercourse nearly every weekend she stayed at the appellant's house until she terminated their relationship in early 2009. The prosecution also relied upon evidence which established the exchange of a very large number of text messages between the appellant and M which commenced almost exactly at the time their sexual relationship allegedly commenced, and ceased almost exactly at the time their sexual relationship allegedly ceased.
Neither complainant informed their parents or any other adult of the alleged activities of the appellant at the time, although there was evidence to the effect that some of M's friends were aware that she was having a sexual relationship with the appellant. It was not until March or April 2011, some two years after M had terminated her relationship with the appellant, that she told her mother what had occurred. The matter was ultimately referred to the authorities and in due course charges were laid against the appellant.
Ground 1 - unsafe and unsatisfactory verdict
The first ground of appeal against conviction invokes the ground for which provision is made by s 30(3)(a) of the Criminal Appeals Act 2004 (WA) and alleges that both verdicts of guilty should be set aside because they are unreasonable and cannot be supported by the evidence. As was noted in M v The Queen,[1] when this statutory ground of appeal is invoked, courts commonly express a conclusion that the ground should be upheld in terms that the verdict was 'unsafe or unsatisfactory'.
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
The principles which must be applied by an appellate court when this ground of appeal is invoked are now well established. They have been summarised many times in this court.[2] The question which must be addressed is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty[3] which equates to the question of whether the jury must, as distinct from might, have entertained a doubt with respect to the guilt of the appellant.[4] The appellate court must address and answer that question by making its own independent assessment of the entire record of the case, giving full account to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and has had the benefit of having seen and heard the witnesses.[5] After undertaking that task, if the appellate court concludes that it would be dangerous in all the circumstances to permit the verdict to stand, the appeal should be allowed, notwithstanding that there is evidence upon which a tribunal of fact might have convicted.[6]
[2] See for example Martinez v The State of Western Australia [2007] WASCA 143.
[3] M v The Queen (492 ‑ 493).
[4] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 ‑ 597 (Hayne J, Gleeson CJ & Heydon J agreeing).
[5] M v The Queen; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316.
[6] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
In this case the ground of appeal is supported by particulars in written submissions which identify the particular aspects of the evidence which it is said render the verdicts of the jury unsafe and unsatisfactory. Although it will be necessary to give detailed attention to those particulars in the course of considering the ground, the nature of the task which must be performed by an appellate court when this ground is invoked requires a consideration of the entire record of the trial, unconstrained by the particulars which have been provided.[7] In this case, a consideration of the evidence as a whole provides a convenient basis for the evaluation of the other grounds of appeal.
[7] Weiss v The Queen [43]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [27].
The evidence
As is customary in cases of this kind, the evidence‑in‑chief of each complainant was recorded audio‑visually prior to the trial and the recording of that evidence‑in‑chief was played to the jury during the trial. In the case of M, her evidence was recorded on 26 July 2011, more than two years after the events in question, when she was 15 years of age. C's evidence‑in‑chief was recorded on 29 July 2011, when she was 16 years of age. Each complainant was cross‑examined during the trial in January 2013, about 18 months after their evidence‑in‑chief had been recorded, and about four years after the events in question. They were then 16 and 17 years of age respectively.
The prosecution also relied upon evidence given by M's parents, her older sister, her friends TB and TN, C's mother, PN's mother LN, and other witnesses who established the dates upon which there was a fireworks display associated with the annual festival, and the records maintained by Telstra with respect to text messages between the mobile phone used by M and the mobile phone used by the appellant, and with respect to telephone calls and text messages passing between the phone used by the appellant and the mobile phones used by the appellant's partner and TN.
The defence case
The appellant gave evidence. He denied any sexual association or contact with either complainant. According to him, his relationship with M was that of an older brother or father, and any physical contact between them was limited to horse play such as wrestling, or a kiss on the cheek and a hug on the occasion of birthdays. He admitted that large numbers of text messages passed between him and M, but asserted that there was nothing sexual or romantic in the messages, and all concerned innocent things such as M's problems with her sisters. He emphatically denied each of the specific incidents relied upon by the prosecution.
The appellant's partner was called to give evidence by the defence. Her evidence was to the effect that there was never any occasion upon which M was at the appellant's house when she was not also present. She denied ever leaving M in the care of the appellant. Although she had formed a view that M had a crush on the appellant because of the way in which she acted, she never saw anything which suggested that there was a sexual relationship between M and the appellant.
The specific incidents
A significant portion of the argument advanced on behalf of the appellant in support of ground 1 concerned the evidence relating to the specific incidents upon which the prosecution relied. For that reason it is convenient to consider the evidence by reference to those specific incidents, rather than by reference to the sequence in which the evidence was adduced. However, the focus which will now be directed towards the evidence relating to the specific incidents should not obscure the prosecution's reliance upon the more general evidence given by M to the effect that she and the appellant regularly engaged in sexual intercourse over the relevant period on occasions which she was not able to specifically identify.
The first specific incident
M's evidence with respect to the first incident in October 2008 was to the effect that she and C were staying overnight at the appellant's house. PN, who would have been eight or nine years old at the time of this incident, was with them. The appellant's partner went out, leaving the appellant, M, C and PN at the house. However, PN started crying and said that he wanted to go home, so the appellant returned him to the hotel where his mother was staying (Hotel A). The girls went as well.
According to M, after PN had been returned to his mother at Hotel A, she and C asked the appellant to get them some drinks. The appellant stopped at the bottle shop during the journey back to the appellant's house, and bought either four or eight 'Cruisers'. The two girls shared the Cruisers back at the appellant's house. When they returned, the appellant locked the front door and said something like, 'If [my partner] asks why we locked the door, it was because someone tried to break in'.
M kissed the appellant on the cheek to say thank you, and he smiled and laughed. C also gave him a kiss to say thank you, then M gave him a longer kiss. The second kiss was on the lips and their tongues were in each other's mouths. According to M, C licked the appellant on the face. At this time the appellant was seated between the two girls on the couch. The appellant and the two girls continued to kiss and the girls continued to drink the Cruisers.
At some point C went to the toilet. While she was away, the appellant said to M, 'I want to show you something', took his penis out of his pants and showed it to her. M said she felt uncomfortable and laughed, and the appellant put his pants back on. As soon as C left the toilet, M left the room and went to tell her about what had just happened. According to M, she related what had occurred to C in either the kitchen or the hallway, while the appellant was still on the couch.
The girls returned to the living room where the appellant was and continued drinking. They lay down on a mattress in that room and the appellant lay between them. They were all covered by a rug. According to M, the appellant alternately kissed each girl with his tongue. He then put his hand into M's pants and under her underpants and inserted his finger into her vagina. She could feel his finger moving slowly back and forth and was not in pain. According to her she saw the appellant put his hands down C's pants. C did not say anything at the time, but later denied to M that the appellant had digitally penetrated her.
The Cruiser bottles and boxes were put in the rubbish bin before the appellant's partner returned home. M did not remember the appellant's partner actually coming home, or what happened next, other than that she spent the night at the appellant's house.
C related a somewhat different version of events during her evidence. According to her, while she was sitting on the toilet, M came in and said that the appellant had showed her his penis and that she was 'creeped out'. According to her, nothing untoward had happened up until that point. She was sure that she was on the toilet when M told her about the appellant exposing himself.
According to C, M left the toilet and a few minutes later C returned to the living room to see M and the appellant kissing on the couch. They were kissing for around five minutes. C was on a mattress in the room when the appellant started kissing her as well, and laid down next to her on the mattress. She said that she was a bit scared and did not know what to do. The appellant kissed her on the lips and put his tongue in her mouth and touched her breasts (although this allegation was not the subject of the count of indecent dealing). She said that the kissing between her and the appellant went on for around five minutes. She was not sure where M was during this time. The kissing between the appellant and the two girls resumed sporadically during the rest of the evening.
C confirmed that the drink bottles were cleaned up before the appellant's partner returned home.
C and M fell asleep on the mattress on the living room floor. C initially said that the appellant was lying with them on the mattress, but later said that he was sleeping on the couch next to the mattress. According to her, the appellant's partner, who had slept in the bedroom, chastised the appellant saying, 'What have I told you about sleeping next to the girls?'
C did not see the appellant touch M's breasts, or put his hand under M's clothes to insert his finger into her vagina, but she was not able to see everything that happened between M and the appellant that evening. According to her, the appellant did not put his hand in her pants, or try to touch her vagina on that occasion.
Events immediately preceding the first incident
During the trial, and again during argument on appeal, significant attention was directed to the evidence given by each complainant with respect to the events which preceded the physical interaction between the appellant and the two complainants which they said took place at the appellant's house. That is because each complainant said that earlier in the evening they had gone to watch a fireworks display associated with the annual festival. However, there was uncontested evidence which established that:
(a)the only date on which PN was to stay over at the appellant's house but was returned early to his parents at Hotel A was 4 October 2008; and
(b)there was no fireworks display associated with the annual festival on 4 October 2008.
It was argued both at trial and on appeal that this aspect of the evidence of each complainant detracted significantly from their credibility. Because of the importance attached to this proposition on behalf of the appellant, it is necessary to give detailed consideration to the evidence on this topic.
In M's pre‑recorded evidence, when she first described the first specific incident, she made no reference to the fireworks. However, later during the interview when she was asked what she was wearing that evening, she appears to have been prompted to recall that the incident must have occurred during school holidays and that she, PN, C and the appellant had gone to the wishing well because they were watching the fireworks.[8] In cross‑examination it was put to her that she was at the wishing well watching fireworks prior to the incident. She replied, 'Well I can recall being at the wishing well but I don't remember the fireworks actually happening'.[9] When asked to explain the statement she had made in her pre‑recorded evidence with respect to the fireworks, she said:
Well, yeah, that's what I thought was happening, because that's when the [annual festival] was on and what else would we be doing at the wishing well at night time during the [annual festival]? So I gathered we were watching the fireworks.[10]
[8] VROI 17.
[9] ts 199.
[10] ts 199.
During cross‑examination, M confirmed her pre‑recorded evidence to the effect that she and C had been dancing while at the wishing well. When she was asked whether the dancing occurred before or after the fireworks, she replied, 'I'm not sure'.[11] Later in cross‑examination she agreed that although she had seen the fireworks on a number of different occasions, there was only one occasion when PN was with her and was later returned to the hotel at which his family were staying instead of spending the night at the appellant's house.[12] When it was put to her that the fireworks display had been watched from a street in the town and not the wishing well, she affirmed that they had been at the wishing well, and that PN had been returned early because he was crying.[13] She confirmed that PN was taken to the Hotel A, not Hotel M.[14]
[11] ts 201.
[12] ts 208.
[13] ts 209.
[14] ts 210.
M also confirmed that her sister (the appellant’s partner) was getting ready to go out when they left to go to the fireworks.[15] She was unable to say what time they went to watch the fireworks, other than that it was night time.[16]
[15] ts 210
[16] ts 210
Later, in the context of cross-examination with respect to the alleged incident associated with the cleaning of the appellant's motor vehicle, it was put to M that the Suzuki vehicle which she said they were cleaning had been disposed of long before the time at which she said the relationship started - that is, the time at which she saw the fireworks during the annual festival. She responded:
I wasn't 100% sure about the [annual festival]. I just knew that I watched the fireworks but I'm not 100% sure about it being the [annual festival].[17]
She explained that answer by saying that although she had seen fireworks, it may not have been the fireworks associated with the annual festival but with some other festival.
[17] ts 225.
During C's pre-recorded evidence, she stated:
Before we took the boy home, we went to the … there's a wishing well down the road to … to watch the fireworks for the [annual festival].[18]
In light of the evidence she gave during cross‑examination, it should be noted that viewed literally, her statement related to the purpose for which they went to the wishing well, not what occurred when they got there.
[18] VROI 4.
During cross‑examination it was put to C that the first incident occurred on a night when the annual festival was on and there was a fireworks display. She replied:
Well I remember there being fireworks and I remember us going to see cars but … well, there was meant to be fireworks but I can't actually remember fireworks being on …[19]
Somewhat inconsistently with that answer, she then affirmed that the first incident to which she was referring was an incident where there was a fireworks display, and PN was present.
[19] ts 258.
Later in cross‑examination, she agreed that although her memory was 'not 100%', her memory was that she stayed over at the appellant's house on the occasion of the fireworks display.[20]
[20] ts 273.
Later in cross‑examination it was put to C that:
… a group of you, a number of people, including you and including [M] and [PN], watched the fireworks display and that occurred either at the wishing well or in [a street]. There was a watching of the fireworks display, which involved [PN], you, [M] and other people. Is that right?
She replied:
No, there was just me, [the appellant], [M] and[PN], but I cannot remember if there was fireworks, but I remember going down there to watch fireworks, but I can't actually remember fireworks being on.[21]
[21] ts 281.
She was then asked:
Are you saying now that you didn't watch fireworks?
She replied:
Well we went down there to watch fireworks. There was definitely meant to be fireworks on, but I can't actually remember seeing any fireworks.
She was then asked:
When you were giving your evidence to the police woman, did you tell her that you don't know whether you saw any fireworks or not?
She replied:
No, but I cleared that up with [the prosecutor]. I told him that I couldn't remember seeing fireworks.[22]
[22] ts 281.
When it was again put to her that her evidence was that she had seen fireworks, she replied:
We didn't see the fireworks. I can't remember seeing the fireworks. We went there to watch fireworks and while we were there we did skanky dances and [PN] was playing with the wishing well. [The appellant] was distracting him and he was hugging us, but I cannot remember there being fireworks.
She was then asked:
So you're saying there was no fireworks.
She replied:
I cannot remember if there was.[23]
[23] ts 283.
Later during cross‑examination she again stated that the purpose they had gone to the wishing well was in order to see the fireworks, but she could not remember whether she actually saw them or not.[24]
[24] ts 286 ‑ 287
LN is PN's mother. Between 2007 and 2009 she would visit the town about twice a year. She usually stayed at Hotel M. However, on one occasion she stayed at Hotel A. On that occasion she checked in on 1 October 2008 and checked out on 5 October 2008. Those dates were established by a tax invoice rendered by Hotel A which was tendered in evidence. LN's evidence was to the effect that she dropped off her son, PN, who was eight years old at the time, at M's parents' house. It had been arranged that he would spend the night at the appellant's house. He had stayed at that house before. It was understood that M and C were also going to stay the night. LN's daughter was to stay at M's parents' house because she was closer in age to M's sister.
However, there was a change of plan during the course of the evening and PN was returned to LN at the Hotel A at around 10 pm. The appellant stayed in the car while M brought PN into the hotel. LN could not see the appellant's partner. This was the only time upon which PN was brought back to the hotel in such circumstances.[25]
[25] ts 308.
Evidence was adduced from SB. He is the proprietor of a fireworks company and had provided fireworks displays during the annual festival over many years. During 2008 his company had provided four fireworks displays in the town - two in January, one in December and one on 11 October 2008 during the annual festival. Those displays were the only displays in the town that year which were registered with the Department of Petroleum and Mines. There were no fireworks displays on either 28 September 2008 or 4 October 2008.
Evidence was also adduced from KM, who has been the coordinator of the annual festival since 2008. She was also familiar with the records relating to the festival going back to the year 2000. Her evidence was to the effect that there was a parade associated with the festival every year, usually ending a park. Between 2000 and 2006, the parade and the fireworks were on the same day. 2007 was the first year that they were not on the same day. In 2008 the parade was on 4 October ending in the park, and the fireworks were on 11 October 2008.[26]
[26] ts 663.
On 4 October the parade lasted for about an hour. During the evening, about a dozen festival goers approached KM, asking her when the fireworks would start. They told KM that they had expected the fireworks would be on that night, as they had been in previous years. There was music as well as other performances in the park until around 9 pm that evening.
The appellant gave evidence to the effect that he recalled one occasion upon which a group consisting of him, the appellant's partner, M, C, a friend of M whose name he did not know, M's sister, PN's sister, and PN walked to the wishing well in order to watch fireworks, which they did. On that occasion it had been planned that PN would stay the night at the appellant's house, but he started playing up so a group which included him, the appellant's partner, M and M's two friends, took him home to Hotel M where he was left with his sister. M's sister and PN's sister stayed at home. According to the appellant, he had never dropped PN off at Hotel A.
According to the appellant, after dropping off PN, they went back to the appellant's house, watched a movie for a time, and then went to bed. According to him, the appellant's partner was present during the entire evening. He denied buying any alcohol that evening.
During cross‑examination, telephone records were put to the appellant which showed that at around 10.58 pm on the evening of 4 October, a call was made from his mobile phone to his partner's mobile phone lasting around 25 seconds. The appellant attempted to explain that call by suggesting that on occasions he sometimes called his partner even when they were in the house together, 'If I'm stuck doing something and I'm holding something up and I need her to come help me'.[27] He also suggested that he might have made the call because he was at his parents' place or at a friend's place that evening, although he had not previously suggested that he left the home on the evening of 4 October 2008, other than to go to the fireworks and return PN to the hotel. The appellant denied that there was ever an occasion upon which he went with M and C to see a fireworks display which did not take place.[28]
[27] ts 735.
[28] ts 734.
The appellant's partner denied ever leaving the appellant to babysit her sister, M. According to her, there was an occasion which might have been during 2009, when she walked with the appellant, M, M's friend TB, M's sister, PN's sister and PN to the park to watch fireworks. According to her, C was not present. They watched the fireworks. It had been planned that PN would stay the night, but he wanted his mother, so the appellant drove PN, the appellant's partner, TB and M to Hotel M where PN was left with his older sister. According to her, LN was not there. She could not recall ever taking PN to Hotel A. According to the appellant's partner, she returned home where she stayed the rest of the night. She denied that the appellant had bought or given alcohol to any of the children, or that there was any sexual association between the appellant and the children during the course of that evening.
Summary of the evidence relating to the fireworks
LN's evidence established that the night upon which her son, PN, was to stay over at the appellant's house was the evening of 4 October 2008. The evidence of SB and KM established that although there was a parade associated with the annual festival that evening, and music into the evening, there was no fireworks display that evening, although plainly a number of people expected there to be a fireworks display associated with the parade. At points in her evidence, M suggested that she saw fireworks on the evening of the first incident. As the preponderance of the prosecution evidence was to the effect that the first incident occurred on the evening when PN was to stay over, it follows that, to the extent that M's evidence suggested that she saw fireworks that evening, she must have been mistaken. However, it is of some significance that at one point in her cross‑examination, she stated quite explicitly that although she recalled that they went to watch the fireworks, she did not 'remember the fireworks actually happening'.[29] C's evidence was consistently to the same effect - namely, that although she recalled that they went to the wishing well for the purpose of watching the fireworks, she could not remember actually seeing them.
[29] ts 199.
To the extent that the appellant and the appellant's partner gave evidence to the effect that PN accompanied them to watch fireworks, that cannot have occurred in October 2008, because PN was not in the town on the night of the fireworks display. Neither suggested any other occasion upon which PN was present while they watched fireworks. Their evidence, to the effect that a much larger group watched the fireworks that evening, is inconsistent with the evidence of each of the complainants and with the evidence of LN. Their evidence to the effect that PN was returned to the care of his sister and that the appellant's partner was present when he was returned is also inconsistent with the evidence given by LN. Their evidence to the effect that he was returned to Hotel M is also inconsistent with the evidence of LN, which evidence was corroborated by the invoice from Hotel A. Their evidence to the effect that they were together all evening might be seen as inconsistent with the record of the telephone call from the appellant's phone to his partner's phone at 10.58 pm, and the appellant's attempt to explain that call might well have been viewed by the jury as implausible. It was reasonably open to the jury to reject the evidence given by the appellant and his partner.
The second alleged incident - the first occasion of sexual intercourse
In her pre-recorded evidence, M described the first occasion upon which she said that she had sexual intercourse with the appellant. She was unable to provide a date for that occasion. She said that her back was against the mattress in the living room when he penetrated her vagina with his penis, and she told him that it hurt. According to her, he kept doing it but it still hurt. According to her, her legs were apart and he was on his knees, on top of her. She was pretty sure that they were both naked. According to her, they moved into the bathroom and had sex in the shower. She was slightly bent over facing the taps in the shower and the appellant was standing behind her. He penetrated her vagina with his penis again. He had his hands on her hips and was moving back and forth slowly. Sexual intercourse took place over about an hour or so. According to M, she got her first period about two days after this incident.
As I have noted, she was unable to provide any greater specificity to the date of this occasion other than to suggest that it occurred during 2008. Although she gave evidence to the effect that she and the appellant were alone in the house, she could not give any evidence as to the whereabouts of the appellant's partner, or as to the events leading up to the sexual intercourse, including any foreplay or the removal of any clothing. Nor could she remember what occurred afterwards.
The appellant denied that there was ever any occasion upon which he had sexual intercourse with M, or that there was any occasion upon which he was at home alone with her in either 2008 or 2009. The appellant's partner corroborated that evidence.
At trial and again on appeal, it was argued that the evidence of M was inherently implausible, because of her inability to recall the detail that one would expect to be recalled upon the occasion of a person's first act of sexual intercourse.
The third alleged incident - kissing at the appellant's house when interrupted
In her pre-recorded evidence, M said that on a date she could not recall, but some time after the first instance of sexual intercourse, she was at the appellant's house after the appellant's partner had gone to sleep. She went to the toilet, and after she left the toilet, the appellant was waiting for her. They started kissing and the appellant lifted her up. According to M, she had her legs around his waist and her arms around his shoulders and neck. All the lights were off. At this point, the appellant's partner walked down towards the toilet, so M quickly separated from the appellant. According to her, the appellant's partner asked what was happening and the appellant said that they were talking about her. According to M, she ran into another room and lay in the dark crying when the appellant's partner comforted her until she fell asleep on the couch.
Each of the appellant and his partner denied that this incident ever occurred.
There was no other evidence which bears upon the question of whether or not this event occurred, which therefore had to be resolved by the jury by reference to the credibility and reliability which they attributed to the evidence of M and whether they rejected the evidence of the appellant and his partner.
Alleged incident 4 - kissing while cleaning the appellant's car
Although the prosecution did not press the fourth alleged incident as an instance of sexual conduct, on behalf of the appellant it is suggested that the evidence given by M on this topic casts doubt upon her credibility generally.
In her pre‑recorded evidence, M stated that on one occasion she had kissed the appellant near a Suzuki motor vehicle which he owned when TN was present.[30] She affirmed this evidence during her cross‑examination.[31] According to her, the appellant was cleaning the inside of the vehicle, she was sitting in the passenger seat, TN was standing outside the vehicle, and the appellant's partner was inside the house. The vehicle was in the driveway at the appellant's house and was described by M as 'like a little Suzuki 4‑wheel drive thing, blue - bluey green colour'.
[30] VROI 22.
[31] ts 221.
M gave evidence to the effect that the appellant kissed her on the lips - just a peck.[32]
[32] ts 224.
When it was put to M in cross‑examination that the Suzuki vehicle which the appellant had owned was sold by him in early 2008, many months before their physical association was said to have commenced, she was unable to explain the discrepancy.
TN gave evidence to the effect that on one occasion she and the appellant were at the appellant's house cleaning his car. M was also present. The two girls were making fun of a text message which the appellant had sent M about the size of his penis, and a little while later the appellant kissed M. TN was unable to identify the date of this incident, but stated that it occurred some time after M had told her that she had had sexual intercourse with the appellant.
During cross‑examination it was put to her that the vehicle which they were cleaning was a Suzuki, and that she had earlier identified the vehicle as such in her statement to police. TN agreed.[33] She described the vehicle as a dark blue Suzuki which was old, but which was capable of being driven.[34] When it was put to her that the Suzuki was sold well before this incident took place, TN said that the vehicle:
Might not have been a Suzuki then. I believe, I do believe that it is a Suzuki, but if they're saying it wasn't there, then it could have been a 4‑wheel drive that looked like a Suzuki. I don't care for cars.[35]
[33] ts 504.
[34] ts 509.
[35] ts 512.
A police officer gave evidence to the effect that a Suzuki panel van which had been registered in the name of the appellant was transferred by him on 26 January 2008. However, he could not say when the purchaser took possession of the Suzuki.
The appellant's evidence was to the effect that he owned a white Landcruiser and a Suzuki panel van. According to him, he sold the Suzuki on 26 January 2008, and purchased a grey Landcruiser around July 2008, selling the white Landcruiser two or three months later. According to him, the Suzuki was rusty and it was unlikely that it would ever be washed at any point, as it was only used for running dogs. He denied ever sending M a text message relating to the size of his penis.
In cross‑examination, the appellant described the Landcruiser as gun metal grey, and said that it could not be described as blue, although it had blue stripes making up about a quarter of its body.[36] The Suzuki was bright metallic blue and was a 4‑wheel drive vehicle, but was not anything like the Landcruiser. When the Suzuki was sold, the purchaser came around with a tow rope to remove it from the appellant's property. According to the appellant, he would not have allowed M to clean the Landcruiser.
[36] ts 745.
In summary, the evidence suggests that to the extent that M and TN identified the vehicle that was being cleaned at the time of the alleged incident as the appellant's Suzuki vehicle, they must have been mistaken.
Alleged incident 5 - kissing at the foreshore
TN gave evidence of an occasion upon which she and M went to the foreshore with TN's mother and her partner. She could not recall when the incident occurred, but it was some time after M had told her that she was having sex with the appellant. According to TN, M was sending text messages to the appellant to encourage him to meet them at the foreshore. According to her, the two girls met the appellant in a car park at the end of the foreshore near the marina. The appellant was driving a dark blue Suzuki which she identified as the same car as the car which the girls had been cleaning when the appellant kissed M.
When it was put to TN that the appellant did not own a Suzuki after January 2008, she responded that she was not very good with dates, but she was certain that they met up at the foreshore in the way in which she described. Again, she conceded that the car may not have been a Suzuki and that she did not care much for cars.
According to TN, after the girls met the appellant at the car park, they talked for about 10 minutes. As they noticed that TN's mother was approaching, M kissed the appellant goodbye. It was a passionate kiss, open mouthed and on the lips. The appellant was sitting in his car.
M did not give any evidence relating to this incident.
The appellant denied ever receiving a text from M encouraging him to meet her at the foreshore, or meeting her at the foreshore, or having kissed her at the foreshore.
In summary, it seems clear that TN was mistaken in her evidence to the effect that the appellant was driving a Suzuki vehicle at the time of the incident at the foreshore. However, TN was, at the time of the incident, a girl of around 12 and according to her, was not particularly interested in cars. The Landcruiser which the appellant acquired in the latter part of 2008 is partly blue, and was described by M in her pre‑recorded evidence as blue.[37]
[37] VROI 28.
Alleged incident 6 - kissing at the house in a place proximate to the town
In her pre‑recorded evidence, M described an occasion upon which she told her parents that she would stay next door at TN's house, although she intended to meet up with the appellant.[38] She went next door to TN's house fairly late at night. TN knew that she intended to meet the appellant. Evidence to that effect was given by both M and TN.
[38] VROI 27.
According to M, she sent a text message to the appellant and they arranged to meet. He picked her up from TN's house and took her to a house in a place proximate to the town (appellant's acquaintance's house). M believed that the house belonged to the appellant's sister, but it could have belonged to his brother or to his sister's boyfriend.[39] There was nobody else at the house and the reason they had gone there was to have sex.[40] According to M, she was on top of the appellant on a chair at the house and they were kissing.[41]
[39] VROI 27, ts 214.
[40] ts 214.
[41] VROI 27, ts 215.
However, at this point M's parents started calling her on her mobile phone and she and the appellant were interrupted before they could do anything further.[42] M got the appellant to drive her home. On the way home she asked him to turn off the car so that she could telephone her parents without the sound of the engine being heard. She told her parents that she had gone for a walk.[43] The appellant dropped her off near her house but away from sight of it. M walked around the corner and saw her father. Her father would not have been able to see the appellant.
[42] VROI 27, ts 214.
[43] ts 216.
According to M, earlier that evening she had prepared a text message to TN stating, 'If they ask, just say me and you had a fight', but the message failed to send and remained in the drafts folder on her telephone. Her father read the drafts folder and she was required to stay home that night and was not allowed to go back to TN's house.
TN generally corroborated M's evidence on this topic. According to her, M told her that she and the appellant were going to a place in the general vicinity of the appellant's acquaintance's house. After M had left, her father came to TN's house and asked where she was. She lied, saying that she did not know where she was.
M's father gave evidence to the effect that on one occasion, during the summer of 2008 ‑ 2009, he sent a text message to M, who was supposed to be next door at TN's house. She did not reply, so he called her and she did not answer. He then went next door and asked TN where she was. TN was initially evasive, but eventually said that M had gone for a walk, so he walked down the street looking for her. As he got to the end of the street he saw M approaching. She did not give him a convincing explanation for where she had been, and she never satisfactorily explained where she had been.
M's mother gave evidence which corroborated the evidence given by her husband, M's father. As M returned to the house, she saw her quickly deleting messages or doing something with her telephone.
The appellant gave evidence to the effect that his sister's boyfriend had a house in the location in question. He denied that he had ever been inside the house, and denied taking M there. He accepted that so far as he was aware, there was no way M could have known of the existence of the house other than through him. It was reasonably open to the jury to reject the evidence of the appellant and his partner.
The appellant's partner gave evidence to the effect that on one or more occasions, the appellant had moved out for a few days to stay somewhere else or clear the air following a fight with her. According to her, he had apparently stayed at his sister's boyfriend's house in the location in question. She had never taken M to that house.[44] This evidence was directly contrary to the appellant's denial that he had ever stayed away from his partner for a few days following a fight.[45]
[44] ts 846 ‑ 847.
[45] ts 741.
In summary, the prosecution evidence relating to this incident is consistent and not inherently implausible. On the other hand, the evidence given by the appellant and his partner was contradictory, and provided no explanation as to how M could have known of the existence of the appellant's acquaintance's house. It was reasonably open to the jury to reject the evidence of the appellant and his partner.
Alleged incident 7 - sexual intercourse in the Landcruiser
In her pre‑recorded evidence, M stated that on a school night (which she did not specify), the appellant drove her out to the sand dunes in his blue Landcruiser where they had sexual intercourse in the back of the vehicle.[46] She thought the sand dunes were at a nearby beach.
[46] VROI 28.
She expanded upon this incident in the course of evidence‑in‑chief given at the trial. Her evidence was to the effect that one evening the appellant and his partner had argued, the appellant left the house, and after messaging her, they met up. However, because it was a school night, they were not able to spend long together, so they arranged to meet later that night. She snuck out of the house and met the appellant at the bottom of the hill near the house and they drove together to the sand dunes.[47]
[47] ts 160.
According to M, she and the appellant kissed and then had sexual intercourse in the rear tray of the vehicle using a purple or pink condom. She remembered that he was on top of her, and that she hit her head on the rear door of the vehicle. After they had sex, the appellant opened the rear door of the car and they lay together and talked about their future.[48]
[48] ts 160 ‑ 161.
During cross‑examination, she stated that the kissing commenced while they were sitting in the bucket seats in the front of the car, and then they climbed through the gap in those seats to the rear of the vehicle. She could not recall whether there were any objects in the tray of the vehicle. Although she stated that her clothing was removed, she also stated that she had no memory of that. Photographs of the appellant's vehicle were put to her, showing a number of objects in the rear of the vehicle, although those photographs did not purport to depict the condition of the vehicle on the night in question. According to M, there was no mattress in the tray of the vehicle. After they had talked for a while, he dropped her home.[49]
[49] ts 218 ‑ 221.
The appellant denied ever taking M to the sand dunes and denied having sexual intercourse with her at the sand dunes. During cross‑examination he stated that the back of the Landcruiser was always full of objects, and that he and M would not be able to fit into the rear of the vehicle.[50]
[50] ts 746 ‑ 747.
M's evidence relating to this incident was not particularly specific. However, ultimately the question for the jury was to be resolved by determining whether they found her evidence to be credible and reliable and whether they rejected the appellant's evidence. Their evidence with respect to this incident was in direct conflict, and there was no independent evidence capable of establishing whether or not the incident in fact occurred. The photographs that were tendered in evidence showing a number of objects in the rear of the Landcruiser were not of significant probative value, as they did not purport to depict the condition of the vehicle on the evening in question. The only evidence to the effect that there were objects in the tray of the vehicle that night was the evidence given by the appellant.
The general relationship between the appellant and M
As I have noted, although the prosecution identified seven (ultimately six) specific incidents of sexual contact between the appellant and M, the prosecution case also relied upon evidence to the effect that there was a continuing sexual relationship between the two between October 2008 and early 2009.
In her pre‑recorded evidence, M stated that she used to stay at the appellant's house nearly every weekend, and that very often the appellant's partner would go out to a nightclub or to a friend's house, and that whenever she did, M and the appellant would have sex.[51] According to her, this happened nearly every weekend she was there, for over about a year.[52]
[51] VROI 6.
[52] VROI 27.
During cross‑examination, she described her relationship with the appellant as like boyfriend and girlfriend, although others would have thought they were like brother and sister.[53] She would walk past the place where he was working and would sometimes go in and talk to him at work.[54]
[53] ts 188 ‑ 189.
[54] ts 189, 193.
In her evidence at trial, M stated that she and the appellant exchanged text messages very frequently. Sometimes those text messages had a sexual orientation, and at other times related to their relationship as boyfriend and girlfriend. The messages only started after their first sexual encounter.[55] In cross‑examination she denied ever sending or receiving text messages to or from the appellant about being bullied at school.
[55] ts 166.
There was an occasion upon which the appellant's partner complained to her mother about the texting, and M was asked to stop texting the appellant.
According to M, she told the appellant that she did not want to have sex with him any more one evening during the summer in early 2009.[56] In cross‑examination it was put to M that this might have occurred at the end of January 2009 and she agreed.[57]
[56] VROI 30 ‑ 31.
[57] ts 227.
M's mother confirmed that in January 2009, the appellant's partner (also her daughter) had complained to her about the relationship between M and the appellant, and had asked her to stop M from texting the appellant and going to the place where he worked.[58] M's mother told M to stop texting the appellant as a result of the appellant's partner's complaint.
[58] ts 325.
M's friend TB gave evidence to the effect that on one occasion, when she was in the lounge at the appellant's house with M and the appellant, she heard the appellant whisper to M that he loved her, in a seductive or romantic way.[59] On another occasion, when she was staying at M's house, M told her that she was going to visit the appellant, and that TB should tell M's mother that she was going next door to TN's house. She was gone for one and a half to two hours.[60]
[59] ts 454, 462.
[60] ts 454 ‑ 455.
On another occasion, TB saw the appellant kiss M on the cheek as M was putting on make-up.[61] She was also aware that M was sending many text messages to the appellant.[62] On one occasion, the appellant drove past while she and M were walking in town. He pulled over at the nearest car park and during a discussion about him and M having sex, he said that if nobody said anything about it, it would be all right.[63] TB gave evidence to the effect that in early 2009, M told her that she had had sexual intercourse with the appellant.[64]
[61] ts 454.
[62] ts 471.
[63] ts 457.
[64] ts 457.
M's friend TN said in the course of her evidence that she was aware that M and the appellant sent text messages to each other frequently. Whenever the appellant's partner was not around, they would cuddle and be very close to each other and occasionally kiss.[65] At some point during 2008, M told her that she had had sexual intercourse with the appellant the previous night, that it had gone on for about two hours, and that she had really enjoyed it.[66]
[65] ts 486.
[66] ts 482 ‑ 483.
She also gave evidence to the effect that one morning as she and M were walking to school, M asked to borrow her phone to break it off with the appellant. According to TN, M sent a message from her phone to the appellant saying words to the effect that it was over, after which the appellant replied with a message in terms, 'Please, [M], don't do this'.[67] According to her, after those messages were exchanged, she and M went to school and had a normal day. She kept her phone for the rest of the day and M did not use the phone again that day. According to her evidence, she did not send any messages to the appellant that day, and if other messages were sent from her phone to the appellant's phone during the course of that day, they were not sent by her.[68]
[67] ts 487.
[68] ts 521.
At some point, TN told M's sister, in a message sent via Facebook, that M had told her about having had sexual intercourse with a 22‑year‑old man. According to TN, later she confirmed to M's sister that the man in question was the appellant. However, according to M's sister, TN never told her that the man with whom M had been having sexual intercourse was the appellant, although she formed her own view to that effect.[69]
[69] ts 585.
The text messages
The evidence established the telephone numbers which correlated to the mobile phones used by the appellant, M, the appellant's partner and TN. An officer of Telstra gave evidence with respect to the records maintained by that company relating to the use of those telephones. According to those records, the first communication between the appellant's telephone and M's telephone occurred on 7 October 2008. There were no communications between those numbers prior to that date.[70]
[70] ts 440.
The records maintained by Telstra established that communications took place between those two telephones in accordance with the following table:
Calendar Month
Communications from M's phone to the appellant's phone
Communications from the appellant's phone to M's phone
October 2008
377
382
November 2008
810
779
December 2008
688
604
January 2009
343
270
February 2009
1386
1257
March 2009
276
235
Total
3880
3527
By contrast, according to the records maintained by Telstra, between 1 June 2008 and 31 March 2009, 592 communications were sent from the appellant's phone to the appellant's partner's phone, and 841 communications were sent from the appellant's partner's phone to the appellant's phone.
The records maintained by Telstra showed that there was only one day upon which there was communication between the appellant's phone and TN's phone. That day was 19 March 2009. On that day, there were 55 communications between the two telephones. The first communication was sent from TN's phone to the appellant's phone at 7.59 am. Messages were exchanged between then and 8.14 am that day, and then between 4.07 pm and 5.12 pm.
The appellant accepted, in the course of his evidence, that a lot of texting took place between himself and M. He denied that any of the texts were concerned with sexual activity and asserted that a lot of the texting was concerned with bullying which M was experiencing at school. Eventually, he and his partner called the ringleader of the bullying and told her to leave M alone.[71]
[71] ts 677, 773.
Apart from texts relating to bullying, according to the appellant, he and M sent messages to each other at all hours of the day or night about innocent things, like problems she was having with her siblings. However, he was unable to explain why 600 messages were exchanged between them between 20 December and 31 December 2008, other than to suggest that his partner might have sent some of those messages, using his telephone. His evidence was to the effect that this may have occurred because his telephone was cheaper to use than his partner's phone. He suggested that the initial message sent from his phone to M's phone on 7 October 2008 may have been sent by his partner.[72] He accepted that many of the messages were exchanged late at night.
[72] ts 763.
According to the appellant, after M's mother spoke to M following the appellant's partner's complaint, the text messages dropped off as did M's visits to him at work.
The appellant stated that he had no reason to communicate with TN unless he needed to find out something about M. When the records suggesting that there were 55 messages exchanged between his phone and TN's phone on 19 March 2009 were put to the appellant, he said that he remembered that there was some kind of information that he and his partner were trying to get from TN. They did not telephone her because they did not want to get her into trouble at school and it was cheaper to text.[73] The appellant accepted that he exchanged many more text messages with M than he did with his partner over the relevant period.
[73] ts 756.
The appellant's partner gave evidence to the effect that she did send messages to M using the appellant's phone because it was cheaper.[74] According to her, she had access to the appellant's phone, and was able to read messages passing between him and M. She never read any messages that caused her concern. She could never recall any telephone call with M around 10 pm in the evening, and was unable to explain the records which showed a call of nine minutes and one second from the appellant's phone to M's phone at 10.49 pm on 24 November 2008.
[74] ts 811, 860.
The appellant's partner confirmed that in early 2009 she complained to her mother (who was also M's mother about the number of messages which M was sending to the appellant. She was concerned that M had a crush on the appellant, and about the same time she spoke to her about this crush. So far as she was aware, the messaging from M stopped at around this time, apart from occasional messages.[75]
[75] ts 812.
The appellant's partner gave evidence to the effect that M had complained to her about a girl who was bullying her. The appellant's partner spoke to that girl and, as far as she was aware, things settled down after that. She said that it was not necessary for her and the appellant to send messages to each other often, as they were often together, and she was unable to answer her telephone at work.[76] She was unable to explain why the appellant messaged her twice each day on average, compared to sending messages 20 times a day to M over the relevant period.[77]
[76] ts 862.
[77] ts 865.
M's erratic behaviour
Evidence was led to the effect that M behaved erratically from time to time between 2009 and 2011. She ran away from home on a number of occasions and had a difficult relationship with her parents. In January 2011, she was in a relationship with a boy, SW. Her parents were angry about this relationship and wanted her to end it.[78] On one occasion she brought SW to the house occupied by the appellant and his partner (who were by then no longer living at the house referred to as the appellant's house). According to M, she was permitted to spend the night in the same room as SW, and neither the appellant nor his partner were angry about that. However, the evidence of the appellant was to the effect that SW was to sleep on the couch, but the next morning he was found in M's room with the door closed, with the result that SW was ordered from the home and M was taken straight home to her parents. The appellant's partner's evidence was to the effect that on the night SW stayed over, the arrangement was that if he was in the room with M, the door was to be left open. However, the next morning they were found in the same room with the door closed, with the result that SW was ordered from the house and M was taken straight home. The appellant and his partner gave evidence to the effect that there was an incident in April 2011, after they collected M from a house where she was staying with SW, having run away from home. According to them, M resented their intrusion, with the result that their relationship broke down thereafter.
[78] ts 229.
This incident occurred around the time that M told her mother about the relationship with the appellant, after her sister, yelled out, in the course of an argument, that she knew M's 'dirty little secret'.[79] Initially M's parents did not involve the police, but M's behaviour deteriorated significantly after this point and eventually she was admitted to hospital following excessive consumption of drugs and alcohol. The matter was drawn to the attention of the police around that time, which was some months after M had told her family about her relationship with the appellant.
[79] ts 338.
Summary of the evidence
It is clear from this review of the evidence that there was direct evidence from each complainant which, if accepted by the jury, established the appellant's guilt of the offences of which he was ultimately convicted. There was other evidence which corroborated the evidence of each complainant to varying degrees and extent in relation to some of the seven alleged specific incidents, and with respect to the general evidence given by M of her continuing sexual relationship with the appellant. Although M did not say anything to her parents about that relationship until some years after it had terminated, she informed her friends TB and TN of the nature of the relationship while it was occurring. Further, the unchallenged evidence of the extraordinary number of text messages passing between M and the appellant, often very late in the evening, was capable of providing substantial corroboration to her evidence.
Nor could it be said that the evidence given by the appellant and his partner was inherently plausible or entirely consistent. The evidence which they gave in relation to the first alleged specific incident was not consistent with the evidence of a number of other witnesses, and was not consistent as between themselves. Neither had any explanation as to how M could have become aware of the appellant's acquaintance's house which she said the appellant took her to for the purposes of sex. It was open to the jury to regard the appellant's explanation for the extraordinary number of text messages passing between himself and M as implausible and unconvincing and to reject his explanation, and to have taken the same view in relation to his explanation of the text messages passing between his telephone and TN's telephone.
As I noted, particulars have been given of the ground of appeal which asserts that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. Those particulars are:
(a)The evidence of the two complainants was inconsistent as to the circumstances of the first incident in count 1 said by the State to have occurred on 4 October 2008.
(b)The video evidence of the two complainants was that the first incident occurred on the night of the [annual festival] fireworks display when the evidence was there was no fireworks display in [the town] on 4 October 2008.
(c)Two incidences of kissing by the appellant of the first complainant said to have occurred when the first complainant was cleaning the appellant's blue Suzuki and when she was walking on the foreshore near the marina when the appellant arrived in his blue Suzuki [were] inconsistent with the evidence of the appellant unchallenged that the appellant had sold his blue Suzuki nine months before the first incident.
(d)Much of the first complainant's evidence lacked detail as to date, time and circumstances.
(e)The State structured its case around thousands of text messages between the mobile phones of the appellant and the first complainant certain of which evidence was not supported by the evidence of the two complainants or of other witnesses.
(f)The evidence of the first complainant was that she ended the relationship with the appellant in a face to face meeting on a Sunday at the end of January 2009 whereas the State's case was [that] the relationship came to an end following a series of text messages in the presence of and on the mobile phone of [TN] on 19 March 2009 which evidence was inconsistent with the evidence of the first complainant.
Particular (a) - inconsistency in the evidence of the complainants relating to the alleged first incident.
There were undoubtedly some inconsistencies between the evidence given by M and C as to the events of the evening on which the first alleged specific incident took place. They have been identified in my review of the evidence. They relate to such things as the precise place at which M told C about the appellant exposing himself and the events which immediately followed that disclosure. There is also an inconsistency in their evidence in relation to the degree of physical contact which the appellant had with C.
It was, of course, necessary for the jury to evaluate those inconsistencies in their evaluation of the evidence generally, and in assessing the credibility of the evidence given by each complainant. However, there is nothing to suggest that the jury did not undertake that task, especially given the reliance placed upon these inconsistencies by trial counsel appearing on behalf of the appellant in the course of his closing address.
Further, when evaluating the significance of the inconsistencies in the evidence of each complainant, it was appropriate for the jury and necessary for this court to bear in mind that both complainants were quite young when the alleged first incident took place, and that neither was asked to specifically recall the circumstances of the evening in question until more than two years after they had occurred, when their evidence was pre‑recorded. Further, the evidence which each complainant gave at trial was given more than four years after the events in question. In those circumstances, it was open to the jury and it is equally open to this court to conclude that inconsistencies of the kind which emerged in the evidence and which might, with one exception, be regarded as relating to matters peripheral to the sexual misconduct alleged, are of a kind that might be expected in all the circumstances and which do not compel the conclusion that the jury should have had a reasonable doubt as to the credibility or reliability of one or more of the complainants. The one exception concerns M's evidence with respect to the extent of physical contact between the appellant and C. However, in evaluating the significance of that evidence, it is necessary to note that the appellant was not charged or convicted of any physical contact with C other than kissing her, and it was not therefore necessary for the jury to make a specific finding on the question of whether there was more extensive physical contact. Further, M accepted that she was not in a position to observe the precise extent of the contact between the appellant and C.
Particular (b) - the fireworks display
As I have noted, the evidence clearly establishes that there was no evening in October 2008 on which PN was in the town and there was a fireworks display. Accordingly, to the extent that M stated that she saw fireworks on the evening of the alleged first incident, she must have been mistaken. However, the same observation applies to the evidence given by the appellant and his partner, each of whom asserted that PN was with them when they watched fireworks prior to returning him early to the hotel in which the his family were staying (which according to them was Hotel M, when the objective and independent evidence clearly established that it was Hotel A).
It is also significant that M expressly conceded that she could not actually recall whether or not the fireworks display took place. The evidence of C was consistently to the effect that although they went to the wishing well for the purpose of watching fireworks, she could not say whether or not the fireworks display took place.
In evaluating the evidence on this topic, it was open to the jury and necessary for this court to take into account the various factors to which I have already referred in relation to the timing of the evidence given by each complainant with respect to the first alleged incident. Whether or not there was a fireworks display on the evening of that incident is peripheral to the allegations made against the appellant, and the conclusion that M may have been mistaken when she first stated that they watched the fireworks that evening does not compel the conclusion that the jury should have had a reasonable doubt as to the credibility or reliability of her evidence with respect to the events which took place later that evening. It was open to the jury, and is open to this court, to attach particular significance to the apparent inconsistency between the evidence of the appellant and his partner to the effect that they were together all evening, and the evidence of a call from the appellant's phone to his partner's phone at 10.58 pm, having regard to the implausibility of the appellant's attempt to explain that telephone call during cross‑examination. It was reasonably open to the jury to reject the appellant's evidence.
Particular (c) - inconsistent evidence - the blue Suzuki
The evidence given by both TN and M to the effect that the vehicle which they were cleaning was a blue Suzuki, and the evidence given by TN to the effect that the vehicle driven by the appellant to the foreshore was a blue Suzuki appears to have been mistaken, as the preponderance of the evidence was to the effect that the Suzuki which the appellant had owned had been sold many months earlier. However, neither girl purported to have any expertise in the identification of motor vehicles, and the appellant's evidence was to the effect that about one‑quarter of the grey Landcruiser which he owned was blue.
For the reasons already given, the significance of these apparent errors in recollection was to be weighed by the jury, and has to be weighed by this court in the context of the circumstances in which the evidence of the complainants was given, and taking into account the fact that the errors relate to matters which are somewhat peripheral to the critical issues which had to be determined.
Particular (d) - lack of detail in M's evidence
No doubt M's evidence could have been more detailed with respect to specific dates, times and circumstances. It was submitted at trial, and again on appeal, that it was reasonable to expect that she would have a much more detailed recollection of the circumstances which preceded her first act of sexual intercourse, and whether or not she was clothed at the time, and that one would have expected her to have a greater recall of the particular events relating to the sexual intercourse which she asserted took place in the rear of the Landcruiser in the sand dunes.
The lack of detail in the evidence given by M was a matter properly taken into account by the jury in assessing the credibility and reliability of her evidence. However, there is no reason to suppose that the jury failed to give that aspect of M's evidence appropriate weight when evaluating her credibility, having regard to the tenor of closing submissions advanced by counsel for the appellant. It was also appropriate for the jury, and for this court, to take into account the circumstances in which her evidence was given, and to which I have referred, when evaluating the significance to be attached to the lack of detail in that evidence. It is also appropriate to take into account the fact that the areas in which detail is said to be omitted are not central to the question of whether or not the sexual interaction took place, but are peripheral to that issue. So, in summary, while the lack of detail in the evidence given by M is properly taken into account in assessing her credibility and reliability, it is not a matter which either alone or in combination with other factors compels the conclusion that she was an unreliable witness.
Particular (e) - the text messages
The evidence was quite sufficient to enable the jury, and this court, to conclude that there were an extraordinary number of text messages passing between M and the appellant commencing within days of the alleged first specific incident, and terminating about the time M says she broke off the relationship with the appellant. Although there was some evidence to the effect that some of those messages may have been sent by the appellant's partner using the appellant's phone, the sheer volume of the messages, and the times at which communications were taking place, created a significant objective platform for the evaluation of the evidence given by M and the appellant. It was open to the jury, and is open to this court, to conclude that the appellant's attempts to explain or justify the extent of the message traffic passing between M and him were implausible and significantly detracted from the credibility of his evidence. It was reasonably open to the jury to reject the appellant's evidence.
Particular (f) - evidence as to the termination of the relationship
As I have noted, M gave evidence to the effect that she first stated that she wished to terminate her physical relationship with the appellant during a conversation with him in early 2009. In cross‑examination it was put to her, and she agreed, that the conversation might have taken place at the end of January 2009. However, there was evidence of a large number of text messages between M and the appellant during February 2009, and according to the prosecution case, she finally terminated the relationship by a text message sent from TN's phone on the morning of 19 March 2009. TN's evidence with respect to the use of her telephone that day is inconsistent with the Telstra records, which suggest a significantly greater volume of messages than was consistent with TN's evidence. Nevertheless, it is significant that according to the Telstra records, all message traffic took place either immediately before or shortly after normal school hours. In that context it was open to the jury to conclude that TN may have been mistaken with respect to the use of her phone on that day, and that she permitted M to use her phone both before and after school.
Once again, in evaluating any inconsistencies in the evidence on this topic, it was appropriate for the jury, and is appropriate for this court to take into account the circumstances in which that evidence was given, and the additional fact that the precise circumstances in which M terminated her relationship with the appellant are not central to the allegations made against him.
After weighing the evidence of complainant M and complainant C and the evidence of the appellant and his partner, in the context of the trial record as a whole, I am satisfied that counsel for the appellant's criticisms of the complainants' evidence do not necessarily undermine the credibility and reliability of their evidence in relation to incident 1, or suggest that the conviction on either count 1 or count 2 is unsafe or unsatisfactory.
I am not persuaded that it is to be inferred that the jury acted unreasonably in failing to form a generally adverse view as to the truth, accuracy and reliability of the evidence of complainant M or complainant C.
The jury was entitled, in the context of the trial record as a whole, to accept and act on the evidence of complainant M and complainant C in relation to incident 1, to the extent it implicated the appellant in the alleged sexual misconduct occurring during incident 1, and to reject the evidence of the appellant and his partner, to the extent it exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt.
Ground 1: particular (c): its merits
Particular (c) of ground 1 relates to incidents 4 and 5.
The State alleged that the appellant acted in a sexually inappropriate manner towards complainant M, when complainant M and TN were cleaning the appellant's blue Suzuki panel van motor vehicle (incident 4) and when the appellant drove the Suzuki vehicle to the foreshore (incident 5), by kissing her intimately on the lips.
As to incident 4, complainant M gave evidence that while she and TN were cleaning the Suzuki vehicle, the appellant kissed her on the lips (ts 221 ‑ 225). She did not give any evidence to the effect that, while they were cleaning the vehicle, the appellant sent her text messages about his penis size and telling her she was a 'horny devil'. However, she was not questioned on that topic.
On the other hand, TN gave evidence that while she and complainant M were cleaning the Suzuki vehicle, the appellant sent complainant M text messages about his penis size and telling her she was a 'horny devil' (ts 483 ‑ 484).
As to incident 5, TN gave evidence that she was with complainant M at the foreshore when complainant M sent the appellant a text message. Shortly after, the appellant arrived at the foreshore in the Suzuki vehicle. He gave complainant M a passionate kiss (ts 484, 508).
However, complainant M gave no evidence about incident 5.
The appellant gave evidence that neither complainant M nor TN had ever washed a motor vehicle for him (ts 750). There had been occasions when he had driven a vehicle to the foreshore for the purpose of meeting complainant M, but his partner would have been with him (ts 751).
The weight of the evidence at trial (including, notably, the evidence of Detective Senior Constable Smith to the effect that inquiries he made at the Department of Transport established that the appellant's Suzuki vehicle was disposed of by him on 26 January 2008 (ts 649)) militated substantially in favour of a finding that the appellant had owned a Suzuki motor vehicle but had sold the vehicle in January 2008, well before the alleged occurrence of incidents 4 and 5.
The appellant gave evidence that, at the time of the alleged offending, he drove a 'dark gun‑metal grey' coloured Landcruiser motor vehicle (ts 745). He then said the Landcruiser was 'grey with blue stripes' (ts 745). According to the appellant, the Suzuki vehicle was 'bright metallic blue' in colour (ts 749). The Suzuki was smaller than and very different from the Landcruiser (ts 748 ‑ 749). The appellant said the Suzuki was a 'complete mess' and had to be towed by the purchaser when it was sold (ts 749 ‑ 750).
The appellant's partner gave evidence that the Suzuki vehicle was 'blue' in colour and that the Landcruiser was 'dark grey, blue' in colour (ts 827 ‑ 828).
TN described the vehicle she and complainant M washed and she saw at the foreshore as 'dark blue' in colour (ts 509). She agreed with defence counsel that the Suzuki was an 'old vehicle', but rejected his suggestion that the Suzuki 'didn't drive at all' (ts 509).
Defence counsel put to TN in cross‑examination that her evidence that the appellant had arrived at the foreshore in the Suzuki vehicle and that the appellant had kissed complainant M was false. The following exchange occurred:
So your evidence is, and you also mentioned in your police statement, that he arrived at the foreshore in his blue Suzuki. Is that right?---Yes.
I'm putting to you that that didn't occur?---It might not have been a Suzuki then. I believe, I do believe it is a Suzuki, but if you're saying it wasn't there, then it could have been a four‑wheel drive that looked like a Suzuki. I don't care for cars.
Right. I put it to you that there was no kiss between them on the occasion to which you refer. Isn't that right?---The one at the foreshore, the one when cleaning the car.
There was - - -?---There was at both occasions (ts 512).
The exhibits tendered at the trial included colour photographs of the Landcruiser. These photographs indicate that most of the body work of the vehicle was dark grey/blue in colour and that the vehicle had some light blue and white stripes.
It appears that the evidence of complainant M and TN was incorrect to the extent they asserted that incidents 4 and 5 happened in the vicinity of the appellant's blue Suzuki.
However, it was reasonably open to conclude that TN's description of the vehicle she and complainant M washed, and she saw at the foreshore, was different from the Suzuki, as described by the appellant, and that she was in fact describing the Landcruiser.
The complaints embodied in particular (c) of ground 1 were in substance relied on by defence counsel at trial and stressed in his closing address.
I am satisfied, after evaluating the evidence of complainant M and TN, in the context of the trial record as a whole, that the incorrectness of their evidence in relation to the blue Suzuki vehicle, and any errors and inconsistencies in their evidence about the Suzuki, do not materially detract from the central allegations concerning the appellant's inappropriate sexual behaviour towards complainant M. As I have mentioned, no complaint was made to the police until about two and a half years after the alleged offending. Each of complainant M and TN had to recall at trial events that occurred about four years before the trial. At the time of the alleged offending they were aged only 12. The errors, and any inconsistencies and omissions, in complainant M's evidence must be assessed in the context of her evidence that the distinct incidents relied on by the State were representative of an ongoing sexual relationship between the appellant and complainant M between 4 October 2008 and 31 January 2009, and that she was unable to recall every distinct incident of sexual interaction or physical intimacy.
After weighing the evidence of complainant M and TN and the evidence of the appellant and his partner, in the context of the trial record as a whole, I am satisfied that counsel for the appellant's criticisms of complainant M's and TN's evidence do not necessarily undermine the credibility and reliability of complainant M's evidence generally or TN's evidence in relation to incident 5 or generally, or suggest that the conviction on count 1 is unsafe or unsatisfactory.
I am not persuaded that it is to be inferred that the jury acted unreasonably in failing to form a generally adverse view as to the truth, accuracy and reliability of the evidence of complainant M or TN.
The jury was entitled, in the context of the trial record as a whole, to accept and act on TN's evidence, to the extent it implicated the appellant in the alleged inappropriate sexual behaviour occurring during incident 5, and to reject the evidence of the appellant and his partner, to the extent it exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt.
Ground 1: particular (d): its merits
Particular (d) of ground 1 relates to incidents 1 ‑ 7 generally.
It is true that a significant part of complainant M's evidence lacked detail as to date, time and circumstances.
Counsel for the appellant referred to the following:
(a)complainant M was unable to provide details of the date, time and circumstances culminating in the sexual intercourse the subject of incident 2, including whether she removed her clothing or not;
(b)the sexual intercourse the subject of incident 2 was, on her account, the first occasion on which complainant M had sexual intercourse and, it was submitted, a person would be expected to remember the details associated with such an occasion;
(c)similarly, there was a lack of detail in other allegations made by complainant M, including the kissing the subject of incident 6 and the sexual intercourse the subject of incident 7; and
(d)the lack of detail as to date, time and circumstances impacted on complainant M's credibility and reliability as a witness.
The complaints embodied in particular (d) of ground 1 were in substance relied on by defence counsel at trial and stressed in his closing address.
The absence of detail in complainant M's evidence as to date, time and circumstances were matters that had to be taken into account in assessing her credibility and reliability as a witness. However, in my opinion those features of her evidence did not require the jury to disbelieve complainant M's account of the alleged offending. The absence of detail related to matters that were at the margins of, or were incidental to, the central allegations about the appellant's sexual misconduct or inappropriate sexual behaviour with complainant M.
As I have mentioned, no complaint was made to the police until about two and a half years after the alleged offending. Complainant M had to recall at trial events that occurred about four years before the trial. At the time of the alleged offending she was aged only 12.
The lack of detail in complainant M's evidence must be evaluated in the context of her evidence that the distinct incidents relied on by the State were representative of an ongoing sexual relationship between the appellant and complainant M between 4 October 2008 and 31 January 2009, and that she was unable to recall every distinct incident of sexual interaction or physical intimacy.
Although complainant M's version of events in relation to the appellant having done a sexual act, as alleged in the State's case concerning incidents 1, 2, 3, 6 and 7, was not corroborated by any other evidence, there was other evidence which, if accepted by the jury, was probative of the existence of a sexual relationship between complainant M and the appellant. I refer, in particular, to the evidence of complainant C, TB and TN and the evidence concerning the text messages that passed between the appellant and complainant M during the period in question.
As I have mentioned, TN, but not complainant M, gave evidence that the appellant had kissed complainant M intimately on the lips as alleged in incident 5.
The State's case in relation to incident 6 was that the appellant drove complainant M to a house in a nearby town and kissed her intimately on the lips.
Complainant M said in her video‑recorded interview with the police on 26 July 2011 that, on the occasion on which incident 6 occurred, she had told her parents that she was at TN's house next door (VROI 27). TN knew she was going to meet the appellant but complainant M's parents did not know (VROI 27). The appellant took complainant M in his vehicle to a nearby town where his sister had a house (VROI 27). The sister was not at home (VROI 27). The appellant and complainant M went into the house (VROI 27). She said:
I was on top of him and kissing him and stuff but nothing happened because by the time that I got out there, Mum and Dad realised that I wasn't at [TN's] and then they tried calling me and stuff and like I didn't answer until I was coming in to [a place near the Town] and I made him pull over, so Mum and Dad couldn't hear the car. Then I answered the phone and they said, 'Where did you go?', and I said, 'I was going for a walk', and they said, 'Get home now', and then, um, my dad walked down the hill and I had like just turned in and I was walking, so I think that made him believe that I wasn't with anyone. And then I messaged [TN] and I said, 'Tell ‑ ‑ if they ask, just say me and you had a fight', but it ‑ ‑ it didn't send because it went to drafts and because I deleted my inboxes and sent messages, I thought it was all gone and then Dad went in to my drafts ‑ ‑ oh, outbox or whatever it was when it doesn't send … and he read that and then yeah, that's all I can really remember after all that. But I had to stay home that night, I wasn't allowed back next door (VROI 27).
As to incident 6, complainant M's father gave evidence of an occasion, when complainant M was about 12, when he understood she was next door at TN's house. He explained:
Yes?---And, as is usually the case, we normally check up on [complainant M], generally starting off with sending her a text message to find out what she's doing, and if we don't get a response, then there's a follow up with a phone call, because she understands that one of the conditions of her having a mobile phone is so that we can contact her.
Yes?---Anyway, [complainant M] didn't answer the follow up phone call, because she didn't answer the text message, so I tried to ring her and she didn't answer. Anyway, I decided to go next door and knocked on the door and [TN] answered and asked where [complainant M] was, and [TN] said, 'She's not here.' I said to her, 'Was she supposed to be here?' and I put some pressure on her about it, because I could tell the way that she answered that she … wasn't telling the truth or … she was very uncomfortable with trying to explain to me what the story was. In the end, I even threatened that I would have to ring the police. 'If you can't tell me where she is, then she has gone somewhere. She is meant to be here, so unless I find out where she is, I'm going to have to ring the police.' She eventually relented and told me that she had gone for a walk; so I walked off down our street, because we live in a cul-de-sac, so there is only one way that [complainant M] can go for a walk. She can't go up the street.
Yes?---She can only go down, so I walked down to the end of the street, and as I got down to the end of the street … I looked across and I could see [complainant M] walking from the other side of the street, diagonally from the south, coming across the street. I said something to the effect of, 'Where have you been?' Anyway, she didn't have a valid excuse, reckoned she was just going for a walk, but again I could tell, she wasn't telling the truth; she was hiding something. So she walked up the street. As she walked past me I grabbed her by the scruff of the neck, because I was furious, and I pushed her forward and I walked fairly briskly up the street and [complainant M] walked in front of me, and as I got closer then she got up to a bit of a jog and then - to stay away from me, because she knew I was furious, and marched her inside.
All right?---We never got a valid explanation from her as to what she was doing
Did you attempt to get one?‑‑‑Yes (ts 540).
As to incident 6, TN gave evidence of an occasion when complainant M had told her parents that she would be staying at TN's house whereas she was intending to meet the appellant (ts 484). The parents came to TN's house looking for complainant M (ts 484). TN lied to complainant M's father by telling him she did not know where complainant M was (ts 484). TN recalled the appellant had said he and complainant M were going to a house in a town near the Town (ts 485). When TN became aware that complainant M's parents were looking for her, TN attempted to telephone her and send her a text message, but was unable to make contact (ts 486).
I have already referred to TB's evidence in relation to an occasion which appears to be incident 6 (ts 455).
I have weighed the evidence of complainant M and the evidence of the appellant and his partner in the context of the trial record as a whole. I consider that counsel for the appellant's criticisms of complainant M's evidence do not necessarily undermine the credibility and reliability of her evidence in relation to incidents 1, 2, 3, 6 and 7, or suggest that the conviction on count 1 is unsafe or unsatisfactory.
I am not persuaded that it is to be inferred that the jury acted unreasonably in failing to form a generally adverse view as to the truth, accuracy and reliability of complainant M's evidence.
Notwithstanding any lack of detail as to date, time and circumstances, the jury was entitled, in the context of the trial record as a whole, to accept and act on complainant M's evidence, to the extent it implicated the appellant in relation to counts 1 and 2, and to reject the evidence of the appellant and his partner, to the extent it exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt.
Also, the jury was entitled, in the context of the trial record as a whole, to accept and act on the evidence of complainant C, TB and TN which suggested the existence of a sexual relationship between the appellant and complainant M.
Ground 1: particular (e): its merits
Particular (e) of ground 1 relates to incidents 1 ‑ 7 generally.
The prosecutor tendered, as part of the State's case, business records maintained by the telecommunications carrier Telstra Corporation.
Complainant M said in evidence that she was 'pretty sure' she was given the mobile telephone, which she used to communicate with the appellant, for her 12th birthday (ts 190). She turned 12 in July 2008.
Complainant M's mother gave evidence that complainant M acquired the mobile telephone in question 'in the middle of' 2008 (ts 356).
Adam Gelfe, a security liaison officer employed by Telstra, was a State witness. He said, by reference to Telstra's records, that the relevant mobile telephone (that is, the telephone used by complainant M) was 'activated' on 17 June 2008 (ts 437).
Telstra's records established that from 7 October 2008 to 31 March 2009 communications occurred between complainant M's mobile telephone and the appellant's mobile telephone, as follows:
Calendar Month
Communications from complainant M's telephone to the appellant's telephone
Communications from the appellant's telephone to complainant M's telephone
October 2008
377
382
November 2008
810
779
December 2008
688
604
January 2009
343
270
February 2009
1386
1257
March 2009
276
235
Total
3880
3527
By contrast, Telstra's records demonstrated that there was no communication between complainant M's mobile telephone and the appellant's mobile telephone from 17 June 2008 (when complainant M's telephone was activated) to 6 October 2008 (ts 440). The first communication between their telephones was on 7 October 2008 at about 1.15 pm (ts 440).
Telstra's records also established that from 1 June 2008 to 31 March 2009, 592 communications were sent from the appellant's mobile telephone to his partner's mobile telephone, and 841 communications were sent from his partner's telephone to the appellant's telephone.
Mr Gelfe gave evidence that the communications in the Telstra records tendered by the prosecutor were 'substantially predominantly text [messages]' (ts 446).
There was no independent evidence as to the content of any of the text messages between the appellant and complainant M. TN did, however, give evidence as to some text messages from the appellant that she had seen on complainant M's mobile telephone.
It is apparent that during the relevant period the total number of communications between the appellant and complainant M very substantially exceeded the total number of communications between the appellant and his partner.
The communications between the appellant and complainant M were a highly significant piece of circumstantial evidence in the State's case. Many of the communications were sent and received between 10.00 pm and midnight and some were even sent and received after midnight, in the early hours of the morning. The appellant frequently initiated the communications. The volume and timing of the communications between a 22‑year‑old man and a 12‑year‑old girl, in the context of the other direct and circumstantial evidence adduced in the State's case, was probative of the existence of a sexual relationship between the appellant and complainant M during the period in question.
Also, it was an important piece of circumstantial evidence in the State's case that there were no communications between complainant M's telephone and the appellant's telephone from 17 June 2008 to 6 October 2008 and that the voluminous communications between them commenced on 7 October 2008 (being a date closely proximate to the date on which, according to the State, incident 1 happened).
The drawing of an inference adverse to the appellant, on the basis of the pieces of circumstantial evidence to which I have referred, was supported by the evidence of complainant M and the evidence of other witnesses including complainant C, TN and TB.
The evidence as to the communications between the appellant and complainant M was relevant and cogent evidence which provided the jury with an objective insight into the relationship between the appellant and complainant M.
After weighing the evidence of the appellant and his partner, in the context of the trial record as a whole, I am satisfied that the jury was entitled to reject their evidence to the extent it sought to explain or justify the nature and extent of the communications between the appellant and complainant M on a basis consistent with his innocence.
Ground 1: particular (f): its merits
Particular (f) of ground 1 relates to incidents 1 ‑ 7 generally.
The State's case as opened was that complainant M terminated her sexual relationship with the appellant by a text message sent from TN's mobile telephone on the morning of 19 March 2009 (ts 126).
However, complainant M gave evidence to the effect that in late January 2009 she told the appellant, in a face to face meeting, that she wanted to end their sexual relationship (ts 227 ‑ 228).
The Telstra records tendered by the prosecutor revealed that on 19 March 2009 there were 55 communications between TN's mobile telephone and the appellant's mobile telephone. This was the only day on which there were communications between their telephones.
On 19 March 2009, the first communication was sent at 7.59 am from TN's telephone to the appellant's telephone. Communications were exchanged between their telephones between that time and 8.14 am and, again, between 4.07 pm and 5.12 pm.
The Telstra records established that in February 2009 there were more than 2,600 communications between the appellant's mobile telephone and complainant M's mobile telephone. This indicates that if complainant M's evidence that she informed the appellant, in a face to face meeting, that she wished to terminate their sexual relationship is correct, the meeting did not happen in late January 2009, but occurred after February 2009.
TN gave evidence that she frequently saw text messaging between complainant M and the appellant. She said that, one morning before school in year 8, complainant M used TN's mobile telephone to text the appellant in order to end their relationship. TN did not give evidence that this event occurred on 19 March 2009. She said she saw the text message sent by complainant M to the appellant on TN's telephone and the appellant's response. The relevant passage from TN's evidence‑in‑chief reads:
Did you have any involvement at all in the break up or possible break up of [the appellant] and [complainant M]?---Yes.
Can you tell us about that, please?---[complainant M] and I - it was in year 8. [Complainant M] and I were walking into … and she'd asked to borrow my phone to break it off with [the appellant] and so I let her use my phone.
So what time of the day would this have been?---It was in the morning.
When, approximately? Well, when does school start?---School starts at 8.35.
Was it before school started or after school started?---Before school started.
Are you allowed to have mobile phones at school once school is underway?---You're not allowed to use them after 8.15.
Did you see any of these messages that were sent to or from your phone?‑‑‑Yes.
Can you tell me what you recall about [complainant M] saying?---I recall [complainant M] saying something like, but not exactly, that she just couldn't do it anymore and that it was over.
Did you see any response to that message?---Yes, I saw [the appellant] say, 'Please, [M], don't do this.'
How is it that you were able to know this or see this?---Because it was my phone and [complainant M] also showed me the messages.
Do you recall any other occasion for any possible reason where you have needed to text [the appellant] on your phone?---No.
Did you in fact ever text him yourself privately?---No.
Did he ever text you, to your phone privately?---No (ts 487).
TN said in cross‑examination that by 8.35 am on the day in question, when school commenced, complainant M had returned TN's mobile telephone (ts 518). TN kept the telephone for the 'rest of the day' (ts 518).
TN also gave evidence that in year 7, when on her account incidents 4 and 5 happened, she saw two text messages with sexual connotations sent by the appellant to complainant M on complainant's M telephone. One message referred to the appellant's penis size (ts 483 ‑ 484). The other referred to complainant M as a 'horny devil' (ts 483 ‑ 484).
TN's evidence that complainant M used TN's mobile telephone to send a text message to the appellant terminating their sexual relationship was inconsistent with complainant M's evidence that she ended the relationship at a face to face meeting and she did not terminate the sexual relationship by sending a text message (ts 225 ‑ 228).
TN's evidence as to the frequency of use by complainant M of TN's mobile telephone on the day on which complainant M allegedly sent the text message to the appellant terminating their sexual relationship (ts 518) was inconsistent with the Telstra records. Those records establish that 55 communications were made between TN's mobile telephone and the appellant's mobile telephone on the relevant day. TN gave evidence about only two of those communications. Nevertheless, the Telstra records show that all of the communications occurred either shortly before or shortly after ordinary school hours.
The complaints embodied in particular (f) of ground 1 were in substance relied on by defence counsel at trial and stressed in his closing address.
I am satisfied, after evaluating the evidence of each of complainant M, TN, the appellant and his partner, in the context of the trial record as a whole, that the errors in the evidence of complainant M and TN in relation to the termination of complainant M's alleged sexual relationship with the appellant do not materially detract from the central allegations about the appellant's sexual misconduct with complainant M. As I have mentioned, no complaint was made to the police until about two and a half years after the alleged offending. Both complainant M and TN had to recall at trial events that occurred about four years before the trial. At the time of the termination of the alleged sexual relationship they were aged only 12 or 13. Even if the evidence of complainant M and TN as to the manner and timing of the termination is rejected, the errors in complainant M's and TN's evidence do not necessarily undermine the credibility and reliability of their evidence in relation to the alleged offending the subject of counts 1 and 2, or suggest that the convictions on counts 1 and 2 are unsafe or unsatisfactory.
I am not persuaded that it is to be inferred that the jury acted unreasonably in failing to form a generally adverse view as to the truth, accuracy and reliability of the evidence of complainant M or TN.
The jury was entitled, in the context of the trial record as a whole, to accept and act on other evidence of complainant M and TN, to the extent it implicated the appellant in the alleged sexual misconduct the subject of counts 1 and 2, and to reject the evidence of the appellant and his partner, to the extent it exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, in relation to his guilt on those counts.
Ground 1: conclusion
I am satisfied, after examining the trial record and weighing the evidence (in particular, the evidence of complainant M, complainant C, TN, TB, the appellant and his partner), that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on counts 1 and 2.
As to count 1, the jury was entitled to convict if it was satisfied beyond reasonable doubt that the appellant had done a 'sexual act' (as defined in s 321A(1) of the Code) in relation to complainant M on at least three occasions each of which was on a different day. The jury was not required to be satisfied beyond reasonable doubt that all of the six distinct incidents ultimately relied on by the State had occurred.
The jury was entitled to accept or reject parts of complainant M's and complainant C's evidence. The errors and inconsistencies in the evidence of the complainants did not require the jury to reject or have a reasonable doubt as to the truth, accuracy or reliability of their evidence in relation to the central allegations that the appellant had committed the offences alleged in counts 1 and 2.
A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of complainant M, complainant C, TN, TB, the appellant and his partner) from convicting the appellant on counts 1 and 2. A jury, acting reasonably, was entitled to reject the evidence of the appellant and his partner at least on the issue of whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1 and 2.
The jury had the very significant advantage of seeing and hearing the witnesses (in particular, complainant M, complainant C, TN, TB, the appellant and his partner) give their evidence.
The jury, by their verdicts, rejected the evidence of the appellant and his partner at least as to whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1 and 2. The jury, having rejected that evidence, was persuaded by and acted on relevant parts of the evidence of complainant M and complainant C in relation to the alleged offending in counts 1 and 2, and concluded it was satisfied beyond reasonable doubt that the State had proved those offences.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on counts 1 and 2. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on counts 1 and 2 or as to the correctness of his conviction on those counts.
Ground 1 is without merit.
Grounds 2, 3, and 4
I agree with Martin CJ, for the reasons he gives, that grounds 2, 3 and 4 are without merit.
The outcome of the appeal
I would refuse leave to appeal on each of grounds 1, 2, 3 and 4.
The appeal should be dismissed.
14
7
3