JP v The King - [2024] NSWCCA 163

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JP v R [2024] NSWCCA 163
Hearing dates: 19 July 2024
Date of orders: 06 September 2024
Decision date: 06 September 2024
Before: Harrison CJ at CL at [1]
Dhanji J at [5]
Sweeney J at [21]
Decision:
1. Extend time for filing a Notice of Appeal.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the convictions on counts 1, 2, 3 and 5.
5. In lieu thereof, enter a verdict of acquittal in respect of each of counts 1, 2, 3 and 5.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdicts — Child sex offences

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24
Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 20000.09
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
RW v R [2023] NSWCCA 2
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Texts Cited:
Nil

Category: Principal judgment
Parties: JP (Appellant)
Rex (Crown) (Respondent)
Representation:
Counsel:
M Smith (Appellant)
A Bonnor (Respondent)
Solicitors:
McGirr & Associates (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/237567
Publication restriction:
Publication of the identity of the complainants or any matter likely to lead to their identification prohibited pursuant to s 578A Crimes Act 1900 (NSW).
Publication of the name of the complainants prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

22-30 August 2022 (Trial)

Before:

Pickering SC DCJ

File Number(s):

2020/237567

HEADNOTE

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

The applicant was found guilty of four sexual offences against two of her children after trial by jury in the District Court.

Counts 1 and 3 alleged the applicant directed her son, HT, and daughter, SP, to watch an adult movie while she masturbated, using a dildo, in their presence. Count 2 alleged the applicant licked HT’s penis. Count 5 alleged the applicant rubbed a vibrator on her body and genitals in SP’s presence. The applicant was acquitted of count 4.

The applicant sought leave to appeal her convictions on two grounds: that the directions given to the jury on “do sexual act towards a child under 10” were inadequate; and that the verdict of guilty on each count was unreasonable.

The Court (per Sweeney J, Harrison CJ at CL and Dhanji J agreeing) held, granting leave to appeal and allowing the appeal

On the Court’s independent assessment of the evidence, the jury ought to have entertained a reasonable doubt that the applicant committed the offences charged. The jury’s advantage in seeing and hearing the evidence was incapable of resolving that doubt.

The Court upheld ground 1, granted leave to appeal, allowed the appeal and entered verdicts of acquittal in respect of counts 1, 2, 3 and 5.

JUDGMENT

HARRISON CJ AT CL: I have had the benefit of reading in draft the judgments of Dhanji J and Sweeney J. I agree with the orders proposed by her Honour, having reviewed the evidence given at the trial. Unlike their Honours, I have not viewed any part of the recorded evidence. I too have a doubt about the guilt of the applicant on all counts and consider that it is a doubt that the jury ought also to have had, for the reasons given by Sweeney J.
It is important not to elevate a conclusion that a verdict in a particular case is unreasonable, because it rests in large part upon apparently bizarre and implausible evidence given by children, to some wider notion that all extraordinary evidence given by children in such cases is therefore potentially suspect. No assumptions about the reliability of children’s evidence should be made outside the context of the particular circumstances of the case. In this case, as Sweeney J has analysed, the probability that the applicant performed the charged acts in the presence of several of her children as described by the complainants is so extraordinary as to give rise to a reasonable doubt. Even though the physical acts said to have been performed by the applicant may not, standing alone, be exceptional, the setting in which they are said to have been performed is entirely doubtful. This is particularly so having regard to the fact that the complainants would also appear to have been aware of the applicant’s sexual paraphernalia and that they were otherwise exposed to video images involving adult sexual activity.
By way of contrast, the things described by a child complainant in RW v R [2023] NSWCCA 2 were so graphic and enigmatic that their truthfulness was correspondingly enhanced. This notion is highlighted in that case at [161]-[163] as follows:

“[161] The thrust of the applicant’s submission is that the complainant’s account is so replete with references to what are undoubtedly some very unusual, if not quite bizarre, items and activities that the jury ought to have retained a reasonable doubt about the truthfulness and reliability of the complainant in the circumstances. Rainbow feathers and fluffy gloves are certainly unusual items for a young girl to be describing to adults in formal interviews or in cross-examination and are on any view not things commonly encountered in the normal course of daily life, even in the wide experience of this Court. The applicant maintains, in effect, that his daughter’s descriptions are so fantastic and unusual that they could not be thought by any reasonable jury to be anything other than the product of a vivid imagination. More particularly is this said to be so having regard to the fact that some of the complainant’s evidence is the subject of competing evidence, such as that relating to the existence and deletion of video or photographic material.
[162] However, as the Crown’s submissions somewhat graphically reveal, it is difficult to accept that the matters described in such detail by the complainant must necessarily or only be the product of her imagination. Her reference to the smell of “poo” is a prominent example. Her description of how she felt when penetrated is another. The seemingly inconsequential reference to the applicant’s toenails causing her to bleed is also in this category. The suggestion that the applicant made a paper penis and affixed it to her is on one view so extraordinary, having regard to what one might think to be the usual experiences of a primary school aged girl, that its truthfulness is thereby enhanced rather than shadowed in doubt. Such matters are properly ones for the jury to decide.
[163] I am not satisfied that the complainant’s evidence lacks credibility for reasons associated with its extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that her evidence contains discrepancies, or displays inadequacies, that ought to have led a jury to doubt it or that her evidence is somehow thereby tainted or otherwise lacks probative force. Moreover, in this case the jury had the advantage of seeing and hearing the JIRT interviews of the complainant and her cross-examination. The burden of the applicant’s contentions is that the complainant’s story is simply unbelievable. However, that submission does not find any support in the identification of some fact or circumstance that is obviously or even arguably irreconcilable with its truth so as to lead inevitably to a conclusion that the jury ought to have entertained a reasonable doubt. The Crown’s concession in opening the case to the jury and in closing submissions, that it would have difficulty accepting parts of the complainant’s evidence, and that at times her evidence may appear to be difficult to follow and confusing, is no less than a recognition of the fact that some suitable allowance needs to be made for evidence given by a child…”.

Alike with Sweeney J, I have a reasonable doubt that the applicant committed the offences charged. I do not believe the complainants’ evidence beyond reasonable doubt. I consider that the verdicts of guilty are unreasonable.
DHANJI J: I have had the considerable advantage of reading the reasons of Sweeney J in draft. I agree with the orders proposed by her Honour and generally with her Honour’s reasons. Unlike her Honour, I have not viewed the entirety of the recordings of the interviews with, or evidence of, the complainants. It is necessary to explain my reasons for taking this approach.
As Sweeney J has stated, the test to be applied in determining an appeal on the ground that the verdict, in this case of the jury, is unreasonable was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, per Mason CJ, Deane, Dawson and Toohey JJ.
While the test had previously been stated in similar terms the passage from the joint reasons in M v The Queen has been consistently repeated through subsequent High Court decisions. [1] In M v The Queen, their Honours said (at 493-494):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (footnotes omitted)
1. See for example: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 29.

It is important to have regard to the complete exposition of the test. As Brennan J said in M v The Queen, (at 501) simply asking whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty”, “conceals an underlying controversy as to when it is ‘open to the jury’ to be so satisfied”. It was this controversy that was settled by the joint reasons in M v The Queen, their Honours having earlier observed (at 492):

“…. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.” (footnotes omitted)

The point was re-iterated in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, where the majority (French CJ, Gummow and Kiefel JJ) observed that in applying the test, as had been stated in Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, the appellate court “is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’”. Their Honours then set out the passage from M v The Queen quoted immediately above.
When the High Court decided M v The Queen there was no question of the appellate court proceeding other than on a transcript of the evidence. By the time of SKA v The Queen, that had changed. Special leave was granted, in part at least, on the question of whether this Court should have sought to reduce any disadvantage it otherwise had by itself viewing a recording of the complainant’s interview with police which had been tendered as her evidence in chief. All members of the High Court rejected the contention that this Court ought to have viewed the video. The majority said (at [31]):

“The account given and the language used by witnesses, which are available by way of transcript, are usually sufficient for a review of evidence. It is to be expected that if there is something which may affect a court’s view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach.”

See also Crennan J at [116].

In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, in determining a complaint that the verdicts were unreasonable, the Victorian Court of Appeal determined that it would watch the video recording of the evidence of a number of witnesses, including the complainant. Having been advised of the Court’s intention the appellant to that Court submitted that viewing the records was unnecessary, while the respondent submitted that it was desirable. The parties maintained their positions in the High Court. The Court said (at [36]-[39]):

36   The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness’ evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.
37   Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
38   It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnotes omitted)

Recently, in LS v R [2024] NSWCCA 110, Ward P (at [154]-[157]) referred to the above authorities and to a number of decisions of this Court in which the issue of viewing recordings has arisen. Her Honour noted the different approaches that had been taken across those cases and the bases on which those approaches had been taken, including, in relation to a number of cases where the recordings were viewed, the particular factual circumstances warranting this course. In LS v R, Ward P viewed the relevant recordings. The other members of the Court, Hamill J (see at [263]) and myself (see at [275]), did not view the recordings in their entirety. Hamill J did view some portions, being those relied on by the Crown as visually important while I did not view any of the recordings.
In the present matter the applicant did not, in written submissions, or in presenting the argument in chief, suggest that this Court should watch any of the recordings. In oral submissions, counsel for the Crown submitted that it was not necessary for this Court to watch the recordings, but added that if the Court did have a doubt, there were particular portions that the Court should watch “where demonstrations are given or gestures are made” which it would be appropriate to view. Counsel for the Crown directed the Court to those discrete parts of the evidence by reference to timestamps on the recordings.
Perhaps in response to some, in hindsight, unhelpful questions posed by me, counsel for the applicant in oral submissions in reply submitted that if, as submitted by the Crown, there was a need to watch a portion of a recording, “then in the interests of fairness, all of the material needs to be viewed”. This position was maintained despite it being pointed out that viewing the recordings may create an imbalance given the Court does not have recordings of all of the evidence, and in particular that of the applicant or that of KB. While the applicant’s counsel maintained his position, no forensic purpose was suggested beyond the interests of fairness. In these circumstances and in accordance with authority, I am of the view that I should limit myself to those parts of the recordings identified by the Crown where the visual content is forensically significant and not reflected in the transcript.

In the first portion of the recordings the Crown submitted should be viewed by the Court, SP demonstrates the applicant’s use of the dildo by curling the fingers of her right hand as if holding something and motioning backwards and forwards towards her genital region. In the second portion, SP confidently describes the wand by drawing in the air using a pencil she had been drawing with and, having referred to a button, said “… you press it and it rubs all over your belly and stuff”. While saying this, SP quickly runs her right hand across her chest, down her belly and across the upper part of both thighs. The Crown also submitted the Court should view a portion of HT’s interview with the police where he is asked about count 2, the allegation that the applicant licked his penis. HT says “she put her tongue out like that” and pokes his tongue out. There is, in my view, nothing gained from viewing this portion of the recording that could not have been described by counsel.
Having reviewed the evidence given at trial, and viewed the portions of the recordings discussed above, I have a doubt as to the guilt of the applicant, largely for the reasons given by Sweeney J. While both the portions of the recordings I have viewed, and the evidence more generally, establish the complainants have been inappropriately exposed to matters of a sexual nature, that cannot, in itself, establish the offences. With respect to the individual allegations, as Sweeney J observes, while what some of what the complainants described could be real, aspects of the complainants’ evidence are implausible.
With respect to counts 1 and 3, the Crown case was that these counts arose from the same incident. At trial, it was submitted that while this was the Crown case, it was a matter for the jury as to whether they were the same or separate incidents. In my view, the Crown should be held to the particularisation of these counts as being the same incident. Like Sweeney J, I find the allegation that the applicant masturbated on the couch in the presence of all of her children and in the presence of KB difficult to accept. This Court is not, of course, an authoritative repository of knowledge as to the varying manifestations of human sexuality. But in this instance, the prospect that not only the applicant would engage in the alleged conduct in front of her children and KB, but that KB would not raise any objection or concern, is difficult to accept. KB was an outsider to the family, having been in a relatively brief casual sexual relationship with the applicant. He denied any such event occurred, as did the applicant. There are, in addition, the other matters pointed to by Sweeney J, including in particular, the potential for confusion or embellishment founded in the complainants having viewed content not suitable for them when watching the television from the hallway.
Despite the jury’s assessment of the complainants as credible and reliable, having regard to the “inconsistences, discrepancies, [and] other inadequacy” and more particularly, “in the light of other evidence”, I am of the view that “the jury, acting rationally, ought … to have entertained a reasonable doubt as to proof of guilt” of counts 1 and 3: Pell v The Queen at [39].
My view as to the remaining counts is informed by the matters referred to by Sweeney J, together with the firm view I have formed as to counts 1 and 3. That is, the doubt I have with respect to counts 1 and 3 supplements my concerns with respect to the remaining matters, such that I am of the view the jury ought to have entertained a reasonable doubt with respect to counts 2, and 5 as well.
I agree with the orders proposed by Sweeney J.
SWEENEY J: In August 2022 the applicant, JP, stood trial before Judge Pickering SC and a jury in the District Court. She was arraigned on five counts and found guilty of four sexual offences against two of her children.
She seeks leave to appeal against her convictions. She requires an extension of time to file her Notice of Appeal, for reasons which were sufficiently explained by her solicitor.
Because the two complainants were children, they and the applicant will be referred to by their initials, in accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Other adult witnesses, whose names might identify the children, will also be referred to by their initials.

The counts on the indictment and the allegations in the trial

All the alleged offences were charged as occurring between 9 October 2019 and 6 March 2020 at the applicant's home, where she lived with her children, including the two complainants.
Count 1 charged the applicant with carrying out a sexual act towards HT, a child under the age of 10 years, namely nine years old. Count 2 charged the applicant with sexually touching HT, a child under 10 years, being nine years old. HT is the applicant's son.
Count 3 charged the applicant with carrying out a sexual act towards SP, a child under 10 years, namely eight years old. SP is the applicant's daughter. The offence in count 3 was alleged to have occurred at the same time as the offence in count 1. Count 5 charged the applicant with carrying out a sexual act towards SP, aged under 10 years, being eight years old. This conduct was alleged to have occurred on a different occasion than that the subject of counts 1 and 3.
Count 4, of which the jury acquitted the applicant, alleged that she carried out a sexual act towards SP by engaging in sexual activity with her male friend, KB, in the child's presence.
The allegation in counts 1 and 3 was that the applicant directed her two children, aged eight and nine, to watch an adult movie while she masturbated with a dildo in their presence in the lounge room of the family home. The allegation in count 2 was that the applicant licked her nine year old son's penis in the lounge room of the family home. The allegation in count 5 was that the applicant rubbed a vibrator all over her body, including her genitals, in the presence of her daughter, in the lounge room.
The applicant denied all the conduct alleged. She seeks to rely on the following grounds of appeal:

That the directions given to the jury on the elements of the offence of "do sexual act towards a child under 10" were inadequate.

The verdict of guilty on each count was unreasonable.

Summary of the evidence in the trial

Each of the complainants had participated in a recorded interview with police, which became part of their evidence in chief. Each gave supplementary evidence in chief and was cross-examined in a pre-recorded hearing before a judge without a jury. The video recordings were played to the jury in the trial.
During the hearing of the appeal the video recordings of the complainants’ interviews and evidence, and of two recorded interviews of the applicant by police officers, were provided to the Court. At the invitation of the parties, I watched the video recorded interviews and the recorded evidence of each of the complainants, and the two recorded interviews with the applicant.
In this judgment I have included a deal of the complainants’ evidence, to illustrate the nature and quality of the evidence.
The evidence of all other witnesses, including the applicant's evidence in the trial, was examined in transcript form.
The Crown was not permitted to rely on the complainants' evidence as tendency evidence, and the jury were directed to consider each count separately.
At the time of the alleged offences the applicant was living with her six children. They were the complainants HT and SP, and their four brothers, aged about five and two years, one year, and N, the youngest, born in October 2019, some months old.
On 6 March 2020 HT and SP went to live with their father RT and his partner JT.
RT gave evidence that the day after HT and SP came to live with him and JT, HT told him what was happening at home with his mother. He said HT said he sees “two girls with rubber willys”, which he said were dildos. HT said his mother sits there, watches two girls on the TV with a dildo and they had to sit and watch the movies while the applicant was doing rude stuff with dildos to herself. RT said only he and HT were present during this conversation. RT said HT described the dildo as "you put cream or some liquid into it" and another one was called a “body wand”. In cross-examination RT said he was not sure that HT mentioned the “body wand” in the first conversation.
RT said when HT said he had seen his mother using the dildo he put his hands between his legs, near his crotch, and motioned with his hand in an in and out motion.
RT said he asked SP that afternoon if what HT had told him was true, about their mother using dildos and making them watch adult movies. He said SP was giggling and motioning with her hand and moaning and groaning. RT said HT was in the lounge room when he spoke with SP in the kitchen. He told them it was not funny. In cross-examination RT agreed he asked SP straight after he spoke with HT, and both children were present.
RT said he spoke to his mother about the allegation the children had made. He took the children to his mother's house and she talked to them alone. He said his mother told him he had to make a report, so he went to a local police station and told them about the allegation.
RT said after he spoke to his mother, on the way home, in the car, HT said he woke up one night and the applicant was licking his "willy". He then said that HT made that allegation when they were working on his boat in his shed at his house, about a month after he had been to the police station. RT said he told HT he had better not be lying about that allegation or he would get into trouble. He told HT the detective they were talking to would know if HT was lying. HT said it was true. He looked ashamed, put his head down, as if in embarrassment. In cross-examination RT agreed that he initiated that conversation with HT by saying "Are you sure your mother has done nothing to you?" or "Are you sure anything else hasn't been happening at [the home address]?". He asked that twice.
In cross-examination RT said KL (the applicant's half sister) told him she found dildos at the applicant's house. He said KL did not say she found eight dildos at the house; no number was specified. He did not talk to the children about what KL had found.
He agreed that after his initial complaint to the local police, the police told him they had spoken to the applicant and the children, and that no charges were to be laid. He said he did not speak to the children before any of their interviews about what they would say in the interviews.
JT, the partner of the children's father, RT, gave evidence that in the days after HT and SP came to live with them, both the children spoke to her in the kitchen. RT was in the lounge room at the time, close enough to hear. The children both told her that their mother and they watched a "porno" with two girls, she was on the lounge masturbating with a dildo, which she could put milk or water or any liquid in. They described the dildo as a “rubber willy”. They said their mother was lying down with her legs up and moving the dildo up and down. They demonstrated her hand moving back and forth between her legs.
JT said SP also told her that her mother had a magic wand which she rubbed over her body and her private parts. She said HT was not present when SP told her that.
JT said she had Sandra from DOCS (i.e. Department of Community Services) come and speak to SP. She was present when the DOCS workers spoke with SP. SP spoke about the magic wand. She became upset and they stopped the interview.
JT said they did not speak to the children about what to say in the police interview when they were all driving to the interview.
KP is RT's mother. She gave evidence that in mid-to-late April 2020, after a call from RT, RT, JT, and HT and SP came to her place.
She spoke with HT alone. He told her his mother had been licking his “doodle”. He said he was not allowed to tell her, that he would probably get sent away for talking about it. He was crying. She asked him if he was telling the truth. He said he was.
Then she spoke with SP. SP said her mother had a dildo, she saw her using it, and there was stuff coming out of it. She said she was in her mother's bedroom when she saw her mother using it. Her mother filled it up with something. She said they were allowed to watch the applicant and her partner watch rude movies. One of the applicant’s partners was walking around naked and swinging his penis around. She said SP said her mother kept the dildo in her bedside drawer and she was lying on the bed using it.
Stacey Norman was employed by DOCS. With Sandra McCullum, she interviewed SP and HT, individually, on 9 March 2020. She took verbatim notes during the interviews. She read from those notes during her evidence.
She said HT told them that he had told his father that mum would “do it” with KB – have sex, do rude things. There were two girls doing rude things to each other. He said "I was in bed, SP was out there in the lounge,.. Mum and KB were making too loud a noise. I went out and told SP to get into bed. SP was watching mum and KB and Z was watching too (Z being the five-year-old brother).
HT was then asked "Have you seen those rude movies before?". HT said "I haven't got it yet, none of them have done anything to me". HT then said "SP kept telling me to watch it… the rude movie". He said when they were watching the rude movie his mother and KB took their shirts off.
HT said mum was telling SP and Z to be quiet, and she smacked them really hard on the bed, and SP was laughing at the rude movie. HT said he then went back to his room because he did not want to watch it.
SP was interviewed directly after the interview of HT. SP said she had told JT about rude movies. She saw the rude movies at her mother's. She said she was in the lounge room when she saw the women. She said mum and KB were in the lounge room, watching movies with two girls doing rude things. It was nighttime. SP said they had the TV on. She was awake and her brothers were too. HT and Z were at the hallway door. SP told Z to go to bed. Their mother told them to go to bed and they did.
SP said this was the second time of seeing movies. She had seen some shows on a laptop too. Her mother and KB were present when she saw shows on the laptop. Her brothers came up the hallway.
Felicity George of DOCS said on 26 March 2020 she interviewed SP, with Sandra McCullum. SP's stepmother JT was present. She took verbatim notes at the interview. She referred to her notes during her evidence.
She said SP said "Mum plays with her toy thing, a body wand, a pink thing you rub on your body – on her rude bits, when she is watching just girls do those things on the movies”.
She said SP said she had been watching the movies from the hallway. She said "We were watching cartoons. Then mum said it was time for bed. We snuck out, and we saw it on TV. They were watching it. Mum and KB. They were watching rude movies on Netflix”.
She said SP said the first time she saw rude movies was at Guyra, on the laptop, when she watched a rude movie with HT on their mother's laptop, and Z was also there. (Guyra was where the applicant and her children lived before the home at which the alleged offences were said to have occurred).
Ms George said SP was asked about noises she was making on the couch recently, and she began to cry and was reassured she was not in trouble. SP said the noise was the "yes" noise, that's the noise her mum was making and on the laptop, saying “yes”. SP said on the TV she did not hear the noises. She said HT was doing it first, watching rude movies on the laptop, and then made her watch them as well.
LT is the applicant's stepmother. She gave evidence that on one occasion when she was minding the children, HT said "I hate my mum". When she asked him why he said his mum and KB had no clothes on, they were watching rude movies on the telly, and mum was making groaning noises. He was in the hallway. HT said "Mum's got a dildo" and SP said “Yes she has”. They said they had seen their mother with the dildo.
LT said she spoke to the applicant about what the children had said and the applicant denied it all. She said the applicant said she had a dildo but it was in the drawer. In cross-examination she agreed that in her statement she had said the applicant said "The kids went through her drawer" and the dildo was in the drawer.
LT said when the children were living with their father and she was out with them one day, HT said his mother touched or licked his willy. He said to her he was not lying.
LT said that KL told her that when she went to clean up the applicant’s home at Guyra she found dildos in the bed. She said KL did not say she had found eight dildos. LT said she did not tell HT or SP that KL had found a dildo at the house at Guyra.
LT said she did not tell HT or SP that she did not talk to the applicant anymore because she was rude, or say anything to them about not talking to the applicant. She said she did not say anything to HT or SP about the dildo needing to be kept up high.
KL is the applicant's half-sister, and the complainants’ “auntie”. She said in 2019, after the applicant had moved out of her house at Guyra, she went and cleaned out the Guyra house. During the house cleaning, she found the following items: on the bottom of the wardrobe in the applicant's room, a package labelled "squirtz" with a plastic imprint of a dildo, and a box with the words "Deep Throat" on it; in a drawer in the ensuite bathroom a skin-coloured dildo which appeared to belong to the package found in the wardrobe, and a tube of lubricant; a vibrator between the bed and the mattress. She said she spoke to the applicant briefly about having found the objects in the house.
She said she did not say anything to HT or SP about what she had found at the Guyra house. She would not bring that "type of stuff" up in front of children. She did not find eight dildos in the house.

SP’s interview of 17 July 2020

At the time of the interview SP was eight years old. She said she had come to talk to police because "Our mother’s being rude – she's rude on the couch. She has a rubber willy. She made us watch a rude movie while she’s doing it." The movie was called “Marshall”. She also said her mother was "rude with her body wand".
She said the first time on the couch, her mother put a special liquid in her rubber willy toy, she was lying on the couch in the lounge room with no pants on, no undies, and she was holding it and squeezing it, and the liquid came out. Present were all her brothers, HT, Z, M, K and N. She said "We had to sit down and watch it. She made us watch it… if we didn't watch it and… if we went into our room and didn't watch it she would smack us… Because she's a nasty mum … and she's rude". She said the movie was rude because it had sex in it. All of them, HT, Z, M, K and N and she had to watch the movie, or "mum would smack us". She said the rubber willy was skin coloured. (An exhibit photograph of the applicant’s dildo showed it to be skin coloured). SP demonstrated the up-and-down movement of her mother's hand holding the object.
When asked what stopped it, SP said "When our Auntie [KL] came… she found eight rubber willys. And she told [the applicant] to not be rude in front of the kids. But she still didn't stop." She said KL did not see what the applicant was doing.
SP said “Auntie KL and LT do not talk to [the applicant] anymore because she’s rude”.
SP said on the same occasion, her mother and KB "were being rude on the couch together”. They "done sex" in the lounge room, lying down on the couch. All the children were there. The applicant was wearing a bra and no undies. KB had only undies on. Auntie KL stopped it. She said "You shouldn’t be doing that in front of the kids". Auntie KL did not walk in when this was happening. SP just told her "they" were being rude.

SP said her mother had a body wand that she rubs all over her body. It looks like a fairy wand, but it has an electric button on it. It was pink and white. You press the button and it rubs all over your belly and stuff.
She said M (her little brother, aged about two at the time) came out of the room with it but it was not his fault. "Mum… should have kept it in her cupboard or up high on the fridge. Because it was on the bed, but it's not [M]'s fault".
SP said when her mother was rubbing the wand over herself she did not have clothes on. She was in the lounge room. All the children were there. KB was there. He was “being rude with the rubber willy thing”. When asked "What do you mean by being rude? What was he doing?" SP said "… I don't know. I don't really remember much" (Q&A 305).
SP said her mother "used to lick [HT's] willy". When asked when or where that happened, SP said "I don't know where like I don't really know… cause they were away from me when they were doing it." (A322 and 323). She said she knew her mother did that to HT because she had heard HT and her father talking about it.

SP's evidence

SP said she was aged 10 when she gave her evidence.
In her evidence in chief she confirmed that in her interview she talked about things her mother had done. One thing was she made her watch a rude movie and she had a rubber willy. On another occasion, mum made her watch a rude movie and her mother and KB were being rude on the lounge. Another time was when her mother had no clothes on and she was rubbing herself with the body wand. (Those three alleged acts corresponded with the offences charged in counts 3, 4 and 5).
SP said of the first occasion when her mother told her to watch a movie or she would be smacked her mother sounded "nasty", she felt sad and she stayed and watched the movie because she did not want to be smacked. She said the movie was rude because a man did sexual or rude things to the woman, he was putting his hand up the girl's rude part. She said when her mother was lying on the lounge with a rubber willy she was naked. She said her mother came out to the lounge room naked at the start of the movie. She went up and down with the rubber willy near her private part. SP said she knew you put special liquid in the rubber willy because she saw her mother do it when her mother was on the couch. She said liquid came out of the rubber willy when she was watching the rude movies.
SP said of the occasion the subject of count 5 her mother was rubbing the magic wand on all her body, her belly, her back, her bottom and her front part/private part. She was asked:

“Q. You said this was in the lounge room, did you see this?
A. No.
Q. Where were you?
A. I was probably in the lounge room, I don't know where I was.
Q. How do you know this happened?
A. Well, because – can I have a break?”

The court took a break.
After the break, SP was reminded that in her interview she had said she was probably in the lounge room. She said she remembered that. She agreed that she said in the interview all her brothers were there and that was correct. She said she did not remember why she was in the lounge room with her brothers when her mother had the body wand.
She said when her mother walked into the lounge room with the body wand, she had some clothes on. She was asked about having said in the interview that her mother had no clothes on when she had the body wand. She said "Yeah, I don't really quite remember that one." She was asked "When your mum… started to use the body wand, did you stay in the lounge or something else?" She said "I don't remember that one. I don't remember what I did”.
SP said she had not told KP or LT anything about what her mother had done.
In cross-examination, SP said she recalled her brother M coming out with their mother's body wand and playing with it when he was two or three. He got it from their mother’s top drawer beside her bed. She and HT saw it. They were watching TV in her mother's room. She knew it was not a toy because she knew her mother had bought it from the rude shop. She took the body wand away from M but he kept touching it so she put it up "really high". She said M got the object probably three times. The last time she took it from him he cried. She said she told her mother. She told HT first and he put it back somewhere "really, really, really high where you couldn't reach it" and then he told mum, so “he’s the one who probably told her but I'm not really sure if I did tell her". She was asked, "Did you hear HT talking to mum?" She said "No, I didn't hear him. I don’t even think, none of us did, I just don't know." She said she did not remember if she spoke to her mother about it.
When asked where she put the object she said she put it in a high drawer, she thought in the cool room, somewhere where he would not find it. Then she said she did not know where or remember where she put it. She thought she just put it somewhere high in her mother’s room. She said she did not really remember putting it somewhere high. She agreed she may be guessing because she was not really sure. She said she was sure that M got the object out of the drawer. When reminded that she said in the interview that M got the object off the bed she said she was not really sure and did not remember. She said she thought he got it out of the drawer. It might have been the rubber willy thing. She said she was not really sure where he got the body wand from, it was probably the “willy thing”. She agreed she was just guessing.
She was asked about when she said in her interview her mother should have kept "it" up high, did an adult tell her that it should have been kept up high. She said she did not remember that happening. She said "I think HT told me to go tell [the applicant] to keep it up high, I think, I don't remember quite much, but I think I done that, but I don’t remember that”.
She was asked about when she said that M might have got the willy out of her mother's drawer. She described the object accurately. She said she had a good look at it when she showed it to KL.
She said KL found eight of them but she did not remember her [mother] getting eight of them. She said maybe she "sneaked out to the shop and got more maybe, I don't remember”. She said she remembered her having “12, eight”. SP said she took the object from M and she thought she showed it to HT.
She said she thought HT knew about it too because they all went to the shop and her mother went in and bought it and when she put it in the cupboard she saw it all. She said on the box she saw a body wand and the rubber willy thing. She was pretty sure it was that same time they went to the shop. She said when her mother took the rubber willy out of a black bag she saw it. It was “like in a bag with plastic over it and with the special liquid on the side of it”, both in the same packet.
She was asked about showing it to KL and she said she did not think she showed it to her, she was not sure, she was pretty sure she told her about it, not showed her and then KL went through the house and looked for it.
SP said she told KL that [the applicant] should not be doing this rude stuff in front of kids, that she and HT told her “You shouldn’t be doing this in front of kids." She said that is what KL said to the applicant. She said KL thought she only had one but she found eight in the house. SP did not remember her [the applicant] having eight.
SP said KL said to the applicant that she shouldn't be doing this in front of the kids, while SP and HT were present, while at the home where the offences are alleged to have occurred, because LT and KL were helping them clean up the house and KL found eight dildos in the house. SP said she was pretty sure she heard KL say to the applicant that she found eight dildos in the house, and she was pretty sure HT was there when KL said that to the applicant. She said she did not remember if she and HT talked about KL having found eight things at their mother's house. SP said she did not hear KL say it to LT but she remembered KL telling the applicant there were eight there.
SP said she told only KL what M found in her mother's drawer. She said she put it up high. When asked what she was talking about, what was “it”, she said "I'm not really sure".
SP said one time when she was in the bathroom in her mother's room she opened the top drawer and saw special liquid and the words "rubber willy" were written on the liquid. She told HT the cream was in there. She thought it was body cream, then rubbed it on herself but then saw it was not for skin, it was for the willy. Then she rubbed it off with the face washer.
SP said when she found the rubber willy she had a good look at it, but did not squeeze it and did not know how the special liquid gets into it.
She said she thought that KL found eight "because I think HT knew about it and then he told me but I think I heard it actually”. She thought she heard KL tell the applicant that she found eight dildos in the bathroom. She agreed she was not really sure how she knew that KL found eight rubber willies. She said she guessed the liquid was for the rubber willy because it said rubber willy on it.
SP said she knew LT does not talk to [the applicant] anymore because LT told her that when she rang her up. She heard LT tell RT and JT that she did not talk to [the applicant] anymore. SP said she told the interviewing police officer, and knew, that Auntie KL did not talk to her mother anymore because LT told her that LT and KL did not talk to [the applicant] anymore. She said she did not think Auntie KL told her that; she thought she just heard it and told the interviewing officer. SP agreed she had heard the adults talking about the applicant, but did not think she heard the adults talking about the applicant being rude.
SP said when she spoke to Sandra and Stacey from DOCS she told them the truth and everything she could remember. She was asked about in the conversation with the DOCS workers when she had said her mother and KB were in the lounge room, watching movies with "two girls doing rude things". She was asked and said she was pretty sure it was two girls. She was reminded she had earlier told the Crown Prosecutor that it was a boy and a woman, and said "… yeah, it was a boy and a girl, it wasn't actually two girls”. She said there was another rude movie, but that was HT watching that movie in the back room on the laptop. When asked "Was that the movie with the two girls or with a boy and a woman?" she said "yes”. She said in that movie there were two girls and two boys; the two girls were being rude.
SP was asked about having told the DOCS workers about her mother and KB watching the movie in the lounge room and she, HT and Z were in the hallway. SP agreed there was a time when she "snuck out" and watched a movie on the TV, standing near the glass door in the hallway, when she was meant to be in bed, and had come out of the bedroom after she had gone to bed. She agreed she was trying to be quiet so her mother could not hear her, and she was hiding down low in the hallway, crouching down so she could not see anyone on the couch, but she could see the TV because the TV was up high. She said HT and Z were there too. She said she did not remember HT being with her when she was crouching down and hiding and watching the TV. She did not remember what was on the TV at that time. She said she was laughing and her mother heard her laughing, stopped what was playing on the TV and came and told her to go to bed, and she did. She agreed that that was the only time she saw a rude movie on the TV at [the home where the alleged offences were said to have occurred].
SP said the time she talked about seeing rude movies with HT was another time, in HT's bedroom. It was on a laptop. Z was there too. Their mother came in and told them to go back to bed. That was when HT was watching the rude movie. She said she did not watch the whole lot, HT "only watched the start of it, they did watch the rude part". In the rude movie “they were having sex in bed". HT played it two times, but she only watched it the first time and then went back to bed. HT stayed up and watched it twice. When HT wanted to play it again she went to bed because it was rude. She said her mother did not see what HT was watching. She agreed the only time she saw a rude movie on the laptop with HT was the time she had just told them about.
SP said she found the "rubber willy" in her mother's bathroom. When she found it she did not go and show it to her mother and ask her what it was. She just put it back and went out. She said the first time she found it she did not know what it was but she looked at the label on the liquid bottle and it said “rubber willy liquid” on it. She was asked if she ever saw a packet for the rubber willy and she said no, her mother took it out of the packet and put the packet in the bin and she did not see the packet. When asked which bin her mother put the packet in she said "I don't know. I think it was maybe the inside bin or outside”. She said "No I didn't see [it], but one of the kids did I’m pretty sure, they saw her put something in the bin”. When asked "Which kid?" she said she thought M or K, M or Z, "I don't know". She said she knew that because she saw M and Z looking at what their mother was doing, they saw her at the bin, putting something in the bin and they came back and told HT and her.
SP said that as they drove in the car with their father to the interview with the police officer her father did not talk to her about what she should say in the interview, but she told him what she was going to say to the police officer. Then she said she thought it was at home, not in the car, and her father told them “just remember what you said in the car, kids”. She said her father told her "If you don't tell the truth, you'll get in trouble so just remember what you say." She said her father helped her remember what she said, but she did not remember what her father said to help her remember. She said her father said "You better be telling the truth or you will get me and mum into big trouble. You could get yourself in big trouble too if you lie about it. Remember what you said to me and mum." She said she did not quite remember.
SP said “Marshall” was a rude movie with a guy and a woman and the guy puts his hand up the girl’s private part. It was on Netflix. It was different to the rude movie she was watching when she snuck down the hallway and was hiding near the glass door, she thought. She said the time that her mother put a rude movie on and told her she had to watch it and KB was there was a different time from the time they watched “Marshall”. She agreed KB was there, HT was there, Z, and M. She said she did not think N was there because "he can't sit up yet” or he might have been in his little baby chair, and K was there “in the walking thing". She confirmed she and all her five brothers were there. She said her mother put a rude movie on Netflix and made them watch it and she was sure this was “Marshall”.
She was asked about in her interview she said the time that her mother made her and HT watch a rude movie while she used the rubber willy KB was not there. She said "That's weird. I do not remember that." She said of the three times her mother was on the couch doing something rude, KB was “only there probably like two times maybe”
SP was asked "Do you ever get a bit confused trying to remember what happened at mum's house?" She answered, "Yes I do." She was asked "Is it hard to tell the difference between something you actually remember and something you've heard?". She said "Yes".
Towards the end of her cross-examination the following questions and answers are recorded:

“Q. Mum didn't make you watch a rude movie; agree or disagree?
A. Disagree.
Q. And mum didn't tell you that she'd smack you, if you didn't watch –
A. Disagree.
Q. And you've never seen mum using the rubber willy?
A. Disagree
Q. And you've never seen mum and KB be rude on the couch?
A. Disagree
Q. And you've never seen mum use the pink body wand?
A. Disagree.
Q. And what's happened is you found the rubber willy?
A. Mmm-hmm.
Q. And you found the body wand?
A. Yup.
Q. And you’ve spoken to some adults about finding them?
A. Yep.
A. And the adults have told you that they’re rude?
A. Yep.
Q. And the adults have told you that you shouldn't have found them?
A. Yeah.
Q. And that made you think you've seen mum using them?
A. Yep.”

In re-examination SP said that when she spoke to Sandra of DOCS, she was feeling a bit uncomfortable and nervous about having to tell her what had happened.

HT’s interview of 17 July 2020

HT said he was 10 at the time of the interview.
HT told the interviewing police officer that he was there to talk about "our mother being rude". He said she made them "sit down and watch rude movies". She has rubber dildos. She fills it up with liquid and puts it in her rude part and it squirts on her. He said when they were made to watch rude movies it was him, SP and Z, his little brother aged five. He said in the movies, girls were being rude, having sex, on Netflix. He was on the lounge. His mother told him to sit there and watch it or she would "flog us". KB was there too. His mother was being rude with the "rubber dildo thingy". She put some kind of liquid in it and then it squirted out and she put it in her rude part, her vagina. KB was sitting there watching the movie.
He said his mother licked his penis, in the lounge room, on a different day. Only he and she were in the lounge room. All the other children were in bed. KB was not there.
He said his mother had eight dildos, she licked his dick, and "I forgot now what else happened".
He said his mother licking his dick happened only once. He was in the lounge and watching TV. His mother took the remote off him, turned the TV off, put the remote up high on the shelf and started licking his dick. He was sitting on the ground. His mother was sitting on the lounge. She pulled down his pyjama pants and undies and started licking his dick and after that she told him to go to bed.
She put her tongue out and licked his dick. His dick did not go into her mouth at all. It did not last for very long. He said stop. His mother said no. He said he did not speak to his mother about it the next day or ever.
He said he told his Auntie KL, and Auntie KL said "If you get… taken from the DOCS... you shouldn't… live with her… because she’s a rude thing." Then he told his father and JT about it too.
Asked whether he had ever had to do anything with the dildos he said he used to have to take them off M because M kept opening the cupboards and getting them. He said his mother kept them in the cupboard, "not high though", in or on the bedside table in the bedroom. He said the dildo looked like a boy’s rude part. He said he had not seen his mother do anything else with any other toys, just the dildo.

HT’s evidence

HT said he was 11 at the time he gave his evidence.
He confirmed he told the interviewing police about two incidents involving his mother, one that she made him watch a rude movie and used a rubber dildo and the second when she licked his penis (corresponding to the alleged acts the subject of counts 1 and 2).
He said his mother told him to sit and watch the movie or she would flog him, in an "angry voice", so he had to sit on the lounge and watch it, with SP and Z. He said KB was there when they were watching the movie and his mother had the dildo. KB was on the lounge watching the movie.
HT said his mother had a bottle of liquid that she put into the dildo. He saw her do that in the lounge room and the dildo squirted out liquid when she was using it.
HT said he told his dad (RT) and his mum (JT) about the applicant and the rude movies, the dildo and how she licked his penis. Then he spoke to Sandra from DOCS. He said when he spoke to Sandra from DOCS he felt "angry and a bit sad" because he did not really want to talk about it. He said he told KP what happened when he was living with his mother. He said he did not say anything to LT because he did not get a chance to. He said he told Auntie KL about the stuff that happened in the house when they were living there with their mother, including the two things he had talked about in evidence. He said he told Auntie KL when they were living with their mother.

In cross-examination HT confirmed that he took the rubber dildo from his little brother M, because M kept going into the drawer where he knew it was, and he used to take it and hide it and run around with it, and HT had to take it off him. HT said he had to take the object from M “multiple times”, about 10 times on 10 different days, because M kept going to the room and getting it out of the bedside table drawer. HT said he kept telling him not to get it and M kept going to get it, and each time HT took it off him and put it back. He said he was trying to put it somewhere where M would not find it. He put it "back in the drawer, but higher, in a higher drawer, higher cupboard”. HT said once he took the object from M and M threatened him with a knife and he had to take the knife from him too. He said M had a knife in his hand and he used to try and threaten him. (I note that in her interview with police, the applicant said M’s date of birth was 8 August 2017, so in the charge period he was two years old).
HT said the first time he saw the object was when his mother was using it on the couch.
He said he told his mother that M kept finding it. He thought SP had shown M where it was, because SP had found it when she had to get her mother's phone, which was in the same cupboard. SP told him she had found the dildo in the drawer, and then M came out with it.
HT said "I just wanted it higher", because if M kept running out with it he, HT, would have been in trouble. He said an adult did not tell him that it should have been up high.
He said he saw a bottle of liquid when his mother had it with her on the couch when she was being rude. He said SP did not tell him about a bottle of liquid.
HT said that he told the police officer who interviewed him that his mother had eight dildos because he told Auntie KL about the rude things his mother had done and that she had a dildo and Auntie KL searched through the house and found eight dildos. He said he told Auntie KL before they went to live with their dad. He said Auntie KL did not tell him what she found; he just heard her say that she looked in the house and found eight dildos. He said she said that to police or DOCS. He said he told his father that Auntie KL had found eight dildos. He did not tell SP that, and SP was not present when Auntie KL told someone she had found eight.
HT agreed there was a time when he looked up a rude movie on his mother's laptop. He said SP was not there; he was just on his own.
HT said he remembered a time when he was asleep and came out of his bedroom into the hallway. He said SP was standing at the doorway, standing up or crouching down in the hallway. He said he could hear what was on the TV, but could not see what was on the TV; all he remembered was coming out of bed and seeing SP standing in the hallway. He was taken to his DOCS interview and reminded that he had said he was in bed, SP was out in the lounge, and he went and told SP to get into bed. He said he recalled that. He maintained that he did not see what was on the TV when he went into the hallway and saw SP standing in the glass doors. He said he told the DOCS workers there were two girls doing rude things to each other because SP told him what was on the TV, the next day.
He said there were no other things that he told the police officer about that he did not actually see. When asked were there any things he told the police about that SP also told him about, he said "I don't know".
He agreed he told Sandra from DOCS that SP kept telling him to watch the rude movie. He said he remembered SP telling him to watch the rude movie. He agreed there was only one time that he saw a rude movie on the TV in the lounge room, and that was the time when he and SP were in the hallway, and that was the time that he told Sandra from DOCS about.
HT said that on the way to his being interviewed by the police officer, he was in his father's car with his father, JT, and SP, and they talked about what he was going to say to the police officer and talked about the things that happened at their mother’s. He said SP was in the car and he heard what SP said. He said SP talked about the rude movies and the dildo. He said his father said “Just tell them all the stuff, what's happened when you were with [their mother]”. He said the day before his interview with police he spoke with his father about what he would say in the interview, "because he told us what to say and stuff", "Like what words to use".
In re-examination HT said that his father told him to use words that he understood.
In re-examination HT said that the time that he came out into the hallway and SP was near the glass door at the end of the hallway was a separate time from when his mother told him to watch the rude movie or she would flog him and she had the rubber dildo.
KB gave evidence that he had a casual sexual relationship with the applicant between about November 2019 and February 2020. He visited the applicant's home (where the alleged offences were said to have occurred) on about six weekends. Her children were present.
He said there was one occasion when he and the applicant watched a movie in the lounge room, with a sex scene involving two women in a bathtub. The children had been put to bed about an hour before. They heard the children giggling in the hallway when the “sex scene" came on. They paused the movie and the applicant stood up, went to the hallway and put the children to bed. He and the applicant turned the movie off and went to bed.
He said he did not recall any other movie with sex scenes being watched in the applicant's lounge room when the children were in the lounge room. He said he did not watch movies with sex scenes in them in front of the children.
He said the applicant always wore a cotton throw over, like a big shirt. She was never naked in the lounge room.
He said he never lay on top of the applicant in the lounge room in front of the children, and never engaged in any sexual activity with the applicant in front of the children. He said he would not have engaged in sexual activity with, or been naked with, the applicant on the lounge in front of her children. It would have been inappropriate. He said he has young children himself and knows what is right and wrong with children.
He said he never used any sex toys with the applicant in the lounge room, nor did she use a sex toy naked in the lounge room.

The applicant's interviews

The applicant was interviewed twice by police. The first interview was shorter than the second. Both were video recorded.
In the first interview, when the allegation was put to the applicant that she and KB were "doing it" on the lounge and watching rude movies, she said she had not done anything with KB on the lounge but there was an adult movie on Netflix with sex scenes in it and as soon as she saw that the children had snuck out of their room and seen what she was watching on TV with KB, she turned it off.
She denied all the alleged conduct. She denied engaging in any sexual activity in front of the children. She said she has toys but does not use them in front of the kids in the lounge room. She does it in the bedroom with the door shut. She said the toys were in her drawer. She did not know if the children had been in her room and looked in her drawer.
In her second interview, of 14 August 2020, the applicant gave frank answers about her dildo and two vibrators, and described them, including how the dildo drew in liquid, such as lubricant, and squirted it out when pressed. She said they were in her bedside table when she lived at the house where the alleged offences occurred. She said SP and HT found the dildo when they were in her bedroom playing PlayStation. She said SP came out with the dildo and asked her what it was. She told SP it was nothing, took it from her and put it back. She said it is not obvious, to someone who does not know how to use it, that liquid goes in it. She said she had never showed SP about how liquid comes out of the dildo.
She said she does not speak to her children about sex because they are too young.
She said she and KB watched a movie on Netflix with a sex scene in it, but it was not pornography. The movie had two girls in it.
She said she did not have sex on the couch.
She said when the allegations were raised "I was just gobsmacked. I didn't know what to say or what to think. I've never ever touched my kids or hurt my kids."
She gave police her Netflix password. She said her children were not allowed to watch movies with sex. They watched children's movies.
She said there was one time she and KB were watching a movie and the children came out. They could hear the children laughing in the hallway. They stopped the movie and told SP and HT to go back to bed. She said in the movie there was a girl in a bath engaged in sexual acts. She said when she heard the children laughing she pressed stop and put them back to bed.
She said that in disciplining the children she sometimes threatened to smack them.
She denied the alleged conduct.
She said she only used the dildo in her room on her bed. She said she would never make her children watch her do such a thing, that it was wrong and disgusting; nor would she make them watch adult movies or sex movies. She said she would never have sex in front of her children.
She said the only time she used liquid (lubricant) in the dildo was once in Guyra, in the bathroom, when she first bought it. It was an agreed fact in the trial that the "Squirtz" dildo was bought on 12 July 2019.
She said the children may have seen the box, with the picture on it which says "squirting". (The exhibit, being a photo taken by KL of the package, does show the dildo shape in the package and the word "squirtz" on it.) She said after she took the object out of the box she put the box in a plastic rubbish bag hanging on the door in the kitchen. She agreed that after KL had helped to clean the Guyra house and found the dildo, KL said to her she needed to learn to put them away and the applicant said they were in her drawer.
She denied licking HT's penis: "Absolutely not… I would never do that… That's disgusting."

The applicant's evidence in the trial

The applicant said she was shocked and upset by the accusations during both police interviews. She denied the alleged conduct.
She denied she was openly sexual with KB when the children were around. She said she did not walk around naked.
She said there was an occasion when she and KB were on the lounge, watching a movie on Netflix, and she heard the children laughing in the hallway and she paused the movie and went and put the children back to bed. There was an erotic scene in the movie. She said the children were not in the lounge room; she had put them to bed.
She denied there was sexual activity and viewing sexually explicit material in front of SP and HT.
She agreed she let HT use her laptop to view Netflix. She said she did not know what was on the laptop.
She agreed the dildo was in her bedside table and the children had found it. She agreed that one could not tell that the dildo squirted liquid by looking at it.
She said she did not ever tell HT or SP to not tell anyone what happened at the house. She did not threaten them that she may call DOCS if they were misbehaving.

The applicant’s submissions on the unreasonable verdicts ground

In respect of counts 1 and 3, counsel for the applicant submitted that both HT and SP conceded in cross-examination that the only time they had seen a rude movie was the event they described to the DOCS workers when they got out of bed and went into the hallway when the applicant and KB were watching a movie, and the applicant sent them back to bed. Counsel submitted that that account was consistent with the account given by the applicant and KB as to what happened on that occasion of the "inadvertent viewing" by the two children of the sex scene in the movie when they were supposed to be in bed.
Counsel also submitted that SP's complaint to her father was elicited by him asking her about what HT had told him about the conduct the subject of counts 1 and 3, which reduced its cogency.
Counsel submitted that the children's knowledge of the sex toy was explicable by evidence that the complainants and another child in the house had found and handled it.
Counsel submitted that the allegation was unusual, in its terms, and in that it was an isolated act.
In respect of count 2 counsel submitted that the act alleged was unusual in its isolated nature. Counsel submitted that HT's evidence about the event – that it happened in the lounge room after his mother turned off the TV and removed his pants, differed from his complaint to his father that he woke up one night to find it happening. Counsel also relied on the complaint about this act coming after HT had said to DOCS officers unprompted "None of them have done anything to me" and that the complaint was elicited by HT’s father asking him if his mother had done something to him.
In respect of count 5 counsel relied on SP's answers on several occasions that she could not remember details about this alleged incident, that SP had seen the body wand when she found her brother playing with it, and that at its highest the evidence could not establish essential elements of the offence charged, such as that the applicant was aware of SP's presence and directed the alleged act towards SP.

The Crown’s submissions on the unreasonable verdicts ground

The Crown placed weight, in the assessment of the complainants’ evidence, on their being young children at the time of the alleged offences and when they gave their evidence.
The Crown submitted that the time the children were in the hallway was a different incident than that the subject of counts 1 and 3, and the children's agreement in cross-examination that the time in the hallway was the only time they saw a rude movie does not give rise to a doubt about the credibility or reliability of their evidence about the alleged acts the subject of counts 1 and 3. The Crown submitted that HT gave evidence at length about both the occasion the subject of count 1 and the incident after bedtime in the hallway. The Crown relied on HT’s answer in re-examination that the first was a separate time from the hallway incident.
The Crown also submitted that the agreement by SP in cross-examination that the hallway incident was the only time she saw a rude movie on the television warranted little weight in view of all of her evidence.
The Crown submitted that the acts were not isolated, on the complainants’ evidence in respect of all the counts, but if they were then that was not a basis for a reasonable doubt about the evidence.
The Crown submitted that the complainants’ first account to DOCS should not be given the dominance the applicant seeks to place on it, when regard is had to the other complaints to family members, and the evidence that SP said she was nervous about speaking to the DOCS workers and that she became upset during the DOCS interview and it was terminated.
The Crown submitted that in respect of counts 1 and 3 there was a deal of consistency between the accounts of HT and SP – that they were each present, made to watch a movie with a threat of violence if they did not do so, that both described the dildo and that it had liquid in it, and they both similarly described the applicant's action with it.
In respect of count 2 the Crown submitted that the evidence of HT’s complaint to his father was compelling, including his father's description of his ashamed, embarrassed demeanour. The Crown submitted that HT's demeanour when he complained about that act to his father and grandmother was consistent with his taking time to disclose that more serious conduct.
The Crown submitted that the difference between RT's account of HT’s complaint and HT's evidence about the act could be explained by RT's recollection being mistaken.
The Crown submitted that the act was not isolated, but being isolated is not a basis for a reasonable doubt.
The Crown submitted that HT’s statement in the DOCS interview "I haven't got it yet, none of them have done anything to me" is not clear as to who it referred to or what it meant, and it did not make the verdict on count 2 unreasonable, in light of the evidence on that count.
In respect of count 5 the Crown submitted that on SP's evidence, the applicant's conduct indicated an awareness of the presence of the children and an intention to engage them.
In respect of all counts the Crown placed weight on the jury's advantage in seeing and hearing the witnesses, particularly the evidence of the complainants.

Consideration

The task of this Court in considering the unreasonable verdicts ground is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (at 493-5):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

I have extracted quite a deal of the complainants’ evidence so that the quality of their evidence, and difficulties with their evidence, are apparent.
Some of what the complainants described could be real. However, the conduct alleged, though possible, was bizarre, and as details emerged in the children's accounts, implausible, such as that KB sat and continued to watch a movie and said and did nothing while the applicant masturbated with a dildo in front of her six children including, on SP’s account, the babies, who had all been made to sit and watch the adult movie with her.
That version of events by SP was outlandish and difficult to believe. While it may be possible that a mother would behave in such a way with her two older children present, it is more difficult to accept the version given by SP that she did so in the presence of all of her children, several of whom were very young. I accept that complainants, and perhaps moreso children, may give different accounts of alleged sexual acts at different times but it is not appropriate in the circumstances of this case to separate out implausible details in an attempt to find a credible version.

Some of what both complainants said was outlandish. One example in HT's evidence was that his two-year-old brother, M, threatened him with a knife because he took the dildo away from the child. That was very difficult to believe, yet HT gave evidence of that in the same matter of fact manner as the rest of his evidence.
Some of the evidence given by the complainants conflicted with acceptable evidence given by adult witnesses. One prominent example was their joint reference to, and repetition of, eight dildos having been found by their aunt KL in the home where the offences were alleged to have occurred. KL's evidence was that she found a lesser number of objects in the Guyra home, where the family lived before the home in which the alleged offences were said to have occurred. KL said she did not tell the complainants what she had found in the Guyra home, and she had not told anyone that she found eight dildos. Both the children repeated their references to eight dildos in the same matter of fact way in which they gave the rest of their evidence. Clearly that was not accurate, but they seemed committed to it. The children must have heard some reference to their aunt finding such objects at their previous home, although all adults denied being the source of such information for the children.
Both complainants gave evidence that their aunt's search for such objects in their family home occurred after they complained to her about their mother’s offending conduct. Both complainants said they told their aunt KL about their mother’s offending conduct while they were living with their mother. KL gave no evidence of such complaints. Given her acceptable evidence that she told the applicant to not leave dildos around where children could find them, it is unlikely, if the children had complained to her about what they say their mother did, she would not have done something about it. Therefore I draw the inference that the complainants did not complain to their aunt about their mother's behaviour, and that is another aspect of their evidence, in addition to the evidence about the eight dildos being found at their house, which cannot be accepted.
As well as their repetition about the eight dildos, both complainants frequently spoke about their mother’s sexual objects having to be put "up high", away from where the younger children could access them. This sounds like a childish repetition of something an adult would say or had said to them, although both denied that that was the source of that phrase or idea. Both complainants made frequent mention of girls or two girls in a rude movie. That is consistent with the movie described by the applicant and KB, which the children crept out of their beds and saw, and that was the first account which SP gave to DOCS, twice, in two different interviews, and the first account HT told DOCS.
SP was suggestible in cross-examination. During her evidence she said, not infrequently, she had forgotten things, or she did not know, was unsure or was guessing. She contradicted herself. She sometimes asserted things and then on examination, it was found to be something she had been told by HT. She agreed she found it hard to distinguish between what HT had told her and what she had seen or heard. Those deficiencies in her evidence, vagueness and lack of memory, were partly in relation to count 5 but were not so limited. HT was also sometimes forgetful and uncertain in his evidence.
The evidence of complaints to family members was not all consistent with the complainants’ allegations. RT, the complainant's father, elicited the complaint from SP in the presence of HT, and the second complaint from HT, about the act the subject of count 2, by questions, which reduces the cogency of those complaints to some degree. RT’s evidence about HT’s complaint about his mother licking his penis was markedly different from the circumstances HT described. Perhaps RT’s recollection was mistaken. It still detracts from the reliability of HT’s evidence.
In her interview SP repeated what she had heard HT tell their father about the alleged act the subject of count 2, but in her initial assertion of that act did not make clear that that was the basis of her knowledge. It was difficult to tell with the complainants’ evidence, in some respects, what they asserted independently and what they had been told by their sibling.
Although a child could not necessarily tell from looking at the dildo that it took in and expelled liquid, SP said she had found the liquid for the dildo in her mother's bathroom drawer, and she gave one version to KP that she saw her mother using the dildo in her bedroom. There was evidence that SP and one of the younger children had found both objects in the applicant's bedroom drawer. SP described the vibrator with a button to operate it; that was capable of being seen by her when she said M came out with the “fairy wand”.
The two children's description of their mother putting liquid in the dildo in the lounge room sounds extreme and difficult to accept. SP’s finding the liquid for the dildo in her mother's bathroom drawer demonstrates childish curiosity and a source of knowledge about the dildo using liquid. HT’s description of his mother licking his penis but it never going into her mouth seemed childish and had an air of unreality. HT had a source of knowledge in his admitted watching of "rude movies" alone on the applicant's laptop. SP also told DOCS that she had seen rude movies on the laptop with HT at Guyra. So there were sources of knowledge for the complainants other than the children observing the alleged conduct.
I do not wish to appear to be criticising the children. They were young children. Some of their evidence appeared to be childish versions of something an adult would say. Some of their evidence was clearly exaggerated, embellished or made up. It appears they may have conflated things they had seen, possibly on TV, on the occasion they crept out of bed and saw some of the movie being watched by the applicant and KB after the children had been put to bed, or things they observed around the home, with things they had heard from adults.
Both the applicant and KB gave evidence which was believable, and there was not a basis on which their evidence should be disbelieved, discounted or disregarded, whereas the complainants’ evidence became more difficult to accept on examination.
Both the applicant and KB gave an account of the occasion when they were watching a movie with two women in it, when the children crept out of their bedrooms to the hallway and saw. the movie. Both complainants agreed that such an incident occurred. Both complainants agreed in cross-examination that that was the only time they had seen a rude movie, although their evidence on that varied. Both complainants referred often to "two girls" in rude movies. Indeed, that was their first account to DOCS. That believable, and not unusual, occurrence provides a reasonable explanation for the children seeing "two girls" in a rude movie.
On my own assessment of the quality and sufficiency of the evidence, particularly the evidence of the two complainants, I have a reasonable doubt that the applicant committed the offences charged. I am not of the view that the jury’s advantage in seeing and hearing the complainants give evidence is capable of removing that doubt. I do not believe either complainants’ evidence beyond reasonable doubt. I am of the view that there is a significant possibility that an innocent person has been wrongly convicted. Therefore, I am of the view that the verdicts of guilty are unreasonable. Therefore I propose the following orders:

Extend time for filing a Notice of Appeal.

Grant leave to appeal.

Allow the appeal.

Quash the convictions on counts 1, 2, 3 and 5.

In lieu thereof, enter a verdict of acquittal in respect of each of counts 1, 2, 3 and 5.

**********

Endnote

Decision last updated: 06 September 2024

Medium Neutral Citation:	JP v R [2024] NSWCCA 163
Hearing dates:	19 July 2024
Date of orders:	06 September 2024
Decision date:	06 September 2024
Before:	Harrison CJ at CL at [1] Dhanji J at [5] Sweeney J at [21]
Decision:	1. Extend time for filing a Notice of Appeal. 2. Grant leave to appeal. 3. Allow the appeal. 4. Quash the convictions on counts 1, 2, 3 and 5. 5. In lieu thereof, enter a verdict of acquittal in respect of each of counts 1, 2, 3 and 5.
Catchwords:	CRIME — Appeals — Appeal against conviction — Unreasonable verdicts — Child sex offences
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW)
Cases Cited:	Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24 Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 20000.09 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 RW v R [2023] NSWCCA 2 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Texts Cited:	Nil
Category:	Principal judgment
Parties:	JP (Appellant) Rex (Crown) (Respondent)
Representation:	Counsel: M Smith (Appellant) A Bonnor (Respondent) Solicitors: McGirr & Associates (Appellant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2020/237567
Publication restriction:	Publication of the identity of the complainants or any matter likely to lead to their identification prohibited pursuant to s 578A Crimes Act 1900 (NSW). Publication of the name of the complainants prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: Nil Date of Decision: 22-30 August 2022 (Trial) Before: Pickering SC DCJ File Number(s): 2020/237567