JPV v The State of Western Australia
[2011] WASCA 212
•3 OCTOBER 2011
JPV -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 212 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:49/2011 | 10 AUGUST 2011 | |
| Coram: | MARTIN CJ NEWNES JA HALL J | 3/10/11 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JPV THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Sexual offence against a child Whether verdict unreasonable and cannot be supported by the evidence Reliability and credibility of the complainant Necessary to canvass whole of the evidence at trial Whether 'significant possibility' that guilty verdict was wrong or reasonable doubt as to appellant's guilt existed Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a) Criminal Code Act Compilation Act 1913 (WA), s 320 Evidence Act 1906 (WA), s 37A |
Case References: | Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JPV -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 212 CORAM : MARTIN CJ
- NEWNES JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 790 of 2010
Catchwords:
Criminal law - Appeal against conviction - Sexual offence against a child - Whether verdict unreasonable and cannot be supported by the evidence - Reliability and credibility of the complainant - Necessary to canvass whole of the evidence at trial - Whether 'significant possibility' that guilty verdict was wrong or reasonable doubt as to appellant's guilt existed - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code Act Compilation Act 1913 (WA), s 320
Evidence Act 1906 (WA), s 37A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Ms L Petrusa
Solicitors:
Appellant : Simon Freitag
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
1 MARTIN CJ: This appeal should be dismissed for the reasons given by Hall J with which I agree.
2 NEWNES JA: I agree with Hall J.
HALL J:
Introduction
3 The appellant was tried before a judge and jury in the Perth District Court on an indictment containing two charges of indecent dealing with a child under 13 (contrary to s 320(4) of the Criminal Code (WA)) and one charge of sexual penetration of the same child (contrary to s 320(2) of the Criminal Code). He was acquitted of the sexual penetration charge and one of the indecent dealing charges and convicted of the remaining indecent dealing charge. He now appeals, by leave, against that conviction.
4 The single ground of appeal is that the conviction on ground 3 is unreasonable and cannot be supported having regard to the evidence at trial. In particular, it is said that the complainant's evidence was unreliable in critical respects such that a jury could not have been satisfied beyond reasonable doubt that the alleged indecent dealing had occurred. Because the three alleged acts were said to have occurred close in time to each other it will be necessary to canvass the whole of the evidence at trial in order to properly understand, and place in context, that which relates to count 3.
Prosecution case
5 In August 2009 the complainant and her younger brother were living with the appellant and his wife who were their foster carers. The complainant was then aged 12. She and her brother had been living with the appellant and his family since October 2008 when they were taken out of the care of their father. The members of the appellant's household in addition to himself and his wife, the complainant and her brother AX, were the appellant's two sons, CV, aged 9, and SV, aged 7.
6 On the weekend of 28 August 2009 the appellant's wife went to Adelaide for a conference leaving the four children in the care of the appellant. On Saturday, 29 August 2009 a friend of the complainant, KA, stayed at the house for a sleepover. KA was younger than the complainant but they were in the same class at school.
7 In the late afternoon of Saturday 29 August 2009 the appellant took the complainant and KA to the house of a friend, SM. The appellant, complainant, KA, SM and his family sat in the lounge room to watch the rugby. SM and his wife left the lounge room on a number of occasions. The appellant and the complainant were sitting next to each other with a blanket across them. It was alleged that the appellant told the complainant to 'play with him' which she understood to mean play with his penis. She refused initially but it was alleged that he then placed her hand on his penis. This act constituted count 1 on the indictment in respect of which the appellant was acquitted.
8 At the same time and place it was alleged that the appellant had told the complainant to put her mouth on his penis. When she said she did not want to do it he pushed her head down and an act of penetration was alleged to have occurred. That act constituted count 2 on the indictment in respect of which the appellant was also acquitted.
9 Later that night the appellant took the complainant and KA back to his home. They watched a movie together in the lounge room. It was alleged that the appellant and the complainant then went to the main bedroom leaving KA in the lounge room. It was alleged that in the bedroom the appellant told the complainant to 'play with him' and that he then took her hand and placed it on his penis. The complainant moved her hand up and down until the appellant ejaculated. Whilst this was occurring KA called out for the complainant from the lounge room. This caused the appellant and the complainant to stop what they were doing and leave the bedroom. The act that occurred in the bedroom was said to constitute count 3 on the indictment in respect of which the appellant was convicted.
10 On 10 September 2009 the complainant told her brother AX and one of the appellant's sons, SV, that she had played with the appellant's 'rude part'. At this time the appellant was away working at a mine site and his wife had returned from Adelaide. AX and SV told the appellant's wife what the complainant had told them. As a consequence the appellant's wife reported the matter and the complainant participated in three recorded interviews.
11 In addition to evidence from the complainant, the appellant's wife and the recent complaint evidence of SV and AX, the prosecution case also included evidence that was relied upon as being implied admissions. This consisted of text messages sent by the appellant to his wife and also a conversation that he had had with a friend, BM. Evidence was also led from SM and another friend, CS, regarding separate conversations which had occurred at an earlier time in which the appellant was alleged to have referred to sexual acts having occurred between him and the complainant. The conversations with SM and CS were relied upon by the prosecution as being propensity evidence under s 37A of the Evidence Act 1906 (WA) rather than as admissions relating to any of the alleged offences. That is to say these conversations were relied upon as showing that the appellant had a sexual interest in the complainant and that he was a person likely to have committed the alleged acts.
Ground of appeal
12 There is one ground of appeal which reads as follows:
The verdict of guilty on which the conviction was based should be set aside because it is unreasonable and cannot be supported.
Particulars
(a) The complainant's direct evidence in respect of the incident that gave rise to the conviction (count 3 on the Indictment) was unreliable given that:
a. she admitted under cross examination that the allegations that she made against the Appellant were not true; and
b. she gave evidence in re-examination that she did not know what was the truth and what was a lie in relation to what she had told the Police;
(b) The complainant's credibility was also adversely affected by the contents of a recording of a conversation between herself and the witness [KA] in which she admitted that she was told to say some things by [CV] that were a lie; and
(c) There was no other evidence presented by the State that could have left it open to the jury to reach a verdict of guilty beyond a reasonable doubt in respect of count 3.
Relevant law
13 This court is required to allow an appeal and set aside a verdict of guilty if, in its opinion, having regard to the evidence, the verdict is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The statutory test is equivalent to that referred to in some cases as whether a verdict is 'unsafe or unsatisfactory': MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [58]. The question is whether, upon a consideration of all the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. It is important to understand what the word 'open' means in this context. In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J said:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis)
14 In approaching this question this court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 [14]. The question is one of fact; that is, given the quality and sufficiency of the evidence whether it would be dangerous in all the circumstances to allow the guilty verdict to stand: M v The Queen (492 - 493).
15 Regard must be given to the fact that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence and that it has had the benefit of having seen and heard the witnesses. In the present case, however, the appellant's argument rests significantly upon the credibility and reliability of the complainant's evidence. That evidence was entirely recorded and was available to be viewed by this court. In those circumstances this court is in as good a position as the jury to make an assessment of that evidence.
16 In M v The Queen the operation of the test to be applied in cases such as this was described as follows:
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 (494 - 495). (footnotes omitted)
Summary of the evidence
The complainant
17 The complainant's evidence was given in the form of three visually recorded interviews that took place on 14, 15 and 17 September 2009 and pre-recorded testimony given on 2 December 2010.
18 In the first interview, that of 14 September 2009, the complainant referred only to the incident that came to be the subject of count 3; that is, the count on which the appellant was convicted.
19 In that interview the complainant said that on an evening when the appellant's wife was away in Melbourne the appellant had asked her whether she wanted to come with him. They had then gone to the appellant's bedroom and both got into bed. She said that she was wearing 'bed clothes' which she kept on. The appellant was wearing a t-shirt and long pants which he took off and 'put jocks on'. She said that the appellant asked her to 'play with him'. She then described what happened in the following terms:
A. Then he taked [sic] his - - taked [sic] his dick out of his jocks.
Q. And then what happened?
A. Then he grabbed my arm and put it like on - - around his dick.
Q. And when your arm was around his dick what did your arm do?
A. Go up and down (AB 16).
- A little later in the interview she gave the following details:
Q. When you were rubbing his dick what did it feel like?
A. Like uncomfortable.
Q. Yeah? What - - - sorry, I should have - - what did his dick feel like when you were touching it?
A. Like rough but then when some white stuff came it felt all gooey ... (indistinct) ...
Q. At what point did the white stuff come out?
A. The top half.
Q. Yeah? And at what stage did that come out? When did that happen?
A. I was going up and down harder (AB 19).
21 At the end of the interview there was a reference to the complainant having told the interviewer about something else that had happened at another house that she would be questioned about the next day. It was noted that the complainant was not feeling well that day and that was why the interview was to be continued the following day.
22 In the second interview on 15 September 2009 the complainant referred to the two incidents that became the subjects of counts 1 and 2. She said that these had occurred at the house of a friend of the appellant's named 'S'. It would seem that S was in fact SM. At this time the appellant's wife was also in Melbourne. The complainant said that she, the appellant and S had been in the lounge room of S's house watching television. S's wife was in another room on the computer. S's 10-year-old daughter was outside and his 7-year-old son had gone to bed. She and the appellant were sitting next to each other on a couch with a blanket over them. She said that S went outside to talk to some friends. The appellant then asked her to 'play with him' and took her by the arm placing her hand on his penis. She said that his hand was on hers going up and down and that this continued until 'this white stuff came out'. She stopped because S's wife came into the room. When S's wife left she told the appellant she did not want to do it anymore and that he then said 'oh, put your mouth on top of my dick'. She told him no and that she was too scared to do it but he then put a hand on the back of her head and pushed her down. She referred, in her own words, to an act of penetration which she said stopped because she did not like it.
23 The third interview occurred on 17 September 2009. The interviewer commenced by asking the complainant about a time that her friend KA came over to her house. She referred to being at home with the appellant and KA and the three of them watching television on a mattress on the floor in the lounge room. She said that a woman who babysat and cleaned for the family was also in the house and was 'going to sleep' in the back room. When the interviewer sought to clarify whether this was a different time to the time that she had spoken about in the first interview, the complainant said that it was the same. She was then asked about the time that she, KA and the appellant had been to S's house. She was asked:
Q. [W]hen you were here last time you spoke about a time that [KA] was over but you'd just gotten back from [S's] house. Do you remember that time?
A. No, when we come back to [S's] we just went to the lounge room and watched TV.
Q. Did anything else happen that night?
A. No.
Q. No? Is there anything else that you can tell us that's happened between yourself and [the appellant] that you haven't spoken about yet?
A. No.
Q. No? So the three things that we've spoken about previously are the only things that have happened?
A. Yeah (AB 54 - 55).
24 On the basis of the interviews there is some uncertainty as to the order in which the three incidents had occurred. In the last interview the complainant appears to say that nothing happened after returning home from S's house, yet she confirms that the three incidents previously discussed had occurred.
25 In other respects her evidence suggests the incident the subject of count 3 occurred at around the same time as the other incidents because she refers in her first interview to her friend KA being in the house for a sleepover at the time that incident occurred. It is possible that there is inconsistency here as to whether the incident, the subject of count 3, occurred. However, given the complainant's confirmation in the third interview that all three incidents had occurred, the better explanation is that the complainant believed that the incident in count 3 had occurred first. There was also obviously some confusion as to whether the appellant's wife was away in Melbourne rather than Adelaide, although I think nothing really turns on that.
26 The complainant's pre-recorded evidence took place on 2 December 2010. She first confirmed that she had viewed the videos of the three interviews and that what she had said in those interviews was true. She was then cross-examined. She was first asked about the incidents that were alleged to have occurred at SM's house. She said that she remembered 'very well' what had occurred there. She said there had been 'heaps of people' at the house to watch rugby. She estimated that the number of people was about 20. This number included about four or five children amongst whom were herself and her friend KA. She said that when the first incident of touching occurred in the lounge room there were no other persons in the room but there were other people in the house. At the time this occurred the rugby match on the television had finished. She said that the only person who came into the room whilst she was touching the appellant's penis was LM, SM's wife. The complainant agreed that she did not say anything to LM about what was occurring. The touching continued until it was time to go to bed and she stayed the night at SM's house. She said that KA had also stayed the night at SM's house but had not slept in the lounge room where she slept. She said no other sexual things happened to her at SM's house other than the touching.
27 The complainant was then cross-examined about the incident that she had referred to as having occurred at the appellant's house and was the subject of count 3. She said that this incident had happened the day before the incident at SM's house. She said it had occurred on the bed in the bedroom of the appellant and his wife. On this occasion her friend KA was also in the house for a sleepover. The appellant's sons, CV and SV, and her brother, AX, were also at home on that evening. She said that the appellant's sons were in their bedrooms and that her brother was in her room as he was sleeping there that night. She said that the appellant asked her to go to his bedroom. She was then asked:
[W]hat happened in the bedroom?---Me and [the appellant] kept on playing around.
What do you mean, playing around?---Like me moving his dick around.
Okay. You moved his dick around. Did he ask you to do that?---Yeah.
Okay. And did you do that?---Yes.
All right. How long did you do that for?---About a minute.
About a minute. Anything else happen?---No (AB 129 - 130).
28 She said that she told the appellant's wife when she returned from Melbourne.
29 The complainant was then asked in cross-examination about a complaint she had made regarding her natural father. She agreed that she had made such a complaint to the Department of Child Protection (DCP) and that it was as a result of that complaint that she had been placed into the care of the appellant and his wife. She was then asked:
At the time you made those complaints against your father, were he and your mother living together?---No.
They weren't. How long had they been apart?---Since I was a baby.
Since you were a baby, did you see much of your mother?---No.
Not really. Did you - did you want to see more of her?---Yeah.
Yes. And I think you'd been just living with your father from - for all of that time, hadn't you?---Yep.
Okay. And what you said about your father was that he was doing sexual things?---Yep.
Okay. When you made your complaints about him, were the police involved?---Yes.
Now, those allegations - those - those things you said about your father, there weren't true, were they?---They were true.
I'm sorry?---They were true.
They were true. Well, what if I suggested to you that you said those things about him so that you could get back with your mother. That's the truth, isn't it?---Yep.
And when you were placed with [the appellant and his wife], you still wanted to get back with your mother, didn't you?---Yeah.
And that's why you made the complaints about him, so you could leave [the appellant's] house, isn't that true?---Yeah.
Now - and they weren't true, were they?---No.
Now, have you ever told anybody that - that these things are lies?---No.
You haven't. What about [KA], have you told her that these are lies?---No (AB 135 - 136).
30 The complainant was then played a recording of a school yard conversation between herself and KA. The whole of that conversation was as follows:
Unknown: (Indistinct) ... that one
KA: So it was a lie
Complainant: Yeah
Unknown: Can you guys just go. Can you guys just go please.
KA: So what [the appellant] and so what [first name of the appellant's wife] told you to say you said it and it was all a lie
Complainant: Yeah
KA: That's what I'm trying to figure out
Complainant: Yeah
KA: So it's a lie. Say it's a lie. It's a lie
Complainant: Yeah
KA: It's a, no you have to say it
Complainant: It's a lie
KA: Thank you (AB 194)
31 The complainant was then asked the following questions in cross-examination:
All right. And when you [were] asked the question, 'So what [first name of the appellant's wife] told you to say was a lie', you said, 'Yes'. Is that what you heard?---Yep.
All right. Who - who did you understand the [first name of the appellant's wife] to be? The [name] that [KA] was referring to? Was it [the appellant's wife]?---Yeah.
All right. What had [the appellant's wife] told you to say?---I can't remember.
Can't remember. Was it - was it things against her husband, against [the appellant]?---Yeah.
Right. And you agreed, I think, with [KA] that they were a lie?---Yeah.
Right. Were there any other lies that you told against [the appellant]?---No (AB 137).
32 In re-examination the complainant said that the conversation with KA, that was the subject of the audio recording, had occurred at school and that she could not remember how the conversation had started. She said that she did not know it was being recorded and that the conversation was about the appellant 'doing rude stuff'.
33 The complainant was then asked in re-examination:
And what - in the conversation we can hear what [the appellant's wife] told you say [sic], 'All a lie' and you said 'Things against [the appellant]'. What exactly are you talking - can you tell us what you were - what [the appellant's wife] told you to say?---I can't remember.
Do you remember anything about what [the appellant's wife] told you to say?---No.
And when did [the appellant's wife] tell you to say these things?--- I can't remember.
When [the appellant's wife] spoke to you, was it before or after these incidents happened?---I think after.
And where did that conversation with [the appellant's wife] happen?---At home.
Now, what you told the police about what happened with - between you and [the appellant] - - -?---Yeah.
- - - was that the true or a lie?---Truth.
And where did you get that information from?---Myself.
Now what you told the police, is that what [the appellant's wife] told you to say?---Yeah.
Well, you said that [the appellant's wife] - the things that [the appellant's wife] told you to say were a lie, what was a lie and what was the truth? Do you understand, [complainant]?---Yeah.
Well, [complainant], can you tell us what was the truth and what was the lie?---I can't remember what was the truth and what was a lie (AB 139 - 140).
34 The complainant was then asked about the earlier complaints she had made against her natural father. She confirmed that she had made these complaints to the police so that she could live with her mother. However she said that the sexual things that she was referring to did in fact happen.
35 She was asked again about the incident that was the subject of count 3:
Can you tell us what happened once you got to the bedroom?---Once me and [the appellant] got back to his bedroom, he put his hand on my hand and moved it his dick [sic] and moved it up and down. And that's about it I can think of.
And how did - how did - and then did anything happen in the bedroom after that?---No.
And how did that end?---When [KA] was crying.
And where was [KA]?---In the lounge room.
And what do you mean by crying?---I mean she was scared of the dark.
So she - did she yell out or something, or?---Yeah.
And what happened when [KA] cried out?---Me and [the appellant] stopped, I went into the lounge room and calmed her down.
All right, so you went into the lounge room and calmed [KA] down, did anything happen with [the appellant] after that?---No (AB 141 - 142).
The complainant's brother (AX)
36 AX is the complainant's brother. His evidence was also given by way of a visually recorded interview that occurred on 25 September 2009. AX was 11 years old at the time.
37 AX said that at the relevant time the persons present at the appellant's house were him, his sister, the appellant's wife and her two sons. He said that two weeks before the interview the complainant had told him something. He said that this conversation had occurred in the house and in the presence of the appellant's son, SV. AX was asked:
Q. What did she say to you?
AX. I don't know. '[The appellant] did this.', um - - -
Q. Mm.
AX. Um. Can't remember.
Q. So when she said, '[The appellant] did this.', what did she mean?
AX. Like, um, [the appellant] grabbed her hand and put it down his pants.
Q. Okay. Yep. What else did she say?
AX. Mm, that was all I can remember.
Q. Okay. And what made her tell you?
AX. Um, I jus - - I just said, um, 'What's wrong?', and then she told me.
Q. Okay. And what made you ask her what was wrong?
AX. Um, she was upset?
Q. Mm hm. And when you say 'she was upset', how did you know she was upset?
AX. She was starting to cry (AB 84).
38 AX gave pre-recorded evidence on 2 December 2010. In that evidence he confirmed that what he had said in the interview was true. AX said that at the time the conversation occurred he, SV and the complainant were playing dodge-ball. He agreed that he accidentally hit his sister with his hand and that she became angry. He could not remember at what point the complainant had told him about what the appellant had done to her. He said that before playing the dodge-ball game he and the other children had been looking at a 'puberty book' that had photographs of naked men and women in it.
The appellant's son (SV)
39 SV was also interviewed on 25 September 2009. He was 8 years old at the time.
40 His evidence was that the complainant had told him and AX about an incident involving the appellant on an occasion when they were together in the house. In his evidence he referred to the complainant as his sister and AX as his brother. He said:
Q. And how do you know that this happened with your dad and your sister?
SV. My sister told me.
Q. Okay. What I want you to do for me, [SV], is tell me about the conversation you had with your sister when she told you.
SV. Well, we were fighting - -
Q. Mm hm.
SV. - - and I acciden [sic] - - and my brother accidentally punched her in the rude part - - -
Q. Mm hm.
SV. - - and, um, then she said 'Ow, don't do that to anyway my Dad's done it to me.', and then we're like, 'What?', and then she said that - - that our dad made her touch his rude part.
Q. Can you remember what words he used - - ah, she used when she told you about him touching - -
SV. 'Dad touched - - - I touched Dad's rude part.', and then we're, like, 'No, you didn't', and then she said, 'Yes.'
Q. Okay. Right. And then what happened?
SV. And then we - - then I went screaming to Mum and told her ... (AB 59).
41 A little later in the interview SV said that the complainant told him that the appellant had made her stick her hand down his jocks.
42 SV gave pre-recorded evidence on 3 December 2010. That evidence consisted of confirmation that what he had said in the interview was true. He gave a little additional evidence regarding the fight that had preceded the conversation. He also said that at the time that this occurred the appellant was away working at the mines.
The complainant's friend (KA)
43 KA was interviewed on 24 September 2009. She also gave pre-recorded evidence on 3 December 2010. KA was asked about the time she had slept over at the appellant's house. She said that the appellant had picked her up and that they had gone straight over to SM's house and stayed there for about an hour before going home for a shower and dinner. They then went back to SM's house to watch rugby and they had played darts and pool before leaving at about 11.00 pm. She said that the appellant, the complainant and herself had then gone back to the appellant's house and that they had got into their pyjamas and watched a movie in the lounge room. She said that the appellant had gone to bed at about 12.30 am and that at about 1.00 am the complainant went into the appellant's bedroom and came out about 20 minutes later.
44 KA was asked about the complainant going to the appellant's bedroom and said:
A. [A]fter a while she went into [the appellant] for some reason and then she came out about 20 minutes later and I didn't know - - I thought she was just going into the toilet or going to her room to get something and I ... (indistinct) ... called her and [the appellant] heard me so he came out with [the complainant]. So -
Q. How do you know [the complainant] went into [the appellant's] room?
A. Because when - when I asked [the appellant] why she was away she said she was having a meeting about [the appellant] and I go 'Why?' and she goes 'Because [the appellant] hurt me' and I was like -
Q. She was having a meeting about [the appellant]?
A. Yeah.
Q. Because [the appellant] hurt her?
A. Yeah.
Q. Did she tell you anything else about that?
A. No (AB 74 - 75).
45 KA said that she could not see the appellant's room from where she was in the lounge room because it was around the corner. She said she could not see the door. She could not hear anything from the appellant's bedroom because the television was still on.
46 Later in the interview she was asked whether the complainant told her anything about what had happened with the appellant. She said:
A. No, just that - - about how he hurt her and stuff.
Q. Yeah. What did she say about that?
A, That she didn't like it and stuff.
Q. Yeah. Did she say any - - what else did she say about it?
A. That's all.
Q. Yeah?
A. She goes, 'Oh, we had a meeting about [the appellant] hurting me' and I go 'Did you like it?' and she goes 'No', had [the appellant'] hurt her and she goes 'No', and that's all.
Q. Okay. Did she tell you how [the appellant] hurt her?
A. No.
Q. No? Did she tell you any more about the meeting they had?
A. No (AB 78).
47 In her pre-recorded evidence KA said that when she, the complainant and the appellant went to SM's house to watch rugby there were three adults present; the appellant, SM and his wife. She was asked about what she and the complainant had done at SM's house:
[W]hat were you and [the complainant] doing when you were at the house with the rugby?---We were playing darts and pool.
And were you ever in the lounge room?---What?
Were you - were you ever in the lounge room?---Only once, to ask for a drink.
And what about [the complainant], was she in the lounge room?---Yes.
And do you know when she was in the lounge room?---No. She went in there when I went to the toilet.
And was she in there for long?---No (AB 178).
48 She said that when they went back to the appellant's house they were watching television in the lounge room. She said that the appellant's sons were asleep in their beds and the appellant's wife was away interstate. She said that she was sitting on one mattress and the appellant and the complainant were on another on the floor of the lounge room.
49 KA was asked about the recording that she had made in the school yard. She said that this recording was made days after the sleepover and that she had made it because her mother wanted to know 'if it was true or not'. She said that her mother was a friend of the appellant. She said that it was her mother's idea and that her mother had said 'I know that [the appellant's wife] told her to do it because [the appellant's] - [the appellant] even knows about it.'
50 In cross-examination KA said that she had spent the whole time with the complainant at SM's house. She said that they had spent that time in the back room playing darts and pool with SM's children. She said that at the appellant's house they had watched a movie and that she had been left alone in the lounge room. She said that she called out to the complainant who then came out with the appellant from his bedroom. She said that what caused her to cry out was that a cat had jumped on her and scared her. She said that she thought that the complainant had been in the bedroom with the appellant because the complainant told her that she had been having a meeting with the appellant. She said that the appellant came back into the lounge room first followed by the complainant about two minutes later. When asked to describe the complainant's mood KA said that 'she was still happy'. She agreed that the complainant thought it was funny that the cat had given KA a fright. They had then had something more to eat and watched another movie.
The appellant's wife (CV)
51 CV gave evidence that the complainant and her brother had come to live with her and the appellant on a fostering basis in October 2008. She said that both she and the appellant had a close relationship with the complainant and her brother.
52 CV said that on the morning of 10 September 2009 her son SV and AX had come running down the hall and banged on the door whilst she was in the toilet. As a consequence of what they told her she spoke to the complainant. She said that the complainant told her that the appellant 'made me play with his rude part'. She said that the complainant told her that this had occurred when CV had been away. She said that the complainant's mood was very awkward and withdrawn, she did not want to make eye contact and was speaking very quietly. She said that at the time that she was told this the appellant was away working. CV confirmed that she had been away in Adelaide for a conference on the weekend of 28 - 29 August 2009.
53 CV also gave evidence about a series of text messages received by her from the appellant. These were messages received between 17 September 2009 and 18 November 2009 on her mobile phone. These messages were relied upon by the prosecution as being implied admissions by the appellant. In the second message received at 5.31 pm on 17 September 2009 the appellant texted:
Ok pls dont tell i twill [sic] sign every thing over to you and never c u again (AB 195)
- CV said that this message was received shortly after the appellant had been released on bail after being charged by the police.
54 On the following day, 18 September 2009, at 1.09 am the appellant texted:
What i have done is unforgivable and i know that and i can not live with that (AB 195)
- At 1.46 am on the same day the appellant texted:
You do know he is as guilty as me ? (AB 195)
At 3.44 am the appellant texted:
Pls dont show the cops any texts i send you (AB 195)
At 1.23 am on 19 September 2009 he texted:
What ever i cant live with this going around my head it is driving me insane (AB 195).
At 8.52 am on the same day he texted:
Im not a tamp and i will be dead b4 they put that label on me (AB 195)
And at 9.01 am he texted:
I can not live with people knowing that (AB 195)
56 CV conceded in cross-examination that she had slept with SM both before and after the complaints were made to her by the complainant. She also conceded to some other infidelity. She said that the appellant was convinced that she had been having an affair for a long time but that that was not true. In re-examination CV said that whilst she had been having sex with SM over an 18-month period this was with the appellant's knowledge and permission.
57 CV was recalled for further cross-examination. On that occasion she was asked whether she had ever asked the complainant to make things up about the appellant. She said she had not and that she had never asked the complainant to lie about things that had happened between her (the complainant) and the appellant.
The appellant's friend (SM)
58 SM said that he and the appellant were friends having met about 15 years ago. He said he would see the appellant on a daily basis when the appellant was in Perth and not working at the mines.
59 SM gave evidence of a conversation he had had with the appellant. He said that the appellant said that 'he could have a chance with' the complainant once he knew that she had been molested. SM said he responded by saying 'You're sick. Don't do it. You're meant to be a step-dad.' He said he thought that this conversation had occurred shortly after the appellant and his wife took custody of the children. He estimated that this was around March 2009.
60 SM said that there was a subsequent conversation when the appellant had arrived back from a trip to Rockingham. SM was asked about what the appellant said:
He said, 'Don't try to give [the complainant] a kiss because she's got a mouthful of cum', and that was - that's sick. And I said, 'Well, what do you mean?', and he goes, 'We were driving back and', he turned - he said something to her like, 'Why don't you just suck my dick?', and apparently she did. So - - -
MATTOCKS, MS: Now, did you say anything in response to that?---'You're sick. Don't do it. You're meant to be protecting her.' (ts 304 - 305)
- SM said that there was further conversation with the appellant:
That was when he told me that he was in, he was in bed and [CV] was away again and that - I can't remember if they went to bed together or if she came in afterwards, but he turned around and told me that she gave him a head job and he went down on her and she had an orgasm or something and. And he blew his load (ts 306).
SM said that in response to that he said:
Yeah, I said don't do it - told him not to do it again. And he turned around and says, 'I know it's wrong but she's good and she knows what she's doing.' (ts 307)
SM said there was a fourth conversation:
Yeah, we were drinking at my place one night and he - he stayed over, and he had the two kids. And I know we drank a fair bit that day. And he - he came - he ended up staying the night, and he - the next day he told me that [the complainant] started - went down on him when they were sleeping in the lounge, and he tried to put his dick in her, but he wouldn't fit. And then the next thing, he turned around and asked me if I'd break her in, and then he could go, cos I was smaller (ts 308).
He said that this conversation occurred about a month before everything came out in September 2009.
61 SM said that there was a fifth conversation on what was described as 'rugby night'. He said that on this occasion the appellant came over to his house with the complainant and KA. On this occasion SM said that the appellant told him that KA had been abused earlier and that 'he had a chance with her, with both of them'. He said that on this night he and his wife, the appellant, KA and the complainant were present. He said that his own children were away for the night. He said that the five of them were watching rugby in the lounge room. The appellant was sitting next to the complainant and they were both underneath a blanket with their arms covered. He said that at one point he went outside for a cigarette and that KA also left the room for a while. He said that at the end of the match the appellant had turned to him and said 'did that look suss'. SM said he did not see anything and that he left it at that.
62 SM said that he saw the appellant the next day and that the appellant told him something that had occurred the previous night after he had returned home:
[H]e said that they sat - went back there and started watching a movie and [the complainant] was on one side and [KA] was on the other side and started - [the complainant] started playing with him and then [the complainant] reached - [the complainant] reached over and grabbed [KA's] hand to try and put it on his dick, and she pulled away. And - so he went to bed. And then apparently - - -
...
THE WITNESS: No, this is what [the appellant] said to me. I don't know if happened, that's why I'm saying apparently. He told me that [the complainant] came in a little while later and started sucking him off. And next minute, [KA] screamed, and so she left the room and went back to sit with [KA]. And then about 8 o'clock the next morning, [the complainant] came in and said, 'I've got something to finish,' and blew him off, and then walked out (ts 316).
63 SM said that although on most of the occasions that these conversations occurred he and the appellant had been drinking, he had a clear recollection of them because he found them to be disgusting. He said he did not say anything about it previously because he did not know if it was true and it would have been his word against the appellant's.
64 SM conceded that there had been a sexual relationship between he and the appellant's wife. However he said that this was part of an arrangement which had also involved his wife and the appellant. It was put to SM that he had made up his evidence in regards to the conversations and he denied that that was so.
65 Because there were clearly differences between the conversations and any of the alleged incidents, the State sought to rely upon the conversations as evidencing a sexual interest by the appellant in the complainant rather than as being admissions. The only conversation which was said to have the characteristics of an admission was the 'did that look suss' comment made on the rugby night.
Police evidence
66 Detective Senior Constable Gavin Kerber gave evidence of an interview with the appellant. In the interview the appellant denied that the alleged incidents had occurred, but did recall KA staying over at his house on one occasion. He said that KA had woken up crying in the night and that he had come out of his room and that the complainant had been in the toilet. He said that KA and the complainant were sleeping in the lounge room and that he had gone back to bed after this incident. He said that he did not know what time this had occurred but he walked out of his room in a daze and KA was standing in the hallway. He said that KA was asking for the complainant and that he called out for the complainant who was in the toilet. He said that he took KA back to the lounge room. He said that the next morning the complainant told him that she and KA had stayed up after that watching movies. In the interview the appellant also said that at around the same time he and the complainant had been at SM's house to watch rugby. His wife had been away in Adelaide at this time.
67 In the interview the appellant said that the only time that anything had happened between he and the complainant that was inappropriate was an occasion when he was sitting on the couch and the complainant was playing with his leg and started moving it up. He said that he told the complainant that this was inappropriate behaviour and it was reported to DCP.
68 He was asked in the interview about a conversation he had had with a friend, CS. He conceded having a conversation with CS whilst in a car travelling back from York. He said this conversation was to the effect of what, hypothetically, he would do if the complainant ever did anything of a sexual nature. He said that he responded by saying that he would tell someone. It was put to him that the conversation, according to CS's recollection, was different in nature and involved admissions of sexual contact by the appellant with the complainant. The appellant denied this.
The appellant's friend (CS)
69 CS said that she had known the appellant for 17 years and that at the relevant time she would see him three or four times a month. She said that she was friendly with both the appellant and his wife.
70 CS said that in about June or July 2009 the appellant asked her if she wished to accompany him on a car trip to York. She said that the appellant was dropping his son, SV, off at the appellant's parents' place in York. She said that there was a conversation in the car on the way back to Perth:
He said, 'I have something to tell you.' He proceeded to tell me that - that [the complainant] walked into the room, sat on the bed. He pretended he was asleep. That she gave him oral sex. He ejaculated, she swallowed it and she left. She got up and left the room. I said the conversation made me feel sick and it kinda ended there. Yeah. I didn't really know what to make of it, whether it was lies or - or the truth. Yeah, it was very hard, I found it very hard to deal with (ts 370).
71 CS said that she had not been influenced in her evidence or her recollection of events by discussions that she had had with the appellant's wife, SM and SM's wife after the allegations had come to light. She maintained that the conversation in the car with the appellant had occurred and that she had a clear recollection of it.
SM's wife (LM)
72 LM gave evidence that the appellant, the complainant and KA came around to her house on the evening of a rugby match. She said that they all sat together in the lounge room watching the match on television. She said that later in the evening the complainant and the appellant were sitting next to each other and the complainant was cuddling up to the appellant. She said that they were both under blankets. She then said:
[A]nd there was movement for a little while. I'm like looking and sort of okay she's - I don't know, didn't think, didn't say anything. I'd looked a couple of times and then [the appellant] said, 'That looks suss' directing it at [SM], in [SM's] way, and he was, 'What?' and I don't think he said anything (ts 419).
- She described the movement as an 'up and down of the blanket going up and down in the lap, close to the stomach area' (ts 420).
73 LM was asked about her observations of the relationship between the complainant and the appellant. She said that she did find that on 'quite a few occasions' the complainant would look to be 'a bit too close' to the appellant and she would 'cuddle up to him or sit right next to him' (ts 422 - 423).
The appellant's friend (BM)
74 BM said that they had known each other for many years although they did not see each other for approximately 15 years before they met again through SM.
75 BM said that on the night the appellant was arrested he received a telephone call from the appellant. He described it in the following terms:
I was actually at the pub myself, having a beer. And I received a phone call from [the appellant], very upset, very - well, I could tell he was very drunk as well. And - and he said - he said to me he'd made a big mistake.
...
He said that he'd fucked up and that he'd made a big mistake and that he was going to plead guilty. And when I asked him what it was, he didn't tell me what it was, but he just kept saying that he'd fucked up, he'd fucked up and yeah, and that he was pleading guilty about it, so (ts 438).
The appellant
76 The appellant gave evidence in his defence. He denied that the incidents had occurred. He said that there had been an incident where the complainant had rubbed his thigh in what he thought was an inappropriate way and that this had been reported to DCP. He said that this had occurred about four to five months before the present allegations had been made. He said that there were other behavioural problems in relation to the complainant. He said that these included grabbing his sons' genitals and showing the boys her 'private parts'. He said that this occurred in the first four months and then started dying down (ts 450).
77 The appellant agreed that on the night of 29 August 2009 he had watched the rugby at SM's house together with the complainant and her friend KA. He said that at this time his wife was in Adelaide getting an award. He agreed that at one stage of the night he and the complainant were sitting next to each other but said that others changed positions at various times throughout the course of the night. He did not recall changing his position (ts 457). He said that it was cold that night and everyone had blankets. He said that nothing happened under the blanket when he was sitting next to the complainant and that he did not recall saying anything to the effect that 'that looks suss'. He said he thought he sat next to the complainant for 10 - 15 minutes in total.
78 He said that when they returned home the complainant and KA were on the floor on mattresses in the lounge room. He said he watched one movie with them and then went to bed. He said that other people were asleep in other rooms including the au pair. The next morning the au pair was awake with the girls and made breakfast for them. He denied that the incident referred to in count 3 occurred.
79 The appellant denied that any of the conversations with SM as described by him had occurred (ts 461). He said that there were no discussions with SM about issues of a sexual nature involving the complainant other than the matter that was referred to the DCP. He also denied the conversation described by CS and said that whilst they had had a discussion in the car on the way to York it related to the matter that was disclosed to the DCP. As regards the conversation with BM the appellant said that he could not recall it but suggested that the reason that he might have said those things was that his wife had told him that he should admit it all to save the marriage and not put the children through court (ts 470).
80 As regards the text messages the appellant said that those that appeared to be admissions of guilt were in fact references to an affair that he believed was taking place between his wife and SM. In particular the text message that referred to what he had done as being unforgiveable meant that it was unforgiveable that he had let his wife sleep with SM and that it had got out of hand when she started doing it behind his back (ts 471). He said that the text message that referred to 'he is as guilty as me' was a reference to SM being as guilty as he was for the conduct of the relationship. He said that the text message that referred to not showing the messages to the police was sent because he was concerned that they would be misinterpreted in court. He said that the text message that referred to him not being 'a tamp' was a reference to a child sex offender and his statement 'I can't live with people knowing that' was to his belief that his wife was ringing up his friends on the mines telling them that he had already pleaded guilty (ts 473).
Merits of the appeal
81 The ground of appeal challenges the adequacy of the evidence to support a guilty verdict on count 3. Accordingly in the circumstances it is necessary for this court to make its own assessment of the evidence and determine whether it bears the interpretations that have been placed upon it by the appellant. It will also be necessary to consider the significance of the evidence in the overall context.
82 The most significant issue raised on this appeal is the question of the reliability and credibility of the complainant. In assessing these matters in respect of the complainant it is necessary to take into account that she was a child witness and any possibility that she was confused or misunderstood questions that were put to her.
83 There was some evidence to suggest that the complainant had some intellectual impairment. In her evidence the appellant's wife said:
[The complainant's] always been a - [the complainant] always had developed mental delays. She was - when she started primary school she was at the - went to a speech and hearing centre for the first, first few years, and she was on modified programs at school. Her reading was several - her reading and maths were several years behind where they should be. For example, you know, she was in year seven but the spelling that was being sent home was - had words like 'cake' on it.
... She struggles to understand complicated concepts. You know, she doesn't really think in an abstract manner. You can't overload her with her information, you know, because she doesn't take it in and retain it. You know, she'll follow simple instructions really well. You know, she was - she could get ready for school on her own and stuff, and stuff like that, you know, or empty the dishwasher and things like that. But when it came to complicated concepts, she just, yeah, was several years behind where she - where she should have been (ts 232).
84 In his own evidence the appellant accepted that the mental capacity of the complainant was below her age and that she could understand things that were said to her but that it might be necessary to say it twice.
85 During the course of both her interviews and pre-recorded evidence there were a number of occasions where the complainant seemed to misunderstand fairly simple concepts. For example on one occasion she confused months with years (AB 8). She was also unaware that school years are separated into four terms (AB 9). On another occasion she confused whether the questioner was talking about a part of her own body or that of the appellant (AB 44). In the interview on 17 September 2009 she appeared to be confused about the order of the months of the year (AB 51).
86 When she commenced her pre-recorded evidence the complainant said that there were three people in the room with her when there were in fact two. When she was asked in cross-examination whether the appellant had ejaculated she initially agreed that he did before saying that she did not understand what the word meant. This would tend to indicate that she was suggestible.
87 Whilst all of those matters are relevant and are properly drawn to the court's attention by the respondent, it must be remembered that the complainant was giving evidence over a lengthy period of time and these indications of confusion are relatively few in number and are not necessarily, in themselves, indicative of a witness who had overwhelming difficulties in understanding.
88 As to the critical passage upon which the appellant relies (see above at [29]), the appellant submits that the interpretation of this evidence is that the complainant was admitting that the allegations that she had made against the appellant including that in respect of count 3, were untrue. Particular care has to be taken with a child witness to ensure that answers given which, on their face, appear to be inconsistent with other evidence bear the meaning which the cross-examiner assumes. There can be a danger in asking questions that are negative in form or overly leading in character, even in cross-examination. That danger is that the witness whilst appearing to agree may not in fact intend to do so. A cross-examiner may be understandably reluctant to clarify any ambiguity, but if they fail to do so it becomes difficult subsequently to argue that no ambiguity exists.
89 In the present case the fact that the complainant admitted that she had made complaints about her natural father in order to be returned to her mother and had a similar motivation in respect of the appellant does not necessarily lead to a conclusion that those complaints were false. There is, of course, a distinction between the reason that a person chooses to make a complaint and the truth or falsity of that complaint. It would be open to infer that the complainant had made complaints against her father and the appellant in order to be reunited with her mother but that the complaints were nonetheless true. That possibility was not explored in the cross-examination.
90 In any event it is difficult to draw any conclusion from the reasons given for making the complaints because immediately following those questions the complainant was asked whether she had told anybody that these 'things' are lies and she said no. That answer contains an implied refutation that the allegations were untrue. Furthermore, there is a difficulty with the question 'and they weren't true, were they'. The negative answer to this question might be a rejection not an acceptance of the proposition. These possibilities were also not explored.
91 The passage in reference to what the appellant's wife had allegedly told the complainant to say (see above at [31]) is similarly problematic. The complainant said that she could not recall what the appellant's wife told her to say. However, she then said that what she told the police about what happened with the appellant was the truth. She also said that what she told the police is what the appellant's wife had told her to say but she accepted that in the school yard conversation she had said that what CV told her to say was a lie. She is then asked whether she could differentiate between truth and lies. It is at that point that she says she cannot remember what was the truth and what was a lie. It is notable that she uses the past tense; that is, she is not conceding that her evidence to the court in regard to what the appellant did to her is a lie. Nor does she appear to be saying that in general terms she cannot distinguish between truth and lies. Rather, what the complainant appears to be saying is that she cannot recall what the appellant's wife told her to say but that, notwithstanding that, what she is saying to the court is truthful.
92 The evidence in regard to the school yard conversation does not refer specifically to any of the allegations but only to what CV had told the complainant to say. At no point in the evidence is there any identification as to what it was the appellant's wife had told the complainant to say. The appellant's wife did not concede that she had put the complainant up to say anything and the complainant said that she could now not recall what the appellant's wife had said to her. The school yard conversation is also problematic in that it is clearly not a considered response but a conversation between children in a playground in which the complainant is being pressed to give what was self-evidently the desired answer. It would be open in these circumstances to reject it as being an admission by the complainant that she had made false complaints about the appellant.
93 When properly analysed, neither the cross-examination nor the school yard conversation necessarily bear the interpretation that is submitted by the appellant. Furthermore, taking into account the demeanour of the complainant in the interviews and in cross-examination it cannot readily be inferred that she was accepting the falsity of her evidence in respect of the allegations. The appellant suggests that the relevant passages were crucial inconsistencies in the evidence of the appellant. However, in giving her evidence it is notable that there was no change in the appearance or demeanour of the complainant that would indicate any understanding on her part that she was giving answers that were significantly at odds with her other evidence.
94 It is also important to take into account that when re-examined, the complainant repeated her evidence as to what happened in relation to count 3. She agreed that she had made complaints with a hope of being reunited with her mother but said that the matters she had complained of were true.
95 It was submitted by the appellant that the verdicts of the jury indicated that they did not accept the complainant was a truthful and reliable witness in relation to the incidents that were said to constitute counts 1 and 2 on the indictment. In my view that conclusion does not necessarily flow from the verdicts. The jury may well have accepted that the complainant was a generally truthful witness but not reliable in respect of counts 1 and 2. There were very significant differences in her various accounts of what occurred at SM's house and when it had occurred. Indeed, in her evidence at trial the complainant did not refer at all to the act of sexual penetration that was the subject of count 2. There were also differences between her account of the circumstances of the visit to SM's house and what other witnesses, including KA, said about those circumstances. Furthermore, the jury might well have considered that the opportunity to commit the acts the subject of counts 1 and 2 was significantly different from that in respect of count 3. There is also the relevant fact that in respect of count 3 the evidence of KA provided confirmation of the opportunity and the surrounding events, as described by the complainant. It is also relevant that the complaint evidence of AX, SV and CV is consistent with one act of indecent dealing having occurred.
96 In respect of a ground of appeal of this nature it is important to carefully review the entire trial record. I have viewed the complainant's visually recorded interviews and pre-recorded evidence. I have also taken into account the rest of the evidence at the trial. It is true that the balance of the evidence would not in itself be sufficient to establish guilt beyond reasonable doubt on count 3. However, the evidence of the complainant was bolstered by the recent complaint evidence of SV, AX and the appellant's wife. That evidence was capable of being viewed as consistent with the complainant's evidence as to what had occurred in respect of count 3.
97 The evidence of SM and CS was evidence which, if accepted, strongly indicated the existence of an inappropriate sexual interest by the appellant in the complainant. The fact that there were a number of such statements made by the appellant to two different witnesses on occasions that were close in time to the alleged incident strengthened the probative value of this evidence. Neither of these witnesses was significantly undermined in cross-examination.
98 As regards the text messages, the appellant's explanation for them was, in my view, unconvincing. Some of the text messages were certainly consistent with a concern on his part that he was being set up and that his wife had been conducting an affair with SM. However, others are clearly not consistent with those interpretations. The appellant's attempt to explain references to pleading guilty as being a reference to only seeking to resolve matters at the instigation of his wife and not to any expression of guilt on his part lacked credibility.
99 Having viewed the complainant's evidence I am not of the view that the alleged inconsistencies were so clearly of that nature as to lead to a conclusion that a jury acting reasonably should necessarily have entertained a reasonable doubt. Taking into account the whole context of the complainant's evidence, the nature of the questions asked and her intellectual abilities, I am unable to conclude that any of the passages referred to should be interpreted as an acceptance by the complainant that her allegations were untrue. At best those passages were ambiguous. Having assessed all of the evidence, in my view it was open to be satisfied beyond reasonable doubt that the appellant committed the act that was the subject of count 3.
100 Indeed, having considered the whole of the evidence I am not satisfied that there is a 'significant possibility' (M v The Queen) that the verdict of guilty in respect of count 3 was wrong or that, on the evidence, a reasonable doubt as to the appellant's guilt must have existed.
101 In these circumstances the appeal must be dismissed.
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