LH v The Queen

[2020] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

LH v R [2020] NSWCCA 262

Hearing dates:

16 July 2020

Date of orders:

15 October 2020

Decision date:

15 October 2020

Before:

Payne JA at [1];
Wilson J [2];
Ierace J [115]

Decision:

1. Leave to appeal against the convictions recorded against the applicant with respect to counts 2 and 3 is refused

Catchwords:

CRIME – appeals – appeal against conviction – child sexual assault offences – asserted inconsistencies in evidence of Crown witnesses – whether the verdicts were unreasonable – whether there was a miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Libke v The Queen (2007) 239 CLR 599; [2007] HCA 30

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

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 376 ALR 478; [2020] HCA 12

R v Dudko (2002) [2000] NSWCCA 336; 132 A Crim R 371

R v Milat (Court of Criminal Appeal (NSW), 26 February 1998, unrep)

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Principal judgment

Parties:

LH (Appellant)
Regina (Respondent)

Representation:

Counsel:
D Shridhar (Appellant)
C Curtis (Respondent)

Solicitors:
Total Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/00194404

Publication restriction:

Nil
Section 578 of the Crimes Act 1900 prohibits publication of anything by which the complainant might be identified

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Gartelmann SC DCJ

File Number(s):

2018/00194404

Judgment

1. PAYNE JA: I have read the decision of Wilson J in draft. I agree with the orders proposed by her Honour. Having independently reviewed the evidence, I have concluded that the verdicts returned by the jury were well open to them.

2. WILSON J: From 26 to 30 August 2019, the applicant stood trial before the District Court of New South Wales, sitting in Newcastle, on an indictment charging him with one count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1), and two counts of having sexual intercourse with a person of or above the age of 14 years and under the age of 16 years contrary to s 66C(4) of the Crimes Act 1900 (NSW) (counts 2 and 3). On the last day of trial, the jury returned verdicts of guilty to each count. On 13 December 2019, a sentence of 6 years imprisonment, with a non-parole period of 4 years and 6 months was imposed upon him for those crimes. The applicant seeks leave to appeal against his convictions on counts 2 and 3.

3. The applicant proposes a single ground of appeal:

1. “That in all the circumstances the verdict of the jury on counts two and three on the indictment was unreasonable and therefore there was occasioned to the appellant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).”

4. This ground does not involve a question of law alone, and leave is required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to advance it.

5. The complainant with respect to all counts was the applicant’s step-daughter. Section 578A of the Crimes Act operates to prohibit the publication of anything that identifies her or which is likely to lead to her identification. For that reason, the applicant will be referred to only as LH, and the complainant as HH. Others referred to will be similarly anonymised.

The Proceedings in the District Court

6. In summary form, the Crown case advanced at trial was as follows.

7. The complainant turned 14 on 26 September 2012, and 16 on 26 September 2014. The offences took place after she turned 14, but before she turned 16.

8. The applicant had been in a relationship with the mother of the complainant, KG, since meeting her in 2001. KG had two children to an earlier relationship, being the complainant and her older brother, JM. The applicant and KG married in 2004, when HH was five years old. Having known the applicant in that capacity since she was an infant, the complainant referred to and regarded him as her “dad”.

9. When HH was 11 years old, she moved with her brother, her mother, and the applicant, into a shed on a rural property (“the property”). This property was owned by the applicant’s mother, who lived in the main house with a companion. There was some dispute about the date on which the family moved to the property in this appeal, but it was before 2010. The charged offences all occurred while the family were living at the property.

10. On 18 August 2010, perhaps two or three years after moving to the property, KG and the applicant had a daughter, DH. Not long after, both the applicant’s mother, and his mother’s companion, died. The property passed to the applicant’s ownership. The applicant, his wife and the three children moved from the shed into the now empty house.

11. The first time that something of a sexual nature occurred between the applicant and the complainant was when HH was 14 years old. By this time the family had moved out of the shed and into the house on the property.

12. The complainant gave evidence that the incident occurred on a Sunday, during the school holidays, at a time when her mother, brother and half-sister had gone to church. She and the applicant had stayed at home. Styrofoam ceiling tiles in HH’s bedroom were being taken down as part of renovations to the main house, and her bed had been moved into the lounge-room to facilitate that process. The complainant was in the lounge room watching “Star Wars Clone Wars” on the television. She had watched about two episodes before the applicant came in, took her cereal bowl back to the kitchen, and then joined her in the lounge room.

13. The complainant gave evidence at trial that the applicant said to her, “you’ve probably wanted it by now, and you probably wanted – wondered about it, and you’re old enough.” She initially deposed that he had also told her, “we can just keep this our little secret”, but corrected herself later in her evidence, noting she “got confused mixing it up with the later thing where he said not to talk about it”.

14. The applicant touched the complainant’s breast over her clothing, before kissing her on the lips and touching her on the outside of the leggings she was wearing, on the area of her vagina. He touched her for some minutes. This touching constituted count 1 (concerning which, there is no application).

15. As the applicant began to remove the complainant’s long-sleeve top, the sound of the family’s four-wheel drive car could be heard as it was driven up the gravel road that gave access to the property. The applicant stopped and moved away from HH, walking to his bedroom. HH put her shirt back on, turned off the television and picked up a book to read. She described feeling “numb, enraged, confused, every emotion at once, whilst feeling nothing” when the applicant had kissed her. She felt scared and ashamed and did not tell her mother about what had happened.

16. About two or three weeks after the incident giving rise to count 1, on an occasion when the complainant was at home alone with the applicant, the applicant again approached HH. She had been reading on her bed, the bed having been returned to her bedroom at the completion of the work in the room. The applicant called to her to come to his bedroom.

17. When HH went into the bedroom that the applicant shared with her mother, the applicant was lying on his king-sized bed watching television; the complainant joined him and began watching the show that was airing. The applicant started touching HH’s breasts and vaginal area on the outside of her clothing. After about five minutes, he stood up and pulled HH towards the edge of the bed, pulling her pants and underwear off and lowering his pants. He then had penile-vaginal sexual intercourse with HH. After a few minutes the applicant withdrew his penis and, telling HH that “it’s going to be our little secret”, he left the bedroom, going in to the bathroom in the house. This incident was reflected by count 2.

18. HH left the house, climbing a tree at the back of the property and remaining there until her mother returned from what HH thought had been a shopping trip. She did not tell her mother about what had happened because she was scared, ashamed, and did not know what to do.

19. About two weeks after this incident, the family moved for a short time back to the shed on the property, due to renovations occurring in the main house.

20. HH gave evidence that, on a day at around this time, her mother left the property to take her brother to a railway station to catch a train. HH was left alone with the applicant and her much younger sister. HH was reading, whilst DH was watching children’s programmes on television; both were in the lounge room of the shed. The applicant called HH into the bedroom of the shed and, although frightened, she complied. When she entered the applicant locked the door behind her. He turned her around and, bending her over at the waist, pulled her pants and underwear down. Standing behind her, he then had penile-vaginal intercourse with her. HH recalled that it continued for about two minutes, before the applicant withdrew. This incident was charged as count 3.

21. The applicant left the bedroom and went to the bathroom. At some point when still in the bedroom, the applicant told the complainant, “Don’t worry, it’s our, it’s our secret, don’t tell your mum”. When her mother returned from the train station HH did not tell her about what had happened because she was “scared and ashamed and I didn’t want to rock the boat and stress people”.

22. HH said that there were many other occasions where the applicant touched her sexually. She described some of these instances, to place the charged counts in the overall context of the relationship with the applicant. The complainant said that on four or five occasions when she had accompanied the applicant to a neighbouring property to attend to the family cows, or undertake some farm work there, the applicant had bent her down over the seat of his ute and, standing behind her, had penile-vaginal intercourse with her. On another occasion, by which time the complainant had turned 16 and left the family home, the applicant had taken her out in his car, allowing her to drive, so that she might increase the amount of hours she had driven to enable her to obtain a driver’s licence. When the complainant stopped the car to use a public toilet at a local cemetery, the applicant followed her in to the toilet and, grabbing her from behind, pulled her pants down and had penile-vaginal intercourse with her.

23. The complainant’s mother gave evidence of an occasion when she had returned home and, “as I came in the door [HH] ran out of our bedroom and was kind of adjusting her top”. Her mother had asked the complainant what was going on but she had said “nothing”.

24. The evidence of these other, uncharged, incidents was left to the jury as context evidence.

25. In December 2014, not long after HH had turned 16 and obtained her learner driver’s licence, her mother and the applicant sold the property and bought a caravan to go travelling. The complainant refused to accompany them, as did her brother. In March 2015, about two months after her mother and the applicant had left with DH, HH became aware that her mother and the applicant had separated.

26. The complainant did not tell her mother about what the applicant had done to her even then, as she did not “want to drop a bombshell on her and cause her more stress and worry”, and did not want her mother to be disappointed in her.

27. In January 2016, HH moved to northern NSW with her mother and DH. They joined a local church. It was to a friend from church that HH first disclosed the abuse, later in that year. The complainant told her friend, Ms B, that her stepdad “did shit to me”, clarifying in answer to a question from her friend that she had meant sexually. At trial Ms B gave evidence that HH had told her it had happened on “multiple occasions”, approximately from the age of 14 until she left home. Ms B asked HH whether it was fondling or more than that, and HH told her “it was more than that”.

28. Ms B felt compelled to report the complaint to the pastor of the church, because the complainant was a child. The pastor then informed the complainant’s mother.

29. After being told of the complaint, HH’s mother asked HH what had happened. HH told her that the applicant had sexually assaulted her. In evidence, her mother could not remember the exact words used by HH, but she remembered that HH said that the applicant had “done something sexually to her”. On 31 May 2016, after HH had spoken to her mother about what had happened, she reported the assaults to police.

30. In 2017, HH also told another friend from her church, Ms J, about the applicant sexually abusing her. Ms J deposed at trial that, when she and HH were driving home one night following a rehearsal for a play in which they were both involved, HH told her that “she got raped by her stepfather”. She recalled that HH:

“kind of freezed up a bit, she got a bit tense and we were driving and she slowed right down and yeah, she was – yeah, long pauses when she was telling me”.

31. HH told Ms B that she:

“would get raped on the couch when she was alone and when her mum was out…she said she was about 14 and it went on for a few years and that I was kind of like, like, “What do you mean” I was- yeah, and she was- she just started by, you know, he was stroking her hair, telling her that she was beautiful and it escalated from there and that’s all she told me”.

32. In cross-examination, Ms J confirmed that HH had used the word “couch” and had not mentioned a bedroom.

33. On 6 March 2018, HH attended Byron Bay Police Station to make a phone call to the applicant, which was lawfully recorded by police. The audio recording was played to the jury with a transcript marked for identification. During the phone call, HH asked the applicant why he had had sex with her:

“Complainant: Why did you have sex with me?

Applicant: I don’t know, it’s something I never wanted to happen but it did and I still can’t figure it out myself. Does that make any sense?

Complainant: Kind of, not really.

Applicant: I always treated you as my daughter, I guess I have never forgiven myself for that, um, yeah. I kinda, yeah. You’re kinda a special young lady to me and I didn’t really want to do that to ya, but it happened and I still don’t know why it happened but it happened. I think it was just a part of my life with everything happening back then I don’t know. Why?

Complainant: Just curious to be honest.

Applicant: Can’t you figure it out either?

Complainant: Not really.

Applicant: I just hope one day you can forgive me for it.”

34. The applicant was arrested on 23 July 2018. He was interviewed by police officers, and the interview was electronically recorded. The audio-visual recording was played to the jury at trial.

35. When asked by the interviewing officers if he had anything to say about sexually assaulting HH when she was under 16, he responded:

“Don’t even have any recollection of it actually […]. There’s been that much happening with mum dying and [her companion] dying and my daughter got whooping cough. She was in hospital. I’m trying to look after him, mate, I wouldn’t know what happened back then. I wouldn’t have a clue. I’m not lying. I just don’t know.”

36. The applicant asked the officers if the inquiry related to vaginal penetration of a child, saying that he did not remember doing “anything like that”. He said it was possible that “I could have put me hand on her wrong, for all I know. I don’t know”. He went on:

“Oh I don’t honestly remember do any, seriously, anything like that. I might have put my hand around her at times and touched her on the boobs, or something but that’s that happens anytime. You might go to hug somebody and they move the wrong way and you end up with a handful of boobs… I don’t remember anything else”.

37. When asked how old HH would have been when the applicant touched her on “the boobs”, he said 14 or 15 and added:

“mate if you’ve got a daughter and you go to hug them, they turn the wrong way…but you realise that you’ve actually touched them…it freaks you out…wouldn’t have done it intentionally”.

38. He was asked about the allegation the subject of count 1 but said that he didn’t “remember doing anything like that”. He agreed there was a day when he had stayed home with HH when the rest of the family went to church, but did not remember doing anything of the nature complained of. He said:

“I don’t have any recollection of doing anything like that to [HH].”

39. When asked about the complaint the substance of count 2 he said:

“I didn’t do nothing like that.”

40. He denied ever inserting his penis into his step-daughter’s vagina.

41. He denied the allegations, and denied ever saying anything like “this is our secret”. He recalled, however, that there was work being done on the house on the property at the relevant time, including sanding and painting the floors, and painting the ceilings.

42. The applicant said that, “possibly”, the family had moved back into the shed whilst this work was being carried out, and agreed there were occasions when he was alone at the property with HH and DH. He denied any incident of the nature complained of by count 3 that had occurred in the shed. He confirmed however, that there was a lock on the door of the bedroom that he had occupied in the shed.

43. He similarly denied those events which were the subject of context evidence, although he confirmed that there were occasions when he and HH had gone to the neighbouring property in his ute, and there had been a time when he had driven with the complainant to a local cemetery in the course of HH driving his ute to increase her learner driving hours.

44. The applicant was next asked by police about his more recent contact with HH and, specifically, about his recent telephone conversation with her. He initially said that he had had a short conversation with his step-daughter, about some photographs. The following questions and answers were then recorded:

“Q: Is there anything you want to tell us about that phone call?

A: No.

Q: Do you recall [HH] asking why you had sex with her?

A: She was joking around and stuff like that yeah.

Q: Do you recall what you said?

A: No.

[…]

Q: In your words how did [HH] address that [the question about sex]?

A: What the phone call?

Q: Yeah.

A: Friendly.

Q: About joking around about having sex?

A: Oh, she mentioned something about it.

Q: What did she say?

A: She was just asking silly questions. I thought they were silly questions.

Q: Okay, and what did you say?

A: I don’t know.

Q: From your recollection of the conversation, do you agree that you made certain admissions to [HH] about having sex with her?

A: I could have been joking around with her.

Q: Why would you be joking around with her about that?

A: Oh I don’t know, so excited to see her I suppose. I was just trying to keep the conversation going. It’s been three years since I heard from her”.

45. The applicant was reminded that the telephone conversation had been recorded and asked if he wanted to say anything about it. He responded “I think I need a lawyer”. When asked if he had had sex with HH he responded:

“Not to my recollection, no […] I don’t believe I’ve ever had sex with her before”.

46. The recording that had been made of the conversation between the applicant and the complainant was played to the applicant. He acknowledged that the female voice on the recording sounded like that of HH and the male voice sounded like his. The following questions and answers were given:

“Q: I just played to you what you said and …

A: Yeah, I wasn’t even sure what she was going on about. I don’t remember a lot of that stuff. That was back when everything was all upside down and back to front. Honestly I don’t even remember if it happened or it didn’t. I honestly don’t know.

Q: The fact that [HH] said ‘Why did you have sex with me?’

A: Well I said if I did, I don’t remember. If I did, I’m sorry and that’s how I answered it. I honestly don’t have any recall of doing any of that to [HH]. It would be something I wouldn’t want to do to her. Do you understand that? I know it sounds very criminating but I don’t have any recollection of ever doing anything to [HH].

Q: […] Why did you say that to her if you don’t remember?

A: I don’t know. She brought the subject up, I don’t know. If I did I was saying sorry.

Q: Why would you say sorry to something if you don’t remember it?

A: As I said, I don’t know, I don’t even remember if I did that to her or I didn’t do it to her. I can’t say I did and I can’t say I didn’t. I don’t know. I was just apologising. It’s been that long since I heard from them and if I did anything wrong, I was apologising.”

47. Despite his apology to HH, the applicant maintained that he did not recall “having sex with” HH. He was asked “Why would you say, “’I shouldn’t have done that’”, responding:

“Oh well, if I had have done it, I shouldn’t have done it, should I? […] Like if someone’s accuses you of something, yeah, I think I was just shocked that she was on there at the other end of the phone and she called me and I was trying to keep her talking I guess. If I did, I did, if I didn’t, I didn’t. I don’t know. […] I said I don’t know. I don’t remember if I did or I didn’t. I’m not saying I did and I’m not saying I didn’t. I don’t know”.

48. He concluded:

“At the moment, I don’t have no memory of any of that happening”.

49. When asked why he had not denied [HH]’s assertions during the telephone conversation about sexual acts he stated:

“I think I was just trying to keep her talking on the phone ‘cause I didn’t have any recollection of ever doing it to her”.

The Defence Case at Trial

50. The applicant gave evidence before the jury.

51. The applicant said that he and his wife and family had moved to live in the shed that was located on the property when HH was 8 or 9 years old. The family lived in the shed for about 18 months, before moving into the main house. He said that, having moved into the house they never returned to live in the shed at any stage.

52. He was taken by his counsel to the incidents alleged against him by counts 1, 2, and 3, denying that any conduct of the nature charged ever occurred.

53. He confirmed some peripheral detail, such as that he had a king size bed in his and his wife’s bedroom, and a television set in the room, which he sometimes watched from bed with HH, DH, or both.

54. He told the jury that, when HH was aged “probably early 15” her mother had had to speak to her about her watching “sexual stuff” on the computer. He also deposed that there were two occasions at about that time or “maybe a bit later” when HH behaved in a way which was “sexually inappropriate” in his presence.

55. The applicant told the court that, on the first occasion, he had been watching a lunch time movie in his bedroom when the complainant came into the room, naked:

“And she was on all fours walking or coming towards me. I jumped off the bed, told her to put her clothes on. I walked out of the room […]”

56. The applicant said that he went to the kitchen and made himself a cup of coffee, waiting five minutes before returning to the bedroom. When he went into the room the complainant was still there, naked. He told her if she did not get dressed, he would call her mother. She then “left the room and put her clothes on”.

57. The applicant gave evidence that, on the second occasion, which he guessed was “maybe a few weeks later”, HH came into his bedroom wearing a dressing gown “with a bow”. Lying down on his bed she told him, “’I bought you a present.’” The applicant told the court:

“She said, ‘I brought you a present.’ I said, ‘What for? It’s not my birthday’. She said, ‘No, I’m the present. All you’ve got to do is undo it.’ I told her to go and - I said, ‘What do you mean?’ She said, ‘There’s nothing underneath’. I said, ‘Well, go put your clothes on’.”

58. The applicant said that he in fact told his wife about the two incidents at the time. He said that his wife laughed and suggested he tell HH to put her clothes on.

59. Following this, the applicant said that he asked his wife to take HH to work with her so that he was not left alone with her at home. Subsequently, KG took HH with her when she went to work as a cleaner at a local club.

60. Both the complainant and her mother rejected these propositions when they were put to them in evidence at trial. HH confirmed that she did start going to work with her mother, but at her own request. KG recalled the complainant coming to work with her once or twice, but denied that this was at the applicant’s request. She rejected the suggestion that the applicant had reported the two asserted sexual incidents to her, telling the jury:

“If he’d said stuff like that was going on I would have left a lot earlier”.

61. Of the recorded phone call, the applicant gave evidence that he had not seen HH for two years. He was asked why he agreed that he had sex with HH, and he said:

“I believe at the time I was – I wasn’t thinking correctly because I had an operation the afternoon before. I had six stitches in my arm, which is on the recording. I also hurt that arm that night. I was in a lot of pain that morning. I had taken some of the medication they gave me, except I took too many. I actually was supposed to take two and I took four. I wasn’t thinking straight at the time and actually the phone call freaked me out because it was a shock to the system, I wasn’t expecting any phone calls from anyone. The first thing I was trying to think out whether or not there’s been an accident, someone’s been seriously hurt, I was freaked out that much I didn’t even ask that question”.

62. In cross-examination the following evidence was given:

“Q. [HH] asked you a very straightforward question, didn't she? ‘Why did you have sex with me?’

A. Yeah.

Q. You understood what she meant?

A. Not really.

Q. You - just like you did there - you paused momentarily. I think there was even a bit of a sigh, and you answered her. And this is what you said:

‘I always treated you as my daughter. I guess I've never forgiven myself for that. You're kind of a special young lady to me, and I didn't really want to do that to you, but it happened’.

You go on - this is later, shortly thereafter. ‘I just hope one day you can forgive me it’. You're talking about sex, aren't you?

A. No. Actually, if you've heard my conversations, I have a habit of jumping in halfway through a conversation and answering a question.

Q. There was no jumping in when you answered that very simple question that your stepdaughter asked you, ‘Why did you have sex with me?’ You didn't jump in and answer it. There was a pause and a sigh, then you were, in effect, apologising to her.

A. I was - the simple thing is, I was really referring to - was, was - I thought she was asking me about her mother. I told you, I was under - I was, was freaking out that day. I was - the question is - the only way I can answer that - I - in the morning, I got up in pain. I took the four pills, which I should only took two. I was spinning out. I get a phone call which freaks me out more. Then I get asked - the first thing I thought of, she wants to know why mum and her – I broke - have broke up, because I know that affected her really badly. So, I jumped into that collusion (as said), like I do with most conversations. I even do it with my lawyer. I try to answer questions before he even asks.

Q. But there's no reference to [KG] in that phone call?

A. I thought that's what she was asking me.

Q. ‘Why did you have sex with me?’ How does that in any way—

A. I never heard that.

Q. --bring up the topic of [KG], and how is [KG]’s health? ‘How's your mother going?’ How can that be an interpretation that you'd put on that question? ‘Why did you have sex with me?’

A. I said I didn't hear that part. I only started to answer about mum and I splitting up. I never heard that bit. I've got a habit of jumping in early. My wife was always going crook about it.

Q. That's your take on that phone call, is it?

A. That's my take on that phone call.

Q. Complete misunderstanding on your part?

A. Yes.”

63. It was suggested to the applicant that he had lied about his account in evidence of the two incidents in which the complainant had come to him and offered herself sexually, but the applicant maintained his evidence was truthful. He deposed that he had never forgotten those two incidents. When his failure to raise these incidents with the police officers who interviewed him was put to him, the applicant claimed that he had referred to it in the telephone call with HH, but that it had been removed from the recording. He subsequently asserted that there was a second telephone call that had not been played to the jury, demanding:

“I want to know where that second phone call is.”

64. The applicant was asked why, during the recorded interview with police, he did not ask the officers about the missing telephone conversation with HH, or missing portions of the telephone call. He deposed that he had asked about it, but that the recording of the interview had also been “doctored”.

65. The applicant went on to assert that, although it did not appear on the recording of the interview he had had with police that had been played to the jury, he had in fact told the interviewing officers about the two incidents he had described when the complainant had offered herself to him sexually, crawling naked along the floor to him, and when wrapped as a present.

66. Finally, the applicant deposed in cross-examination that, when he told his step-daughter during the recorded telephone call that he hoped she could one day forgive him, he was referring not to having interfered with her sexually, but to a music recording:

“Q. I'll take you back to your interview with police. Detective Nicholls asked you a question - well, actually quoted to you what you'd said in that phone call to [HH]. 766 is the question. He reminded you of what you said, telling you that you'd mentioned to [HH] you hoped that she'd forgive you. Your answer was, "I hope one day you can forgive me", quoting from the phone call. Your answer was, "Yeah, well, I don't know. I can't remember. As I said, I don't you're referring to sex, aren't you?

A. No, I'm not. I was actually referring to a John Bevere DVD.

Q. A what?

A. John Bevere. The DVD is called Affabel. The C - last CD in that will tell you unforgiveness takes you to hell. If you want to listen to it - so, "Be careful of unforgiveness. It takes you to hell".

Q. There is no mention of John Bevere in that answer?

A. My - I've just remembered that. I told you, back then my memory isn't so good. I was going through a marriage breakup and all the rest of it. My wife had left me. I was not thinking straight. I'd been hounded for two hours.”

67. It was an agreed fact between the parties that no edits had been made to the recording of the interview to remove the applicant describing being sexually propositioned by HH, and nor was it suggested in cross-examination of the police witnesses that the recordings of the telephone conversation between HH and the applicant, or the interview with police, had been manipulated in any way.

68. The applicant also relied upon evidence adduced in cross-examination of the police officer in charge of the investigation that, apart from a drink driving matter from 1983, he had no criminal record. The jury was subsequently directed as to the applicant’s good character.

The Application before this Court

Ground 1: “That in all the circumstances the verdicts of the jury on counts two and three on the indictment was unreasonable and therefore there was occasioned to the appellant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)”

69. The applicant contends that there were discrepancies in the evidence adduced against him and that, overall, it lacked sufficient probative force to sustain the verdicts returned with respect to counts 2 and 3. Whilst he concedes that it was open to the jury to conclude that the subject of the recorded telephone conversation was sexual activity between the applicant and his step-daughter, he argues that it was not open to conclude that the conversation referenced the charged incidents.

70. The applicant specifically points to:

1. The complaint evidence in which Ms J said that HH had told her she “would get raped on the couch”, in circumstances where the complainant gave no evidence of a sexual assault occurring on a couch; and

2. The asserted “physical impossibility” of count 3 occurring at all, as the evidence of the complainant’s mother was that the family did not return to live in the shed after having moved from there to the main house on the property.

71. The applicant also contends that his convictions for counts 2 and 3 cannot stand in the face of the evidence of the complainant’s mother, or that of Ms J, although he does not articulate precisely what it is about the testimony of those witnesses which is so devastating to the Crown case, beyond the matters referred to.

72. Finally, it is argued that, whilst the trial judge correctly instructed the jury that it was necessary to consider each count separately, the jury “did not follow this direction” and “upon finding a verdict on count one (not challenged) the jury erroneously found the appellant guilty of all counts”.

Consideration

73. As the poverty of the arguments advanced in favour of the applicant’s proposed appeal might suggest, this is an application which is wholly without merit. None of those matters highlighted by the applicant are such as to call into question the integrity of the verdicts returned by the jury with respect to counts 2 and 3.

74. Where a ground of appeal challenges the capacity of the evidence led at trial to support a verdict or verdicts of guilty, the question for the appellate court is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant’s guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at 405–406. In Pell v The Queen (2020) 376 ALR 478; [2020] HCA 12, the High Court said, at [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]”.

75. The task is to be approached bearing firmly in mind the primacy of the jury in seeing the whole of the evidence placed before the trial court, an advantage that cannot be replicated by an appellate court. That principle was given particular emphasis in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, at [65]–[66], wherein the High Court observed that “the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way”.

76. It is not a matter of whether the jury might have entertained a reasonable doubt as to the applicant’s guilt, it is whether it must have done so: Libke v The Queen (2007) 239 CLR 599; [2007] HCA 30 at [113].

77. Having reviewed the whole of the evidence placed before the jury, my conclusion is that the verdicts returned by the jury were well open, and there is no basis for this Court to interfere with them.

78. The “discrepancies” that the applicant points to in the evidence are of limited significance and in no way such as to dictate that the jury must have held a reasonable doubt as to whether the Crown had proved the applicant’s guilt to the criminal standard.

79. Great emphasis is given by the applicant to the inconsistency between the terms of the complaint Ms J said was made to her by the complainant, and the complainant’s evidence on this point, but it is a feature of the matter not deserving of the weight placed upon it.

80. Ms J deposed that the complainant had told her that she had been “raped” by her step-father on a “couch”. Whilst the complainant gave evidence of a sexual touching that occurred in the lounge room of the main house on the property, on her bed which was then in the lounge room, as opposed to on a “couch” (count 1), there was no incident of sexual intercourse alleged to have occurred on a couch or lounge.

81. Ms J said in evidence:

“I can’t really remember how the topic came up but it, it was quite out of the blue and it, it – she, she – yeah, she just said that, you know, she got raped by her step-father and, yeah.”

82. When asked if HH had gone into any detail concerning what had happened, Ms J said:

“Apart from when she – yeah, that she would get raped on the couch when she was alone and when her mum was out.”

83. Ms J said that HH had not mentioned a bedroom.

84. In her evidence in chief, the complainant said that she spoke with Ms J on this subject at around the start of 2017, but she did not remember what was said during the conversation. In cross-examination, HH was asked about using the word “rape” during the conversation, but said that she did not think she had. She gave as her understanding of the meaning of the word “rape”:

“sex, or sexual relations against someone’s will […] And inappropriate touching and anything at all that you don’t consent to”.

85. HH said that she did not go into detail about what had happened with her step-father when speaking to Ms J. She did not remember if she used the word “lounge” during the conversation, but said that she did not normally use the word “couch”, it being an American version of the word ‘lounge’.

86. Looked at carefully, as the jury no doubt did, there is little about this conversation that is particularly significant.

87. There is firstly no inconsistency between the evidence of Ms J and the evidence of the complainant as to HH confiding to her friend about unwanted sexual activity forced upon HH by her step-father. Arguably, that is the most important aspect of the evidence, and may have been regarded by the jury as supporting the overall credibility of the complainant, since it might be considered that a young girl exposed to such abuse would at some point confide in a friend.

88. There is some difference in the accounts of each witness of the precise words used in the conversation, but that difference was not one that necessarily reflected adversely on the credit of the complainant. The extent of the difference was minimal.

89. HH did not think she used the word “rape” to describe what her step-father did, but did not deny having done so; she said that she had no real memory of the actual words used. If she did use the word “rape” in speaking with Ms J, bearing in mind HH’s understanding of the meaning of the word, the jury may have readily accepted it as a term used to refer generally to sexual activity that was not wanted. There was an incident of unwanted sexual activity that took place in the lounge room of the family home – the act reflected by count 1. That act did not occur on a couch, or a lounge however, but on the complainant’s bed. That is the only inconsistency between the complainant’s evidence, and that of Ms J.

90. There is, however, no obvious basis upon which the jury must have preferred the evidence of Ms J to that of HH. The jury saw each witness give her evidence, and was well-placed to assess the reliability of the testimony of the witnesses on this aspect of the matter.

85. The complainant did not accept that she referred to a “couch” when speaking with Ms J, and it was well open to the jury to accept her evidence over the evidence of Ms J on this point. The conversation was, after all, a short exchange that took place over two years before Ms J gave her evidence; it was entirely open to the jury to conclude that Ms J may not have accurately recalled each word used by the complainant.

86. Jurors are routinely asked to use their common sense and experience of life in assessing evidence placed before them at trial; the jurors at the applicant’s trial may well have found nothing unusual in two participants to a conversation held some time previously giving accounts of the words used that varied to a degree. The extraordinary thing would perhaps be if the participants in or witnesses to such a conversation could by contrast give an account that was identical as to each word used. It is the latter that is not consistent with an ordinary experience of human memory.

87. The significance of this asserted discrepancy in the Crown’s evidence is very minor indeed, and not such as to call the verdicts returned by the jury into question.

88. Nor does anything in the evidence of the complainant’s mother give rise to any credible concern as to the verdicts of the jury. The applicant asserts that, on the basis of the evidence of KG, count 3 could not have occurred. That contention is, however, based upon a misstatement or misunderstanding of the evidence.

89. The complainant said that the incident reflected by count 3 took place in the shed on the property, at a time after she had turned 14, and when some renovations were being undertaken in the main house that caused the family to move back to the shed temporarily.

90. The complainant’s mother was asked in cross-examination about the chronology of the family’s residence in the shed and the main house, and gave the following evidence:

“Q. I want to talk to you about the configuration of the […] home. There was a time where there were some renovations going on, on the property, and I think you guys had to live in the shed, is that fair to say?

A. Yep.

Q. In the shed, how long did you live in the shed for approximately?

A. When we moved out of [the family’s previous home] we moved into the shed and that was till after [DH] was born, and then after [the applicant’s mother] passed away and then [the applicant’s mother’s companion] passed away, we moved into the house.

Q. My question is how long do you think you spent living in the shed while the house was being renovated so you could move back into the house?

A. I'm trying to think of the timeframe. She was born in 2010, and then we did the Christmas after that. Sorry—

Q. That's okay, if you don't know –

A. I could maybe do it with a calendar. We were married in 2004, we moved down to [the local area] the end of 2005, we lived there for about three and a half years which is when we got to 2008, 2008 and a half, 2009, so we were probably in the shed maybe 18 months, maybe two years.

Q. So 18 months to two years. How old was [HH] during that period of time?

A. Crap, now I've forgotten the date again.

Q. You were talking 2008, 2009 then.

A. Yeah, 2010 was when [DH] was born and [HH] was 11 so, yeah, probably about nine-ish I think we moved into the shed.

Q. She was nine for a period of 18 months to two years in that shed? I'm saying nine, ten years of age, yes?

A. Yeah.

Q. Then you moved back into the house, correct?

A. Yeah, sorry.”

97. Later in her evidence she was asked how many times the family lived in the shed and replied:

“We moved into the shed to start with, and then we moved into the house but then during the renovation I know I and [DH] were sleeping back over at the shed for a while.”

98. By that evidence, KG confirmed that there had been a time after the family moved to the main house when, at least she and her youngest daughter, had returned to live in the shed due to the renovations being undertaken in the main house. This evidence supported to some extent the complainant’s evidence that count 3 occurred at a time when the family moved back into the shed due to renovations in the house.

99. Particularly having regard to KG’s evident uncertainty as to the chronology of the family’s residence in the house and the shed, it was well open to the jury to accept the complainant’s evidence that the whole of the family lived in the shed at this time, in preference to that of her mother. That is particularly so when regard is had to the applicant’s concession during his interview with police that it was possible that the whole family had returned to live in the shed during the renovations.

100. KG’s evidence falls a very long distance short of establishing that count 3 was a “physical impossibility”.

101. The jury had the opportunity of seeing each of the witnesses give evidence at trial and, where there were differences between the evidence of some witnesses, its members were well placed to assess the evidence and determine what evidence should be accepted as credible and reliable.

102. On my assessment of the transcript of the complainant’s evidence, there was a sound basis to accept her testimony as reliable. She gave her evidence in a forthright and considered way, and what she said impressed me as being a real and truthful account of what had happened to her at her step-father’s hands.

103. The evidence of the complainant’s telephone conversation with the applicant gives powerful support to that conclusion. That evidence is capable of establishing very clearly that the applicant had sexually assaulted HH when she was a child, and that he had admitted having done so. In my opinion, no reasonable person could accept the applicant’s later attempts to recant his admission, either when being interviewed by police, or when giving his evidence to the jury. To the contrary, the applicant’s varying attempts to explain away or give a different meaning to what he had said to HH simply pointed to the falsity of his account to police, and of his evidence to the jury.

104. The admissions the applicant made in that telephone conversation were clearly and unambiguously admissions to having “had sex” with the complainant. They could not be explained by the applicant having “had six stitches in [his] arm”; or being in pain due to the stitches; or having taken pain medication; or being “freaked out” by the “shock to the system” of receiving the phone call, and worrying that someone had been in an accident.

105. Nor could the applicant’s incredible attempts to explain away his admissions during his interview with police as “joking” be accounted for by “not thinking”; or having “so much stress going on”.

106. The evidence of the admissions made during the recorded telephone conversation was powerful evidence that supported the complainant’s testimony, and the applicant’s attempts to undermine it did nothing to diminish that power. Rather, those attempts simply detracted from the credibility of his denials in evidence to the jury.

107. The applicant is correct when he submits that the jury could not have concluded that the admissions were specifically to having carried out the acts charged by counts 2 and 3, but that does little to detract from the significance of the evidence. It strongly pointed to the truth of the complainant’s evidence, and her account of the particular conduct charged as counts 2 and 3. The applicant’s admissions and his apology provided coherent and conclusive support for the complainant’s evidence as to the charged incidents.

108. His own evidence was quite incredible, and found no support from that of any other witness, or indeed, in common sense. The jury may well have regarded the applicant’s account in evidence of the 15 year old complainant crawling to him naked, or offering herself to him gift-wrapped – an account on all of the credible testimony never raised with any person before it was given at trial – as little more than a disturbing fantasy. The jury was well entitled to reject the applicant’s denials in evidence of the conduct of which it found him guilty.

109. Having reviewed the whole of the evidence placed before the jury at trial, I am entirely satisfied that the verdicts returned by the jury were well open, and supported by credible evidence.

110. That conclusion also addresses to some extent the applicant’s final contention, that the jury must have disregarded the direction given to them to consider each count separately and, having found that the applicant was guilty of count 1, simply applied that verdict to the remaining counts.

111. Where each of the verdicts returned by a jury is open on the evidence, and there is nothing to point to any failure by the jury to consider each count on its merits, it is difficult to see how it can reasonably be argued that the jury failed in its duty in that regard. A direction was given to the jurors to consider each count separately and it must be assumed, in the absence of any clear basis to conclude otherwise, that the jurors followed the directions of law given to them by the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]; R v Milat (Court of Criminal Appeal (NSW), 26 February 1998, unrep); R v Dudko [2000] NSWCCA 336; (2000) 132 A Crim R 371.

112. Since each verdict was well supported by evidence, the applicant’s argument on this point cannot be made good.

113. The applicant’s proposed appeal does not merit a grant of leave to appeal, and I would refuse it.

Conclusion

114. I propose that leave to appeal against the convictions recorded against the applicant with respect to counts 2 and 3 is refused.

115. IERACE J: I also agree with Wilson J.

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Decision last updated: 15 October 2020