LS v The Queen

[2019] NSWCCA 258

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	LS v R [2019] NSWCCA 258
Hearing dates:	21 October 2019
Decision date:	31 October 2019
Before:	Hoeben CJ at CL at [1]; Walton J at [122]; Price J at [123]
Decision:	(1)   Grant leave to appeal against conviction. (2)   The appeal against conviction is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal –13 counts alleging sexual misconduct by an uncle against his niece – jury trial – applicant found guilty of six of the charges and not guilty of seven charges – single ground of appeal asserting unreasonable verdicts – offences said to have occurred between 1991 and 2000 – complainant aged 4 when offending commenced – Crown case depended on evidence of complainant – challenge to complainant’s credit – tendency evidence tendered in Crown case – whether jury verdicts inconsistent – effect of concessions made by complainant – credibility issues essentially a jury matter – well open to jury to be satisfied beyond reasonable doubt as to guilt of the applicant. Leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	AH v R [2019] NSWCCA 152 Artery v R [2017] NSWCCA 259 BM v R [2017] NSWCCA 133 Darby v R [2016] NSWCCA 164 Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Jafary v R [2018] NSWCCA 243 Jones v The Queen [1997] HCA 56; 191 CLR 439 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Miller v R [2014] NSWCCA 34 ML v R [2015] NSWCCA 27 Palmer v R [2018] NSWCCA 205 R v Carbone [2000] NSWCCA 387 The Queen v Nguyen [2010] HCA 38; 242 CLR 491 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 SKA v The Queen [2011] HCA 13; 243 CLR 400 Still v R [2010] NSWCCA 131 The Queen v Bauer [2018] HCA 40; 92 ALJR 846
Category:	Principal judgment
Parties:	LS – Applicant Regina – Respondent Crown
Representation:	Counsel: A Healey – Applicant H Roberts – Respondent Crown   Solicitors: L Belovic – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2016/191730
Publication restriction:	Non-publication order re: identity of the complainant and applicant.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 November 2017 Before: McLennan SC DCJ File Number(s): 2016/191730

JUDGMENT

1. HOEBEN CJ at CL:

Nature of proceedings

The applicant stood trial in the District Court at Tamworth before his Honour Judge McLennan SC and a jury between 1 November and 15 November 2017 on an indictment containing 13 counts alleging sexual misconduct towards the same complainant. He was found guilty of six of the charges (Counts 1, 2, 3, 7, 11 and 12) and not guilty of the other seven charges on the indictment.

2. The complainant was born in 1987. The offences took place between 1991 and 2000 (during which time the complainant was aged between four and thirteen). The offences took place at various homes around the Tamworth area. The applicant (born 1974) is the uncle of the complainant, being her late mother’s brother. The applicant was aged 16-17 at the time when the first of the offences took place.

3. The complainant first complained to police in December 1999. She spoke to police again in February 2001 and an Apprehended Violence Order (AVO) was taken out on her behalf against the applicant. She also went into foster care at about this time. She spoke to police again in November 2010 and June 2014.

4. At trial the Crown was permitted to call and rely upon evidence capable of demonstrating a tendency on the part of the applicant to engage in sexually inappropriate conduct against young females in the family. The witnesses called were the complainant’s cousin, (RJS), sister (A) and step-sister (GJ). Each of those persons alleged that the applicant had sexually or indecently assaulted her when they were children.

5. The applicant did not call or give evidence in the trial. He had given a record of interview in 2001 in which he denied the offending. The applicant’s case was that none of the offences or tendency incidents occurred. The applicant relied upon the forensic disadvantage created by delays in complaint and gaps in the police investigation, as well as the Crown failure or inability to call particular witnesses. The applicant relied upon inconsistencies and admitted false accounts given by the complainant concerning details of particular allegations over time.

6. No challenge is made in this application for leave to appeal concerning any directions given to the jury nor any of the evidentiary rulings made in the course of the trial. No challenge is made to the tendency evidence.

7. The charges and verdicts returned by the jury were as follows:

Count	Brief Particulars	Verdict
1.	Applicant rubbed complainant’s vagina in her bedroom at night s 61M(2) of the Crimes Act 1900	Guilty
2.	Applicant inserted his finger into the complainant’s vagina in her bedroom at night s 66A(1) of the Crimes Act	Guilty
3.	Applicant licked complainant’s vagina in her bedroom s 66A(1) of the Crimes Act	Guilty
4.	Applicant inserted penis into complainant’s mouth s 66A(1) of the Crimes Act	Not Guilty
5.	Applicant kissed complainant on the lips s 61M(2) of the Crimes Act	Not Guilty
6.	Applicant put complainant’s hand on his penis s 61M(2) of the Crimes Act	Not Guilty
7.	Applicant inserted his penis into complainant’s anus s 66A(1) of the Crimes Act	Guilty
8.	Applicant caused complainant to touch his penis s 61N of the Crimes Act	Not Guilty
9.	Applicant touched complainant’s vagina outside clothing at Mt Parry s 61M(2) of the Crimes Act	Not Guilty
10.	Applicant put complainant’s hand on his penis at Railway Lane s 61M(2) of the Crimes Act	Not Guilty
11.	Applicant rubbed complainant’s vagina in swimming pool s 61M(2) of the Crimes Act	Guilty
12.	Applicant put finger in complainant’s vagina in swimming pool s 61J(1) of the Crimes Act	Guilty
13.	Applicant put complainant’s hand on his penis at night at Railway Lane s 61M(2) of the Crimes Act	Not Guilty

8. The applicant was sentenced by the trial judge on 9 March 2018 to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years, commencing 9 November 2017. The non-parole period will expire on 8 November 2023.

9. The applicant seeks leave to appeal against his convictions on the following ground:

Ground 1 – The verdicts of guilty on Counts 1, 2, 3, 7, 11 and 12 are unreasonable and cannot be supported having regard to the evidence and the verdicts of not guilty on Counts 4, 5, 6, 8, 9, 10 and 13.

Factual background

Counts 1 and 2 (guilty)

10. The first occasion upon which the complainant recalled something happening to her was when she was aged between four and five and was sharing a bedroom with her sisters, A and S. The applicant had come to their house in Taylor Street drunk. He asked to stay the night because if he returned to “Nan’s house” drunk, she would “kill him”. The complainant’s mother allowed him to do so. The complainant woke to the applicant pushing her over in bed and getting into bed with her. He rubbed her vagina and put his fingers into her vagina. She felt a sharp pain “like I was on fire”. He then took her hand and put it on his penis and she rubbed it until her hand “went sticky”. A few days later, she told her sister A who told her to tell their mother. She told her mother “LS is touching me” and her mother told her not to be silly and to “stop making up stories”.

11. In cross-examination the complainant agreed that the first time she had mentioned her hand going “sticky” with respect to this incident was in her 2014 statement. Her sister A did not recall the applicant complaining to their mother. A also gave evidence that her memory was “not the best”.

Count 3 (guilty) and Count 4 (not guilty)

12. The complainant remembered the applicant being in her bedroom at Taylor Street. She remembered being on the bottom bunk with him licking her vagina (count 3). She remembered seeing her legs in the air and feeling his tongue and that it was like replaying a movie in her head. The complainant said that she had always remembered count 3. It was not something which had come to her in a dream or flashback.

13. The applicant then rolled off her and told her to “suck his penis”. He said that “boys like it most when girls suck penis”. She did it (count 4) although she could not remember how long it went on for, or how it stopped.

14. The first time the complainant told the police about the applicant licking her vagina, was when she told Detective Hayden in 2014. Back in 1999 and 2001, she had told police that the applicant had asked her to suck his penis but not that she had actually sucked it.

Counts 5 and 6 (not guilty)

15. The complainant remembered that the applicant had come to the Taylor Street house at night time. He kissed her on the lips (count 5) and put her hand on his penis and she pulled his penis (count 6). The complainant said that the bedroom door was open. The applicant was lying on the mattress. She was not certain how he came into the room but thought it was through the window. She could not remember if her sisters A or S were there.

16. In cross-examination, the complainant was unsure whether counts 5 and 6 occurred on the same occasion as count 7 or on two different occasions. She had told Detective Hayden in 2014 that there were two different occasions but in evidence said it was possible they were the same incident. The complainant gave evidence that the applicant had come in through her bedroom window more than once.

Count 7 (guilty)

17. The applicant came into the complainant’s bedroom at night through a window. She was already asleep in bed. The applicant got into her bed and told her to get on her hands and knees on the bed. He “stuck his penis into her bum” which caused her very sharp pain. He moved his penis around back and forth and then he left. Her “belly and her bum” hurt.

18. The next day she told her mother that her “belly was hurting” and that she “could not do a poo”. She told her mother that it was because of the applicant. That evening her mother took her to the hospital. Her mother’s reaction was “she ignored me or that’s how it felt”. The complainant said “I did tell her again that it was because of LS when we were in the hospital and she told me to “shut up and say nothing like that in front of the doctor”. There was a doctor present at the end of the bed but he made no response.

19. Medical records were tendered in the trial which recorded that the complainant and her mother had presented at Quirindi Hospital with a complaint of abdominal pain on 14 March 1992. The notes also recorded that the complainant had had her bowels opened once that day and that it was “loose”. In cross-examination (in response to a question from the trial judge) the complainant said she would have only told the nurse this if it were true.

20. The complainant had told a Detective in Gunnedah in 1999 that the applicant had put his penis in her vagina (she had not referred to anal intercourse). In cross-examination, she agreed that this was not the truth and it was actually anal intercourse. She said she was scared at the time; that she had been teased when she referred to “bum jacking” in front of her siblings; and was so embarrassed she changed it. She was still embarrassed in 2014 and did not correct Detective Hayden in 2014 when he referred to her earlier version.

21. The trial judge asked a series of questions of the complainant about this topic:

“Q. All right. Now,the last thing I want to ask you is this. In – sorry, I’ll start that again. You told us that in 1999 when you told the police that the accused had penile/vaginal intercourse with you that was untrue?

A. Yes.

Q. You told us that when you told the police that again in 2001 that was untrue?

A. Yes.

Q. Why was it in 2014 when the police read those statements out to you that you didn’t tell the police officer then that what you had said was untrue about that?

A. Honestly, I don’t know. I was kind of scared because I lied and I signed that statement saying that I’d told the whole truth.

Q. So why didn’t you tell the police officer in 2014 that you lied in those statements?

A. I was scared. Can I get into trouble for that?” (T.259-260).

Count 8 (not guilty)

22. Count 8 comprised an allegation that when the complainant was five years old the applicant came to their house with a quad bike, and took her down the street to the riverbank where he unzipped his pants and told her to touch and suck his penis. She had his penis in her hand when her brothers, B and T interrupted them. In cross-examination the complainant said that she was mixing up this incident with a time she watched the Ghostbusters movie and the applicant had told her to “play with his dick”. She had previously told detectives in 1999 that the applicant had “fingered” her down at the creek.

Count 9 (not guilty)

23. When the complainant was seven, she lived for a time at Mt Parry with her mother, her stepfather K and her sisters S and A. The applicant and her “Nan and Pop” spent the night there and slept on the floor of the lounge room. The applicant came into the complainant’s room and when she moved over for him to get in the bunk, she fell off the bed. Her mother heard and called out but the complainant said that she was all right and just climbed back into bed. The applicant touched her vagina and then left. In cross-examination, the complainant said that she had always remembered this incident but only first referred to it in 2014 because “I felt like an idiot, felt stupid because who gets back in the bed and doesn’t go and get help”.

Count 10 (not guilty)

24. When the complainant was aged between nine and ten, she was at her grandparents’ house at Quirindi playing hide and seek. The applicant came into the carport where she was hiding, took his penis out and told her to “pull it”. She did until interrupted by hearing her sister approach. The complainant’s evidence was that she had started having dreams and flashbacks in about 2008 and that is when she remembered some of the events. This event was one of those memories that emerged as part of the dreams or flashbacks.

Counts 11 and 12 (guilty)

25. When the complainant was 11 or 12, they were living at Caroona. The complainant’s mother held a birthday party for her grandfather. The complainant was swimming in the pool on her own. The applicant came to the pool, put his beer on the ground next to the pool and started to get in. The complainant went to climb out, but he pulled her back in by the ankle. He pulled her bikini bottom to the side and started to rub her vagina and then inserted his finger into her vagina. The applicant stopped when one of her brothers B or T came towards the pool. She did not mention this incident until 2014.

26. In cross examination the complainant agreed that she may have been wrong about the date of her Pop’s birthday being in January. She thought it occurred two weeks before she moved to Gunnedah. She moved to Gunnedah in November.

Count 13 (not guilty)

27. When the complainant was aged 11, she was sleeping at her grandparents’ house on a mattress on the floor. During the night, the applicant got into her bed, unzipped his jeans and put her hand on his penis. The complainant’s brother, B, asked the applicant what he was doing and the applicant said he was cold. The complainant went to her mother in the kitchen and told her that the applicant was in her bed. Her mother told her to go and wake Nan but she did not. The complainant said in evidence that she was more frightened of her Nan than of her mother.

Applicant’s submissions

28. The applicant accepted that the issue of “unreasonable verdicts” requires a subjective judgment that no jury, properly instructed, could reasonably have arrived at the verdict of guilty. On that issue, the applicant relied upon M v The Queen [1994] HCA 63; 181 CLR 487 at 494-495 as applied in MFA v The Queen [2002] HCA 53; 213 CLR 606.

“   ... 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 …”

29. The applicant further challenged the verdicts of guilty on the basis of apparent inconsistency in the verdicts on different counts, which relied essentially on the same or similar evidence (Jones v The Queen [1997] HCA 56; 191 CLR 439). The applicant submitted that what had to be considered amongst other things is whether the variations in verdicts arose from doubts as to the complainant’s overall credibility, as against a stronger case in some counts by reason of proximity in time or supporting evidence.

30. The applicant also relied upon the commentary and remarks by the trial judge, in particular about the veracity and reliability of the complainant who was the main Crown witness. The applicant accepted that the remarks by the trial judge did not bind this Court but submitted that as in R v Carbone [2000] NSWCCA 387 at [47], the Court should give careful attention to the views expressed by the trial judge in open court, not only to counsel in the absence of the jury, but also in the summing up to the jury. The applicant submitted that the trial judge had the advantage which the jury had of seeing and hearing all of the evidence.

31. The applicant was critical of the complainant as a witness. He submitted that the Crown case relied on the uncorroborated evidence of the complainant, whose allegations changed over time in significant respects. He noted that she admitted that she lied to the police on a number of occasions and also accepted that her memories were unreliable and that she had a tendency to “mesh” sexual and non-sexual events and remember events only after having dreams and flashbacks. The applicant submitted that no reasonable jury could have accepted her evidence as credible.

32. The applicant submitted that acceptance of the complainant’s evidence beyond reasonable doubt was critical to each and every count on the indictment. On that issue, the applicant noted that the Crown Prosecutor in his address fairly set out a number of lies and inconsistencies and withholding of evidence by the complainant. The applicant submitted that this alone should have caused the jury to have some disquiet in relation to the complainant’s evidence.

33. The applicant noted that the complainant first gave a statement to Sergeant Walker at Gunnedah on 15 December 1999 when she was aged 12. In the statement the complainant alleged that in a bedroom in her family home, LS had put his finger and then his penis into her vagina and had done the same thing to her cousin, RS, at the same time. The evidence of RS at trial was that there were no acts committed at the same time by LS on her and the complainant.

29. The applicant noted that on 9 February 2001 when she was 14, the complainant made a second statement at the Werris Creek Police Station to Detective Sharp. In that statement, she said that LS came into her bedroom in Taylor Street and put his penis into her vagina. She told police that he put his penis into her vagina on two specific occasions and said “[LS] has only ever put his penis in my vagina”. In relation to RS, she said that on this occasion she could not remember anything happening to her at the same time.

30. The applicant noted that on 23 June 2014 at Katoomba, the complainant was interviewed by Detective Hayden in some detail over 93 pages. In that interview, at Q.636 the complainant said that she could not remember LS ever putting his penis into her vagina. She gave details of acts of cunnilingus, fellatio and for the first time said that LS had put his penis into her anus. Near the end of that interview, she said that she could not remember any specific times that he put his penis into her vagina. When she was reminded of what she said in the interview of 9 February 2001 about penile/vaginal intercourse she said that she had forgotten it.

31. The applicant submitted that under cross-examination, the complainant in effect said that she was prepared to perpetuate what she now said in her evidence was a lie. The applicant submitted that the effect of the complainant’s evidence was that she was prepared to continue with that lie when she allowed Detective Hayden to believe that at least one act of penile/vaginal intercourse had taken place but she had simply forgotten it.

32. The applicant noted that in her statement to Detective Hayden of 23 June 2014, the complainant described the act of anal intercourse for the first time. This was the basis for count 7 on the indictment. The complainant said that when she was aged five in Taylor Street the applicant ripped a hole in the gauze on the bedroom window and came in. She said that he made her get on her hands and knees and placed his penis in her anus. She said this type of thing had happened on many occasions, too many to count, and she remembered her father fixing the gauze. She said in the interview that she remembered that she had to be taken to hospital the first time that this happened because she could not go to the bathroom, was constipated and that she told her mother that this was because LS had put his penis “into her bum”. The applicant noted that she gave similar evidence in chief and said that she said the same thing to her mother that morning and then at the hospital while a doctor was at the end of the bed. The applicant noted that there was no record by that doctor or a nurse of any such comment.

33. The applicant noted that the jury were reminded that the complainant told Detective Sharp in 2001 that LS had only ever put his penis in her vagina but in her evidence, she said that she had no recollection of him even doing that. Further, she had told the jury that what she said to Detective Walker in 1999 about LS putting his penis into her vagina was not true.

34. The applicant noted that in relation to the incident in the pool, which formed the basis of counts 11 and 12, the first time the allegation was made was during the interview on 23 June 2014 despite that incident happening at a very close point in time to when the complainant made her first statement in 1999, i.e. between 3 February 1998 and 3 February 2001 at Caroona.

35. The applicant submitted that the evidence showed that there was a significant amount of reconstruction by the complainant and that in respect of a number of instances when she said offending took place, the details that she gave just could not be correct.

36. The applicant was critical of the police investigation. He noted that the police made no proper investigation of this matter and no effort was made to determine whether or not LS had an alibi or whether anything he said could have been corroborated. The police did not take photographs or locate any house plans in relation to where the offences had allegedly taken place and no inquiries were made of real estate agents in relation to leases of various premises and so forth. The applicant submitted that there was no corroboration by way of photographs or any other evidence of the events alleged to have taken place at Caroona which constituted counts 11 and 12. The applicant noted that there were a number of witnesses who had died by the time the matter came to trial, such as the complainant’s mother, to whom she had allegedly complained on more than one occasion. The applicant noted that a number of witnesses, such as the complainant’s brothers, were not called by the prosecution. The applicant accepted, however, that the trial judge had given appropriate directions as to the forensic disadvantage to him of delay in complaint by the complainant.

Counts 1 and 2

42. The applicant submitted in relation to counts 1 and 2 that the first time that the complainant made any reference to an allegation of masturbation and her “hand going sticky” was when she spoke to Detective Hayden in 2014. In 1999 and 2001, she did not tell the police about this. The applicant noted that the trial judge was concerned about the lack of complaint in relation to the masturbation and her perpetuation of lies she had told police in 1999 and 2001 concerning penile/vaginal intercourse. The applicant noted that when the trial judge asked her a number of questions about these topics, she merely said that she could not remember why she had not told police about her hand getting “sticky”. He noted that she said in relation to the other lies she had told that she was scared because she had lied and asked whether she could get into trouble for lying.

Count 3

43. The applicant noted that count 3 involved an allegation of cunnilingus in the complainant’s bedroom in Taylor Street when she was aged four. The applicant also noted that the complainant’s evidence about count 4 (fellatio) was not accepted in that a verdict of not guilty was entered.

44. The applicant noted that the complainant agreed in cross-examination that the first time she told police about the applicant using his tongue on her vagina was in 2014 when she spoke to Detective Hayden and not when she spoke to police in 1999 or 2001 and that further she had never told her mother about this. She further agreed that the bedroom light was off but maintained that she could still see her “legs in the air” and the top of the applicant’s head, although she could not see his face. She was not able to exclude the possibility that instead of his tongue, what she could feel was his hand or fingers on the outside of her vagina.

45. The applicant noted that as with count 3, the complainant first told Detective Hayden about count 4 in 2014. He further noted that count 4 involved an allegation that after count 3, he put his penis into the complainant’s mouth. The complainant described under cross-examination how both incidents had occurred. The applicant submitted that despite these problems with the evidence, the jury had found that count 3 did occur but count 4 did not. The applicant submitted that the combination of these inconsistent verdicts, her lack of complaint, the fact of her young age and that no-one in the house knew something was happening confirmed his primary submission that no reasonable jury could have arrived at a verdict of guilty in respect of count 3.

Count 7

46. The applicant submitted that this was the only count where the complainant alleged that he had put his penis into her anus. It was submitted on his behalf that this count had been “meshed” by the complainant with counts 5 and 6 in relation to which the jury had entered verdicts of acquittal. The applicant submitted that the sequence of events was important in that counts 5 and 6, which were rejected by the jury, were said to have occurred after counts 3 and 4 but before count 7. The complainant said that this was the occasion when LS had cut and torn the window gauze in gaining access to her room in Taylor Street.

47. The applicant submitted that the evidence of the complainant on this issue was contradicted by her father in that she could not have been living at Taylor Street at that time and that there was never any mesh on the windows to her room. This was in circumstances where her evidence was that the gauze on her bedroom window had to be fixed on a number of occasions by her father. The complainant’s father could not remember any damage to the windows at Taylor Street when the family lived there. In relation to complaint, he recalled that the complainant said something in general terms about being interfered with by LS in 1999 and he had taken her the next day to speak to the police. He could not remember LS ever asking to stay the night at Taylor Street.

48. The applicant submitted that apart from the generalised complaint made just prior to the first interview with police in 1999, the evidence of the complainant’s father did not corroborate but in fact contradicted substantial portions of the complainant’s evidence. The applicant noted that the date on the Quirindi Hospital records was 14 March 1992 when the complainant was living in Henry Street, not Taylor Street.

49. The applicant relied upon the fact that in 1999 and 2001, the complainant had said nothing to police about penile/anal intercourse and in fact had told the police in 2001 that the applicant had only ever put his penis in her vagina. The applicant noted that under cross-examination, the complainant agreed that that statement was not true, nor was the statement she made in 1999 that LS inserted his finger and then his penis into her vagina at Taylor Street on two occasions. She said that the reason she had lied was that it was actually her anus that he had penetrated, not her vagina, and she said this because she was scared and had been teased about the “bum jacking”.

50. The applicant noted that in relation to “meshing” or mixing up counts 5, 6 and 7, the complainant answered as follows (T247.42):

“Q. Is it possible according to your memory that the two incidents, that is, counts 5 and 6 is kissing on the lips and touching his penis and count 7 where you say he put his something in your bottom, they're actually the same incident?

A. Yes, possibly.”

51. The applicant submitted that in relation to count 7, a comparison with what was actually recorded in the hospital notes further undermined the complainant’s credibility and reliability. The applicant submitted that not only was the address given inconsistent with the offence having occurred in Taylor Street but the complainant’s presenting problem was abdominal pain not a “sore bottom” from being penetrated by a young man of 16-18 when she was aged five.

52. The applicant noted that the jury were reminded that if they had a reasonable doubt on any one count in the indictment, they should ask themselves whether that doubt would cause them to have a reasonable doubt in relation to other charges. The applicant submitted that in all the circumstances relating to count 7, and having acquitted in relation to counts 5 and 6, a reasonable jury would have acquitted him on count 7. This was particularly so when this was an example of the complainant “meshing” a non-sexual incident with a sexual offence. This was particularly so when the trial judge in his summing up in relation to count 7, pointed out the inconsistencies between the reason given by the complainant for going to hospital, as recorded by the hospital notes, and the reasons she gave in her evidence. The applicant relied upon the following observations by his Honour in his summing up in relation to count 7:

“If that is the true position members of the jury then one of the reasons that she gave for going to the hospital that day cannot be right. The question for you then is whether or not this is another meshing of a non-sexual matter that is abdominal pain with what is a sexual complaint of having been anally penetrated by the accused.” (SU T15)

Counts 11 and 12

53. The applicant noted that counts 11 and 12 related to an incident involving LS rubbing the complainant’s vagina and then putting his finger in her vagina while they were in a swimming pool in Caroona. The complainant said that it was the occasion when her mother threw a birthday party for her mother’s father. The complainant said that the applicant engaged in the offending while she was trying to climb out of the pool and only ceased when one of her brothers came out to the pool.

54. The applicant relied upon the following matters by way of challenge to that evidence. The complainant initially said that she was aged 11 at the time and that the offending occurred in 1998. The complainant was cross-examined about the dates and where she was living at various times and agreed that the first time that she mentioned this incident was in 2014 to police. The complainant also agreed that she had told Detective Hayden in 2014 that this incident was the last time something happened between her and the applicant.

55. In re-examination, the complainant said she thought she had turned 12 at the time. (This led to the Crown’s successful application to amend counts 11 and 12 to expand the time period by one year to February 2000.)

56. The applicant relied upon what the trial judge told the jury after the applicant had been re-arraigned on the amended counts 11 and 12:

“So you will see that at various points in respect of the swimming pool incident, the complainant has said she was either 11, or she was 12, or she was 11 or 12, but that is why the date has been amended. Now, the significance of her uncertainty about the matter will be something that you will need to consider when you are asking yourself the question later on in this case whether or not she is someone who, although you find her generally to be honest, is nonetheless possibly unreliable because she is inaccurate about things. And if that is a conclusion that you come to, and if this is an example of such unreliability or inaccuracy, you’ll have to consider how that impacts upon your overall decision making in this trial.” (T302.17)

57. The applicant relied upon the submissions of defence counsel at trial when he submitted to the jury that there was a total lack of accuracy about this evidence and that in no way did the dates match up with any of the other evidence, noting that she saw the police on 15 December 1999 and 9 February 2001 and made no mention of it. There were no photos or witnesses to the party and the complainant had conceded that it was only brought up in 2014 as a result of dreams and flashbacks she was having in 2008. Counsel pointed out that although the complainant suggested that she was embarrassed about certain incidents and therefore did not tell the police, in the scheme of things this particular incident, involving brief digital penetration was no more or less embarrassing than other matters she described to police in 1999 and 2001.

58. The applicant also relied on further observations of the trial judge in his summing up:

“Apart from that meshing of memories, her withholding of the truth when it suits her to do so, and lying to the police when it suits her to do so, there is also the fact that the memories for the events that are subjects of counts 10, 11 and 12 have their origins in dreams and flashbacks. That is, some 15-20 years have elapsed where she has no memory of the matters that are subject to counts 10, 11, and 12, where on at least one version of events counts 11 and 12, must have been very close to the time when she made a statement to police in 1999. One of the most fresh events she apparently had no memory of at all until the lapse of some 14 or years or thereabouts when, or possibly less, 2008 when these dreams and flashbacks started.

There are other aspects of her memory which from the point of view from your own human experience may have struck you as being unusual and that is with the passage of time, with the elapse of 12-13 years her memory for particular events has actually got better, and she sees things clearly now through the mist of time in a way that was not clear to her when the events were much more proximate. Your ordinary human experience as you age may or may not suggest to you that, that is an unusual memory …” (SU 15)

Conclusion

59. By reference to all of the counts in respect of which he was convicted, the applicant submitted that no reasonable jury could have accepted the evidence of the complainant as reliable or credible. He submitted that it was what she said on the record which contained such discrepancies, displayed inadequacies, was tainted and otherwise lacked probative force, rather than her manner and demeanour as seen by the jury. He submitted that this would lead this Court to conclude that there is a significant possibility that an innocent person has been convicted. He submitted that it was not open to the jury to be satisfied beyond reasonable doubt about any of the counts and that the jury must therefore have had a doubt about counts 1, 2, 3, 7, 11 and 12.

60. The applicant submitted that having regard to the whole of the evidence, the inconsistent verdicts and the lack of evidence occasioned by delay and other reasons, a substantial miscarriage of justice has occurred by reason of the guilty verdicts and the Court would uphold this appeal in relation to all verdicts of guilty.

Relevant principles and case law

61. When considering whether a verdict is unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is whether notwithstanding that there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand (M v The Queen; The Queen v Nguyen [2010] HCA 38; 242 CLR 491; SKA v The Queen [2011] HCA 13; 243 CLR 400 and Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 at [465]). The burden of persuasion that appellate interference is required rests with the person who impugns the verdict (MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 370).

62. The principles which inform the exercise of review to be undertaken by an appellate court where it is contended that a verdict is against the weight of the evidence were explained by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559. After noting that the evidence adduced at trial in that case did not all point to the applicant’s guilt, Hayne J said at [113]:

“113   … the 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…”

63. In answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration of the jury as the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses (M v The Queen at 493).

64. The test to be applied where an allegation is made that verdicts are inconsistent is one of logic and reasonableness: MacKenzie v The Queen at 366; Jafary v R [2018] NSWCCA 243 at [30]). In order to succeed the applicant “must satisfy the court that the verdicts cannot stand together”, i.e. that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at that conclusion …” (MacKenzie v The Queen at 366 citing R v Stone, unreported, 13 December 1954, per Derlin J). If there is a proper way by which the appellate court may reconcile the verdicts so as to allow it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (MacKenzie v The Queen at [367]; Jafary at [31]).

63. There is no rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which they have returned not guilty verdicts (MFA v The Queen at [35] and [89]).

64. The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury’s role in that system (MFA v The Queen at [34]).

65. The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA v The Queen at [34] it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.

66. It must also be kept in mind that the directions to the jury will emphasise the heavy onus of proof which lies upon the prosecution: MFA v The Queen at [34]. As their Honours observed (at [34]):

“34   … In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others…”

69. The Court is required to scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. In making that assessment, the Court should be properly conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record (MFA v The Queen at [23], ML v R [2015] NSWCCA 27 at [46]).

Consideration

Tendency evidence

70. The tendency evidence formed an important part of the Crown case in that it provided support for important aspects of the complainant’s evidence.

71. The complainant’s cousin, RJS, was aged 30 at the time of trial. She gave evidence of an occasion when she was eight or nine years old and was sleeping on a lounge at her grandparents’ house in Quirindi. She said that the applicant woke her up by putting his hand over her mouth, telling her to be quiet and thereafter having penile/vaginal intercourse with her. Other adults, including her parents, were asleep in the lounge room at the time. She was sore and upset but she was too scared to tell anyone.

72. On another occasion when in her own home during a barbeque, the applicant came to her bedroom, put his hand over her mouth again and had penile/vaginal intercourse with her. Her parents were not easy people to talk to but a year or two later, RJS told her Aunty Janine what had happened. RJS gave evidence of an occasion when she was staying over at Railway Street and she saw the applicant come to the window of the kitchen/lounge room area and he was naked.

73. The complainant’s sister, A, gave evidence about an occasion at Taylor Street when she was aged five or six. The applicant woke her up at night, put his hand inside her underpants and his finger in her vagina. He whispered “Don’t say nothing”. On an occasion at Railway Street, she was sleeping on a futon in the lounge room and the applicant put his finger in her vagina and rubbed his erect penis against her. She told a primary school friend but no adults because she was embarrassed and it “felt disgusting”.

74. A gave evidence that she recalled times when the applicant would come and knock on the doors or windows to be let in by the girls. She gave evidence in cross-examination that she did not remember any conversations with the complainant about the applicant having done sexual things to her, nor any of the siblings teasing the complainant about this. A gave evidence that her memory was “not the best” and that she had been having counselling with respect to this and other issues.

75. GJ was the half-sister of the complainant. She gave evidence of an occasion when she had signed out of school early and visited her grandfather. The applicant was there and appeared drunk. He grabbed her and kissed her and “rubbed her boobs with his hand”. She ran away and left.

76. This evidence was challenged by the production of school records which showed that she had not left school early that day. When GJ was recalled and said that she believed she had signed out of school that day with permission but that she would often leave school whenever she felt like it.

77. The trial judge was critical of this evidence and in the summing up commented to the jury that GJ had admitted her evidence was “a lie” and then she “spent the balance of the cross-examination trying to justify the lie in a way which was to my mind unacceptable” (SU 21). That observation by his Honour does not reflect my reading of the evidence of GJ.

78. The complainant’s father gave evidence, which was somewhat equivocal. He said that the bedroom windows at Taylor Street did not have gauze screens; only the front and back doors did. He could not remember damage to one of the windows but he did do repairs to one of the lounge room windows. Once his marriage broke down in 1994, he started to drink and take drugs. He “hit the bottle pretty hard”. He accepted that his years of drinking had adversely affected his memory. He agreed that the applicant had on occasions stayed over when they lived in Taylor Street. The first he heard of any abuse of the complainant by the applicant was in 1999.

79. The attack on the complainant’s credibility needs to be looked at in the context of her upbringing. She clearly grew up under disadvantaged circumstances. Her mother had six children, including the complainant, with the complainant’s father GS, born between 1981 and 1989 and later five more children with her second husband. The complainant’s parents separated when she was about six or seven.

80. The family moved house often and the complainant changed schools on a number of occasions. Sometimes the family stayed in locations for periods of six months or less. In his evidence, the complainant’s father found it difficult to remember all the places where the family had resided. In those circumstances, and given her age at the time, it would have been difficult for the complainant to remember accurately where and for how long the family resided at various locations. The complainant’s circumstances were such that she went into foster care for a period of time when she was a young teenager.

81. On the complainant’s evidence, she attempted to complain about the applicant’s sexual abuse on a number of occasions but eventually stopped because she was rebuffed and not believed. The last time she appears to have complained to her mother was in or about December 1998 when she said that the applicant was “bum jacking” her. No action was taken. Her first complaint to police was in December 1999 when she was living with her father in Gunnedah. She made a statement but the investigation did not progress.

82. In February 2001 she made a further statement (as did RJS and A). The applicant was interviewed and denied the offences. An AVO was taken out against him as that was considered to be a satisfactory resolution for the complainant.

83. In 2008 when the complainant’s own daughter was aged four (the complainant’s age when the abuse started), the complainant began experiencing “dreams and flashbacks” about the sexual abuse. She returned to police in 2010 to inquire if things could be taken any further. Eventually, another statement was taken from her in 2014 and the applicant was charged.

84. It has been the experience of this Court that the complainant’s difficulties with timelines and with particularisation of individual offences is not out of the ordinary for offences of this nature in circumstances in which the offending conduct is repeated and the complainant was a young child at the time it occurred. While the complainant did not make a complaint which contained each count on the ultimate trial indictment in 1999, she did clearly make a complaint of ongoing sexual abuse by the applicant towards her. In those circumstances, the jury was entitled to accept (as they must have done) that the complainant was an honest witness who was doing her best to give reliable evidence of events which had actually happened.

85. As already stated above, the strength of the tendency evidence in the Crown case should not be overlooked. Leaving aside the evidence of GJ, the Crown called evidence from of RJS and A of sexual assaults upon them of a highly similar character to those perpetrated upon the complainant, including coming into a child’s bed at night, whispering in her ear, and committing the offences in circumstances in which there was a high risk of detection.

86. A gave evidence of the applicant waking her up when she was sleeping on a mattress in the lounge room and putting his finger in her vagina. On another occasion at Railway Street, he did something similar. RJS gave evidence of the applicant having penile/vaginal intercourse with her on two occasions – once waking her when she was asleep on the lounge, the other by coming into her bedroom during a social occasion and having sexual intercourse with her in her room with an open door.

87. The jury was instructed with respect to the evidence of RJS and A that “before you can use any or all of their allegations in relation to the proof of guilt of the accused, you must be satisfied of them to the same standard as if they were counts on the indictment, that is beyond reasonable doubt”. By way of interpolation, this direction while consistent with the applicable law at the time was unduly favourable to the applicant. Subsequently, in The Queen v Bauer [2018] HCA 40 the High Court held that it is not ordinarily necessary for a jury to be directed that it must be satisfied of the occurrence of uncharged acts beyond reasonable doubt before they can be taken into account (The Queen v Bauer at [80]).

88. On this occasion, the jury was instructed that if they were so satisfied, they could go on to consider whether that conduct demonstrated that “the accused had that sexual interest and tendency to act in a sexually inappropriate way with young girls as the Crown alleges”. The jury was also conventionally and appropriately warned not to substitute a finding that the acts alleged by either RJS or A had occurred in place of a consideration of the elements of the offences actually charged. No complaint is made in this appeal about those directions or that warning.

89. RJS and A both made complaints in early 2001 and gave consistent accounts of what had happened to each of them. Their evidence is persuasive and compelling and it was well open to the jury to accept it. Having done so, it was further open to the jury to find that the applicant had a tendency to act in a particular way, namely to sexually assault young girls, and to take this into account in determining whether the applicant had committed the particular offence under consideration.

The views of the trial judge

90. The trial judge was critical of the complainant and expressed himself in clear and unequivocal terms (see [52], [55] and [57] hereof). The trial judge made similar remarks in the summing up:

“… The reality is this – on [the complainant’s] own account to you she is someone who has lied to the police on multiple occasions for reasons that she gave to you. Whilst she might have her reasons and you may even think that they are reasonable reasons the fact of the matter is, you are confronted with a witness who on her own account tells lies about the subject matter of this trial when it suits her to do so.

The other reality is, she is someone who will withhold the truth about these matters. She has said that she did so for various reasons, you may accept them as good reasons but the reality is again, you are confronted with a witness who on her own evidence will withhold the truth, and the whole truth when she thinks there are justifiable reasons for doing so.

The other reality about [the complainant] on her own evidence is, that her memories are unreliable. She has a tendency to mesh matters of a non-sexual kind with matters of a sexual kind. …” (SU 13)

91. In the summing up, his Honour did, however, make clear to the jury that the assessment of these matters was their task. It should be noted that to the extent that the trial judge’s remarks went further and inappropriately conveyed an opinion regarding the facts of the case, that opinion was very much to the applicant’s benefit in the trial.

92. While the applicant concedes that the views of the trial judge cannot bind this Court, he submitted that this Court should have regard to what his Honour said concerning the credibility of the complainant when considering the unreasonable verdict ground. That part of the applicant’s submission should be rejected. In Palmer v R [2018] NSWCCA 205 at [61] Basten JA (with whom McCallum and Bellew JJ agreed) citing SKA v The Queen at [112] rejected a submission by an appellant that the willingness of the trial judge to grant bail after verdict (or appeal bail) reflected a view of the trial judge about the verdicts that ought to be taken into account by the appellate court. In this case, the inconsistencies and inaccuracies in the complainant’s evidence about which the trial judge commented are clear from the transcript of the hearing. They are not matters which relied upon his Honour’s observations of the complainant’s demeanour or presentation or other matters which would not be apparent to this Court.

93. The significance of his Honour’s views as to the complainant’s veracity and reliability is that the jury was clearly and repeatedly warned in strong terms to carefully scrutinise the evidence of the complainant because of all the matters highlighted by the trial judge. Importantly, the complainant was a witness who made concessions, volunteered uncertainties and sought to explain her position as best she could. The jury was in a better position than this Court to observe the manner in which she described the offending conduct and the manner in which she responded to questions in cross-examination. Contrary to the applicant’s submissions, the difficulties with some aspects of the complainant’s evidence were not such that a reasonable jury must have had a doubt in respect of every count on the indictment. The following analysis supports that conclusion.

Counts 1 and 2

94. The complainant’s account of events, the subject of counts 1 and 2, was clear and consistent. It contained detail, including the circumstances in which the applicant came to be in the house and the pain involved in the digital vaginal penetration. The detail of the applicant coming to the house and asking to spend the night was supported in general terms by the evidence of both A and of the complainant’s father. The complainant made a contemporaneous complaint which the jury was entitled to accept, despite A’s lack of memory of the complaint.

95. The conduct of the applicant with respect to counts 1 and 2 was very similar to his conduct towards the complainant’s sister A and RJS. It was well open to the jury to have been satisfied that the Crown had amply demonstrated a tendency on the part of the applicant to engage in sexual misconduct with young girls; more specifically, in his case, to come into their beds or bedrooms, wake them and perform sexual acts upon them. The jury was entitled to use this finding and take it into account when considering their satisfaction concerning these two counts and other counts on the indictment.

Count 3

96. Counts 3 and 4 occurred during the same incident, yet the jury acquitted the applicant with respect to count 4. As outlined in MFA v The Queen there is no rule that a jury’s acquittal in respect of one count will necessarily undermine other counts even where the convictions rely on the evidence of a single complainant. Rather, it is only where “the verdicts cannot stand together” or where “no reasonable jury who applied their minds properly to the facts of the case could have arrived at that conclusion”, that a jury’s verdict will be set aside as inconsistent and unreasonable. In relation to count 3, there are good reasons why it was open to the jury to find that count proved but not be satisfied as to the matters raised in count 4.

97. When the complainant’s evidence with respect to this incident is taken into account, the detail she provides for count 3 is far greater than that which she provides for count 4. With respect to count 4, she could not recall how long it took or how it stopped (fellatio). As was highlighted in cross-examination, the complainant’s first accounts of the incident in 1999 and 2001 were that the applicant had asked her to suck his penis but she did not do so. This direct inconsistency of recollection was enough to cause the jury to have a reasonable doubt with respect to count 4 which they did not experience with respect to count 3. This is particularly so when the complainant’s evidence concerning count 3 was that she had always remembered that incident. It was not something which had come to her in a dream or flashback.

98. As Simpson AJA said in AH v R [2019] NSWCCA 152 at [62]:

“62   In fact, in my opinion, differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.”

99. The applicant relied upon the complainant’s lack of complaint and upon “no-one in the house knowing something was happening” as casting doubt about whether count 3 occurred. The complainant had tried to complain after the applicant’s conduct which gave rise to counts 1 and 2 but had been rebuffed. The complainant attempted to reassert her complaints on a number of subsequent occasions and plainly was not supported by her parents on that issue. Certainly no action was taken by the complainant’s parents but this does not necessarily mean that in the circumstances, no adult was aware that something was happening. Regrettably, protection of a perpetrator of child sexual assault by other adult family members is not uncommon (BM v R [2017] NSWCCA 133 at [44], [45] per Adamson J).

99. The fact that the applicant was willing to engage in the conduct which gave rise to count 3 in circumstances in which one might expect that others in the household would become aware of it is well supported in this case by the tendency evidence. As the High Court held in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [59]-[60]:

“59   Considered in isolation, JP's evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.

60   The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.”

Count 7

101. The applicant submitted that the acquittals on counts 5 and 6 reflected an adverse credit finding against the complainant, which in turn created an unexplained inconsistency with the conviction on count 7. As was explained by the plurality in MFA v The Queen at [34] just because a jury reaches a different verdict with respect to different counts, does not give rise to any assumption of inconsistency (Artery v R [2017] NSWCCA 259 at [36] (per Adamson J (with whom Payne JA and Johnson J agreed)). The complainant said that she was unsure about whether counts 5 and 6 occurred on the same or on a separate occasion from count 7. Her recollection of counts 5 and 6 was less detailed and vivid than count 7. These matters may well have influenced the jury with respect to counts 5 and 6 but not necessarily count 7.

102. The problem for the complainant in relation to count 7 was not so much the acquittals in respect of counts 5 and 6 but rather the inconsistency in the applicant’s evidence concerning the nature of the offending in count 7. The complainant had told detectives in Gunnedah in 1999 that the applicant had come into her bedroom at night and had put his penis into her vagina, i.e. she did not refer to anal intercourse. She made a statement to similar effect to the police in 2001. Under cross-examination, the complainant agreed that when she provided that information to the police she knew it was untrue.

103. The complainant’s evidence on this issue was:

“HIS HONOUR: Why did you tell the police on two occasions something that was untrue about [LS] penetrating your vagina with his penis?

A. Because it was actually my anus.

BOUVENG

Q. Why did you say it was your vagina and not your anus?

A. When I told my mum that he had been bum jacking me, I got picked on and teased, and I was so scared, so I changed it.” (T.227.38)

“Q. So your evidence is that you substituted your anus for your vagina with what you were describing to police in 1999 and 2001. Is that correct?

A. Yes.

Q. And that’s because you were embarrassed?

A. Yes.

Q. But you weren’t as embarrassed perhaps in 2014, when you were dealing with Detective Hayden at Katoomba?

A. I was still embarrassed to say it. I mean, as a growing woman, it still really disgusting.

Q. Yes. But you felt confident enough to tell her the truth at that stage, or what you’d say is the truth?

A. Yes.” (T240.43)

“Q. It's the case, isn't it, that you didn’t correct Detective Hayden at that point in time, that what she had just read out to you about [LS] putting his penis in your vagina was not true?

A. Yes.

Q. So you, in effect, perpetuated that untruth again in 2014. Do you agree with that?

A. Yes.

Q. By not telling Detective Hayden at that stage that that was not true?

A. Yes.

Q. I suggest to you … that the incident that you describe of [LS] coming in and putting something in your bottom in that bunk bed, is untrue, it never happened. What do you say to that?

A. But it did. It did happen.” (T241.17)

“HIS HONOUR

Q. Thank you. On the day that you first went to the hospital, which was the time when you had complained to your mum that you hadn't been able to do a poo, which was after the occasion when you were first anally penetrated by something, do you remember speaking to any nurses at the hospital?

A. No.

Q. If a nurse had recorded words to this effect, “States she has had her bowels open today and some were loose”, could you imagine why you would have told a nurse something like that?

A. Only if it happened, but I can’t remember if it happened, sorry.

Q. You would only tell the nurse that if it had happened?

A. Yes.

Q. All right. Now, the last thing I want to ask you is this. In - sorry, I'll start that again. You told us that in 1999 when you told the police that the accused had penile/vaginal intercourse with you that that was untrue.

A. Yes.

Q. You told us that when you told the police that again in 2001 that was untrue?

A. Yes.

Q. Why was it in 2014 when the police read those statements out to you that you didn't tell the police officer then that what you had said was untrue about that?

A. Honestly, I don’t know. I was kind of scared because I lied and I signed that statement saying that I'd told the whole truth.

Q. So why didn't you tell the police officer in 2014 that you’d lied in those statements?

A. I was scared. Can I get in trouble for that?

Q. Sorry?

A. Can I get in trouble for that.” (T259.25-260.9)

104. It should also be noted that during the course of the summing up the jury asked a question (jury note number 6) which read:

“In your summary you said [the complainant] lied in court. And you stated that the lie was to be found in the transcript on pages 226 and 227. Can you clarify for us what the lie was and whether it forms part of her evidence towards one of the indictable offences?” (SU 51)

105. In replying to that question, his Honour referred the jury specifically to the complainant’s evidence that in 1999 and 2001 she had told the police that count 7 involved penile/vaginal intercourse and that when she provided that information to the police she knew it was untrue.

106. By way of further background, Detective Sharp whom the complainant saw in 1999 gave the following evidence:

“Q. And if there was an allegation within your “patch” if I could put it that way of an indecent assault or sexual assault involving a child it would be referred to your or your colleague?

A. Yes.

Q. Is that because you’d had some special training and some special expertise in interviewing and dealing with these sorts of matters?

A. Yeah. It was interviewing with children, yes …

Q. And when you would interview children in this period between 1999 and 2001 would you do it on your own?

A. Depends if the offender was still in the home and it had just been a recent one. A lot of times you take a DOCS worker with you. If they’re only young and it was a [non transcribable] matter or it had taken place where there was no risk in the home at that point in time that DOCS might needed to do in some cases you’d maybe interview with a support person present or there were times where you’d have to just do the interview by yourself.

Q. In the example of a young female?

A. Yeah.

Q. Again during this period 1999 to 2001 would you give them the offer to be interviewed by a female officer if they felt more comfortable with that?

A. No.

Q. Why is that?

A. Because I was trained the same as the female officer and we just – if we did that I’d – it wouldn’t be – it just wouldn’t work so didn’t work.” (T380.9)

107. As can be seen from the evidence extracted above, and from their question which they asked, the jury were well aware of the controversy relating to count 7. The issue for the jury was whether they were satisfied beyond reasonable doubt that the complainant was telling the truth when she explained why she had not initially told the police that she had been subjected to anal intercourse by the applicant. From their verdict, the jury was so satisfied. Provided the complainant was believed, there was ample evidence before the jury to enable them to reach that conclusion beyond reasonable doubt.

108. Moreover, the tendency evidence provided direct support for count 7. RJS gave evidence of the applicant coming into her bedroom at night, waking her and having sexual intercourse with her in her bed. His Honour emphasised in his directions on tendency that even if the jury were satisfied that a particular act (as described by a tendency witness) occurred, it was further necessary to be satisfied that the applicant had that particular tendency. His Honour also emphasised in this context that the jury must focus upon “the particular and precise allegation in each charge” as alleged by the complainant.

109. Accordingly, it was open to the jury to find that the applicant had a tendency to act in the particular way alleged by RJS and A and to find that this made it more likely that the applicant behaved in that way towards the complainant on the occasions that she alleged such behaviour. In a case of this kind in which the complainant’s credibility was plainly the critical issue in the trial, it might be expected that the jury even accepting the complainant might look for “something additional” before being satisfied beyond reasonable doubt (MFA v The Queen at [34]). In the present case that “something additional” may well have been provided by a demonstrated tendency of the applicant to act in a particular way. Such distinction provides a logical basis for distinguishing between the verdicts.

110. The complainant, then aged five, made a complaint about count 7. The following day, she told her mother her “belly was hurting” and she needed to go to hospital. She told her mother that it was because of the applicant. Despite the discrepancy between the complainant’s account of constipation and the recorded medical history concerning the complainant’s bowel movements, it was open to the jury to find that the existence of the medical records supported rather than contradicted the complainant’s account of events. While it can be inferred that no complaint was made to a doctor or nurse (as one was not recorded), the complainant did not say that she had made a complaint to the nurse or doctor; in fact she was reprimanded by her mother for trying to speak about it in front of medical staff.

111. The applicant submitted that the evidence of the complainant’s father, GS, contradicted her account concerning the applicant’s entry through windows covered in gauze. It should be noted, however, that her father gave evidence that he had been a heavy drinker and had abused prescription drugs for a period of time and acknowledged that this had an effect on his memory. Even without this admission, it was apparent that his ability (or willingness) to remember detail of the matters touching on the subject and the relevant time period was limited. With respect to the complaint in 1999, his evidence was:

“Q. And did she indicate to you that it was LS?

A. Yes.

Q. Did she give any details of what he was supposedly doing?

A. No, no.

Q. Did you ask her what he had been doing?

A. She wanted to tell me, but I didn’t want to hear it.” (T361.26)

112. Although the evidence of the complainant’s father concerning the windows might have provided a basis for the jury to entertain a reasonable doubt as to the honesty and reliability of the complainant, it did not necessarily have that effect. The assessment of the veracity and reliability of the complainant’s father (and the complainant) on this subject was very much “a matter within the province and function of the jury” (BM v R at [34] (per Basten JA)).

113. The jury had the opportunity to observe the complainant when she gave her explanation of fear and embarrassment about revealing the occurrence of anal intercourse when talking to detectives in 1999 and 2001 (when she was aged 13-14) and her reasons for substituting vaginal intercourse instead. The jury also had the opportunity to observe the complainant when she gave evidence about her later fear of getting into trouble because she had made a false statement. This Court did not have the same opportunity to assess the complainant.

114. The trial judge had warned the jury in the strongest of terms concerning what his Honour described as “lies” on this particular topic. His Honour further highlighted for the jury the inconsistencies in the medical notes and directed them that “the question for you is whether or not this is another meshing of a non-sexual matter, that is abdominal pain, with what is a sexual complaint of having been anally penetrated by the accused” (SU 15). These directions were highly favourable to the applicant. Despite those directions, provided the jury were satisfied that the complainant was telling the truth on these issues, it was well open to the jury to be satisfied beyond reasonable doubt that the applicant had committed the offence in count 7.

Counts 11 and 12

115. As already explained, the Crown was given leave to amend the dates on the indictment to allow for the complainant’s uncertainty concerning the dates of the swimming pool incident. There was no issue that the complainant was uncertain as to the dates. This was not a matter which necessarily rendered her account of events unreliable, although his Honour warned the jury that it might.

116. Neither B nor T (the complainant’s brothers) who may have witnessed the incident would speak to police and were therefore unable to be called at trial. In that regard, the jury was warned about the forensic disadvantage occasioned to the applicant by reason of the delay in complaint. In these proceedings, the applicant accepts that the absence of witnesses who had died or refused to co-operate, and the limited investigation by police of rental homes, leases and other matters, was the subject of appropriate directions by the trial judge to the jury. With respect to the absent witnesses, in particular the applicant had the benefit of a direction that “their absence certainly does not assist the Crown case. The trial judge also firmly warned the jury about the fact that the complainant’s memory of counts 11 and 12 had “their origins in dreams and flashbacks”.

117. Leaving aside the complainant’s uncertainty as to dates, her description of what occurred was clear in detail. It had the ring of truth about it. Both the brazen and opportunistic nature of the applicant’s conduct and the particular act involved (digital penetration) were strongly supported by the tendency evidence. As with the offending in count 7, if the jury accepted the complainant as a witness of truth, it was well open to them to be satisfied beyond reasonable doubt that the applicant had committed the offences in counts 11 and 12.

Conclusion

118. As has been set out above in detail, matters affecting the complainant’s reliability were clearly exposed in cross-examination and in the summing up. Having considered those matters, it was well open to the jury to find the complainant to be a reliable and credible witness. Although her young age at the time of the offending and the passage of time led to the complainant having some difficulty with dates and timing, such matters were not of critical importance to the elements of the offences. Most particularly, the complainant was a witness who readily made concessions when she was unsure of details. She spoke openly about circumstances in which she had not been frank or honest. Her explanation for inconsistencies were neither implausible nor unbelievable, particularly when one takes proper account of her age and her social and family circumstances. The complainant’s evidence was strongly supported by the tendency evidence which has not been challenged.

119. The jury was in the best position to assess all of these matters. There is nothing arising from the record of the trial which would cause this Court on an independent assessment of the evidence to experience a doubt which the jury ought to have had. In this case, it cannot be said that no reasonable jury who applied their minds properly to the case could have returned the combination of verdicts that the jury did. When considered as a whole, the verdicts are consistent with the jury having “adopted a cautious approach to the discharge of a heavy responsibility” (MFA v The Queen at [34]). The verdicts are also consistent with the jury having followed the trial judge’s directions to separately consider all of the evidence in respect of each count alleged.

120. It follows that the applicant has not demonstrated that the verdicts of guilty are unreasonable.

121. The orders which I propose are:

1. Grant leave to appeal against conviction.

2. The appeal against conviction is dismissed.

122. WALTON J: I agree with Hoeben CJ at CL.

123. PRICE J: I agree with Hoeben CJ at CL and the orders he proposes.

************

Amendments

01 November 2019 - paragraph [103] - anonymisation of name

Decision last updated: 01 November 2019