MA v The The Queen

[2022] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MA v R [2022] NSWCCA 61

Hearing dates:

14 February 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Before:

Macfarlan JA at [1];
Bellew J at [71];
Dhanji J at [72]

Decision:

(1) Refuse extension of time to appeal.

(2) Dismiss application for leave to appeal.

Catchwords:

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdicts

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66A(2), 66C(2), 344A

Criminal Appeal Act 1912 (NSW), s 6(1)

Criminal Procedure Act 1986 (NSW), Pt 29, Sch 2 Div 2, s 84(2), Div 3, s 88

Cases Cited:

BF v R [2019] NSWCCA 321

DS v R [2021] NSWCCA

Holloway v R [2017] NSWCCA 17

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

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

MG v R [2017] NSWCCA 14

Nyguyen v R [2017] NSWCCA 145

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

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

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

RD (a pseudonym) v R [2021] NSWCCA

Vasilevski v R [2019] NSWCCA 277

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

MA (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Moutasallum (Applicant)
C Curtis (Respondent)

Solicitors:
Birchgrove Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/00393150036

Publication restriction:

Statutory non-publication order on the identity of the complainant and any material that tends to identify her under s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). This extends to the publication of the name of the complainant’s siblings and her school friend.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

12 November 2019

Before:

Woodburne SC DCJ

File Number(s):

2017/00393150

Judgment

1. In 2019 the applicant was arraigned in the District Court on an indictment charging him with 20 offences relating to the indecent and sexual assault of his granddaughter. After he pleaded not guilty to all charges, his trial proceeded before a jury which, in the course of the trial, returned directed verdicts of not guilty on Counts 10 and 15, as the complainant gave no evidence to support these counts. At the conclusion of the trial the jury returned verdicts of not guilty on the remaining counts from 1 to 12 and guilty on those remaining from 13 to 20. As the parties described it on appeal, the jury thus drew a “line in the sand” between Counts 12 and 13.

2. By the indictment, as amended during the course of the trial, the applicant was charged with the following offences:

Count 1: Sexual intercourse with a person under the age of 10 years (between 1 January 2006 and 10 March 2007) contrary to 66A of the Crimes Act 1900 (NSW).

Count 2: Sexual intercourse with a person under the age of 10 years (between 1 January 2008 and 10 March 2010) contrary to 66A of the Crimes Act.

Counts 3–5 and 7 (in the alternative to Count 6): Indecent assault person under 16 years of age (between 1 February 2009 and 10 March 2010) contrary to s 61M(2) of the Crimes Act.

Count 6: Sexual intercourse with a person under the age of 10 years in circumstances of aggravation (under authority) (between 1 February 2009 and 10 March 2010) contrary to 66A(2) of the Crimes Act.

Count 8: Indecent assault person under 16 years of age (between 1 February 2009 and 10 March 2011) contrary to s 61M(2) of the Crimes Act.

Counts 9 and 11: Sexual intercourse with a person under the age of 14 years in circumstances of aggravation (under authority) (between 1 February 2009 and 10 March 2011) contrary to 66C(2) of the Crimes Act.

Count 10: Indecent assault person under 16 years of age (between 1 February 2009 and 10 March 2010) contrary to s 61M(2) of the Crimes Act.

Count 12: Indecent assault person under 16 years of age (between 10 March 2009 and 10 March 2012) contrary to s 61M(2) of the Crimes Act.

Counts 13–16: Sexual intercourse with a person under the age of 14 years in circumstances of aggravation (under authority) (between 10 March 2009 and 10 March 2011) contrary to 66C(2) of the Crimes Act.

Count 17: Indecent assault person under 16 years of age (between 1 February 2012 and 10 March 2013) contrary to s 61M(2) of the Crimes Act.

Count 18: Attempted aggravated indecent assault (under authority) (between 1 January 2017 and 31 December 2017) contrary to s[s] 61M(1) [and 344A] of the Crimes Act.

Counts 19–20: Attempted aggravated indecent assault (under authority) (between 1 June 2017 and 31 December 2017) contrary to s[s] 61M(1) [and 344A] of the Crimes Act.

3. On 12 June 2020 the trial judge sentenced the applicant to imprisonment for eight years and six months, with a non-parole period of five years, in respect of the seven offences of which he was found guilty (Counts 13, 14, 16, 17, 18, 19, 20).

4. By notice of appeal filed on 12 July 2021 the applicant sought leave to appeal against his convictions on the ground that the guilty verdicts are unreasonable (see ss 5(1) and 6 of the Criminal Appeal Act 1912 (NSW)). He gave two particulars. First, he contended that the guilty verdicts are inconsistent with the not guilty verdicts (other than the two directed verdicts). Secondly, he contended that “[t]he guilty verdicts were otherwise unreasonable taking into account the whole of the material available”. At the hearing in this Court the applicant did not however address the second particular.

5. In essence, the applicant contended that the acquittals (and in particular that on Count 12) can only be explained on the basis that the jury must have had a reasonable doubt about the complainant’s credibility and that if it had such a doubt then it ought not to have convicted the applicant on any of the counts because the Crown case in respect of each of them depended on acceptance of the complainant’s evidence. For the reasons given below, I have however concluded that the not guilty verdicts can be explained on logical and reasonable bases not involving the jury having a reasonable doubt about the complainant’s credibility. As a result, the proposed appeal has no merit and the applicant’s application for an extension of time to file his notice of appeal should be rejected and his application for leave to appeal dismissed.

THE EVIDENCE AT THE TRIAL

6. The complainant was born in early 2000. She has an older brother, a younger brother and a younger sister. The Department of Family and Community Services removed the four siblings from the care of their parents in late 2003 and subsequently they came under the care of their paternal grandparents. The complainant was taken into their permanent care late in 2005 when she was aged five. Over time, the family lived in three different houses, consecutively in Newcastle, Villawood and then in Fairfield. Most of the offences occurred in the last home. At that house, there were strict rules that the children were required to obey, or else be punished, including physically. Rules included that the children were not allowed to sit on the couches, that they had to ask permission to use the toilet and that the girls were not allowed to talk to the boys.

The complainant’s evidence

7. The complainant was 19 years of age when she gave evidence. Although she was an adult, she was assessed by a witness intermediary, who made recommendations relating to the way the complainant ought to be questioned (see Sch 2, Pt 29, Div 2, s 84(2) and Div 3, s 88 of the Criminal Procedure Act 1986 (NSW)). The Crown prosecutor explained to the Court, in the absence of the jury, that this step was taken because, although the complainant had “no diagnosed cognitive impairment”, she was “very reticent in terms of her manner and patterns of speech”. She subsequently suggested to the jury in her closing address that the complainant seemed younger than her 19 years. The recommendations of the witness intermediary were largely accepted by both parties and the complainant was permitted, for example, to sit with a battery operated “breathing dog” toy on her lap when giving evidence. The Crown argued on appeal that the special characteristics of this witness suggested that the jury would have enjoyed a significant advantage over this Court in its ability to assess her evidence.

8. The complainant gave evidence that the first sexual incident with her grandfather occurred when she was five but she could not recall details of the incident. This was led as context evidence only.

9. In summary, the complainant gave the following evidence in relation to the counts in the indictment.

Count 1: First car incident

10. The complainant gave evidence that before she turned seven, the applicant digitally penetrated her vagina whilst they were in a family car (Count 1). They were returning home after dropping her uncle at work. She said that this incident occurred whilst the family was living in Villawood. Given that the car was proved to be registered to the complainant’s grandmother only from 10 August 2006 and the family moved from Villawood to Fairfield on 1 September 2006, there was only a short period of time during which this offence could have occurred.

Count 2: Second car incident

11. The complainant gave evidence of another occasion on which a similar act occurred in the car after her uncle was dropped at work (Count 2). The family was by that time living in the Fairfield house.

12. As a result of the complainant giving evidence that this occurred when she was “about nine”, the prosecution sought and obtained leave to amend the indictment to extend the date range for this offence to the date when the complainant turned 10, namely, 10 March 2010. Counts 3, 4, 5, 6 and (in the alternative) 7: First Bingo night incidents

13. These counts related to an occasion when the complainant’s grandmother went out of the house to play Bingo at a local school hall, when the complainant was about nine or ten years old. This was the first occasion that the complainant could recall when sexual offending occurred while her grandmother was at Bingo. With some exceptions (see [15]–[18] and [23]–[25] below) the evidence of other such occasions was adduced as context evidence only as the complainant could not recall the detail of them.

14. The complainant gave evidence that on this first occasion the applicant touched her on the breast (Count 3), touched her on her genitals on the outside of her pants (Count 4), lifted her shirt up and kissed her right breast, including the nipple (Count 5) and touched her on the clitoris as well as inside her vagina (Count 6). Count 7 alleging indecent assault was included on the indictment as an alternative to Count 6 (sexual intercourse with a child under the age of 10) in case the complainant did not give evidence of penetration. It became redundant when she gave that evidence.

Counts 8, 9 and 11: Second Bingo night incidents

15. The complainant gave evidence of a further occasion on which her grandmother went out to play Bingo. She said that her grandfather touched her breast (Count 8), pulled her pants down and, while she was kneeling, put a finger inside her vagina (Count 9).

16. The complainant also gave evidence that the applicant put the complainant’s legs on his shoulders whilst she was lying on a bed and put his tongue on her clitoris and moved it inside her vagina (Count 11).

17. The complainant did not give evidence in support of Count 10 (indecent assault: kissing the complainant’s breasts). As a result, a directed verdict was sought and returned.

18. The complainant gave evidence that she was nine or ten when the incidents the subject of Counts 9 and 10 occurred. As a result, the date range in the indictment had to be expanded to include the year that she was aged ten. Consequentially, the terms of the charges in Counts 9 and 11 also had to be amended from “under the age of 10 years” to “under the age of 14 years”. The Crown prosecutor explained to the jury that these amendments had been effected to accommodate the complainant’s evidence concerning her age.

Count 12: Watching TV on the floor incident

19. The complainant also gave evidence of an occasion when she was watching television with the applicant. She was sitting on the floor and he was sitting behind her on the couch. She said that he put his foot underneath her, touched her bottom towards the back of her vagina and moved his toes (Count 12). The complainant’s evidence that she could then have been as old as 11 necessitated an amendment to the indictment to expand the date range to encompass all the years that she was aged 9, 10 or 11. The Crown prosecutor explained the reason for the amendment to the jury.

Count 13: Ice Blocks incident / Third Bingo night incident

20. The complainant gave evidence of an occasion when her grandmother went out to play Bingo. The applicant came into her bedroom, woke her up and told her to go to the kitchen. The applicant instructed her to lay down on the couch in the kitchen, partially removed her clothing and put his finger in her vagina, moving it in and out for “five to ten minutes” (Count 13). The applicant stopped doing this when the complainant’s sister came to the kitchen doorway and asked the applicant for permission to use the toilet.

21. The complainant said that the applicant gave the two girls “Zooper Dooper” ice blocks as a special treat and told the complainant’s sister not to tell her grandmother what he had been doing. The complainant remembered having a conversation with her sister at the time but could not remember what was said.

22. The complainant gave evidence that she decided, as a result of her sister having walked in when the offence was taking place, to tell her sister about what the applicant had done. She said that she was “pretty sure” that she kept talking to her sister about the applicant’s conduct from that time until the abuse ceased (when she was aged 17). She was unable to remember the details of those conversations other than one in which she asked her sister if she remembered the Count 13 incident but her sister said that she did not.

Counts 14, 15 and 16: Fourth Bingo night incidents

23. The complainant gave evidence of another set of incidents that occurred on an occasion when her grandmother was out of the house playing Bingo. She said she was “about 10” when they occurred.

24. She said that the applicant told her to go into his room, pulled her pants and underpants down and put his finger inside her vagina (Count 14) and subsequently put his penis both inside and outside the lips of her vagina (Count 16).

25. The complainant did not give evidence to support Count 15 which was an act of cunnilingus. As a result, the jury returned a directed verdict of not guilty on that count.

Count 17: Hair brushing incident

26. The complainant gave evidence that, when she was 12, the applicant touched her breast whilst her grandmother was brushing the complainant’s hair (Count 17). She said that her grandmother was “pretty angry” and afterwards accused her of having some sort of relationship with the applicant. The grandmother was not called to give evidence.

Count 18: Vacuuming incident

27. The complainant gave evidence that when she was 17 the applicant tried to touch her breasts whilst she was vacuuming the house (Count 18). She told him that she did not want him to touch her anymore, to which the applicant responded “okay”.

Counts 19 and 20: Sitting on lap incidents

28. The complainant also gave evidence that after the Count 18 incident, but while she was still 17, the applicant attempted to touch her on the breast and on the genitals, but she blocked him from doing so (Count 19). He then attempted to kiss her (Count 20). She was uncertain whether the applicant in fact succeeded in touching her breast or kissing her, as a result of which amendments were made to the indictment to frame Counts 19 and 20 as attempts only.

Context evidence

29. The complainant also gave evidence that the applicant did “sexual things” to her regularly throughout the years covered by the counts in the indictment but was unable to distinguish between them as they were “all warped together”. The evidence extended to reference to casual sexual contact on a day to day basis, for example, if the complainant was doing the dishes, the applicant would come and touch her on the bottom.

The complainant’s sister’s evidence

30. The complainant’s sister had no recollection of the incident the subject of Count 13 but recalled that the complainant started telling her about the applicant’s abuse of her when she (the sister) was aged seven (the sister was about three years younger than the complainant). The sister said that she had no memory of any conversation on this topic before she was seven and indeed had few memories of anything in her life before the age of seven. She said that, at first, the complainant told her that their grandfather had “been touching me and stuff” and then, as they grew older, the complainant started giving her more details. These included telling her that she (the sister) had actually walked in on the applicant “feeling her and playing around” in the sitting room and that her silence had been secured with an ice block. The sister had no memory of the incident itself.

31. The sister said that from when she was seven until she was fourteen (when she was removed from the care of her grandparents), she and the complainant would talk about sexual things happening to each of them “usually after an incident happened” (the complainant’s sister also complained of sexual abuse). The sister believed that the complainant had told her about “pretty much every incident” as the complainant would complain to her of “at least two incidents a month”. Whilst the frequency of those complaints changed over the seven years in question, the sister said that the complainant “was always telling me some things” so she inferred that she had been told about “almost every incident”.

32. The complainant’s sister did not give evidence of any complaint specifically referrable to the occasion which gave rise to Counts 14, 15 and 16. She said however that, after the complainant’s first disclosure to her, she would stay awake with the complainant on the nights that their grandmother went to play Bingo and she (the sister) would cough or roll over if the applicant came into their bedroom.

33. The complainant’s sister also gave evidence that the complainant had told her of an occasion on a Bingo night when she (the sister) was about eight and had accidentally fallen asleep. The complainant later told her that the applicant had assaulted her by fingering her and sucking her vagina with his mouth. This evidence was advanced by the Crown as evidence of complaint relating to the complainant’s context evidence and therefore relevant to the complainant’s credibility. The Crown did not contend that it was a complaint concerning Count 11.

34. The sister also gave complaint evidence referable to Count 18. She said that one day in 2017 the complainant was “really happy … and proud of herself” because she “had managed to tell him to stop”. The complainant told her sister that she had been vacuuming the house and the applicant had “started feeling her” but she had told him “I don’t want you to touch me anymore”. Her sister said that the complainant told her about that incident “either later that day or the day after” it happened.

35. The complainant’s sister also gave evidence referrable to Counts 19 and 20. She said that about a month after the Count 18 incident, the complainant started crying and said “I told him to stop but he keeps on doing it”. The complainant said to her sister that the applicant had tried to touch her vagina area and, when she had resisted, he had said to her “what’s wrong like, why are you like this. When … you were younger you used to, I used to pull down your pants and you used to do it and you used to let me”.

The complainant’s friend LM’s evidence

36. LM said that the complainant first confided in her that something was happening to her in 2016. Later, the complainant told her that there was a time when the applicant “came and he touched my breasts” and that
    her “grandma was there but she didn’t say anything”.

37. LM also gave evidence that after their graduation from school in 2017, the complainant told her that “her grandfather had touched her again”.

38. LM also gave evidence that the complainant was “very quiet, very timid… very shy” in the presence of her grandparents, particularly the applicant.

LM’s mother HM’s evidence

39. HM also gave evidence that the complainant appeared “very submissive” in the presence of her grandparents, particularly towards the applicant.

40. HM gave further evidence that towards the end of 2017 the complainant told her that her grandfather would touch her inappropriately and that at the age of six her grandfather had taken her into the living room and put his finger into her vagina. HM said that in another conversation the complainant said that on a family trip to Samoa the applicant had put his mouth on her vagina. The complainant conveyed to HM that this act had happened on more than one occasion (but it was not clear whether or not all these occasions were in Samoa).

41. HM made the decision to report the matter to authorities later in the week.

Other evidence in the Crown case

42. The other evidence in the Crown case does not bear on the issues on appeal.

The applicant’s case at trial

43. The applicant did not give evidence or adduce other evidence at the trial and he did not participate in a recorded interview prior to the trial. In the Crown case, a police officer however gave evidence that when the applicant was charged, the applicant said, “it’s all lies”.

RELEVANT LEGAL PRINCIPLES

Inconsistency of verdicts

44. In Nyguyen v R [2017] NSWCCA 145 at [34]–[48] I reviewed relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). I stated in Nguyen the following conclusions (at [48]):

“These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see [MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35]…), that is, if there is ‘a logical and reasonable basis for sustaining the differentiation that the jury drew’ (see [MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53]…). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12]…). There are many reasons why this may occur. One is that in some respects a complainant may have resorted ‘to a degree of exaggeration in order to reinforce his or her account’ (see [R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290]…; [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151]…). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see [MG v R [2017] NSWCCA 14]…). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG…). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see [Holloway v R [2017] NSWCCA 17]…).”

See also BF v R [2019] NSWCCA 321 at [9] and [10].

45. Further elaboration of these principles is to be found in this Court’s judgment in Vasilevski v R [2019] NSWCCA 277 at [115] and [117] as follows:

“115. In [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151], Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said:

‘…In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility’ (emphasis in original).

…

117. Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [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…’”.

See also DS v R [2021] NSWCCA 52 at [23]–[24] and Z (a pseudonym) v R [2022] NSWCCA 8 at [25]–[26].

Unreasonableness of verdicts generally

46. In RD (a pseudonym) v R [2021] NSWCCA 94 at [7] and [8], with the concurrence of Walton and Hamill JJ, I summarised as follows the basic principles referable to an unreasonable verdict ground of appeal.

47. The unreasonable verdict ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the appellate court in this context is “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” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “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” (emphasis in original). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

48. In addressing an unreasonable verdict ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) although, as stated in M v The Queen (at 494):

“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.”

CONSIDERATION OF THE PROPOSED APPEAL

49. On appeal the applicant conceded that the acquittals on Counts 1 and 2 could rationally be explained other than on the basis that the jury had doubts about the complainant’s credibility. In particular, the applicant referred to the short window of opportunity (see [10] above) in which the Count 1 offence would have been committed and to the absence of complaint evidence to corroborate commission of the offences the subject of Counts 1 and 2.

50. The Crown also pointed to the fact that the charge for Count 2 of the indictment had to be amended after the complainant gave evidence. This may have signalled to the rational jury that there was uncertainty on the complainant’s part as to the details of the offence.

51. The applicant however submitted that the position was otherwise in respect of the remaining counts on which (undirected) verdicts of not guilty were returned: Counts 3–7 (the first Bingo night incidents), Counts 8, 9 and 11 (the second Bingo night incidents) and Count 12 (the watching TV on the floor incident). The applicant submitted in relation to them that “there was no objective evidence that could cast doubt on the reliability of the evidence of the complainant as was the case in Counts 1 and 2”. In particular, he submitted that the verdicts were not explicable on the basis that the jury may have accepted a defence argument that the complainant’s evidence concerning the frequency of her grandmother’s absence from home playing Bingo was doubtful as the jury convicted the appellant in respect of the third Bingo night count (Count 13) and the fourth Bingo night counts (Counts 14, 15 and 16) in relation to which the same argument was available. He submitted that there was no rational or logical explanation capable of justifying the “line in the sand” that the jury drew between Counts 12 and 13.

First Bingo night incidents

52. The Crown advanced three reasons why the not guilty verdicts on the first Bingo night incidents counts (Counts 3–7) did not indicate that the jury had doubts about the complainant’s credit. First, the incidents occurred before the complainant started complaining to her sister about the abuse. Secondly, even once the complainant did start telling her sister of the abuse, there was no complaint evidence specifically referrable to these incidents.

53. Thirdly, the complainant’s evidence concerning Count 7, that not only had the applicant touched her clitoris but he also touched the inside (“the hole”) of her vagina, was significantly different from the Crown’s reference in opening to the applicant touching her clitoris only. That description had left room for doubt as to whether penetration occurred whereas her evidence did not. A rational jury may have considered that the complainant had given two different versions of the incident (one in evidence and the other prior to trial, upon which the Crown relied in formulating its opening). It may have reasoned that there was therefore uncertainty on the complainant’s part as to what precisely occurred.

Second Bingo night incidents

54. On appeal, the Crown identified four bases, apart from doubts about the complainant’s credibility generally, for the acquittals on the second Bingo night charges (Counts 8, 9 and 11).

55. First, because the incidents appear to have occurred before Count 13, they occurred before the complainant started making contemporaneous complaints to her sister. They were therefore not the subject of such a complaint.

56. Secondly, substantial amendments were made, by leave, to the indictment as a result of the complainant’s evidence concerning her age when the incidents occurred. This may have indicated to a rational jury that there was some uncertainty on the complainant’s part about the precise circumstances of the incidents. The applicant responded to this argument by pointing out that the Crown also had to amend the indictment in relation to two counts (Counts 19 and 20) on which verdicts of guilty were returned. The Crown’s reply was that those amendments were however more succinct than those to earlier counts (which the Crown said rendered Counts 8 and 9, for example, “a real mess”) and the jury may reasonably have attached less significance to them.

57. Thirdly, the complainant gave no evidence which could have founded the charge made in Count 10. As a result, the jury was directed to return a verdict of not guilty on that count. This may have also led a rational jury to doubt that the complainant had a clear recollection of what occurred on this occasion, the inference being available that prior to trial she had told the police of conduct which led to the Crown including Count 10 in the indictment.

58. Fourthly, the Crown submitted that there was no complaint evidence specifically referable to the second Bingo night incidents whereas there was for Counts 13 and following, on which the applicant was convicted. The applicant submitted that this was not so because there was in fact complaint evidence referable to Count 11 and the different verdicts on either side of the “line in the sand” between Counts 12 and 13 could not therefore be explained by the presence or absence of complaint evidence.

59. The applicant supported this argument by submitting that the complaint evidence of cunnilingus given by the complainant’s sister must have related to the second Bingo night incidents, and in particular to Count 11, because that was the only act of cunnilingus of which there was evidence. The sister’s evidence was that the complainant told her that the applicant put his fingers in her vagina and sucked it with his mouth. The applicant submitted that because there was only one count of cunnilingus on the indictment and there was no other uncharged act of cunnilingus of which evidence was given, the complaint evidence could only have related to the second Bingo night incidents and the existence of complaint evidence could not therefore explain why the jury found the applicant not guilty on Count 12 but guilty on Count 13.

60. In response to this argument, the Crown submitted, correctly in my view, that an available rational view of the context evidence was that there were other acts of cunnilingus beside those that had been charged and that it was open to the jury to consider that the complaint evidence related to one or more of those acts (and not to the Count 12 act). For instance, in her first recorded interview (which was played as part of her evidence in chief) the sister described the complainant’s complaints in general terms suggesting the complainant was describing acts that occurred multiple times. For example, the complainant was quoted as describing acts that “used to” happen and of present importance, those included “oral” which in its context clearly referred to, or at least included, cunnilingus.

61. The applicant further submitted that the evidence did not establish that the offences charged in the indictment occurred in “a perfect chronological order” in line with their count numbers. He submitted that as there was therefore no certainty that the Count 12 act occurred before that charged in Count 13, it could not be said that the jury adopted a rational “line in the sand” by finding that the Crown proved to the requisite standard the acts occurring from the time the complaint started complaining (Count 13) but not those occurring beforehand (Count 12 and earlier counts).

62. It is a sufficient answer to this submission to conclude, as I do, that it was open to the jury on the evidence to consider that the alleged acts occurred in the order charged in the indictment (at least those in Counts 12 and 13). On this basis, the “line in the sand” was a rational one because it distinguished those counts where there was corroboration by complaints from those where there was not.

Watching TV on the floor incident

63. The Crown sought to explain the acquittal on Count 12 on similar bases: first, that there was a lack of specific complaint evidence about the incident, secondly, that it occurred at a time before the complainant started complaining to her sister and thirdly, that Count 12 was another count that required amendment following the complainant’s evidence.

Ice Blocks incident / Third Bingo night incident

64. The applicant submitted that the jury’s guilty verdict on Count 13 could not rationally be explained by the existence of complaint evidence from the complainant’s sister as the sister did not recall the incident. However, the jury may rationally have considered as significant complaint evidence the sister’s evidence that she recalled the complainant telling her that she (the sister) had walked in on the applicant when he was abusing the complainant and that her silence had been secured with an ice block (see [30] above). It was not of particular importance that the sister did not recall the incident as the sister would have only been aged six or seven at the time and may not have attached significance to what occurred. The complainant’s subsequent description of it to the sister, seemingly at least within a year or so of it occurring, was however significant as corroborating the complainant’s evidence of the incident itself. The charged conduct that occurred thereafter was the subject of at least generalised complaint evidence which enabled the jury rationally to distinguish the conduct of the counts following 13 (and Count 13 itself) from the counts on which it acquitted the applicant.

65. Although the applicant submitted otherwise, there was no significant difference between the evidence of the complainant and her sister concerning the frequency of the former’s complaints to the latter. Moreover, the fact that they expressed differently their reasons for not informing their grandmother of the abuse is not of significance.

Remaining counts

66. The presence of ample complaint evidence in relation to Counts 14 to 20 (leaving Count 15 aside), notwithstanding that much was of a generalised character, provided a rational basis for the jury to find the applicant guilty when it had not done so on the counts preceding Count 13.

Conclusion as to inconsistency

67. As indicated in MFA at [34] (see [45] above), whilst a jury may consider that a complainant is telling the truth, it may require “something additional” before concluding that the accused’s guilt has been proved beyond reasonable doubt. Such a “cautious approach” by a jury would be reflective of the heavy responsibility placed on it.

68. The verdicts in the present case suggest that the jury took such an approach, carefully distinguishing between the differing charges against the applicant. Paragraphs [52]–[66] above identify rational bases identified by the Crown on appeal upon which it was open to the jury to do that in order to arrive at the verdicts it delivered. None of the not guilty verdicts therefore indicated that the jury must have had doubts of a general nature about the complainant’s veracity or reliability, rendering the applicant’s conviction on seven counts unreasonable.

Unreasonableness otherwise than on the basis of inconsistency of verdicts

69. As noted above, the applicant’s submissions to this Court were confined to contending that his convictions were unreasonable because they were inconsistent with the jury’s verdicts of not guilty on other counts, in particular, Count 12. The applicant did not, in my view for good reason, submit that his convictions were on any other basis unreasonable. In these circumstances, it is sufficient for me to note that the complainant gave firm and apparently credible evidence to support the counts on which the applicant was convicted and that there was either general or specific complaint evidence applicable to all of them. Having conducted an independent assessment of the record of the trial, I am of the view that there is no basis for concluding that the jury misused its advantage in determining whether to accept the complainant’s evidence or that it was not open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt (see [64] above).

ORDERS

70. For the reasons given above, the applicant’s proposed appeal does not have any merit. As a result, he should be refused an extension of time to appeal and his application for leave to appeal should be dismissed.

71. BELLEW J: I agree with Macfarlan JA.

72. DHANJI J: I agree with the orders proposed by Macfarlan JA, and with his Honour’s reasons. I would add only the following.

73. Various arguments were put by the applicant as to why there was no basis to distinguish between those counts on which the applicant was convicted and those counts on which he was acquitted. Ultimately, however, it was, as Macfarlan JA has observed, open to the jury to take the view the counts followed a chronological sequence and, more particularly, it was open for the jury to take the view that the counts on which convictions resulted followed a chronological sequence. In this regard, the complainant, when specifically asked, gave evidence that what was described as the fourth bingo incident occurred after the third bingo incident (the third bingo incident relating to count 13 and the first of the convictions). It was also clear that the remaining counts occurred after the fourth bingo incident. Two points of significance flow from this.

74. First, in relation to the counts that were later in time, as a general proposition, the complainant was not only older at the time, but the events were also more recent. It was open to the jury to take the view that the complainant was more reliable with respect to the more recent events both because of that recency, and the increased capacity and understanding that can be expected to have come with the complainant’s increasing maturity.

75. Secondly, as to the “line in the sand”, as Macfarlan JA has explained, it was open to the jury to find that the counts in relation to which convictions resulted, were supported by complaint evidence. It is true that the only evidence of contemporaneous complaint specific to count 13 was given by the complainant. She said she talked to her sister about it that night. She said she was prompted to do so because of what her sister had seen. The significance of that evidence was to an extent diminished as a result of the fact the sister did not corroborate either the event she was said to have witnessed, or the subsequent complaint that night. This was, however, explicable given that the sister was six or seven years old at the time and gave evidence that she had a very limited recollection of anything in her life prior to the age of seven. Further, given the sister’s young age, and the fact that she said she was also being sexually abused, the events would not have had the significance they otherwise might have had. It was, however, noteworthy that the sister gave evidence that, sometime after the event, the complainant told her about it, at which time she said she could not recall the event. The complainant also gave evidence of having subsequently spoken to her sister about “the poster time” (count 13 – also referred to as the ice blocks incident and the third bingo night) and her sister not having any recollection of it. The sister’s evidence was that the complainant first made a complaint to her when she was about seven, and thereafter made regular contemporaneous complaints. The sister turned seven in 2010, and was about three years younger than the complainant. The conversation in relation to count 13 recalled by both the complainant and the sister appears to have been at least relatively recent to the occurrence of the events, and thus supportive of the reliability of the complainant’s evidence as to the occurrence of count 13. This conversation also took place well before the complainant or the sister went to the police and was therefore very unlikely to have been for the purposes of manufacturing a false complaint. (As to this last point, I note the jury’s concern with the complainant’s evidence was not, it appears with respect to its honesty, but rather, its reliability more generally.)

76. In the above circumstances, it was open to the jury to accept the complainant’s evidence that she made a complaint on the night on which count 13 occurred, and that reasonably contemporaneous complaints were made with respect to each of the subsequent counts. This provided a rational dividing point or the “line in the sand” between the earlier counts and the later counts. Given this, the jury’s verdicts were, in my view, a rational response to a difference in the strength of the Crown case with respect to the different counts.

77. With respect to the complaint of unreasonable verdicts more generally, as Macfarlan JA points out, this was not the subject of submissions separate to the complaint based on inconsistent verdicts. In my view the complainant gave credible evidence as to the relevant events. While it was a case dependent on the evidence of a single witness, any doubt that I might have held with respect to her evidence, is capable of being resolved by the advantage held by the jury.

78. The verdicts are, in my view, not unreasonable, either on the basis of inconsistency or otherwise.

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Decision last updated: 25 March 2022