MC v R

[2017] NSWCCA 274

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	MC v R [2017] NSWCCA 274
Hearing dates:	30 August 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Before:	Hoeben CJ at CL at [1]; Davies J at [117]; Bellew J at [118]
Decision:	(1)   Leave to appeal granted. (2)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – six charges of aggravated indecent assault on child under 10 and one charge of sexual intercourse with child under 10 brought against grandfather – applicant convicted of three aggravated indecent assault charges and of the sexual intercourse charge – acquitted of three aggravated indecent assault charges – whether verdicts of guilty unreasonable and inconsistent with verdicts of acquittal – logical reason for differences in verdicts – independent assessment of evidence required by Court – position of advantage of jury – ample evidence to support conviction – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61M, 66A, Criminal Appeal Act 1912 (NSW) – s 6(1)
Cases Cited:	Abbey v R [2017] NSWCCA 109 Allan v R [2017] NSWCCA 6 Atai v R [2014] NSWCCA 210 Elwood v R [2016] NSWCCA 18 Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 Hawi v R [2014] NSWCCA 83; 224 A Crim R 169 Lepine v R [2017] NSWCCA 83 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63;181 CLR 487 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 MG v R [2017] NSWCCA 14 Nguyen v R [2017] NSWCCA 145 Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Nguyen [2010] HCA 38; 242 CLR 491 SKA v The Queen [2011] HCA 13; 243 CLR 400 TK v R [2009] NSWCCA 151; 74 NSWLR 229
Category:	Principal judgment
Parties:	MC - Applicant Regina – Respondent Crown
Representation:	Counsel: C Wasley – Applicant F Veltro – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/312024
Publication restriction:	Non-publication order regarding the names of the applicant and the complainant.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 December 2015 Before: Norrish QC DCJ File Number(s): 2013/312024

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant was arraigned at Wagga Wagga District Court before Norrish QC DCJ (the trial judge) on 27 July 2015 in respect of the following charges:

Counts 1,2 & 4 – Aggravated indecent assault (child under 10 years), contrary to s 61M(2), Crimes Act 1900 (NSW).

Count 3 – Sexual intercourse (child under 10 years), contrary to s 66A, Crimes Act 1900.

Counts 5 & 6 – Aggravated indecent assault (child under 10 years), contrary to s 61M(2), Crimes Act 1900.

Count 7 – Aggravated indecent assault (child under 10 years), contrary to s 61M(2), Crimes Act 1900.

2. The applicant pleaded not guilty in respect of all charges. On 30 July 2015 the jury returned verdicts of guilty in respect of Counts 1, 2, 3 and 4 and not guilty in respect of Counts 5, 6 and 7.

3. On 17 December 2015 the applicant was sentenced to imprisonment with a non-parole period of 18 months, commencing 11 December 2015 and expiring 10 June 2017, with a balance of term of 21 months, expiring 10 March 2019.

The applicant was released to parole on 16 June 2017.

4. The applicant seeks leave to appeal against conviction on the following ground:

Ground 1 – The verdicts of the jury in relation to Counts 1, 2, 3 and 4 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of the jury of not guilty on Counts 5, 6 and 7.

Overview of Crown and Defence cases

5. The applicant is the paternal grandfather of the complainant. The Crown case was that during the period 1999 – 2003 the applicant sexually assaulted the complainant at his home which was situated in Collingullie, a country town. The complainant was born in 1994 and was aged between 5 and 8 during that period.

6. The counts on the indictment related to three distinct incidents that occurred on different days. The prosecution case in respect to each of the three incidents was essentially based upon the evidence of the complainant alone.

7. Counts 1 – 4, in respect of which the jury returned guilty verdicts, were said to have occurred on a single day during the Christmas holidays in the period 9 April 1999 and 10 April 2000. Counts 2 – 4 were said to have occurred at about the same time or within minutes of each other.

8. The background to Count 1 was that the complainant was seated on the ground playing with toys and dolls behind a three seater lounge when the applicant approached her from behind, gave her a cuddle, leaned over her shoulders and then reached down and rubbed her vagina on the outside of her underpants.

9. Counts 2, 3 and 4 occurred later that same evening. After her bath, the complainant dressed in a green Christmas-themed nightie made of silk with pictures of Santa Claus on it. She was carried to her bed by the applicant. In due course she fell asleep, but later awoke to find that the sheets were off her and her nightie was up. The applicant was said to have moved his hand from the outside of her underpants to the inside and rubbed her on the outside of her vagina (Count 2). He then spat on his hand and proceeded to insert his finger into her vagina. The complainant could not see the finger but felt it and said "I think maybe up to the first knuckle” (Count 3). The applicant then took the complainant's hand and moved it onto his erect penis and moved it up and down on his penis (Count 4).

10. Counts 5 and 6, in respect of which the jury returned verdicts of not guilty, were said to have occurred during the period 20 December 1999 and 31 December 2000. The complainant said that this incident occurred when she was about six years old and was at the home of the applicant for Christmas. She and her older cousin, K, were trying on and playing with the applicant's Santa Claus outfit when the applicant came into the room and sat on the bed. He then reached out with his hands and touched the front of her pants and rubbed her vagina (Count 5). He next took the complainant's hand and placed it on the outside of K’s vagina and at the same time, took K’s hand and placed it on the outside of the complainant's vagina, and then rubbed the two hands up and down simultaneously. K was not called in the trial.

11. Count 7, in respect of which the jury returned a verdict of not guilty, was said to have occurred when the complainant was eight years of age. The complainant was again lying on the ground behind the lounge playing with toys when the applicant knelt down beside her and started rubbing her vagina on the outside of her pants. At that point the applicant's wife walked in and said “Not again”. The applicant got up and he and his wife walked into the dining room arguing and yelling at each other. The applicant's wife, C, was called in the defence case and denied that this incident ever occurred.

12. The complainant gave evidence of other incidents (approximately 30 or more) in which over several years, the applicant touched her inappropriately when she was playing behind the couch. This evidence was led as context evidence in order to explain the circumstances in which the events giving rise to the specific charges arose.

13. The complainant first disclosed the offences to her mother on 1 July 2010, some 10 years after the first offences. The complainant made her statement to police on 19 October 2010. The applicant was arrested and charged in respect to these complaints on 16 October 2013.

14. The applicant did not give evidence at trial, but relied upon his denials of the offences in his recorded interview (ERISP). The applicant's wife, C, was the only witness called in the defence case at trial.

Summary of evidence at trial

15. The complainant gave evidence from a remote facility via an audio visual link. Her childhood home was in Wagga Wagga with her parents, her sister, S, and brother, J. They had previously visited the applicant and C at their house at Collingullie for meals and gatherings of the extended family. The complainant agreed that between 15 and 20 people would attend family gatherings at the Collingullie house and that during those gatherings, both children and adults moved around the outside and inside of the property without restriction.

16. The complainant accepted that it would be possible to look through the back door of the house directly into the lounge room. When it was put to her that a person standing in front of the house could look through the lace curtains into the lounge room, she said that as well as those curtains, the window was also covered with Venetian blinds. She agreed that if the blinds were open, a person standing outside could see into the lounge room, although she noted that “even half shut you can barely see through Venetians” (T.77).

Counts 1 – 4

17. The complainant gave evidence that the first four counts occurred when she was staying overnight with her grandparents at Collingullie. She could recall only two occasions when she had stayed overnight at that house. The offending occurred on the second occasion. On this occasion she was five years old and stayed overnight with her cousin, K. She had started, or was soon to start, kindergarten. K was about 9 or 10 years old at the time. Her parents and siblings, as well as an aunt and uncle were also at her grandparent's house that day but they did not stay overnight. The complainant remembered that it was summer time "because I was wearing a summer nightie".

Count 1 – Indecent assault

18. The complainant recalled that she was playing with toys on a rug behind the couch when the applicant “approached me and asked for a cuddle and I gave him a cuddle and he leaned over my shoulders and reached down my pants and touched my vagina”. She recalled that she was wearing “pink undies and like it must have been tights on because I remember it was hard for him to get his hand down there”. She explained that she was standing at the point when the applicant leant over her shoulders from behind and “cuddled me with both hands”. The complainant said that the applicant “cuddled me from around the back of the shoulders and then one hand went down, I think it was his left hand, went down into my pants in between my undies and my pants ... and rubbed my - front of my vagina”. The complainant demonstrated the cuddle motion “like a bear hug from behind”. She could not recall for how long the applicant rubbed her vagina but it “felt like” a couple of minutes (T.33 – 35).

19. Afterwards the applicant said to the complainant “grandfathers are allowed to do this. No one will believe me and that he will go to gaol if I tell” (T.35.7).

20. The complainant recalled that she then heard the front door open and the applicant “kind of got a bit shocked and like scurried off type thing”. She sat back down “in shock”. At some point “I think Mum ended up calling out to me to see where I was or what I was doing ... I think I just went out and cuddled my Mum but I didn't say anything after what he'd just said to me, I was scared”. The complainant remembered “crying to my Mum that I wanted to go home, I didn't want to stay there but they just - they told me I was being silly so I ended up staying” (T.35).

21. After the first incident and on the same day, the complainant and K had a bath together. The complainant recalled “yelling out to my Nan to come and wash our hair but he [the applicant] came instead and so he washed our hair and we played with the toys in the bath”. When the applicant was finished he yelled out to C (Nan) to come and get us out”.

22. After her bath, the complainant got dressed in a green Christmas-themed nightie made of silk with pictures of Santa on it. She put on the same pink underpants that she had been wearing earlier “because I remember I packed my bag and I forgot to pack a second pair of undies”. The complainant then had a conversation with her Nan (C) on the couch in the lounge room to the effect that “I just didn't want to be there anymore”. Nan and K “just told me that it would be okay and I was being silly and that Mum would be here tomorrow to pick me up, and then I think I got a bit upset and they sent us off to bed” (T.36).

23. Photographs of the complainant wearing the same green Christmas-themed nightie that she described in her evidence were tendered at the trial as Exhibit B (photographs 1 – 3). The complainant thought that she was four or five in the photographs.

Count 2 – Indecent assault

24. The complainant said that the applicant put her to bed in his own double bed and that she thought that he had carried her there. She recalled that the bedroom contained a built-in wardrobe and a little television. There was a large window covered in lace and Venetian blinds, through which you could see the deck and the backyard. She went to sleep.

25. The next thing the complainant remembered was “being woken up with the sheets off me and my nightie up ... above my undies. Then I remember he reached, like, under my ribs and rolled me towards him and cuddled me and then touched me ... on the vagina”. The touching started on the outside of the complainant's underpants and then moved to the inside. The applicant was rubbing the outside of the complainant's vagina (T.37 – T.38).

Count 3 – Sexual intercourse

26. The applicant “kept rubbing the vagina” on the inside of the complainant's underpants and “then he pulled his hand out and spat on his hand and then put it back into my undies where he inserted a little bit of his finger, I think maybe up to the first knuckle and I think I remember crying and he just - he just kept telling me ‘Sssshh be quiet, it's okay, I'm allowed to do this’”. She did not see how far the applicant's finger was inserted, but “it was just what I could feel” (T.38.45 – T.39.12).

Count 4 – Indecent assault

27. Afterwards, the applicant was “masturbating himself” and “breathing heavy”. The complainant “saw him with his hand on his dick and he was going up and down with his own hand ... then when he - sorry - he put my hand onto his hand and moved my hand up and down on his erect penis”. She explained, “This is my hand on his thing and he put his hand - like grabbed my hand and put it around his penis and moved it”. The complainant demonstrated the action with the fingers of her right hand curled as if holding onto something and her left hand placed over the top of her right hand moving it up and down (T.39.17 – T.39.50).

28. The complainant said that at the same time as the applicant was initially masturbating himself and before he engaged her hand “he had his hand on me - on my vagina ... rubbing”. When the applicant held her hand over his penis and moved it up and down, the motion lasted for “around five minutes, I don't know”. She recalled “just rolling over and just not wanting to be there and - and when I woke in the morning I just went and ran into Nan's and K".

29. At first the complainant could not recall the applicant saying anything further that night, although she subsequently recalled that “he warned me that if I told anyone that they wouldn't believe me and if they did he would go to gaol”. She could not recall whether or not he left the room that night. When she went to see her Nan and K in the morning, “I just run in and laid in between K and Nan and just cuddled with them. I - it was just a habit to get up and go in to where everyone was in the morning” (T.45).

Cross-examination in relation to Counts 1 – 4

30. The complainant agreed in cross-examination that there was uncertainty in her own mind as to whether Counts 1 to 4 occurred in 1998 or 1999. She associated the events with Christmas time because of the Christmas-themed nightie. She considered that the events occurred in 1999 because she thought that she received the nightie at Christmas time in 1998 “but it was the next year that it happened”. She agreed that she started kindergarten in late January 1999. She explained that by “Christmas time”, she meant the Christmas holiday period spanning December 1998 to January 1999. This was consistent with what she had told police in her statement of October 2010.

31. When it was put to her that it did not makes sense for the events to have occurred both at Christmas time and when she had just started kindergarten, the complainant responded “No. I don't know, I don't know what to say, like, I was five, I don't know the exact date. I remember starting school that year, that is it. I remember the green nightie, what else?” The complainant agreed that the confusion in her mind occurred when she made her statement at age 16. The complainant said “Yeah, I don't know, I remember details about things because they are big events, I don't remember dates” (T.87).

32. The complainant agreed that there were about 10 people present in the house on the day and that they had “free run” of the property. She agreed that you could see into the lounge room from the back door leading into the “lobby”, with the qualification that you could “not [see] the whole lounge room but you could see what you can see through a doorway”. She agreed that a person entering the lounge room through the “lobby” would look straight into the lounge room, however, she noted that “you would hear if somebody came through a door or walked through a room, because the house was old and creaky”.

33. The complainant said that the applicant told her that “grandfathers were allowed to do this” before she heard the front door open. She could not recall whether or not anyone then entered through the front door after she heard the sound of the front door opening. She did remember “sitting, just sitting there thinking”. She was not crying (T.92).

34. The complainant did not say anything about what had occurred because the applicant told her not to. She agreed that when she later cried to her mother about wanting to go home with her, this was her “standard behaviour”. “I never wanted to stay anywhere as a child, I was Mum's girl so, yeah, I just never did” (T.92).

35. When it was put to the complainant that she could have “kicked up a bit of a fuss”, she responded “I wasn't that type of a child. I did as I was told”; “I was still pretty scared, I guess”. She agreed with the proposition that her grandfather coming into the bathroom to assist appeared to be “a fairly ordinary event”; “Yeah, I didn't know any different I guess” (T.95).

36. The complainant identified the double bedroom adjacent to the kitchen as the bedroom in which she was put to bed. She said that she thought the room was painted pastel blue, not cream or off white, but she conceded that she could be wrong about the colour. She disagreed that there were no television or Venetian blinds in the room. When it was put to her that in a subsequent house occupied by her grandparents at Ashmont, there was a pale blue bedroom containing a television and Venetian blinds, she said that she could not recall going into a bedroom at that house. The complainant maintained that she could remember the television “in the corner [of the double bedroom at Collingullie] because I remember he used a coat hanger for bunny ears. I remember him fiddling with it and, like, to get the aerial to work”. The complainant denied that she had confused the bedrooms of two different houses and maintained that the events as she described them, had occurred at the Collingullie house.

37. The complainant cried when the applicant penetrated her vagina with his finger because it was painful but agreed that she did not “cry out”; “I didn’t cry out, no I was crying I remember saying ‘stop’”. When it was put to her that she “should have cried out”, she responded “Not necessarily. I cried. I cried, I was crying and he just told me to stop, it was okay"; "I should have [cried out] but I didn't"; "He told me earlier in that day that I couldn't say anything and that he was allowed to do this. I didn't know any different". The complainant agreed that no one in the house seemed to have heard or noticed what was occurring in the bedroom (T.100.40 – T.102.3).

30. The complainant agreed that she did not take any opportunity, such as when the applicant fell asleep, to leave the bedroom until it was morning; “I just remember laying there, crying”. The complainant agreed that she was still upset in the morning, yet she did not say anything to her Nan or to anyone; “No, he had told me not to”. When the complainant went into Nan's room "I just wanted some comfort, I think. I just wanted a cuddle”. She disagreed with the proposition that she was still crying at that point “No, I was fine once the morning came” (T.102).

31. The complainant maintained that she had slept in a bed with the applicant that night; "K slept with C [Nan] and I slept with M because of my sleeping habits”. She gave evidence that she used to “kick and pull blankets off. Nobody ever wanted to sleep with me”. When it was put to her that her Nan had expressed the opinion on a number of occasions “that the children should sleep in their own beds and the adults would sleep in their own beds on their own”, she answered "No, it was like a treat to go out there and everyone usually slept in C's bed but because of my sleeping habits she didn't want me in there” (T.103.26 – T.104.11).

32. The complainant said that it was “known in the family” that her grandparents did not sleep in the same bed “Like a family joke thing like that he snored so that's why she didn't sleep with him”. The complainant said that she had heard her Nan say “he snores, that's why she doesn't sleep with him”. She agreed that as of 1999, neither Nan nor the applicant had ever spoken directly to her about their sleeping arrangements. She maintained that for “as long as I can remember they slept in separate beds”.

Complainant’s mother

41. The complainant’s mother, J, gave evidence. She said that in about 1999 or 2000 the complainant did not like sleeping in her bed and used to sleep with her sister and in her sister’s room. She only ever stayed away over night with her maternal or her paternal grandparents. J described the complainant as “a twirler. She never slept, like, still. She'd turn around and kick, and - she was terrible. If she was unwell and I was laying with her, you found it very hard to sleep with her” (T.166).

42. J said that at the time when the complainant was about four or five years old, she believed that the applicant and C slept separately, i.e. the applicant used a different room to C as “his room”. She identified the room described by the complainant as the room in which she had seen the applicant’s pyjamas on an occasion when she was at the Collingullie house. She agreed in cross-examination that she had been in the main bedroom at Collingullie and that it had the appearance of a room that was used by two people.

Context evidence

43. The complainant did not think that she stayed overnight again at her grandparents' house but she did continue to visit with her family. Over the next couple of years, there were further occasions when the applicant touched her “the same as the first time. Like I can't - can't remember the specific times or when but I do remember that he did it more than that. He touched me on the outside of the underwear and rubbed but I can't recall times, I just remember it happening”. She recalled that this occurred “where I always played behind the couch, like the large couch in the - I must have brought the toy box over and played behind the couch”. On these occasions, the applicant “used to just tell me that no-one would believe me and that I'd lose all my family ... My family wouldn't believe me and if they did he would go to gaol and I didn't want him in gaol, I was a little kid” (T.46.45 – T.47).

44. The complainant agreed in cross-examination that the inappropriate touching in the lounge room occurred in an area of about two – three metres between the back of the couch and the back wall. She agreed that despite saying that these assaults kept happening over a period of two or three years, she continued returning to the same spot to play. The complainant said “As he told me, it was normal and that he was allowed to do that, so I assumed that it was normal and I just went along with it". The complainant denied that she came to realise during that time that the behaviour was not normal “I didn't know. I was only a little girl”. She agreed that life went on as normal between herself and the applicant. The complainant maintained that the applicant touched her inappropriately more than 30 times.

45. The complainant disagreed that she was not frightened of the applicant. She said:

“No, I was scared but how do I say this? He was head of the family so if he told me something, I would go along with that. I wasn’t sure if, you know, if it was happening to anyone else or if it was normal, as in – all I knew was that it was normal to me because that is what he had told me, if that makes sense” (T.116).

46. The complainant agreed that she did not try to avoid the applicant “No I didn’t. I didn’t want to make a fuss”. She accepted that she told the police in her statement that when she was at her grandparents’ house, “I would try to never be alone because I was frightened of what granddad would do to me, but he always managed to seem to find me on my own” (T.116 – 117).

Counts 5 and 6 – Aggravated indecent assault between 20 December 1999 and 31 December 2000

47. When the complainant was about six years old she went to her grandparents’ house at Collingullie to celebrate Christmas, together with her parents, siblings, uncles, aunts and various cousins. The applicant played Santa Claus at various places and had a full Santa Claus costume, including a suit, beard, hat and shoes. On that occasion, the complainant, her cousin K and the applicant went into the applicant’s bedroom and “were in there just, like, trying on the Santa clothes – just playing around – because we always knew that he was – he played Santa and we were up there and, I think, we tried on the wig and that, and I think I had the jacket on, and I think K even had a jacket on, and then he started touching my vagina”.

48. The complainant described the applicant as "sitting on the side of the bed closest to the window and we were standing, like, in front of him between the window and the bed”. The complainant said that she was “pretty sure that it was K” standing with her in front of the applicant. While she was standing in front of the applicant wearing the Santa Claus jacket “he touched my vagina ... through my pants”. She could not recall what else she was wearing other than the Santa Claus jacket. She said that the applicant “put his hand out and touched my - front of my pants and rubbed" on the outside (T.56.17 – T.57.16).

49. The complainant then noticed that the applicant was "doing that to K as well". He stopped and “he grabbed our hands and, like, placed them on each other's front of our pants and kind of used his hand to, like, move our hands”. She explained that when the applicant grabbed each of their hands he “kind of crossed – I guess crossed his arms over and put, like, our hands on each other's vagina”. That is, K's hand was put “on my vagina” and the complainant's hand was put on her vagina. The applicant then used his hands to "rub" and move the complainant's and K's hands "back and forward" on each other's vaginas "outside the pants". She recalled that “We heard footsteps up the hallway, so it just stopped and then, I think it was my Mum came in and just said, ‘What are youse doing?’ and we were just - we said, 'Trying on Santa clothes,' and then that was it". Nothing else was said by anyone in the room after the incident.

50. Under cross-examination, the complainant agreed that her cousin, K, who was about 12 years old at that time, did not react adversely to the behaviour of the applicant in the bedroom "She just did the same thing as I did and just - be quiet and stood there". She agreed that when her mother asked what they were doing, K did not say anything to the effect "Granddad's just touched us" or "Granddad just made me touch [the complainant]". Rather, "we just kept trying on Santa suits and just acted as though nothing had happened” (T.118.1 – T.121.27).

51. In cross-examination the complainant agreed that in her statement to police she did not mention her mother coming or calling out to them. She said "I just missed it out that day. I always thought she walked in”. What she told police was what she could remember about that particular day. She denied that at the trial she had “invented” a different ending involving her mother.

Count 7

52. The complainant recalled an incident when she was eight years old in the lounge room at Collingullie. She described it as:

“… just one of the regular occurrences. He was touching me ... I was laying on the ground with toys and he came in and nobody else was in the house and he came up to me, I think he knelt down and started rubbing my vagina on the outside of my pants”.

She could not remember what she was wearing on that occasion. She recalled that “and then I'm pretty sure C [Nan] walked in and said, 'Not again', and then he got up really suddenly and they walked off and had an argument”. When asked to describe the argument the complainant said "I'm not sure, they walked into the dining room” and were “arguing, yelling at each other”. From this time, the applicant's conduct towards the complainant stopped.

53. The complainant agreed in cross-examination that her Nan appeared in the room without warning. She agreed that this was “the only time out of all of the occasions when someone just happened to walk in and see something”. She agreed that according to her evidence her Nan said “Not again”, appearing to have some prior knowledge of the situation. When it was put to the complainant that she was not sure that it was her Nan who walked in, she responded “I am pretty sure it was her, I am pretty damn sure it was her”. She agreed that she had reasoned as an adult looking back on the event that “it must have been your Nan who walked in because you think she would not have told”. The complainant said “I can't be 100% sure because I am not 5 again and this is not happening right now so I – as far as I can remember it was her that walked in and stopped it because anyone else would have said something” (T.106.39 – T.108.34).

Complaint

54. The complainant did not tell anyone about the applicant’s conduct until she complained to her mother on 1 July 2010. Within a few days of telling her mother, the complainant also complained to her father. The complainant, her parents and her sister, S, were all present when the complainant’s mother subsequently disclosed the offences to C, the applicant’s wife. In response to this disclosure, C cried and said “No, no”. She “got up and started pacing back and forth” saying “he couldn’t have”. The complainant told C “It’s the truth” and C replied “Where do I go, where do I go?” (T.59.29 – T.60.47).

55. In relation to the delay in complaint, the complainant said “I didn’t want to break up the family. I didn’t know if anyone would believe me. He was, you know, head of the family”. It was put to her in cross-examination that in 2010 her Nan reacted to the disclosure with “total surprise and disbelief” and she replied “Kind of, she was pacing back and forth and saying something about ‘He was interfered with as a child’”. The complainant conceded that her Nan responded with “shock” and “surprise,” as if “she heard it for the first time”. She agreed that her Nan would not believe her and that she formed a view that her Nan was protecting the applicant.

56. The complainant agreed in cross-examination that no-one said to C words to the effect of “You know he did it because you saw it”. She said that “I did not share the full story with my immediate family, I didn’t want them to know all the details, so no, they wouldn’t have even known” (T.109).

57. During cross-examination, the complainant was shown a number of photographs featuring herself with the applicant. She agreed that she appeared happy in the photographs taken with him, dressed as Santa around Christmas 1999, Christmas 2000 and Christmas 2002 and in an undated photograph from Christmas 2004 or 2005. She was shown photographs with the applicant and her cousins eating ice-blocks in 2003 and in a photograph of her alone with the applicant on the occasion of her year 10 formal in 2009. It was put to her that there was no apparent resistance or reluctance on her part in the photographs, to being physically touched by the applicant. The complainant agreed that at about the time of her sister’s birthday in July 2010, the same year that she disclosed the offences, she visited the applicant in hospital when he had knee surgery and that she behaved as normal on that occasion.

58. The complainant agreed that in about the middle of June 2010 she suffered some anxiety attacks and was referred by her GP to a service called “Headspace” for counselling. She agreed that she did not initially disclose the sexual assaults to the counsellor at Headspace. The complainant accepted that in the Local Court she said that this was because “I was really embarrassed. I didn’t know what people would think of me”. When it was put to her that had the sexual assaults occurred then “That should have been a time for you to say something about it”, she replied:

“I never planned on telling ever. The only reason I told was because I couldn’t handle holding it in any longer”. I never wanted to tell and that is why – I acted in those photos, I didn’t want people to catch on. I didn’t want people to know, I thought it was dirty but, no I am not, it is him that is dirty” (T.137.14 –17).

59. The complainant denied in cross-examination that she accepted the applicant’s behaviour as “normal” for a period of about 10 years. She said:

“No, not ten years, I’d probably say until I was maybe nine or ten and that I started dreaming, I started getting like I wanted to tell but I couldn’t, so I didn’t know or think it was normal, I held it in for a lot of years before I came out”.

When it was put to her that she did not disclose the offences” until well after year seven and sex education”, she observed that “sex education was more on stranger danger”. The complainant agreed that she did not talk to anyone about what happened but denied that this was because nothing ever happened.

Arrest of applicant and applicant’s case

60. The applicant was arrested on 16 October 2013 and agreed to participate in an electronically recorded interview. He denied the allegations put to him. When asked during the interview to describe his relationship with the complainant he said that the complainant had been “a bit standoffish to me all over the years” from the time she was born. When she was older “she'd ring me up and I'd go and pick her up from high school and bring her home. And she'd ah, she'd come around quite a few times”. Just before the complainant made her allegations, she visited the applicant in hospital where he had knee surgery “and she was sitting on the end of the bed with me and kissing and cuddling me”. He said that she was considering coming to live with him and C when her parents decided to move away.

61. The applicant said that when he and his wife lived at Collingullie, the complainant used to stay overnight frequently with her parents and “I'm sure once” without her parents. He could not remember that occasion in detail but “I remember her crying and um, C was sleeping in that room and I was sleeping in that room and [she] came and hopped into bed with me”. The applicant recalled that “just as she did C yelled out, 'What's going on there?” I said, '[the complainant's] just come and hopped in the bed' and she came and got her and took her straight back to her bed”.

62. The applicant said that the reason his wife came and removed the complainant from his bed was that “she wouldn’t let any of the grandkids sleep with us”; “she made them go back to their own beds. She always was even with our kids, she made them go back to their bed”.

63. The applicant denied that there was ever a television in the room that he slept in. He told the police that he and his wife slept in separate rooms “only every now and then”. He was unable to recall an occasion when after a family gathering, the complainant and K stayed overnight, “I don’t think so. They never … together”; “the only time her and K would have stayed there together was if the families were there”. He told the police that he used to tickle and cuddle all of his grandchildren.

64. The applicant told police that it was common for the complainant to be “clinging to her mother and father”; “all over her mother. She never wanted to stay anywhere” and that “she just cried all the time”. The applicant at first disagreed that any of the grandchildren would ever have played with his Santa Claus costume but subsequently recalled that “sometimes I gave it to them to play with”. He told police that after the allegations came to light, he arranged for a solicitor to send several letters to the complainant’s family to “tell them not to spread this around”. One of the letters contained the line “we will advise you, to either put up or shut up”.

65. The applicant did not give evidence at trial but his electronically recorded statement was played to the jury and became Exhibit D. It was common ground that the applicant had no previous convictions.

The applicant’s wife

66. The applicant’s wife, C, gave evidence in his case. She said that her granddaughter, K, was born in 1989 and turned 11 in 2000 and was 12 or 13 years of age in 2002. She and the applicant moved out of the Collingullie house in the middle of December 2002.

67. She gave evidence that between 1999 and 2002 she and the applicant shared the main bedroom. On occasions when he snored, one or other of them would use the bedroom adjacent to the kitchen with the double bed “maybe not all night, but for a while”. Their clothing and personal possessions were stored in the built-in wardrobe of the main bedroom. Members of the extended family visited the house at Collingullie regularly, and had unrestricted access to the property.

68. There were a few occasions when the grandchildren stayed overnight at Collingullie without their parents. She could only remember one occasion when the complainant stayed overnight without her parents, which was when the complainant's parents attended a Christmas party. She thought that the complainant's brother, J, also stayed overnight on that occasion, not K. This could have been at Christmas time 1999 but she could not say for sure. She could not recall an occasion when the complainant and K stayed overnight together.

69. She said that on the occasions when the grandchildren stayed overnight, “if [the applicant] was in the other bedroom [with the double bed] they would not have slept with him. They would have been in the single beds”. On the occasion when she thought the complainant stayed overnight with J, “I would think they would have slept in the bedroom with two single beds”. She said that it was not possible that the complainant could have been put to bed in the applicant's double bed in the second bedroom because she “didn't like children sleeping in bed with adults” (T.179).

70. She could not remember the complainant “making a fuss” about sleeping over on the occasion when she did so, “but she could have” and said "she didn't like staying away from her parents at all much, so she might have objected, but I don't recall ..." (T.180). The walls of the spare double bedroom adjacent to the kitchen were originally painted a cream colour but by 1999 or 2000 they would have been painted a lemon yellow colour. The walls were not painted blue.

71. The spare bedroom did not contain Venetian blinds. As well as lace curtains there “would have been a Holland blind” which the applicant's wife described as a “plain blind” that “you pull up and down" – "nothing like a Venetian blind". There was no television in the spare bedroom at Collingullie. When asked about the aerial on the television in the lounge room at Ashmont, she thought that the applicant “might have at one time” put a temporary aerial on it; “I think it was a couple of coat hangers and a length of cable”.

66. The applicant's wife gave evidence that the bedroom in the house they moved to at Ashmont had light blue walls and Venetian blinds. For the past six or seven years there had also been a television in that room.

67. She gave evidence that during the period from 1999 to 2002 the applicant worked as Santa Claus at various stores and venues around Wagga Wagga. His Santa Claus costumes and accessories were stored at the house at Collingullie and the grandchildren used to play with them. She could not recall a specific occasion when just the complainant and K were playing with the Santa Claus costumes. She could not recall hearing about or personally observing any improper conduct on the part of the applicant arising from K and the complainant playing with the Santa Claus costumes (T.184). There was never any occasion when she walked into the lounge room and saw the applicant touching the complainant improperly in the area of her vagina. She never saw or responded to such a situation with the words "No, not again". She never had an argument with the applicant following an occasion “when [she saw that] he may have been doing something [to the complainant]” (T.184.42 – T.185.6).

68. Under cross-examination, and by reference to a photograph, the applicant's wife conceded that there appeared to have been Venetian blinds in the lounge room at Collingullie. She maintained that it would be wrong to describe the spare bedroom as the bedroom where the applicant slept on a regular basis. Rather, the bedroom was used on rare occasions by either one of them because of the applicant's snoring. On those occasions, the person using the spare bedroom would return to the main bedroom during the night "if it quietened down”.

69. The applicant's wife maintained that on the one occasion she could recall the complainant staying overnight she did not stay with one of her cousins. Rather, “from what I can remember it would have been her brother”. The complainant's parents were at a Christmas party. The applicant's wife agreed that she had noticed that the complainant was a "Mummy's girl" who would cling to her mother in particular. However, she could not remember the complainant having any difficulty about staying overnight on that occasion or “ever crying when she was at our place”.

70. She could not recall any occasion when she entered the spare bedroom and saw the applicant in bed with the complainant. She could not recall ever calling out to the applicant "What's going on in there?" and the applicant replying, “[The complainant's] just come and hopped in the bed”. When asked if she recalled the complainant climbing into bed with her in the morning, she responded that “she most likely would have climbed into bed with me. They always did that when they stayed overnight”. She could not recall any specific occasion when this occurred. She agreed that, as of the date of the trial, she was still living with her husband. She denied that she came to court in order to tell lies to protect him.

THE APPEAL

77. The applicant submitted that the evidence in this case did not have sufficient cogency or probative force such that the jury could have been satisfied beyond reasonable doubt of his guilt on any of the counts on the indictment. He submitted that the not guilty verdicts returned by the jury were matters that must be considered in determining the question of the reasonableness of the verdicts of guilty. On that latter issue, the applicant submitted that the relevant test was “whether there is an acceptable explanation for the differention as a matter of logic and reasonableness” (Abbey v R [2017] NSWCCA 109 per Leeming JA at [38]).

78. The applicant submitted that this was not a case where there was additional evidence before the jury that was capable of supporting the verdicts in respect of which the applicant was convicted (Counts 1 – 4) and an absence of such evidence in respect of the acquittal counts (Counts 5 – 10). The applicant submitted that the jury apparently accepted the complainant beyond reasonable doubt in respect of counts for which there was no supporting evidence and then acquitted him in respect of Counts 5 and 6 in the absence of evidence from K, and Count 7 in circumstances where his wife’s evidence conflicted with that of the complainant.

79. The applicant submitted that the jury’s verdict in respect of Counts 1 – 4 was neither reasonable nor logical when one had regard to the decision in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 and the direction by the trial judge that:

“A reasonable doubt as to the truthfulness or reliability of the complainant’s account as to a particular count in the indictment shall be taken into account in assessing the credibility of the complainant’s account in relation to other counts (SU p 10).”

80. The applicant submitted that the jury clearly had a reasonable doubt as to the reliability of the complainant’s testimony in respect of Counts 5 and 6, in circumstances where on the Crown case, evidence capable of supporting her account was not called (the evidence of K). The jury also must have had a reasonable doubt in relation to Count 7 in circumstances where the evidence of C was in direct conflict with that of the complainant. The applicant submitted that those reasonable doubts properly held by the jury should have extended to their findings of guilt in relation to Counts 1 – 4. In those circumstances, the applicant submitted, the jury’s verdicts in relation to Counts 1 – 4 were unreasonable and illogical.

81. The applicant relied upon a number of other matters which, in his submission, placed doubt on the complainant’s evidence in respect of Counts 1 – 4.

1. Problems with the complainant’s evidence as to the timeframe for Counts 1 – 4.

2. The implausibility of the complainant’s evidence in respect of the location of Count 1, i.e. in the lounge room to which access was available to anyone else in the house.

3. The complainant’s description of the bedroom in which Counts 2 – 4 were said to have occurred was in conflict with the evidence of C.

4. The complainant’s description of the bedroom was consistent with photographs and evidence of a bedroom at the applicant’s Ashmont home in which he lived some years after the alleged offences.

5. The implausibility of the complainant’s evidence that she did not cry out in pain in relation to Count 3.

6. The complainant’s evidence that she avoided the applicant was inconsistent with her evidence that she thought what occurred was normal.

7. The implausibility of the complainant’s evidence for the delay in complaint in that she thought the applicant’s offending behaviour was normal.

8. The implausibility of the complainant’s explanation that she was frightened of the applicant and tried to avoid him.

9. The implausibility of the complainant’s evidence regarding her normal appearance in photographs with the applicant.

10. The evidence given for the first time at trial that her mother walked in following Counts 5 – 6.

11. The absence of complaint to Headspace.

12. The uncontested evidence that when the complainant confronted C with the allegation in 2010, she made no reference to the fact that C had interrupted Count 7 and was aware of this kind of behaviour on the part of the applicant.

13. The evidence of C that grandchildren did not sleep in bed with them.

14. The applicant’s good character and absence of prior offending.

15. The forensic disadvantage for the applicant as a result of the delay in complaint.

82. The applicant submitted that the case against the applicant in relation to Counts 1 – 4, when assessed overall, was neither compelling nor consistent. He submitted that when conducting an independent assessment of this evidence, and the verdicts of not guilty returned by the jury, the Court would conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of any of the counts on the indictment.

Applicable legal principles

83. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides:

“6(1)    The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

84. The manner in which this Court should approach its task, pursuant to s 6(1), was described in M v The Queen [1994] HCA 63;181 CLR 487, MFA v R [2002] HCA 53; 213 CLR 606; R v Nguyen [2010] HCA 38; 242 CLR 491 and SKA v The Queen [2011] HCA 13; 243 CLR 400. When considering whether the verdict was unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for this Court is whether notwithstanding there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to let the verdict of guilty stand (M v The Queen at 492; Gilham v R [2012] NSWCCA 131 at [465]; 224 A Crim R 22).

85. The principles which inform the review to be undertaken by this Court, where it is contended that a verdict is against the weight of 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. There, after noting that the evidence adduced at the trial in that case did not all point to the applicant’s guilt, he said (at [113]):

“ … But 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. …”

86. In Elwood v R [2016] NSWCCA 18 per Meagher JA (with whom McCallum and Button JJ agreed) the position was summarised as follows:

“21   The question for this Court is whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt; in other words, “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.

22   In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury’s advantage in seeing and hearing the evidence could have resolved that doubt. The jury’s advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence.”

87. McCallum J in Hawi v R [2014] NSWCCA 83 at [480]; 224 A Crim R 169 stated:

“480   The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.”

88. The following comments of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen are also applicable in the present case:

“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.”

89. R A Hulme J observed in Atai v R [2014] NSWCCA 210 at [134] that the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury to determine.

90. Under the single ground of appeal, the applicant contends that the guilty verdicts on Counts 1 – 4 are also unreasonable because they are inconsistent with the not guilty verdicts returned by the jury in respect of Counts 5 – 6. The approach to be taken by this Court when such an assertion is made is well established: Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366 [31] – [32]; R v Markuleski at [219] – [221]; TK v R [2009] NSWCCA 151; 74 NSWLR 229 at [2] – [8]; Peiris v R [2014] NSWCCA 58; 240 A Crim R 114 at [1] – [24]; Lepine v R [2017] NSWCCA 83 at [31]; Abbey v R at [38] – [40]; Nguyen v R [2017] NSWCCA 145 at [34] – [47].

91. Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88]).

92. The authorities make it clear that the Court should not too readily conclude that in such circumstances the complainant’s evidence should be disbelieved or that no guilty verdict based on her evidence can stand. Rather the Court is to look at all of the evidence and determine whether in light of the verdicts and the facts and circumstances of the case it is necessary to intervene to prevent a possible injustice from occurring: Allan v R [2017] NSWCCA 6 at [84] – [85].

Consideration

93. As the authorities make clear (in particular Mackenzie v The Queen and MFA v The Queen), a verdict of not guilty does not necessarily mean that the jury disbelieved the complainant. It goes no further than allowing an inference that the jury were not satisfied beyond reasonable doubt as to that or those counts. In this case, the reason for the jury having a reasonable doubt in respect of Counts 5 – 7 is obvious. As the applicant has pointed out, the jury may well have been concerned as to the absence of the evidence of K when considering Counts 5 – 6. Similarly, Count 7 was the only one of the counts to be directly challenged by countervailing evidence, i.e. that of C. Those considerations alone provide a logical and reasonable basis for the jury entering verdicts of not guilty in respect of those counts.

94. That then leaves the fundamental issue of whether on the whole of the evidence, taking into account those verdicts of not guilty, the jury must have entertained a reasonable doubt about the applicant’s guilt in respect of Counts 1 – 4. On that issue, given the importance of the evidence of the complainant, the jury was in a significantly better position than this Court to assess the evidence.

95. It is not without significance that almost all of the matters identified by the applicant as placing doubt on the evidence of the complainant were forcefully put to the jury in the closing addresses of counsel and in the summing up. It is also important to keep in mind that in relation to Counts 1 – 4 the respondent was aged five and yet was able to provide considerable detail as to the circumstances of the offending. This was confirmed by other evidence. That can be contrasted with the evidence concerning Counts 5 – 7 where much less detail was provided and in relation to which, her testimony was directly challenged.

96. Although the complainant was cross-examined as to the precise dates on which the offending in Counts 1 – 4 were said to have occurred, that matter was not put to the jury by defence counsel. This was for good reason. Although there was some imprecision in her recollection of dates, the complainant’s evidence was otherwise quite detailed in relation to the surrounding circumstances. As she pointed out under cross-examination, she was able to remember details about things because they were big events, but she did not remember dates.

97. The important detail here was that these incidents occurred around Christmas time, the year after she received a green coloured Christmas nightie. She had a particular recollection about her “undies” because she had failed to pack a new pair for use the following day. She recalled that it was a Saturday around 1999 and that she had started school that year. Her recollection of staying overnight at her grandparents’ house on two occasions and that this incident occurred on the second of those occasions was consistent with other evidence, in particular, that of her mother and C. The evidence of C was that although she had no specific recollection of the particular event, she remembered that the complainant had stayed overnight at the Collingullie house on an occasion when her parents attended a Christmas party. C agreed that this could have occurred at Christmas 1999.

98. I have concluded that the complainant’s admitted uncertainty as to the precise time period during which the offending in Counts 1 – 4 occurred does not raise a doubt as to the fact of their occurrence.

99. Although the position and layout of the lounge room was such that other persons could see into it, that does not render the alleged conduct on the part of the applicant inherently improbable. Both he and the complainant were fully clothed and, from the complainant’s description, to an observer it would appear only that the applicant was cuddling her. The detail of what was happening, albeit for a relatively short period, would not necessarily have been obvious at all. This is particularly so, given the presence of the lace curtains and blinds in that room obscuring observation from outside. There was also the fact that the house was “old and creaky” so that anyone approaching that room was likely to be heard.

100. The complainant was able to identify the bedroom where Counts 2 – 4 occurred on the diagram of the Collingullie house (Exhibit 1). This was the same bedroom identified by the applicant in his statement as the one used by him. It was the bedroom which the complainant’s mother thought was occupied by the applicant because she saw his pyjamas in there. The complainant accepted that she may have been mistaken as to the colour of the room in that she thought it was blue, whereas C described it as “off-white or crème”.

93. Significantly, no photographs of that bedroom at Collingullie, where Counts 2 – 4 were said to have occurred, were available. Accordingly, the factual issues as to that room between C and the complainant could not be resolved. There were differences between the evidence of the complainant and C as to whether there were Venetian blinds in the room, along with lace curtains and a small TV. These, of course, were peripheral issues relating purely to reliability. The important aspect was the identification of this room as the place where the offending occurred and which was regularly (if not permanently) used as a bedroom by the applicant.

94. It is also not without significance that C gave evidence that there were Holland blinds in the main bedroom and lounge room but upon being shown the original photographs of the lounge room, subsequently conceded that there were Venetian blinds in that room. Accordingly, the differences in the evidence of the complainant and that of C relating to aspects of the second bedroom were of little, if any, significance in assessing the reliability of the complainant.

95. The complainant’s evidence in respect of Count 3 was that the applicant after spitting on his hand “inserted a little bit of his finger …” into her vagina. In cross-examination, it was suggested that she should have “cried out” because of the surprise and pain. The complainant’s response was “Not necessarily. I cried, I was crying and he just told me to stop, it was okay …” (T.101). She was, of course, only aged five at the time. This evidence should be understood in the context of the applicant having earlier told the complainant that she could not say anything, because he was allowed to do what he was doing and because at that time, she thought this behaviour was normal.

96. The complainant remembered being in shock the next morning and not understanding what was going on when she ran into her grandmother’s bedroom wanting a cuddle. She was no longer crying at that time and did not say anything to her grandmother, or to anyone else, because the applicant had told her not to.

97. There is nothing inherently improbable or fanciful about this explanation by the complainant. The jury was in the best position to assess the reliability of this evidence.

98. The same can be said about the criticism directed towards the complainant for not raising these matters earlier than she did. In the course of her evidence, she gave a number of explanations in relation to which there is an internal consistency:

• That the applicant told her that grandfathers are allowed to do this, that no-one would believe her if she told anyone and if she did, that he would go to gaol (T.35, T.45).

• The applicant told her that no-one would believe her, that she would lose her family and that he would go to gaol. She was a little kid at the time and did not want him to go to gaol (T.46 – T.47).

• She did not want to break up the family. She did not know if anyone would believe her. He was head of the family (T.62).

• The applicant told her not to tell anyone, she did not want to kick up a fuss because then “someone would click on. I don’t know. I was five – I didn’t know what to do. He told me not to tell – I did as he said.” (T.94.13).

• The reason she kept going back to play behind the lounge was because she “didn’t know any different”; the applicant told her that it was normal and that he was allowed to do it, so she assumed that it was normal and just went along with it; because she knew nothing different and as he was head of the family, what he said went (T.111).

• Even after the first or second time it happened, she did not realise that it was not normal because as a five or seven year old, it was “normal” to her – that’s what grandfathers did (T.111).

• She was frightened and scared of him, but he was head of the family so if he told her something, she would go along with that. She was not sure if it was happening to anyone else, or if it was normal, all she knew was that it was normal to her because that is what he told her (T.116).

• She was frightened of him and tried not to be alone with him but if she wanted to play with toys, she would just go and play – she was a confused kid (T.117).

107. There is some particularly poignant and persuasive evidence on this issue where the complainant said:

“A. I never planned on telling ever. The only reason I told was because I couldn't handle holding it in any more. I never wanted to tell and that is why I - I acted in those photos, I didn't want people to catch on. I did not want people to know, I thought I was dirty but no I am not, it is him that is dirty.” (T.137.14)

Regrettably, these feelings of guilt and shame (entirely unwarranted as they are) are a common feature of persons who have suffered sexual abuse as children. There is nothing in any of this evidence which would lead me to conclude that it was inherently improbable and that it should not have been accepted beyond reasonable doubt by the jury.

108. The apparent conflict in evidence between C and the complainant should not have necessarily caused the jury to disbelieve her in respect of Counts 1 – 4. It is not without significance that after the “not again” incident involving C and resulting in a loud argument between the applicant and C, there was no further occasion when the applicant sexually assaulted her. That is confirmatory of something occurring at that time which apparently led to a cessation in the applicant’s offending.

109. The asserted failure of the complainant to remind C of that incident, incorrectly states the evidence. It was not the complainant who confronted C in 2010 about what had happened to her at the hands of the applicant but it was her mother, J. Her mother did not say to C words to the effect “you know he did it because you saw it” because at that time the complainant had not provided the full story to her family. She did not want them to know all of the details. The complainant’s only contribution to the confrontation with C was to confirm her mother’s accusation by saying “It’s the truth”.

110. There is nothing inherently improbable in the complainant’s evidence as to a reluctance on her part to provide full details of the offending to her family. That is also a common feature of many of the historical sexual offence cases which come before this Court. It is also not without significance that the complainant’s mother was not cross-examined about this confrontation with C.

111. Not only were the matters relied upon by the applicant in this appeal put to the jury on his behalf at trial but they were comprehensively raised by the presiding judge in his summing up. His Honour directed the jury in clear terms to consider the evidence in respect of each count separately and if the accused was found guilty or not guilty of one count, his guilt or otherwise of each had to be separately considered. The jury were also directed that if they accepted the evidence of the complainant in respect of one count, they should not rely upon that to establish a tendency on the part of the accused to act in any other way as alleged in the other counts on the indictment. No issue was taken at trial, or on this appeal, with the directions given by the trial judge.

112. On my review of the evidence in this matter, the jury remained entitled to accept the evidence of the complainant in circumstances where it was either not contradicted by other evidence, or not supported by the evidence they considered to be significant. Giving the applicant the benefit of the doubt in respect of Counts 5 – 7 did not inevitably mean that the jury could no longer find the complainant to be truthful and reliable in respect of Counts 1 – 4.

113. I have concluded that the matters raised by the applicant do not either individually or collectively cause me to find that the jury’s verdicts were unreasonable or unsupportable. The principal question for the jury was whether the complainant’s allegations were truthful and reliable. The matters raised, both at trial and on appeal, were relevant in that assessment but it does not follow that the jury must have rejected her account.

114. Moreover, in this case the jury had a significant advantage by having seen, heard, scrutinised and evaluated the evidence, not only of the complainant but also the conflicting evidence of C and the applicant in his electronically recorded statement. This was clearly not a case where the jury must (as distinct from might) have entertained a doubt about the applicant’s guilt.

115. On my independent assessment of the evidence, I have concluded that it was clearly open to the jury to find beyond reasonable doubt that the applicant had committed the offences contained in Counts 1 – 4. The jury verdicts were not unsafe, unsound or unreasonable. It follows that the applicant has failed to establish his ground of appeal and that the appeal should be dismissed.

116. The orders which I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

117. DAVIES J: On my examination of the evidence in this matter I am satisfied that it was clearly open to the jury to find beyond reasonable doubt that the applicant committed the offences in counts 1 to 4 notwithstanding the acquittal of the applicant for counts 5 to 7.  In that regard the verdicts of the jury were not unreasonable.  I agree with the judgment of Hoeben CJ at CL and with his reasons.

118. BELLEW J: I agree with Hoeben CJ at CL.

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Decision last updated: 23 November 2017