MEN v The State of Western Australia
[2020] WASCA 118
•28 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 118
CORAM: QUINLAN CJ
MITCHELL JA
BEECH JA
HEARD: 18 MAY 2020
DELIVERED : 28 JULY 2020
FILE NO/S: CACR 142 of 2019
BETWEEN: MEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 143 of 2019
BETWEEN: TNN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1380 of 2018
Catchwords:
Criminal law - Charges of engaging in conduct knowing that it may result in a child suffering harm - Charges of unlawful detention - Whether verdicts of guilty were unreasonable and could not be supported by the evidence - Whether appellate court should view the video of the complainant's child witness interviews and pre-recorded evidence in order to evaluate submissions concerning the demeanour of the complainant
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Result:
CACR 142 of 2019
Leave to appeal granted
Appeal against conviction of count 3 allowed and judgment of acquittal substituted
Appeal against conviction of count 1 dismissed
CACR 143 of 2019
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal against conviction of count 3 allowed and judgment of acquittal substituted
Appeal against conviction of count 1 dismissed
Category: B
Representation:
CACR 142 of 2019
Counsel:
| Appellant | : | T F Percy QC |
| Respondent | : | J C Whalley SC & T B L Scutt |
Solicitors:
| Appellant | : | Butcher Paull & Calder |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 143 of 2019
Counsel:
| Appellant | : | M T Trowell QC |
| Respondent | : | J C Whalley SC & T B L Scutt |
Solicitors:
| Appellant | : | Monaghan Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
Cooper v The State of Western Australia [2010] WASCA 190
De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
Miles v The Queen [2000] WASCA 364
OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268
Pell v The Queen [2019] VSCA 186
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Salmon v The Queen [2001] WASCA 270
Scott v The Queen [2020] NSWCCA 81
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Turner v The State of Western Australia [2014] WASCA 214
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wells v The State of Western Australia [2017] WASCA 27
Table of Contents
QUINLAN CJ & BEECH JA:
Introduction
Uncontroversial facts and background
Overview of the State case and defence case
State case
Defence case
The witnesses
The evidence
The complainant's evidence
Child witness interview on 15 September 2017
Child witness interview on 20 September 2017
Pre-recorded evidence given in court on 11 and 12 April 2019
The evidence of the other State witnesses
The teachers
The neighbours
M's ice skating coach
The friend's father
The social workers
The police officers
The father's evidence
M's evidence
Child witness interview on 26 September 2017
Evidence given in court on 18 June 2019
The evidence of the other defence witnesses called by the father
S
A
B
Character evidence
The mother's evidence
Grounds of appeal
Ground 1 in each appeal: unreasonable verdicts
The appellants' submissions
The father's and the mother's particular (a): improbability of detention in the shipping container
The father's and the mother's particular (b): inconsistencies in the complainant's evidence
The father's particular (d) and the mother's particulars (d)(i) and (ii): no corroboration of the complainant's evidence
The mother's particular (d)(iii): the complainant's troubled background
The father's and the mother's particular (c): M's evidence ought to have raised a reasonable doubt
The father's particular (g) and the mother's particular (c): the adult children's evidence ought to have raised a reasonable doubt
The father's particular (e): the appellants' evidence was unable to be excluded
The father's particular (f): character evidence
The father's particular (h): the appellants made no admissions
Unreasonable verdicts: legal principles
Should this court view the videos of the complainant's child‑witness interviews and pre‑recorded evidence?
Disposition: introductory observations and summary
The complainant's credibility
The complainant's language and manner of speech
Unable to be corrected?
Other submissions of the appellants
Absence of corroboration?
The teachers' evidence
The neighbours' evidence
Ms B's evidence
Other matters as to corroboration
The appellants' evidence
Conflict with evidence of independent witnesses
Exhibit 6
Photographs: exhibits 7.31 and 44.2
The keys to the sea container
Other unsatisfactory evidence given by the mother
Other matters relevant to the appellants' credibility
Conclusion as to the appellants' evidence
M's evidence
Inconsistent with other evidence
The 'clarifications' of her evidence
M's evidence as trying to paint a picture favourable to the appellants
Other inconsistency between her child witness evidence and her oral evidence
Lawyer's advice to just say yes or no
M's interest in the case
The adult children's evidence
The character evidence
Was it open to be satisfied beyond reasonable doubt in relation to the particulars other than the sea container particular?
Particular 1: hitting the complainant, with and without objects
Particular 3: requiring, directing or permitting the complainant to largely live outside
Particular 4: requiring or permitting the complainant to attend school smelling of urine
Particular 5: excluding the complainant from family, recreational or social activities
Particular 7: verbally abusing the complainant by threatening her and calling her names
Was it open to be satisfied beyond reasonable doubt in relation to the sea container allegations?
The State case in relation to the sea container allegations
The substance of the complainant's evidence
Was it open to be satisfied beyond reasonable doubt as to the substance of the complainant's evidence?
Was it open to be satisfied beyond reasonable doubt as to less frequent detention in the sea container?
Conclusion on count 3 and particular 2 of count 1
Conclusion on ground 1
Ground 2 in the mother's appeal: Liberato direction
The mother's submissions
The judge's direction
Disposition
Conclusion
CACR 142 of 2019 (the father's conviction appeal)
CACR 143 of 2019 (the mother's conviction appeal)
MITCHELL JA:
Introduction
Assessment of the manner in which witnesses gave evidence
The complainant gives an account of extreme and extraordinary abuse
How the complainant's account emerged
Evidence as to the bedrooms
Padlock and keys
Absence of corroboration of the complainant's evidence
Eye witness testimony
Absence of signs of habitation in and around the sea container
Absence of evidence of physical effects on the complainant
Disposition of ground 1 in each appeal
QUINLAN CJ & BEECH JA:
Introduction
The male appellant and the female appellant each appeal against their convictions, after a 12-day trial before judge and jury, of two charges on a joint indictment. In order to preserve the complainant's anonymity, we will refer to the male appellant and female appellant respectively as the father and the mother. The complainant of the offending was the appellants' adopted daughter, who was between 10 and 12 years old at the time of the offending. The indictment was in the following terms:
(1)Between 1 February 2016 and 11 September 2017 at [an outer southern suburb of Perth] [the mother] and [the father], being persons having the care or control of a child, namely [the complainant], engaged in conduct knowing that it may result in the child suffering harm as a result of emotional abuse or neglect as defined in section 28(1) of the Children and Community Services Act 2004.
(2)In the alternative to Count (1), between the same dates and at the same place [the mother] and [the father], being persons having the care or control of a child, namely [the complainant], engaged in conduct reckless as to whether such conduct may have resulted in the child suffering harm as a result of emotional abuse or neglect as defined in section 28(1) of the Children and Community Services Act 2004.
(3)Between 1 May 2017 and 11 September 2017 at [an outer southern suburb of Perth] [the mother] and [the father] unlawfully detained [the complainant].
The State particularised the conduct it relied upon in relation to counts 1 and 2 as follows:
1.The father and mother repeatedly physically assaulted the complainant, with and without objects.
2.The father and mother required the complainant to periodically be locked in a sea container.
3.The father and mother required, directed or permitted the complainant to largely live outside the family dwelling, including:
(a)requiring her to eat meals outside - near or in the shipping container;
(b)subjecting her to excessive exclusion from the dwelling, including after school or on the weekends, and including as a result of punishment and/or chores;
(c)failing to provide adequate bathing or toilet facilities or enable an acceptable level of personal hygiene; and
(d)denying her access to household amenities (such as television and computers).
4.During 2016, the father and mother continually required or permitted the complainant to attend school wet with urine, or smelling of urine.
5.The father and mother excluded the complainant from many family, recreational or social outings.
6.The father and mother did not permit the complainant to talk to her sister, M.
7.The father and mother verbally abused the complainant, by threatening her and calling her names.
The State case relied predominantly on the complainant's evidence. However, there was additional evidence, which provided corroboration as to particular aspects of her evidence and the State case, from the appellants' neighbours, two of the complainant's teachers, M's ice skating coach and investigating police officers.
The defence case was, in essence, that none of the conduct alleged by the complainant occurred. The father and the mother each gave evidence denying the allegations, and their evidence was generally corroborated by M and the appellants' adult children.
The father and the mother were each convicted of counts 1 and 3 on the joint indictment (count 2 having been in the alternative to count 1). Special verdicts were sought from the jury as to the conduct they relied upon to arrive at their verdict of guilty on count 1. The jury found that all of the conduct alleged at [2] above, with the exception of particular 6, was established as against each of the appellants.
The father and mother now appeal against their convictions. The father appeals on the sole ground that the verdicts of guilty on counts 1 and 3 were unreasonable and could not be supported by the evidence. The mother appeals on that ground and also on the ground that the trial judge made a wrong decision on a question of law, by giving a Liberato direction that failed to encompass the evidence of M and the appellants' adult children, when that evidence supported the defence case.
For the reasons that follow, we would uphold ground 1 of each appeal as it relates to count 3 but not as it relates to count 1.
In our view, the evidence led at trial was incapable of satisfying the jury, beyond reasonable doubt, that either appellant was guilty of the offence alleged in count 3. We reach that conclusion by reference to the cumulative effect of a number of features of the evidence, none of which would be sufficient on its own to support the conclusion. We would allow the appeals against the appellants' convictions on count 3, set aside the convictions and sentences on count 3 and substitute judgments of acquittal on that count.
It follows that we are also not satisfied that it was open to the jury to be satisfied, beyond reasonable doubt, that particular 2 of count 1 was established by the evidence. However, that does not lead to the verdict on count 1 being set aside. Both appellants accept that, in order to succeed in establishing that the verdicts of guilty on count 1 were unreasonable, they must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt in relation to each and all of the six particulars found by the jury to have been established. We are not so satisfied. To the contrary, in our opinion, it was open to the jury to be satisfied beyond reasonable doubt as to all of the other five particulars against the mother and as to three particulars against the father.
The appellants' counsel accepted that, in the circumstances just described, this court would have no authority to intervene in these appeals in relation to the sentences imposed on count 1.[1] The appellants were each sentenced to 4 years' immediate imprisonment on count 1, with a concurrent sentence of 12 months' immediate imprisonment on count 3.[2] There is no basis for concluding that the sentence on count 1 was reduced for totality, so s 30(6) of the Criminal Appeals Act 2004 (WA) (which would allow this court to vary a sentence 'that took into account' the sentence for count 3) does not apply.
[1] Appeal ts 21 - 23, 25, 32 - 33.
[2] ts 1429.
On the face of it, while the court has received no submissions in this respect, if the appellants had not been sentenced for count 1 on the basis that they required the complainant to be periodically locked in a sea container, a different sentence should and would have been imposed on that count. The particular concerning the sea container was the most egregious aspect of the child neglect charge. However, the only basis on which this court would have power to vary the sentence on count 1 would be in an appeal against the sentence for count 1. Neither appellant has instituted an appeal against their sentence. In the absence of an appeal against sentence, this court has no authority to vary the sentences for count 1 even though the evidence was incapable of establishing particular 2 of count 1 beyond reasonable doubt.
The mother's ground 2 is without merit - no direction of the kind for which she contends was necessary in order to avoid a perceptible risk that the jury might reason in an impermissible manner.
Uncontroversial facts and background
The complainant was born in the Philippines on 13 May 2005. She suffered significant hardship in her early childhood. She was abandoned by her biological mother when she was 4 months old and physically abused by her biological father and stepmother until they were imprisoned, and she was referred to an orphanage, when she was 4 years old.
In 2014, the father and mother, a married couple, were living in a country town in the south-west (the Country Town) together with their adopted Filipino daughter, M. They had adopted M in 2010. The appellants also had three other children - two daughters (S and A) and a son (B) - who were adults and no longer lived in the family home. In the period leading up to September 2014, the father and mother underwent various processes so that they could adopt another child.
In early September 2014, the father, the mother and M travelled to the Philippines to collect the complainant, with the intention that she would come and live with them in Australia and eventually be adopted by them. They all flew back on 5 September 2014 and resumed living in the Country Town. At that stage, the complainant was 9 years old.
The father, the mother, M and the complainant (who we will refer to as 'the family') lived together in the Country Town for about a year after returning from the Philippines. The mother home-schooled both M and the complainant. There was no suggestion at trial that the complainant was mistreated in the Country Town. Towards the end of their stay in the Country Town, the family bought a 10‑acre semirural property in an outer southern suburb of Perth (the Property).
In late 2015, the family sold the Country Town home and moved up to Perth, where they stayed with S and A in an eastern suburb of Perth (S and A's Property) until the accommodation at the Property became liveable. The complainant was home-schooled when the family were living at S and A's Property.
In or around early 2016, the family moved to the Property. At that time, the Property contained a large shed constructed by the father. Over the following months, housing accommodation (including a kitchen, two living areas, three bedrooms and a bathroom) was constructed inside one end of the shed. Until this house section was able to be lived in, the family lived out of a caravan located inside the other part of the shed. At some point in 2016, the family moved into the house section of the shed. There was ongoing renovation of this house section throughout the alleged period of the offending.
When the family moved up to Perth, the father continued to work in the Country Town. He would generally travel to the Country Town on Sunday night for the working week and return home on Friday night for each weekend. This remained his working arrangement throughout the alleged period of the offending.
The State case was that the father and mother began to treat the complainant poorly, and offend against the complainant in the way alleged, from the time the family moved to the Property in early 2016.
At the start of the 2016 school year, the complainant began attending a nearby primary school (the Primary School) as a Year 6 student. She was placed in a class taught by Mr B, who gave evidence at trial. For five weeks at the start of Term 3 when Mr B was on long service leave, the complainant's class was taught by Ms W, the school principal, who also gave evidence. It was not in dispute that there were wetting incidents at school involving the complainant. What was in dispute was how and when the complainant came to wet herself.
For Term 1 of the 2017 school year, the complainant was again home-schooled by the mother. She then began attending a nearby high school (the High School) as a Year 7 student in May 2017, at the start of Term 2.
The father and mother formally adopted the complainant no later than March 2017.
After school on 11 September 2017, the complainant spoke to a school friend and went to the friend's home. Subsequently, the friend's father (the friend's father) contacted the authorities. Since that time, the friend's father has become the primary carer for the complainant.
On 15 and 20 September 2017, the complainant took part in formal child witness interviews. An audio-visual recording of each interview was tendered and played in evidence. The complainant was 12 years old at the time.
On 18 September 2017, the police executed a search warrant at the Property.
The complainant was nearly 14 years old by the time she gave evidence by pre-recording, which was played at the trial.
Overview of the State case and defence case
State case
The State case was that, around the time the family moved to the Property, the complainant's relationship with the appellants began to deteriorate. They began to treat her poorly and to treat the complainant and M very differently.
During 2016, teaching staff at the Primary School observed that she would sometimes attend school smelling badly or of urine. On occasions her clothes were wet with urine so that staff had to change her clothes. She would often be late to school and sometimes be soaking wet or very untidy in her appearance.
In September 2017, the friend's father was concerned by the complainant's appearance and odour. After speaking to her, the police became involved. What she said in her police interviews formed the essential basis of the State case.
When interviewed by the police in September 2017, the complainant said that she would be left alone at the Property, outside the house or in a green shipping container. She also said that she would be left outside overnight, often with limited or no bedding, heating or light and that this had been occurring since about May 2017. She said she would be locked in there overnight and not released until morning. That conduct formed the basis of count 3.
At times, each of the appellants would hit the complainant, sometimes with their hands or fists and sometimes with a piece of pipe or, in the mother's case, a tennis racquet.
The State alleged that the complainant would be fed outside and rarely allowed in the main house. She was required to perform various outside jobs such as weeding, digging and cleaning horse manure. Otherwise, she spent most of the time outside the house doing little or nothing.
The State also alleged that the complainant would usually shower outside using a bucket with soap and water. She was not permitted, particularly in the last few months of 2017 before she left home, to speak with her adopted sister.
The State case was that the combination of the conduct outlined above constituted the offending in count 1.
Defence case
The defence case was a denial of all the State's allegations. There was a sustained attack upon the credibility and reliability of the complainant's evidence. The defence highlighted the abuse suffered by the complainant in the Philippines. While, on the defence case, this had led to attachment issues for the complainant following her arrival in Australia, at all times the appellants provided support to the complainant and did not engage in any of the conduct alleged by the State. On the defence case, the complainant was treated well by them; she slept in her bedroom in the house and ate meals at the dining table with the family. They never hit her or called her names.
The witnesses
The State case called 13 witnesses and the defence case called nine witnesses, including the father and the mother.
The State witnesses comprised:
(a)The complainant, who gave direct evidence of all but one of the allegations. (The exception was the allegation that she attended school wet with urine or smelling of urine.)
(b)Mr B and Ms W, who taught the complainant when she attended the Primary School in 2016. Both teachers gave evidence of occasions on which the complainant turned up to school wet with urine or smelling of urine, as well as generally corroborative evidence.
(c)Ms B, who was M's ice skating coach in 2017. Ms B gave evidence that she never saw another child turn up to ice skating lessons with M, in support of the allegation that the appellants excluded the complainant from many family, recreational or social outings.
(d)Mr D, Mrs D and Ms H, who were neighbours of the Property. Mr and Mrs D gave evidence that they observed the complainant spending a lot of time outside the dwelling on the Property, running laps around the Property and bathing and toileting outside, as well as some generally corroborative evidence. Ms H, who kept horses on the adjoining property, gave generally corroborative evidence of seeing the complainant outside at times.
(e)Ms Diaz-Gonzalez, Ms Brass and Ms Jiji, who were social workers for the Department of Child Protection (the DCP). Ms Diaz-Gonzalez was the case worker responsible for the complainant's adoption and settlement in Australia, and gave evidence as to her dealings with the family and the adoption over the period between the complainant's allocation to the appellants in 2014 and her formal adoption in early 2017. Ms Brass and Ms Jiji gave evidence of a meeting they had with the father and mother at the Property on 13 September 2017, two days after the complainant left, in which the appellants were alleged to have made certain admissions.
(f)Constable Mitchell, a police officer stationed at a police station near to the Property, who gave evidence of the missing person investigation of the complainant on 11 September 2017 and her subsequent discovery at the residence of the friend's father.
(g)The friend's father, who gave evidence as to the complainant's appearance, body odour and demeanour on 11 September 2017.
(h)Detective Senior Constable Jacques, one of the investigating police officers, who gave evidence as to the police investigation and the search warrant carried out at the Property on 18 September 2017.
The defence case was supported by evidence from both appellants, M, their three adult children and three character witnesses.
We turn to detailing the evidence at trial. The nature of this court's task in evaluating whether the verdicts were unreasonable requires attention, in this case, to the whole of the record of the trial. We begin with the complainant's evidence.
The evidence
The complainant's evidence
As mentioned above, the complainant's evidence consisted of:
(a)a child witness interview on 15 September 2017 (four days after she left the Property for the last time);
(b)a child witness interview on 20 September 2017; and
(c)pre-recorded evidence given in court on 11 and 12 April 2019.
The complainant's credibility and reliability were the central issues at trial and are at the heart of the issues on appeal. In light of this, we set out the evidence as it emerged from each interview, before outlining the evidence she gave in court.
Child witness interview on 15 September 2017
The first child witness interview occurred four days after the complainant left the Property for the last time. Primarily, the interview involved the complainant speaking about assaults she said she suffered at the hands of the mother and the father. In the course of this interview she also talked about being made to sleep in a shipping container.
After some introductory questions, the interviewer asked the complainant to tell her what had been happening. The complainant responded: 'Well, my mum's been hitting me. So that's why I ran away from the house'.[3] She said that her mum had been hitting her 'with a pipe and a tennis bat or pulling hair'.[4] She explained that each of these things happened more than once.[5] Later in the interview, she also described an occasion on which her mum had punched her on the neck and pulled her hair, and said this happened more than once.[6]
[3] Transcript of Child Witness Interview on 15 September 2017 (ts 1st CWI) 6.
[4] ts 1st CWI 6.
[5] ts 1st CWI 6, 14 - 15, 21.
[6] ts 1st CWI 14 - 15.
The complainant proceeded to describe specific occasions on which the mother had hit her with a pipe or tennis racquet, punched her or pulled her hair. The way in which she explained each occasion was not chronological, and often involved the interviewer prompting her to explain a specific aspect of the incident.
The complainant was asked to describe the last time she was hit. She said that was when the mother hit her with a pipe 'on the first time I came to [the High School]'. The complainant got home from school and got into trouble - the mother told her that she was being naughty and not 'talking loud enough'. The mother told her to get in the shed, where she started 'belting' her with a pipe. The complainant said the mother whacked her on the bum with it 'I guess three times', which 'kind of hurt so … I was crying'. The mother then told the complainant to get changed and went back inside the house with the pipe. After that, the complainant was sent outside to 'pick some horse food'. She later went back inside to have dinner and go to bed. The complainant said that on the same day this occurred, the mother cut the complainant's hair short. The complainant said she tried her best to talk to the mother but the mother told her to 'piss off'.[7]
[7] ts 1st CWI 6 - 10.
At a later point in the interview, the complainant was asked to return to this incident. She said that, after school, she hopped off the car and had to drop herself off in front of the shed. Before the mother hit her with the pipe, the mother said, 'Talk properly. If you don't talk properly, you're gonna get belt'. She said the father was also there at the time and he said, 'Talk loud enough. Talk like how like you speak to the teacher at school'. The mother proceeded to hit her with the pipe. While she did this, the father was 'just standing there doing nothing'.[8]
[8] ts 1st CWI 27 - 28.
She was then asked to describe another occasion when she was hit with a pipe. The complainant described an occasion involving a pipe on which she had to stay out the back all night. She said she stood out the back all night, near some bushes towards the back of the Property. When morning came she did not go inside because 'I'm not allowed to go inside the house.' In the morning, her mum came out the back and whacked the pipe on her back a couple of times. She then dragged the complainant from the back of the Property to the shipping container while pulling her hair. The complainant had to eat some food that was next to the shipping container, change and get ready for school, before walking all the way to the High School.[9] At a later point in the interview, the complainant said that the occasion so described happened 'this year'.[10]
[9] ts 1st CWI 10 - 13.
[10] ts 1st CWI 28 - 29.
The complainant said that the mother used two different pipes to beat her. One was black and red, and 'used for like underground things so the wiring can go in cars. Like that stuff, you know?' That pipe was kept inside 'the first roller door' of the shed. The other pipe was black and not further described.[11]
[11] ts 1st CWI 13 - 14.
The complainant was then asked to describe another time when the mother used a pipe. She responded, 'Well, she stopped using a pipe. Then she stopped doing it and then like the other week she had it - she just whacked - like punched me in the … neck. And pulled my hair'. She said she had been punched and had her hair pulled more than one time. The interview proceeded as follows:[12]
[12] ts 1st CWI 15 - 18.
Q.Okay. So tell me about the last time that she punched you on the neck and pulled your hair?
A. Oh, that's the last time now.
Q. Yep. So tell me everything that happened that time and start from the beginning?
A. (Indistinct) I was eating horse food if I wasn't, because she told me to sleep in the shed - - -
Q. Mm hm.
A. - - - ah, like, in the shipping container.
Q. Mm hm.
A. And, ah - and there's like horse foods in there, doors, windows, woods, but I don't eat horse foods.
Q. Mm hm.
A. Why would I eat horse food, if she thinks I'm lying to her and that's why I got punch in my neck - - -
Q. Mm hm.
A.- - - if I wasn't.
Q. Okay. Mm hm. So tell me everything that happened when she punched you on the neck?
A. So she came be all this horse food at night time and I start throwing them because why would I eat horse food?
Q. Mm hm. So tell me what you did?
A. I throw them - throw them for the horses - - -
Q. Mm hm.
A. - - - at night time.
Q. Mm hm. And then what happened?
A. Um, then in the morning she's like what all this? And then start doing - pulling my hair and all that stuff.
Q. Mm hm. So I wasn't there so I need to know everything - - -
A. Yeah.
Q.- - - that happened. So what was the first thing that she did?
A. Just ask me, 'Why did you throw them?'
Q. Mm hm.
A. Just- - -
Q. And then what happened?
A. Just like, well, she said, 'Well, you should eat them cos you - you eat horse food (indistinct). Why - why you're not eating now?'
Q. Mm hm. And then what did she do?
A. Then punched me in the neck.
Q. Mm hm. Mm.
A. And then start pulling my hair and - - -
Q. Mm hm.
A. - - - told - and told me to pick them up and put it on the bowl and she said to me to piss off.
Q. Mm hm.
A. Don't - and then told me to - well, she told me to piss off - - -
Q. Mm hm.
A. - - - get out the front - front yard and run away - like, walk away and don't come back.
Q. Mm hm. And what did you do?
A. Well, I was have to - I have to pick it up. Then, um, then after that she told me to get out the back - - -
Q. Mm hm.
A.- - - paddock, right, right where the bush starts and, yeah.
Q. Mm hm.
A. I have to stay there for the whole day - - -
Q.Mm hm.
A. - - - while they're having a good time.
Q. Yeah. Okay. Um, so you said that she punched you on the neck.
…
Q.And how many times did she punch you on the neck?
A. Once.
Q. Mm hm. Okay. Um, what happened to your neck after she punched you?
A. It's like start hurting.
Q. Mm hm.
A. And I couldn't (indistinct) properly so - - -
Q. Okay.
A. - - - but I didn't told her that because she wouldn't even care.
Q. Mm hm.
A.(Indistinct) like make it more worse if I tell her.
Q. Mm hm. Did you notice anything else different about your neck after she punched you?
A.Oh, it - it like disappeared next day.
Q. What disappeared the next day?
A. Yeah, it didn't feel that much hurting.
Q. Okay. And where were you when she punched you on the neck?
A. Ah, like, next to our fence.
Q. Mm hm.
A. Just like next - in front of the shipping container.
Q. And you said that she also pulled your hair. Tell me about that? Like she just pulled her - my hair. Like, you know how people pull like people's hair? Just like that.
A. Mm hm.
Q. So what happened after she punched you?
A. Pulled my hair and then - - -
Q. Mm hm.
A. - - - told me to get out the back.
Q. Mm hm. And what happened when she pulled your hair?
A. And then she stooped and then - - -
Q. Yeah.
A. - - - told me to get out the back.
Q. Mm hm. And what did she use to pull your hair?
A. Nothing. Just her hand.
Q. Her hands?
A. Yeah.
The italicised portion in the above passage is the first time the complainant mentioned the shipping container. Later in these reasons we will explain the significance of the manner in which her account as to the shipping container emerged in the first interview.
There was then a break in the interview. After the break, the interviewer said to the complainant that she (the complainant) had told the interviewer that there was another time when something happened with a tennis bat. The complainant said that happened more than one time.[13] The complainant described a specific occasion on which the mother used a tennis bat to beat her. She said that on Saturday (the weekend prior to the interview) she woke up, the mother 'opened the shipping container and let [her] out'. The mother said something - the complainant could not remember what - and then hit her once on the back of the head with the tennis bat. This left a lump on her head that disappeared after a day. The complainant started crying and the mother said, 'Yeah, I think that might hurt'. The mother told the complainant to eat her food and then stay out the back by herself, before going back inside. While the rest of the family went out somewhere, the complainant stayed out the back and did nothing all day.[14]
[13] ts 1st CWI 21.
[14] ts 1st CWI 22 - 27.
When asked to describe the tennis bat, the complainant said it was what they used for the dogs. It was red with white on it and the string was silver or grey. The family kept it just inside the roller door of the house.[15]
[15] ts 1st CWI 24 - 25.
The complainant said that the father also hit her, 'when he get really … cross at me'.[16] Later in the interview, the complainant clarified, 'He only does it when, um, my mum's - um, doesn't want to like take - get me and like take - come to me and describe me. So my mum's just not (indistinct) so she let my dad does it'.[17] The complainant said that the father hit her with a pipe on more than one occasion, sometimes grabbed her or pulled her hair, and 'stuff like - the same thing as my mum'.[18] The father's treatment of the complainant was explored further in the second child witness interview.
[16] ts 1st CWI 19.
[17] ts 1st CWI 40.
[18] ts 1st CWI 40.
The complainant said that the mother once told her that she was going to kill her. She explained that, after catching a bus home:[19]
[19] ts 1st CWI 37.
A.I was at the back and she - she's like, 'Where have you been?' She said to me 'Where have you been?' and then I said, 'I catched the bus', and she's like, 'Who told you that?' and I said, 'You told me this morning to catch a bus'.
Q. Mm hm.
A. And then, um, she's like - she was really, really angry at me.
Q.Mm hm.
A. And told - she's just like, 'I'm going to kill you'. I will - I'm just - mm, I went - and then she's like, 'I'm gonna - I wanna kill you right now. I'm so close to killing you'. That's what she said.
Q. Mm hm. Mm. Now, where were you when she said that to you?
A. In front of the house.
Q. Mm hm. Mm hm. And has she told you that she's gonna kill you one time or more than one time?
A. More than. She's like - just before she said, 'I will shoot you with - and your head will go in thousand pieces'.
Q. Mm hm. Yeah. Okay. Mm hm. What else did she say to you - - -
A. Oh, that's it.
Q. - - - about that?
A. That's it. She just - she just say that two things.
When asked about M, the complainant said, 'they treat her nice, not mean'. Asked where M slept, the complainant said, 'Inside the house … Like on her room'. She said M was nice and that '[w]e have secrets with each other that she never tells'.[20] This point was explored further in the second child witness interview.
[20] ts 1st CWI 41 - 42.
At one point, the complainant was asked to describe the shed and the shipping container. The complainant said there were two shipping containers, one green and one white. She then said, without any further question being asked, 'And the green one, that's where I have to go to bed in it. Like all the time'.[21] Sometime later in the interview, she was asked to tell the interviewer about sleeping in the green container. She responded, and the interview continued, as follows:[22]
[21] ts 1st CWI 31.
[22] ts 1st CWI 34 - 36.
A. Oh, I don't have blankets. She took them off me (indistinct). It's just snap by their self.
Q. What was that?
A. Oh, you know the tent?
Q. The tent?
A. No, like you know when you go for camping?
Q. Mm hm.
A. You know the bed?
Q. Yeah.
A. Yeah, that type of bed. It just folds up.
Q. Okay.
A. Yeah, that type of (indistinct) - - -
Q. So you said that you sleep in the green container?
A. Mm.
Q. Yep, okay. So - - -
A. And there's a bed there.
Q. Mm hm. Tell me about the bed?
A. Like a fold up bed thing.
Q. Mm hm.
A. Um, well, (indistinct) she tooked it off me because (indistinct) was wrecking it if I wasn't.
Q. Okay. So where do you sleep now?
A. Inside without nothing. I have - only have long sleeve and a - long pants.
Q. Mm hm.
A. And it's kind of freezing there.
Q. Mm hm. Mm hm. What else is in the, um, green container?
A. Like, doors.
Q. Mm hm.
A. Windows.
Q. Mm hm.
A. Woods.
Q. Mm. Okay.
A. And horse foods.
Q. Yeah.
A. Mm.
Q. And how long have you been sleeping in the green container?
A. Mm, not that long. I - it's - she told me on start of the school - she - it was happening but - - -
Q. Oh, just careful, cos that's a microphone, yep.
A. Like - - -
Q. Mm hm.
A. - - - um, like first day of May. Not like on May but like probably like five - on the 5th of May.
Q. Mm hm.
A. Something like that.
Q. Okay. And what did she say to you about sleeping in the green container?
A. Ah, she said nothing. Um, she told me to not touch the horse food. That's it.
Before sleeping in the shipping container, the complainant said she slept in a corner of the shed.[23] This was explored further in the second child witness interview.
[23] ts 1st CWI 36.
In the final part of the interview, the complainant talked further about sleeping in the shipping container. When asked how she went to the toilet in the container, the complainant said she went to the toilet before getting into it. The door of the container would be padlocked by the mother so she could not get out. The complainant explained that the door was locked at night time and when the mother went to ice skating with M. When asked how often the mother would lock it, the complainant said, 'Oh, she locks it all the time and then she go out sometimes'. She said she would stay at the back and do nothing. She never asked why the mother locked the door. She said it was dark and messy inside, with sand everywhere.[24]
Child witness interview on 20 September 2017
[24] ts 1st CWI 42 - 43.
The second child witness interview took place five days after the first, and two days after a search warrant was executed on the Property. This interview touched on a wider range of matters than the first interview.
The interview started by the interviewer asking the complainant about whether she remembered a time when she went to school with wet clothes. At first, she responded 'Mm hm'. However, despite the interviewer's persistence, the complainant refused to answer any further questions about the subject and a 10-minute break was taken.[25] It is apparent from the interviewer's comments that the complainant became upset at this line of questioning.[26]
[25] Transcript of Child Witness Interview on 20 September 2017 (ts 2nd CWI) 2 - 3.
[26] ts 2nd CWI 3, 4.
After the break, the complainant was asked about what the father did to her. The complainant said he did 'the same thing as my mum'. He hit her with a pipe on more than one occasion and pulled her hair.[27] He also smacked her more than once.[28] He started hurting her the previous year, but 'not that much anymore '.[29] When asked if she could describe the last time the father hit her with a pipe, the complainant said she 'forgot about it'. She said:[30]
He told me to - when he - every time he hit me with it he's like, 'Are you ever gonna change? Like your - change your attitude', all that stuff? … And then he asked like, 'You don't want to be in our - in our family - in our family, so you probably just go back to Philippines'.[31]
[27] ts 2nd CWI 4.
[28] ts 2nd CWI 13.
[29] ts 2nd CWI 14.
[30] ts 2nd CWI 5.
[31] Although the transcript says '(indistinct)', the father and the State agree on appeal that the word the complainant said in the interview was 'Philippines': Respondent's Schedule of Evidential References from Appeal Hearing dated 22 May 2020 [8].
The complainant described two specific occasions on which the father hit her with a pipe, although after describing the first she said that it was always the same.[32]
[32] ts 2nd CWI 9.
The first specific occasion happened in the previous year. The father told the complainant to get out of the house and into the shed. The complainant explained that she had to get into the shed 'so people doesn't see that they're whacking me'. The father then 'whacked' the complainant with the red and black pipe once on her hand and her butt, which hurt her and she started crying. When he hit her, he asked her 'all this stuff' - like if she was going to change her attitude. When she responded 'yes', he said 'well, if you say yes, it's mean you have - then (indistinct) mean you do the right thing'. He then stopped, put the pipe down near the wall and told her to get out the back. She then went out the back and stayed under a tree for the whole day until night time. She thought about running away, but did not do so.[33]
[33] ts 2nd CWI 5 - 9.
The second specific occasion happened while the complainant was a student at the Primary School. The father and mother said that they thought the complainant was lying to them and so the father told her to get inside the shed. He then whacked her 'around twice' on her bum with the pipe, which hurt and made her cry. As the complainant described it:[34]
And then he said if you keep lying, you're gonna get whacked like whacked with a pipe. This is your last chance. If you lie again, that's twice. If you lie again that's three times. It's three, um, like - like smack (indistinct) and then he up - and he's getting worse and worser and worser.
He then told the complainant to go and do a job picking weeds around the trees.[35] When asked about what she meant when she said it got 'worse and worse', the complainant said, 'Like (indistinct) and like I wasn't talking properly, um, if I was - ah, and then if I lie I get a smack if I wasn't'.[36] She said that when the father hit her with the pipe, it was always inside.[37]
[34] ts 2nd CWI 11.
[35] ts 2nd CWI 9 - 13.
[36] ts 2nd CWI 13.
[37] ts 2nd CWI 14.
After another break, the complainant was asked to talk about the Country Town. She said that it was 'fine'; the mother 'wasn't mean' and the father was 'fine'.[38] At the Country Town, she slept in a bedroom in the house.[39] She did not know when or why the assaults started: 'I guess it started for a reason because not doing the right thing (indistinct) … I was lying (indistinct) if I wasn't'.[40]
[38] ts 2nd CWI 15 - 16.
[39] ts 2nd CWI 15 - 16, 17.
[40] ts 2nd CWI 17.
The complainant was then asked to talk about when she 'stayed in the shed'. She described being locked in the 'shed' at night, being let out 'every morning' to get ready for school, having her bedding taken off her because the mother said she was wrecking it, and it containing 'horse foods', wood, windows and doors.[41]
[41] ts 2nd CWI 18 - 19.
When she was then asked about 'sleeping in a shipping container', she repeated that she slept on a bed until the mother 'tooked it off me', at which point she began sleeping on the floor.[42] The interview continued, relevantly:[43]
[42] ts 2nd CWI 20.
[43] ts 2nd CWI 20 - 21.
Q.… So what did you do in the shipping container?
A.I sleep but I keep waking up every night.
…
Q. Did - did she leave you in the shipping container other times?
A. Yep, every time.
…
Q. So you said that, um, she left you there all the time?
A. Yeah, she does.
Q. Yeah. Tell me about that?
A. Like every time they go somewhere - - -
Q. Mm hm.
A. - - - I stay home by myself and do nothing.
Q. Mm hm. And did that happen one time or more than one time?
A. More than. They go ice skating.
…
Q. So what happened when they went ice skating?
A. I have to stay inside there.
Q. Inside where?
A. Inside the shed.
Q. Okay. Mm hm. And what happened to, um, the shed's door when they (indistinct) - - -
A. Oh, she lock it. I don't - she lock it so everybody - so in case people come in there.
Q. Mm hm.
A. So they can't open it.
The complainant said she did nothing inside the 'shed' when they were gone; she just thought, 'I wish I could run away'.[44] She said there was no light in the shipping container.[45]
[44] ts 2nd CWI 22; see also 29 - 30.
[45] ts 2nd CWI 22.
The interviewer then asked the complainant about the food that the mother gave her. The complainant said, 'Um, well, like if they go somewhere, I have to go inside the house. And then there's a food there and I have to eat it all, what I don't even eat, cos she gave me that much food if I don't even eat that much'.[46] She later said, 'every morning I get bread. That's it' - the rest of the day 'I get something else'.[47] Sometime later, the complainant was asked about what she ate in the shipping container. The complainant said, 'I don't know what they're called but they look like rice, chicken, sometimes the noodles'. The food was given to her by the mother.[48] When they left her inside the shipping container during the day, they left her with food 'sometimes. Sometimes not'.[49]
[46] ts 2nd CWI 23.
[47] ts 2nd CWI 23.
[48] ts 2nd CWI 29.
[49] ts 2nd CWI 30.
After talking about food, the interview turned to talking about M. The complainant said that her secret with M was that M once told her, 'Oh, I wish you and I could run away', before saying, 'Don't tell mum and dad', because she would get into trouble if mum and dad caught them.[50] The complainant said that sometimes the father and mother got angry at M: 'They tell her off but they doesn't hit her'.[51] She said that she did not think M had ever seen her be hit by the father or the mother. She could not tell M about it because, if she did, she would get into 'big trouble'.[52] She then said that she '[c]an't talk to her at all',[53] at A and the mother's direction. She explained:[54]
Oh, [the mother] said, 'Don't talk to her. If you talk to her again, she's not going' - she's like, 'Don't talk to her (indistinct) talking to her because she's not going to help you'.
[50] ts 2nd CWI 24; see also 28.
[51] ts 2nd CWI 25.
[52] ts 2nd CWI 26.
[53] ts 2nd CWI 26.
[54] ts 2nd CWI 27.
After another break, the complainant said that she was left in the shipping container at night time, and during the day '[s]ometimes when they go somewhere'.[55] The complainant said that the mother and M went to ice skating every Monday and Wednesday, and 'like every time' that happened she stayed in the shipping container - the mother having padlocked the door - by herself doing nothing.[56] At a later point in the interview, the complainant said M would be inside getting ready for ice skating when the mother put her into the shipping container.[57] She could not tell M about it because 'if, like, [the mother] caught me then she will tell [A] and, ah, [S], and then they will all go - go at me and then say, "Why did you talk? Why did you talk to her?'"[58] When locking the door, the mother sometimes said: 'Get in (indistinct). We don't want you coming to ice skating with us. We can have fun. You don't. You don't deserve it. You don't want to have family then just stay here at home by yourself'.[59]
[55] ts 2nd CWI 29.
[56] ts 2nd CWI 29 - 31; see also 35 - 36.
[57] ts 2nd CWI 35.
[58] ts 2nd CWI 36.
[59] ts 2nd CWI 37; see also 36.
The complainant said that, while she was in the shipping container during ice skating, the dog was inside the house, before going on to say that the mother told her she was not allowed to touch the dog.[60]
[60] ts 2nd CWI 32.
The interview then moved to discussing the sleeping arrangements when the family were living out of the caravan in the shed. She said the mother and M slept in the caravan, while she slept by herself in a green tent far away from the caravan. She had a bed and blanket. She did not know what happened to the tent. She said the father was 'up the house part because it wasn't finished'.[61]
[61] ts 2nd CWI 32 - 34.
The complainant said that when the father went to church on Saturdays, her sister sometimes went with the father and she herself went a couple of times.[62]
[62] ts 2nd CWI 34.
After another break, the complainant was asked about what she did before sleeping in the shipping container at night time. She said she would be out the back - past the paddock and 'down the bush' - before going into the shipping container, because the mother told her to 'get out the back' all the time. On school days, she would catch the bus home, get changed outside, as the mother had told her to do, and then get out the back. She would do nothing out the back. At some point in the evening, she would eat food outside the shipping container in the dark, then wait for the mother to come outside and tell her to get into the shipping container. The mother would then lock the door and go back inside to watch TV.[63]
[63] ts 2nd CWI 37 - 40.
The interview ended on a similar topic to the one on which it started, with the same result. The complainant was asked whether she washed outside, to which she responded, 'I don't want to talk about that'.[64]
Pre-recorded evidence given in court on 11 and 12 April 2019
[64] ts 2nd CWI 40.
The complainant's evidence in chief was relatively brief, encompassing only some of what had been said in the interviews and briefly touching on most but not all of the particulars. Cross-examination was wide-ranging and extensive. We will outline her evidence by reference to a number of topics, rather than the order in which it was given.
From the outset, there were problems with the volume at which the complainant spoke. Both the judge and the prosecutor asked her to speak up and to look up. It is apparent that she reacted negatively to this.[65] The issue of volume continued throughout the pre-recording.[66] We will say more about that later in these reasons.
[65] ts 19 - 20.
[66] See, for example, ts 21 - 22, 24, 25, 27, 31, 32, 33, 35, 37, 50, 51, 52, 57, 65, 68, 80, 82, 86, 89, 93, 106, 108, 110, 124, 129, 156, 159, 168, 169, 176.
The complainant confirmed that she had told the truth in her two interviews.[67]
Haircut
[67] ts 24.
The complainant gave evidence in court about a year and a half after participating in the child witness interviews. The complainant said that her hair was shorter in the child witness interviews because the mother had cut her hair. She did not want to have short hair, and it led to her being teased at school.[68] At one point in cross-examination, she denied that she used to have her hair cut at Salon Express.[69] At a later point, she said that she remembered going to the hairdresser at Salon Express. She had her hair cut by the mother '[p]robably twice or three times'.[70] In re-examination, the complainant clarified that she thought she was living at S and A's Property when she went to Salon Express for a haircut.[71]
After school activities and meals
[68] ts 25 - 26; see also 150.
[69] ts 86.
[70] ts 150 - 151.
[71] ts 174.
Asked what she did for entertainment or recreation after school when she was going to school at the High School, the complainant said that she had to do outside jobs, being '[w]eeding, watering the plants … [p]icking horse shit up'.[72] She did not do anything else.[73] She did not visit friends, go to any sports activities or ride the horses at the Property. She could not watch TV or play on the computer or do anything of that nature because she was '[n]ot allowed to get in the house'.[74] These rules did not change when the father was home on the weekend.[75]
[72] ts 27.
[73] ts 27, 29.
[74] ts 27; see generally 27 - 29.
[75] ts 30; see also 33 - 34.
In cross-examination, the complainant disagreed with the suggestion that she did chores inside the house after school.[76] She was not able to do homework when she got home; rather, she would come home, get changed and the mother would 'tells me to do something, like a works, around the freaking farm'.[77] She said she did not like weeding, but the mother 'tells me to do that shit'.[78]
[76] ts 82 - 83.
[77] ts 124.
[78] ts 124.
The complainant denied, in cross-examination, that there was ever an occasion when she came home from school and refused to go into the house, despite the mother's efforts to coax her inside.[79] At a later point she was asked whether she would stand out in the rain on her own, to which she replied, 'Actually, she tells me to'.[80]
[79] ts 85.
[80] ts 124.
In cross-examination, the complainant said that she liked to play sport at school, but did not like cross-country running.[81] When she was asked whether she ever ran around the paddocks for fun, the complainant said, 'No. Actually, yeah, because [the mother] wants me to run around'. She said she did not enjoy doing this.[82] In re-examination, the complainant said that the mother 'always tells me to run around the paddock and that stuff', which she then did because 'I have to do it'.[83]
[81] ts 108; see also 125.
[82] ts 125.
[83] ts 176.
She denied ever having gone to ice skating, and did not agree that she would rather have stayed home than go to ice skating.[84]
[84] ts 27, 108 - 109.
In cross-examination, the complainant agreed that the father and the mother had given her an iPad when the family left the Philippines after collecting her.[85] However, she was only able to use it in the Country Town; at the Property she did not know where it was because the mother had hidden it somewhere.[86]
[85] ts 69.
[86] ts 120 - 121.
While other members of the family ate inside, she ate outside beside the shipping container, after the mother had given food to her.[87] This did not change when the father returned home on the weekend.[88]
[87] ts 29 - 30.
[88] ts 30.
In cross‑examination, the complainant gave evidence that, before school, she always ate breakfast outside in front of the shipping container. The mother would bring her Weet-Bix or bread when she opened the shipping container to let the complainant out. She never once ate breakfast inside at the Property.[89] She also ate dinner outside. She ate it outside even when the adult children came for dinner '[c]os they won't give a crap'.[90] She denied that she ever ate horse food.[91]
[89] ts 122.
[90] ts 122 - 123.
[91] ts 124.
The complainant said that she 'sometimes' went to church with the father on a Saturday. If she did not go with him, she would stay outside the house.[92] The father and mother might also go out on the weekends to S and A's Property, or out to dinner at a restaurant.[93] The complainant did not always get to go with them on these outings, and when she was left at home she was left either beside the shipping container or inside it; '[w]herever she would - tells me to'.[94] In re-examination, the complainant said that she did not go to restaurants while she was living at the Property.[95]
Sleeping arrangements
[92] ts 30.
[93] ts 31 - 32.
[94] ts 32 - 33.
[95] ts 175.
The complainant said she slept in the shipping container on weekends as well as during the week.[96] Normally, the mother would put her in and let her out of the shipping container, but sometimes the father did too.[97] When she was in it, the door of the shipping container would be locked with a padlock.[98]
[96] ts 30.
[97] ts 30.
[98] ts 31.
In cross-examination, she maintained that she would be locked in the shipping container overnight.[99] Given the emphasis on this evidence in the appellants' submissions, we set it out in full:[100]
[99] ts 152 - 156, 157 - 158; see also 97, 162.
[100] ts 152 - 156, 157 - 158.
Do you say that you had to sleep every night in a sea container?---Yeah.
Every night?---Yep.
Never, ever allowed to sleep in the house?---Nope.
What time would they put you in the sea container?---How would I know?
Because you say they did?---Yeah, but I don't have a timer to tell, do I?
Was it dark or light?---Dark, duh.
Was this in summer or winter?---I don't know.
Did you ever get cold in there, or was it hot in there?---It was sometimes cold and sometimes hot.
So is what you - what you're saying to us, [complainant's name], is that every single night you were at [the Property], you were locked in the sea container?---Yeah. Sometimes not.
Sorry?---I said sometimes not.
Sometimes not. And what about when - sometimes not? Where would you stay the night?---At the back, or in front of the shipping container.
Or in front of the shipping container, never in the house?---No.
Were there - was there a bed in the shipping container?---Yeah, but then she took it.
There was a bed in there?---Yeah.
How many times did you get to sleep in the bed?---It wasn't a kind of a bed, it was like a fold-up bed.
A fold-up bed?---Yeah.
And where did she put it?---At the back of the shipping container, inside.
Well, when she took it, where did you sleep?---In the shipping container still.
What, just on the ground? On the floor?---Yeah.
Did you have any blankets?---Yeah, one.
You had one - - -?---And then she probably takes that, too.
And then she took that, too?---Yeah.
All right. You see, none of that is true, is it, [complainant's name]?---It's actually pretty true.
You never once spent a night in a shipping container?---Actually, I was.
There were no blankets in those shipping containers?---There was a blanket there. That's how she took it.
And you got locked in?---Yeah.
No water?---Nope.
No one left a bottle of water in there with you?---Nope.
No food?---Sometimes she did. Sometimes she puts the food in there.
You see, you left home in September - - -?---Yeah.
- - - and in the months leading up to that would have been very, very cold, wouldn't they?---Yeah.
And you say you were locked in this shipping container with one blanket, you had to sleep there every night?---Yeah.
Sorry?---I said yeah.
Every night, or just about every night?---Some nights.
Some nights?---Yeah.
Well, if there were five weeknights, five school nights, how many nights would you have to sleep there?---I don't know. Whenever she tells me to.
And you never slept in the house?---No.
Not once?---No.
Not once from the day you got to [the Property]?---Once.
Once?---Probably like one week.
One week?---Yeah.
All right. Do you know what month you got to [the Property], when you started living - - -?---Nope.
- - - in that - in the house there?---No.
About February you started living in the house there?---That's nice.
And you stayed there through till 11 September when you left?---Actually, I never - nope.
That would have been right through winter, wouldn't it?---Yeah, so?
You couldn't have stayed in there through the winter?---Actually, I did.
No - only one blanket, no mattress, no nothing?---Sometimes she takes the blanket.
Sorry?---Sometimes she does, sometimes she doesn't.
So some nights you didn't even have a blanket?---No.
Did you tell anyone about this? That you were having to live in a container?---No.
Did you tell any of your friends at school?---Yeah, because they want - because they asked to.
So you were at [the Property], I think, from February 2016 through to September 2017, so that's about 18 months?---Nice.
Just about every night in the sea container?---Yeah.
Two winters?---I don't know.
Was this because you'd done something wrong, or just where they kept you?---I don't know.
You don't know. And you've seen those photos of the sea container, the green one and the white one?---Yep.
Which one did you say you were kept in?---In the green one.
The green one. Well, there doesn't appear to be any bedding or anything like that in there?---Well, she probably took it or did something to it.
There's no light in there?---I know that.
What did you do if you needed to go to the toilet?---I just have to hold it in.
All night?---Yeah.
And then what, did you get let out in the morning, did you?---Yep.
[Complainant's name], you've just made this all up, haven't you?---Nope.
You never told any of your teachers about this?---One.
Did you ever cry or scream out to get anyone's attention if you got cold?‑‑-No.
…
Did you not tell anyone that you had to stay in the - in this container all night?---I actually told my friends.
Told your - which friends?---In [the High School].
Sorry?---In [the High School].
Which friends?---I just told you.
Audrey(?)?---What?
What - what - what were their names?---Why do you want to ask?
I'm asking questions because I'm allowed to?---Okay.
Who were the - what were the names of the friends you told about being kept in this sea container?---Amelia(?), Lauren(?), Chantelle(?) and Alex.
Amelia - - -?---And Louise(?).
- - - Lauren, Chantelle and Alex?---Yeah, and Louise.
Right. Did you ever tell any of [the mother and father's] children?---No.
On nights when they came over for dinner, did you get put in the - in the sea container?---Yeah.
While they were there?---Yeah, in the morning I'm outside.
When asked in re-examination, the complainant was not able to say when she first started sleeping in the shipping container. Asked if she slept anywhere other than the shipping container when she was in Year 7, the complainant said, 'No, I'd sleep in the shipping container'. She repeated what she had said in the child witness interviews about sleeping in the shed, while the rest of the family slept in the caravan, when they first moved to the Property.[101]
Adult children visiting
[101] ts 177 - 178.
In re-examination, the complainant said that B came to visit 'like not much' and S and A would 'always come to visit … [l]ike every probably Saturday or sometimes when they have a day off at work'. When they visited, the complainant would not be locked in the shipping container; rather, she would be 'doing some - some work around the house - around the farm'.[102]
Called names
[102] ts 175 - 176.
The complainant gave evidence that she was called 'bad words' by the mother, such as 'bitch, cunt or a - like that stuff'.[103] She maintained this position in cross-examination.[104]
[103] ts 34.
[104] ts 97, 159.
In evidence in chief, she said she had heard the word 'skank' before at school, but had never been called a skank.[105] In cross-examination, the complainant said that the mother had called her a skank. When asked to explain why she had previously said she had never been called a skank, the complainant said, 'Like, right now, no one has called me a skank. Only when I was living my adopted parents'.[106] After further questioning, the complainant said she did not know whether the mother called her a skank. When it was put to her that the mother never did call her a skank, she said, 'Well, she called me other names before'.[107]
Photographs: general
[105] ts 34.
[106] ts 159.
[107] ts 159 - 160; see also 161.
The prosecutor showed the complainant a number of photographs, taken by the police when the search warrant was executed at the Property on 18 September 2017 (exhibits 1.1 - 1.25). She identified the green shipping container as the one she would be locked in. She gave an account of its contents and said that the 'stuff at the back' - being a number of boxes and bags (see exhibits 1.3 and 1.4) - was not there when she had been locked in there.[108] On her evidence, she had slept where the 'stuff at the back' was now positioned in the photographs. Otherwise, the horse food, wood, windows and cupboard were all there when she was there.[109] She identified as M's room (based on the sheet, doll and clothing) photographs depicting what was, on the defence case, her room inside the house (exhibits 1.12 - 1.14 and 1.19).[110] She also did not recognise photographs depicting what was, on the defence case, M's room (exhibits 1.15 - 1.17).[111]
[108] ts 37.
[109] ts 38.
[110] ts 40 - 41, 43; see also 146.
[111] ts 42 - 43.
At times, she responded to questions as to some things inside the house with 'How would I know?'[112]
[112] ts 40, 41.
In cross-examination, the complainant was shown a number of photographs that, for the most part, depicted her in the Country Town (see exhibit 7). She agreed that she was happy, and had fun, in the Country Town.[113] She had plenty of nice, clean clothes to wear and plenty of food.[114]
[113] ts 101, 109; see also 113, 171.
[114] ts 111; see also 114, 116, 172.
She was repeatedly asked by the father's counsel about whether she thought she was wearing nice clothes in photographs taken when she was living in the Country Town,[115] to which she became evidently frustrated. After being asked a question of that nature for the sixth time, she started responding with answers like: 'Why you keep asking the same question?';[116] 'Can you stop asking that question?';[117] 'I'm not going to answer you if you keep asking the bloody same question';[118] and 'I've already answered the freaking question'.[119]
Photographs: shoes
[115] See ts 111, 112, 114, 115, 116, 117, 118.
[116] ts 115.
[117] ts 117.
[118] ts 118.
[119] ts 118.
The complainant recognised as hers some shoes that were evidently damaged, with a very rough and uneven connection between the sole and the rest of the shoe (exhibits 1.20 - 1.25). The complainant said that the mother 'glued the shoes together'.[120] The complainant was later shown photographs of a number of shoes which, on the defence case, were hers (exhibits 7.23 - 7.26). She said that she had never seen one of the pairs before and had worn the other pair only once.[121] Her evidence was that she wore to school the shoes given to her by the mother, being the glued shoes, even if she did not want to wear them.[122] She denied being given good shoes by the mother and later changing into the glued shoes at a location further down the Property.[123]
[120] ts 44.
[121] ts 141 - 142.
[122] ts 143; see also 151, 161.
[123] ts 142, 151 - 152.
It is evident from the transcript that she became frustrated at counsel for the father's repeated questions about how many pairs of shoes she had, as can be seen in the passage below:[124]
[124] ts 143.
[H]ow many pairs of shoes do you think you had as at the time you stopped living at [the appellants'] place?---I don't know.
About how many?---How would I know?
Because they were your shoes?---The were red and pink one, was it? Or whatever colour they are?
Yes. How many did you have? How many pairs of shoes did you have, approximately?---I don't know.
Approximately. More than one?---I don't know. Maybe, I guess.
Sorry?---I said I guess. I don't know.
Did you have five, six, 10?---I don't know.
[Complainant's name], you're not really trying to help us much, are you?‑--Actually, I am.
It's the case, is it, you had a number of pairs of shoes that you could wear to school? Isn't that true?---Actually, it was just the one they gave me - she's the one that picks the shoes, I don't.
I'm asking you how many pairs you had?---Well, I don't freaking know.
Can you just hold that up? Please don't use words like that if you can help it?---Well, you're making me mad, aren't you? (emphasis added)
Washing outside
The complainant was shown other photographs of the Property, taken at a later date when the Property was up for sale (exhibits 2.1 - 2.20). One of those pictures was a picture of the bathroom (exhibit 2.9). She said that she was not allowed to use the shower depicted, but, when asked to say what she did for washing at the Property, she said, 'I'm not telling you'.[125] She initially refused to answer questions about how she washed herself, only going so far as to say that she 'sometimes' washed outside the house.[126]
[125] ts 52.
[126] ts 52 - 53.
After a short break, in which the father's counsel requested that the matter be pursued further, the complainant was subjected to extensive questioning on the matter by the prosecutor and judge. It is apparent that she was highly reluctant to answer these questions. Nevertheless, she gave the following evidence.
She sometimes washed outside the house, at the mother's direction. The mother would bring from the house warm water in a bucket, which, when she was by herself again, the complainant would tip over her body. She used both soap and shampoo. She did not know whether the water the mother brought was 'bathroom water or kitchen water'.[127]
[127] ts 56 - 58; see also 149.
In cross-examination, the complainant said that she had a shower both in the morning and at night. When it was put to her that there was no shower outside, she said, 'would [the mother] give a crap? No. She wouldn't care. … She doesn't care if there's no shower outside'. She repeated that she used a bucket to shower herself outside, and said that she just had to wash her arms and legs.[128] When it was later put to her that she never had to wash herself outside with a bucket, she responded, 'Actually I have'.[129]
Being hit
[128] ts 123.
[129] ts 149.
In cross-examination, the complainant maintained that the father and mother hit her.[130] In response to a question about whether the mother gave her love, the complainant replied, 'If she did, why did she hit me?'[131] At a later point in cross-examination, the complainant said, 'I'll cry and scream when she tries to beat me up'.[132] She repeated what she had said in the child witness interviews about being hit with a pipe. She described the pipe as a rubber pipe, 'like a water thingie that goes under the ground', which was kept inside the house 'where the … carport door is'. She said she probably got bruises, but never showed anyone at school. She also said that the mother sometimes hit her with a tennis racquet, and that M never saw her get hit 'because [the mother] tells her to go inside'.[133]
Not talking to M
[130] ts 97, 99, 156 - 157, 162.
[131] ts 97.
[132] ts 156.
[133] ts 156 - 157.
The complainant gave evidence that one of the mother's rules was that she was not allowed to talk to M. That rule did not change when the father was home.[134] As already noted, the jury were not satisfied of this particular in relation to either appellant.
[134] ts 34.
The complainant also repeated what she had said in the child witness interviews - that M was nice and she got along with her. From what she could remember, she did not get angry with M.[135]
School
[135] ts 110.
The complainant gave evidence that she did not like Mr B, but did like Ms W. She did not agree that she stopped enjoying school after Mr B returned from long service leave.[136]
[136] ts 138.
In cross-examination, it was put to the complainant that she wet herself on multiple occasions at the Primary School. She denied that this ever happened.[137] She said that she was 'sometimes' neatly and warmly dressed when she went to school,[138] and agreed that she always washed and went to school with clean clothes.[139]
[137] ts 81 - 82, 148.
[138] ts 139.
[139] ts 149 - 150; see also 161.
In cross-examination, the complainant denied that she was involved in an incident at the High School involving a boy named Jordan, where it was suggested that he pushed her into a wall.[140] She denied that she went home and blamed the mother for what happened.[141] At a later point, in response to a question about whether she remembered an argument with a boy named Jordan, she responded, 'I think so'.[142]
Animals
[140] ts 88.
[141] ts 88 - 89.
[142] ts 146.
The complainant consistently denied, in response to a number of questions, that she disliked animals.[143] She was shown photographs of one of the horses at the Property with a cut on its shoulder, and denied having caused it.[144] She also denied having caused a cut under the eye of one of the family's dogs, after being shown photographs of the cut.[145] She said she was not allowed to touch the horses or the dogs at the Property.[146] She agreed that she had written a document containing words to the effect that she had scratched the family dog (exhibit 5.1).[147] She also agreed that she had drawn multiple pictures on a sheet of paper depicting a dog being scratched by a hand (exhibit 5.2).[148] However, she maintained that the mother forced her to write or draw both documents.[149] She said that the mother made her do this by telling her (the complainant) to do a drawing of her scratching the dog's eye.[150] She was made to do this in a car by herself while the mother went 'shopping or something'.[151] She refused to read what she had written in exhibit 5.1 to defence counsel,[152] and became combative when questioned about the two exhibits.[153]
Notebook: exhibit 6
[143] ts 89, 102, 103, 120.
[144] ts 90 - 91.
[145] ts 91; see also 103, 105.
[146] ts 108, 170.
[147] ts 93.
[148] ts 93.
[149] ts 102, 103, 104, 106, 107, 169 - 170.
[150] ts 107.
[151] ts 104; see also 107.
[152] ts 106.
[153] See ts 103 - 107.
In a similar vein, in the course of cross-examination, the complainant said that the mother forced her to write a passage,[154] which she agreed she wrote,[155] in what the complainant said was 'supposed to be a drawing book'.[156] The passage read as follows:[157]
Because I oways jelest. I don't chust to be good. And I don't thing anyone elest. Because I don't what an family. Because I do not get my own way. And I don't chust to get anything. Or I don't ask and talk to anyone. Because chriy to reck my family. Because I don't what to be her. And I treat my family for oneday and back to be bad. And be selfish. And I thas not like anyone in the family. And I treat my family eschoupid game everyday. And I don't do what I told. Or not talk parly to anyone. And I'm good to be bad not good everyday. And I don't what to go anywhere. And do not lisn to my family. Make my family os sad and reck thay good day and not having fun for the day. And I chust to be by myself all the time.
[154] ts 98 - 99.
[155] ts 96; see also 98.
[156] ts 98.
[157] Exhibit 6.
The complainant refused requests by both defence counsel and the judge to read the passage,[158] and became combative when questioned about it.[159] She denied that what was written reflected her intention and thinking.[160]
[158] ts 100.
[159] See ts 98 - 101.
[160] ts 100 - 101, see also 119.
It is evident from the exhibit that parts of the passage were erased and re‑written, and the top of the page has been removed. In closing, the prosecutor submitted that the top of the page was removed by one or both of the appellants, because, if it had remained consistent with the rest of the book, it would have displayed a date unfavourable to the defence case.[161] By contrast, defence counsel submitted that the passage revealed the complainant's heartfelt feelings and manifested her intent to get out of the house.[162] We will say more as to exhibit 6 in the context of considering findings as to the appellants' credibility that were open to the jury.
Birthdays and presents
[161] ts of closings 28 - 29.
[162] ts 99; ts of closings 44; see also ts 119.
The complainant said that she never got to celebrate her birthday.[163] She said the photographs shown to her depicting a birthday celebration in the Country Town were actually of M's birthday.[164] When shown a photograph of a present with the complainant's name on the tag, she maintained that it was not her birthday. She said that she got a present on M's birthday, and that this happened 'once'.[165] She continued, 'Even it's a photo, it doesn't mean that it's my birthday'.[166] In response to questions about a different photograph showing her holding the same present, she said, on three occasions, 'It doesn't mean it's my freaking birthday'.[167] Further questions about photographs depicting birthday parties were met with responses like: 'It's not frickin my birthday. Can you understand that?'; 'You can say whatever you freaking want'; 'Nice to know'; and 'Are we finished?'.[168]
Other
[163] ts 113 - 114; see also 127, 129.
[164] ts 114, 126, 129, 130.
[165] ts 127 - 128.
[166] ts 128.
[167] ts 128 - 129.
[168] ts 129 - 131.
The complainant said that she was not aware of having any medical conditions. She had never heard of Rett syndrome.[169]
[169] ts 35.
She also denied that she had ever seen a psychologist by the name of Trudy.[170] In re‑examination, she said she did not remember seeing a psychologist.[171]
Why she left home
[170] ts 83 - 84.
[171] ts 167.
In cross-examination, the complainant explained what happened when she left home for the last time on 11 September 2017. She said she went home after school, but then went to the skate park because no one was home. Her friend was at the skate park, and she went to her friend's place from there.[172] When she went there, she was wearing her High School uniform and the shoes that were stuck together with glue.[173] She did not go there with a plan to get the father and mother in trouble.[174] Rather, she explained why she left as follows:[175]
[172] ts 110.
[173] ts 151.
[174] ts 151.
[175] ts 152.
Why did you want to leave home that day?---Because.
Because what?---Because I don't want to live with her always beating me up.
Any other reason?---I don't want her cutting my hair all the time, even though I don't want to.
You didn't want her cutting your hair?---Yeah. And I don't want to do cleaning job around the freaking house.
You didn't want to have to do jobs around the house?---Yeah.
Anything other - any other reason?---And she's so mean.
And she was mean. Well, none of that's true, is it?---Actually, it is pretty true.
The evidence of the other State witnesses
The teachers
Mr B and Ms W were both teachers at the Primary School when the complainant attended as a Year 6 student in 2016. Mr B was the principal teacher of the complainant's class. Ms W was the school principal, and filled in for Mr B when he went on long service leave in the first five weeks of Term 3.
One aspect of the defence case was that the complainant was scared of Mr B. On the defence case, this explained her wetting incidents and caused her behaviour to improve when Ms W was teaching her in Term 3.
Mr B gave evidence that his first observations about the complainant were that she was a shy, quiet and cheerful student.[176] He said that, after school on the first day of Term 1, the mother came up to him in the classroom and asked how the complainant went. He responded that she was quiet and lovely but had a few issues academically. The mother then said that the complainant's 'going to cause trouble, she's going to be disruptive, she's going to undermine [Mr B] as a teacher, and undermine the class and control the class'. Mr B responded that he had not observed that and, anyway, given the procedures in place, that would not happen.[177] In cross-examination, in recounting the same incident, he said that the mother told him that the complainant had already been disruptive in another school.[178] When challenged, Mr B adhered to his evidence as to this conversation.[179]
[176] ts 447.
[177] ts 448 - 449; see also 484 - 485, 493.
[178] ts 484; see also 490.
[179] ts 485.
The same discussion involving Mr B and the mother occurred again on a later occasion.[180] That is, on the first two occasions they met, the mother said to Mr B that the complainant was going to disrupt the class and undermine the class.[181]
[180] ts 449 - 450.
[181] ts 449, 458.
Mr B said that in the first three or four weeks of Term 1 the complainant improved in her school work and started to make a few friends. He said, 'no way did she try to manipulate me or the class or anything that I was warned about'.[182]
[182] ts 449.
Mr B gave evidence that, towards the end of Term 1 or into Term 2, the complainant would sometimes come to school smelling of urine.[183] He was '[a]s sure as I can be' that the complainant came into the classroom smelling of urine, and did not wet herself once she was there.[184] He could smell her and the other children did not want to sit near her. In response, Mr B would ask another female teacher to come in and take the complainant to the office on the pretext of running a message.[185]
[183] ts 451.
[184] ts 473; see also 452.
[185] ts 451 - 452.
Mr B also gave evidence of an incident involving the complainant soiling herself. He said it must have occurred early in the day because he could smell it quite badly and other kids around her started to react and go, 'Pooh, pooh' at the complainant. He later clarified that he became aware of the smell '[w]hen she first came in, first came in to school'. He again got a female teacher to come in and take the complainant down to the office.[186]
[186] ts 458 - 459.
In cross-examination, Mr B said that his best estimate as to how often the complainant may have wet herself during the time he taught her was three times: 'Two, and one soil'.[187] Mr B's evidence was that, after each occasion, the complainant did not come back to class.[188]
[187] ts 474.
[188] ts 452, 453, 459; see also 473.
Also in cross-examination, Mr B agreed that the complainant's appearance was neat, clean and appropriate; he never had cause to make any complaint about her clothing or shoes.[189]
[189] ts 472 - 473.
The complainant gives an account of extreme and extraordinary abuse
The appellants submit that the jury must have failed to consider the 'pure practical impossibility or improbability of the allegation' as to the complainant being locked in a sea container.[992] In my view, that is an overreach by counsel for the appellants. However, the account given by the complainant of being locked in a sea container each night and when the family left the Property was of an extreme and astonishing level of sustained neglect and abuse. The extraordinary nature of the account stood as a significant barrier to the jury being satisfied, beyond reasonable doubt, that it was truthful and accurate.
[992] Appellant's submissions in CACR 142 of 2019, par 43.
It is necessary to assess the cogency of the complainant's evidence as to this abusive behaviour by reference to the frequency with which she said it occurred. While the particular left to the jury was framed in terms of whether the appellants 'required the complainant to be periodically locked in the sea container', the complainant's evidence was of a much more regular detention and exclusion from the family home.
The complainant's evidence to the effect that she was locked in the sea container practically every night over a period of months from May to September 2017 was not merely the result of a goading cross-examination by defence counsel. In her first child witness interview on 15 September 2017, the complainant said that she had to go to bed in the green sea container 'like all the time'.[993] She described sleeping in the sea container since the beginning of May, and of the mother taking the camp bed and blanket from her.[994] In her second child witness interview on 20 September 2017, the complainant described sleeping in the 'shed' (which was contextually a reference to the green sea container) and the mother opening it 'every morning' for her to get ready for school.[995] She said that the mother left her in the sea container whenever she took M ice skating, which was twice a week.[996] When asked by the prosecutor where she would sleep on the weekends when the father was home, the complainant responded 'in the shipping container'.[997]
[993] 1st CWI ts 31.
[994] 1st CWI ts 34 - 35.
[995] 2nd CWI ts 18.
[996] 2nd CWI ts 30 - 31.
[997] Trial ts 30.
Significantly, when she gave her evidence-in-chief, the complainant was shown photographs of the two children's bedrooms in the appellants' house,[998] and said that she did not recognise either of them. The photographs were taken by police on 18 September 2017.[999] She gave evidence that she thought the bedroom which defence witnesses identified as the complainant's bedroom was M's bedroom, and that she did not know whose room the other was.[1000] This evidence is only consistent with the complainant's evidence being that she was required to sleep in the sea container every night or almost every night. If the complainant's evidence was that she had only slept in the sea container occasionally, she would have been able to identify the bedroom in the house where she slept on other occasions.
[998] Exhibit 1.12 - 1.17 (Blue / Green AB 16 - 21).
[999] Trial ts 876.
[1000] Trial ts 40 - 43.
In cross-examination, the complainant repeatedly said that she slept in the sea container every night and was never allowed to sleep in the appellants' house. While the complainant said there were some occasions on which she was not locked in the shipping container, she said that on those occasions she would stay at the back or front of the sea container and, apart from once for a week, never in the house. That passage of cross-examination is set out at [92] of Quinlan CJ's and Beech JA's reasons.
Photographs taken by police on 18 September 2017 show that there was nowhere in the green sea container that was suitable for a human child to sleep. It contained bins which were referred to as containing stock feed and building material such as timber and door and window frames.[1001] The complainant gave evidence that, apart from the absence of some items in the back, that was the state of the sea container when she was in it.[1002] The photographs show that the floor is metal, the sea container is not insulated and there is no lighting.
[1001] Exhibit 1.2 - 1.6 (Blue / Green AB 6 - 10).
[1002] Trial ts 37 - 39.
Taken as a whole the complainant's evidence was that she never slept in the appellants' house at the Property, and that she regularly slept in the green sea container, for a time without any bedding, except for occasions when she slept at the back or front of the sea container. Except for one week, she had been doing so for a matter of months. As she gave this account in September 2017, those must have included winter months which, although not literally freezing, would frequently have been very cold at night. That is, in my view, an extraordinary account of extreme sustained abuse, committed for no apparent reason given there was a bedroom available for the complainant's use in the house.
Further, this egregious behaviour was not that of a single person acting out of the sight of others. It was the conduct of the two appellants, in a context when at least A and S must have known about the complainant being made to sleep in the sea container. If the complainant's account is to be accepted, the appellants' adult daughters, one of whom was a teacher and the other of whom was a nurse, must have stood by and allowed the complainant to be abused in this manner without intervening.
There is also an odd inconsistency in the treatment described by the complainant in relation to the occasions when she was left in the sea container while the other members of her family went out. The complainant described being locked in the sea container when M was taken ice skating twice a week.[1003] Yet the complainant's evidence was that, when the appellants went out for dinner, she was left outside the sea container.[1004] It is odd that she would be locked in the sea container when M was taken skating during the day, but left outside when the appellants went out to dinner at night.
[1003] See 1st CWI ts 21.
[1004] Trial ts 33.
While not impossible, the complainant's account of being regularly locked in the sea container and being made to sleep in or near the sea container describes an extraordinary and unlikely situation. While extraordinary events do occur, caution was required in accepting the complainant's evidence of an unusual and unlikely sustained pattern of serious neglect and abuse.
How the complainant's account emerged
It is also relevant to note how the account of the complainant being locked in the sea container emerged during the child witness interviews.
In his closing submissions to the jury, the prosecutor commented on the incidental manner in which the first references to the sea container came up in the complainant's child witness interview. The prosecutor made the point that the complainant did not realise that what she was describing was wrong, and was not complaining about being locked in the sea container. The fact that she makes incidental reference to being locked in the sea container as part of her narrative of other physical abuse was relied on by the prosecutor as bolstering her credibility.[1005]
[1005] Closing ts 17 - 18.
However, in my view the manner in which the account of being locked in the sea container emerged counts against the complainant's credibility in two ways.
First, if the complainant had actually been required to spend a winter sleeping in or outside the green sea container, the degree of privation involved could not have escaped her. It would be expected that the distress that must have resulted from that conduct would have been advanced as a reason she did not want to stay with the appellants. The incidental manner in which the complainant introduced the topic appears to me to be more consistent with her not appreciating what it would be like to be subject to that conduct, because she had not actually been made to spend a winter sleeping in or by the sea container.
Secondly, if the complainant did not appreciate that there was anything wrong with being locked in the sea container, and casually introduced the topic in the course of her narrative, then it is surprising that she had not done so before. If the complainant had made reference to being locked in a sea container at school, then it would be expected that this would have prompted a report to and action by child welfare authorities. There was no evidence from the child welfare officers that this had occurred.
In my view, the manner in which the references to the sea container emerged during the first child witness interview was more consistent with an incidental embellishment of an account of other abusive behaviour, by a child who does not appreciate the gravity of what is being alleged because she has not actually experienced it. While it may be open to a jury to regard the way in which the evidence emerged in the manner suggested by the prosecutor, to my mind it counts against acceptance of the complainant's evidence.
Evidence as to the bedrooms
There was debate at trial in relation to the state of the children's bedrooms in the appellants' house.
As noted above, there were two children's bedrooms in the appellants' house, which were photographed and videoed by police on 18 September 2017. One of the bedrooms, which was somewhat messier in the police photographs and which I will call the 'messier bedroom', was said by defence witnesses to be M's room. The other bedroom, which was very tidy and which I will call the 'tidier bedroom', was said by defence witnesses to be the complainant's room.
The messier bedroom did have a much more 'lived in' appearance than the tidier bedroom. However, this was explicable on the basis that the mother claimed to have tidied the complainant's room after she disappeared[1006] (bearing in mind that there were two days before the child protection officers' visit and about a week before police executed the search warrant). By contrast, M was still occupying her bedroom at the time when police searched the Property.
[1006] Trial ts 1258 - 1259.
Detective Jacques and the child protection officers described the bed in the tidier room as not being full size. However, in cross-examination, the witnesses effectively accepted that the small single bed was not one which was necessarily too small for a 12 year old girl.[1007] The photographs and video taken of the bed in the tidier room during the police search bear that out.[1008]
[1007] Trial ts 767, 841 - 844, 892.
[1008] Exhibit 1.14 (Blue / Green AB 18).
The photographs and video taken during the search show a bed and bedside table, and an area with a carpet, large teddy bear, toy kitchen, a small book case mostly holding shoes and two 'dollhouse' shaped sets of shelves holding clothing, stationary, books and games.[1009] Detective Jacques gave evidence that police formed the collective belief that the clothes and other items in the 'dollhouse' shelving were not the complainant's, although the objectively reasonable basis for that assumption was not properly explained.[1010]
[1009] Exhibits 1.12, 1.13, 1.14, 1.19 (Blue / Green AB 16, 17, 18, 23).
[1010] See trial ts 893 - 894.
Much of the 'corroborative' evidence as to the state of the tidier room appears to involve a value judgement by child protection officers and police, who were operating with knowledge of the allegation that the complainant had been made to sleep in the sea container. I have a further difficulty with this evidence. If items such as the complainant's school work, clothing and shoes were not in the tidier bedroom, the question arises as to where those things were kept. As discussed below, it is clear that they were not kept in the sea container. The absence of any such items in the tidier bedroom would not be an indicator of where the complainant slept. If such items were kept in the house somewhere other than the tidier bedroom or the sea container, then that would not point to the complainant sleeping in the sea container.
In my view, the photographic and video evidence of the tidier room taken during the police search on 18 September 2017 is consistent with a child's bedroom that has been tidied by an adult after she has left about a week earlier. At the least, the photographic evidence shows that there was a bedroom in the appellants' house which was suitable for the complainant to sleep in which was clearly not being used for any other purpose.
Padlock and keys
The complainant's evidence was of being locked in the green sea container with a padlock on the door.[1011] The defence witnesses other than M described the green shipping container being locked when the father was away at work during the week, and him taking the keys with him. M did not recall locks being on the green sea container. The green sea container was locked when police searched the property on 18 September 2017.
[1011] 1st CWI ts 42; 2nd CWI ts 18, 31; trial ts 31.
It may be noted that a padlock was not required to lock the sea container from the inside. The doors of the container had external locking rods which, when engaged, would prevent a person inside the sea container from getting out.[1012] A padlock would only have impeded a person outside the sea container from getting into the sea container, and would have no effect on the capacity of a person in the sea container to get out. Given this, it is somewhat odd that the complainant, who must have appreciated this if she spent time in the sea container, at some points described being locked in the container with a padlock. It is also not clear how the complainant would be aware of the use of a padlock when she was inside the sea container.
[1012] See Exhibit 1.1, 1.10 (Blue / Green AB 5, 14).
M's evidence that the green sea container was not locked was contrary to the evidence of all of the other witnesses. I do not regard this inconsistency in the evidence of the defence witnesses as adding any significant weight to the prosecution case. It would not be surprising that a 12-year-old girl who was not allowed in a sea container used to store building materials and stock feed would not take notice of a padlock placed on the container during the week when it was not being accessed. On the other hand, it would have been difficult for M not to have been aware of the mother regularly using the padlock to lock her sister in, and release her sister from, a sea container. The fact that M did not appreciate that the green sea container was padlocked counts against acceptance of the complainant's account.
During the police search, both sea containers were locked. Detective Jacques' evidence in chief was that the padlocks were cut off with bolt cutters, as the keys were not able to be located.[1013] In cross-examination, Detective Jacques denied that the mother told her the keys were with the father, and indicated that the mother said that she could not find them.[1014] In my view, the police officer's recollection as to this comment by the mother does not provide a secure foundation for apprehending the existence of a family conspiracy to lie about where the keys were held, so as to convey circumstances inconsistent with the complainant being locked in the sea container.[1015] That is particularly so when a padlock was not required to lock the complainant in the sea container, and simply closing the doors and engaging the external locking bars would have that effect.
[1013] Trial ts 874.
[1014] Trial ts 883.
[1015] Compare the reasons of Quinlan CJ and Beech JA at [494] - [495].
Absence of corroboration of the complainant's evidence
In my view, the complainant's evidence of being locked in the sea container was the only evidence before the jury as to the commission of count 3. Her evidence as to being locked in the sea container was not corroborated in any significant respect.
The fact that a complainant's evidence is uncorroborated does not, of course, preclude a jury from being satisfied, beyond reasonable doubt on the basis of that evidence, that an offence has been committed. Sexual offending against children is often proven by the uncorroborated evidence of a child complainant. However, the ordinary nature of sexual offending is that it occurs when no one other than the perpetrator and the victim are present and often in a way that would not be expected to necessarily result in physical forensic evidence.
By contrast, a significant distinguishing feature of the appellants' alleged offending concerning the sea container is that it is of a nature that would be expected to produce corroborative evidence. In my view, the absence of any corroboration of the complainant's account in the particular circumstances of the present case counts strongly against acceptance of the complainant's evidence. I turn to explain why I reach this conclusion by reference to three categories of corroboration which would be expected if the complainant's account of being locked in the sea container was true. Those categories are eye witness testimony, evidence of signs of habitation in and around the sea container and evidence of physical effects on the complainant.
Eye witness testimony
If the complainant had been regularly locked in the sea container in the manner described in her evidence there must have been at least five other people who were aware of the abuse. They would be the appellants, M who lived with the family, as well as A and S (who regularly visited the appellants' house staying overnight on occasions). Although he visited less regularly and did not stay overnight, it is also difficult to believe that B would have been unaware that the complainant was being made to sleep in the sea container, and was locked in the sea container during family outings, if that had occurred.
Each of the six persons who would have been aware of the offending denied that the complainant was ever made to sleep in or near the sea container, and gave evidence that she slept in the tidier bedroom. That evidence stands as a significant impediment to the jury being satisfied, beyond reasonable doubt on the basis of the complainant's evidence alone, that the offending had occurred.
Further, there was nothing apart from the complainant's evidence that was inconsistent with the defence witnesses' evidence that the complainant slept in the tidier bedroom rather than the sea container. There was nothing inherently improbable about the defence witnesses' evidence that the complainant slept in the tidier bedroom. The defence witnesses' evidence as to that matter was consistently maintained, and was not contradicted by any prior inconsistent statements or admissions.
I accept that each of the defence witnesses had a bias in favour of the appellants. The appellants themselves would be concerned not to be convicted of the offending. Their adult children would not want to see their parents convicted of and punished for the commission of a serious criminal offence. M would have the same view, and the additional motivation of wanting to live with her adoptive parents. A jury could well take the view that the defence witnesses' evidence was, consciously or unconsciously, affected by that bias.
Quinlan CJ and Beech JA have explained why there were grounds on which a jury might conclude that the adult children's evidence was influenced by a bias in favour of their parents.[1016] Some of those matters may be regarded as peripheral to the issues requiring determination at trial. There was an unfortunate focus at trial on the question of whether the complainant had birthday celebrations, and as to the provenance of photographs said to be of those celebrations. Other matters, such as the frequency of A's and S's visits to the Property, were of greater significance to the issues the jury were required to determine. However, it is one thing to say that the evidence of the adult children as to such matters was, consciously or unconsciously, affected by a natural bias in favour of their parents who were facing serious criminal charges. It is another to infer that the adult children lied about the complainant sleeping in the tidier bedroom when they knew that she slept each night locked in a sea container, or outside the sea container.
[1016] See [529] - [546] of the reasons of Quinlan CJ and Beech JA.
M's denial of the fact that the complainant was locked in the sea container and her contrary evidence that the complainant slept in the tidier bedroom is also important. If the complainant's evidence as to being locked in a sea container is to be accepted, then M must have consistently lied about the sleeping arrangements both in her child witness interview and her evidence. M was only 12 years old at the time of her child witness interview, which occurred on 26 September 2017, a little over 2 weeks after the complainant's departure. She indicated that she had spoken with either A or her parents about the answers she would give - being 'yes' or 'no' answers on the advice of her parent's lawyers. It may be inferred at this time that the family was aware of the allegation that the complainant had been locked in a sea container. However, the fact that M disclosed that she had received some coaching for the child witness interview, and did not answer questions in the manner suggested by the lawyers, counts against a conclusion that M was a reliable custodian of family secrets.
I accept that there are grounds on which a jury might have had reservations about the credibility and reliability of aspects of the defence witnesses' evidence. In addition, there may have been something about the manner in which the defence witnesses gave their evidence that adversely affected the jury's assessment of their credibility and reliability. However, it remains the case that six people, who must have been aware if the complainant was locked in the sea container in the way she described, denied the conduct occurred. There was nothing other than the complainant's evidence to contradict those denials. Further, even if the jury rejected the denials, they would be left with the uncorroborated evidence of the complainant in circumstances where corroboration from an eye witness would be expected.
Absence of signs of habitation in and around the sea container
As noted above, on the complainant's account she had been effectively living in and around the sea container for months. If that had been the case then some signs of the complainant's habitation of the sea container would be expected. As also noted above, the complainant's evidence was that the state of the sea container shown in police photographs reflected its state when she was locked in it, apart from the location of some building material at the back.
However, Detective Jacques' evidence was that there was no sign of human habitation in or about the sea container when police searched the Property on 18 September 2017.[1017] The appearance of the sea container in photographs and video is of a storage area for building materials and stock feed. It seems inherently unlikely that the complainant could effectively have lived in and around the sea container for months and left no signs of her habitation apparent to police during the search.
[1017] Trial ts 883 - 884.
There was no forensic examination of the sea container for things such as the complainant's DNA or fingerprints. However, given the onus and standard of proof, the absence of that evidence cannot strengthen the prosecution case.
Absence of evidence of physical effects on the complainant
As noted above, the effect of the complainant's evidence was that she had been sleeping in or near the sea container for months prior to her child witness interview on 15 September 2017. For some significant part of that time she had been sleeping on a metal floor without a bed or blanket. The complainant was never asked to identify when the bed and blanket in the sea container were taken away. Again, the absence of that evidence cannot strengthen the prosecution case, given the onus and standard of proof.
I accept the submissions of counsel for the appellants that, as a matter of common experience, it would be expected that, if a 12 year old child was made to live in those conditions over the cold winter months, there would have been some detectable health or physical effects of her living in those conditions. No evidence was given of any such health or physical effects on the complainant.
Disposition of ground 1 in each appeal
None of the matters to which I have referred, standing on their own, would have precluded the jury from accepting the complainant's evidence that she was regularly locked in the green sea container on the property. However, the combined force of all of those matters leads me to conclude that a jury, acting reasonably, must have had a reasonable doubt as to whether the appellants locked the complainant in the sea container in the manner the complainant described.
The jury were left with an account of extreme and egregious abuse in a manner which, although not impossible, presented a highly unlikely story. The manner in which the account emerged was consistent with an embellishment by a child who did not appreciate the gravity of the allegation because she had not actually experienced what she was describing. There was no forensic evidence supporting her account or any visible signs on the complainant or the sea container that she had been sleeping and living in and around the sea container over the winter months. The nature of the offending the complainant described in relation to the sea container would be expected to produce signs of habitation in and around the sea container and physical symptoms in the complainant. Although the complainant described offending of which other family members would have been aware, there was no eye-witness evidence corroborating the complainant's account. To the contrary, six people who would have known of the offending described by the complainant if it had occurred gave evidence denying that the complainant had been locked in the sea container. The only evidence contradicting those denials was the complainant's entirely uncorroborated account of an unlikely event.
Having regard to the cumulative effect of all of the above matters, in my view the evidence led at trial, considered as a whole, was incapable of excluding the reasonable possibility that the complainant was not locked in the sea container in the manner she described.
The complainant's evidence was the only evidence of her being locked in the sea container, so that a guilty verdict on count 3 depended on an acceptance of her evidence. That evidence was of continually sleeping in or near the sea container over a period of months, and (apart from once for a week) never being allowed to sleep in the house. If the evidence, taken as a whole, did not sustain a finding that the offending occurred in that manner, then there was no basis for the jury to find some more occasional detention. That is, if the complainant's evidence did not support a finding that the offending occurred in the manner she described, then there was no evidentiary basis for finding that the offending occurred in some less frequent manner which the complainant did not describe.
Having undertaken my own assessment of the sufficiency and quality of the evidence, in my view, it would be dangerous to permit the verdicts on count 3 to stand. In my view, having regard to the whole of the evidence, the jury must have entertained a reasonable doubt about the appellants' guilt of the offence charged in count 3 of the indictment. Recognising the serious nature of this court setting aside a jury's verdict, I am of the view that, making full allowance for the advantages enjoyed by the jury, there is a significant possibility that two innocent persons have been convicted of the offence alleged in count 3. In my opinion, having regard to the evidence, the jury's verdicts on count 3 were unreasonable and cannot be supported.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech28 JULY 2020
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