Mura v The Queen
[2021] NSWCCA 240
•06 October 2021
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Mura v R [2021] NSWCCA 240 Hearing dates: 28 July 2021 Date of orders: 6 October 2021 Decision date: 06 October 2021 Before: Macfarlan JA at [1];
Davies J at [60];
Beech-Jones J at [61]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – appeals – application for leave to appeal against convictions – unreasonable verdict ground – offences of participate as client in act of child prostitution – whether Crown proved that applicant knew complainants were under 18 years at time of alleged offences – whether one complainant retracted evidence in cross-examination – whether other complainant’s evidence of post-offence conversation capable of proving applicant’s knowledge at time of offence – relevance of retrospectant evidence considered
Legislation Cited: Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hamilton v The Queen [2020] NSWCCA 80
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847; [1988] 1 WLR 321
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Biber [2018] NSWCCA 271
R v Musleh (No 5) [2018] NSWSC 1927
Wright v Lemon (No 2) [2021] WASC 159
Texts Cited: J D Heydon, Cross on Evidence (LexisNexis, online ed at 14 September 2021)
Category: Principal judgment Parties: Rino Raymond Mura (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
A Bellanto QC / M Sahade (Applicant)
E Wilkins SC (Respondent)
Oliveri Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2012/165490; 2012/323986 Publication restriction: Statutory non-publication order on the identity of the complainants under s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 28 October 2020; 11 December 2020
- Before:
- Robison DCJ
- File Number(s):
- 2012/165490; 2012/323986
Judgment
-
MACFARLAN JA: Following a 12-day trial before Robison DCJ sitting as a judge alone, his Honour convicted Mr Rino Mura, the applicant, of three counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW). Count 1 was alleged to have occurred between 15 March 2010 and 15 March 2011 with CL who was a child aged 15 years. Counts 2 and 3 were alleged to have occurred between 1 May 2011 and 1 January 2012 with TB who was a child aged 15 or 16 years. A child for the purposes of s 91D(1)(b) is a person under the age of 18 years (s 91C Crimes Act).
-
His Honour acquitted the applicant on two counts of possession of child abuse material (Counts 4 and 5).
-
The applicant’s sole ground of appeal is that the trial judge ought to have entertained a reasonable doubt as to the applicant’s guilt in respect of each of the offences of which he was convicted. This ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW) which, subject to a proviso which is not suggested to be applicable in the present case, requires this Court to quash a conviction if it concludes that it is “unreasonable, or cannot be supported, having regard to the evidence”. The principles to be applied in respect of such a ground are well known and need not be repeated. They were summarised by me in Hamilton v The Queen [2020] NSWCCA 80 at [66]-[68]. They are applicable to judge alone trials (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12]). As the applicant’s ground does not raise a question of law alone, he requires leave to appeal (Criminal Appeal Act s 5(1)).
-
For the reasons appearing below, I consider that leave to appeal should be granted but that the appeal should be dismissed.
THE ISSUES AT THE TRIAL
-
At the trial before Robison DCJ the applicant did not dispute that on separate occasions he had engaged the services of both complainants (neither of whom knew each other) for the purposes of prostitution, that the relevant acts of prostitution had occurred, that both the complainants were children at the time and that he had paid them for the acts.
-
The only issue at the applicant’s trial was whether he knew at the times of the alleged offences that the complainants were under 18 years of age. The Crown accepted that it bore the onus of proving beyond reasonable doubt that the applicant had the requisite knowledge at those times.
-
Prior to the acts of prostitution occurring a young woman referred to at the trial as AG had established a criminal enterprise involving the provision of child prostitutes by her to others. AG gave evidence at the trial that she had known the applicant since 2008 or 2009 and had met him through his girlfriend Karen. She agreed in evidence that she had previously pleaded guilty to child prostitution offences and robbery of the applicant, that she had been convicted and sentenced to imprisonment and that she had received a 40% discount on her sentence for her pleas of guilty and providing assistance to the police.
-
AG arranged for the applicant to engage in the child prostitution that was the subject of the applicant’s convictions.
THE EVIDENCE AT THE TRIAL
-
To prove the applicant’s knowledge of the complainants’ ages, the Crown relied at the trial, and on appeal, principally on evidence of conversations that CL and TB said that they had with the applicant in which their ages were referred to. It also relied on evidence of AG that was asserted to corroborate the alleged conversation between the applicant and CL about CL’s age. In addition, on appeal the Crown identified the following circumstantial evidence that was before the trial judge:
To procure CL and TB for the sexual acts he committed with them, the applicant did not go to “regular brothels” that he admitted in evidence he had frequented previously. He agreed in cross-examination that he instead went to AG’s “place” because he was “able to receive the type of young girl that [he] wanted” there. He maintained that by “young” he meant 18 or over but the Crown submitted that it was open to the trial judge to reject that evidence.
The applicant admitted in his evidence that in “regular brothels” there were signs confirming that the women working there were over 18 and that he knew that AG’s premises was not a “regular brothel”.
The applicant agreed in his evidence that he took the girls arranged for him by AG to places without the safeguards and “clean facilities” of a “regular brothel” and that in engaging AG’s prostitutes he had to pay extra to cover the costs of a room as well as the costs of the girls.
The applicant said in evidence that AG consulted him about setting up her prostitution business and that his relationship with her was “casual, and more or less, a friendship”.
The applicant admitted that TB told him that there was a warrant out for her arrest but he did not stop to report that fact at a police RBT (random breath testing) unit that they drove past. The applicant also admitted that he did not report TB to police for robbing him at a hotel on an occasion subsequent to those the subject of the charges against him. The Crown submitted that his avoidance of police on these two occasions was consistent with the applicant not wanting police to find out that he was using child prostitutes.
On 22 February 2012 the applicant was sent text messages from AG’s mobile offering him a 16 year old girl and he attended AG’s premises later that evening for the purposes of prostitution. The messages from AG’s mobile to the applicant read: “hi rino how r u ? i have a girl for u” (sent 9.14pm); “she is 16 can u come or not plz rino” (sent 9.33pm); and “she is very pretty size 10 big boobs and black hair” (sent 9.37pm). There were text messages in reply from the applicant at 9.22pm and 9.36pm however the contents of those messages were not in evidence. The applicant gave evidence that his message at 9.36pm said, “Not into it. 18 and well shaped” and that when he received the 9.37pm message he thought it was describing another girl, not the 16 year old referred to in the 9.33pm text. The applicant then drove to AG’s premises.
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The Crown also relied on the evidence of each complainant as cross-admissible tendency evidence in relation to the count or counts concerning the other complainant.
CL’s evidence of telling the applicant her age
-
CL did not give evidence in person at the trial before Robison DCJ in October 2020. Her evidence in chief given at an aborted trial before Toner SC DCJ in July 2017 was played to Robison DCJ, as was cross-examination and re-examination of CL that occurred at an intervening trial before Wass SC DCJ in November 2017. Convictions resulting from the Wass DCJ trial were quashed on appeal.
Evidence in chief before Toner DCJ
-
Before Toner DCJ, CL gave the following evidence in chief relevant to the issue of whether the applicant knew how old she was:
“Q. … Let us start with Rino [the applicant]. Do you remember where or when you first met him?
A. I met him at [DLM] Street [where CL lived with AG for a period] when I was 15.
Q. In [DLM] Street? Like, was it a unit or a house?
A. House.
Q. Tell us about it, whatever you remember about that first meeting?
A. He went there with his girlfriend Karen to go see [AG].
Q. Okay. So were you introduced to him?
A. Yes.
Q. I know this was a long time ago, but what was said? Who said what?
A. [AG] told me that he liked me and he asked me how old I was and I said I was 15.
Q. All right. Was there anything else that was said that you can remember?
A. Not that I remember.
Q. All right. So did he tell you his name?
A. Yes.
Q. And what did he say?
A. His name was Rino.
Q. And did you introduce yourself?
A. Yes. “ (Emphasis added.)
-
CL was also cross-examined before Toner DCJ but the transcript of the cross-examination was not tendered at the trial before Robison DCJ.
Cross-examination before Wass DCJ
-
CL was cross-examined before Wass DCJ about the evidence that she gave before Toner DCJ:
“[T 174 line 1:] [Question numbers have been added below for ease of reference.]
Q[1]. So you wish to maintain in front of this Court today that you had a vivid and clear recollection of this meeting, and it was the first time you met Mr Mura, is that right?
A. Yes.
Q[2]. And there were words spoken to the effect he asked you, ‘How old are you?’, is that right?
A. Yes.
Q[3]. And the answer you gave was, ‘I’m only 15’, do you remember that?
A. Yes.
…
Q[4]. I want you to listen very carefully to the next few questions that I’ll read out to you, page 136, line 5, you were asked this question in cross-examination [referring to CL’s cross-examination before Toner DCJ, which was not before Robison DCJ]:
‘Q[4A]. Do you agree that Rino had driven Karen to meet [AG]?
A. Yes.
Q[4B]. Were you at that meeting?
A. Yes.
Q[4C]. Why were you at that meeting?
A. I was staying at the house with [AG].’
Just stopping there for a minute. This is, you’re describing, the first time that you met Mr Mura when he came to the house with Karen, is that right?
A. Yeah.
… [T 175 line 30:]
Q[5]. … And then the cross-examination continued [again, referring to CL’s cross-examination before Toner DCJ which was not in evidence before Robison DCJ] and you were asked:
‘Q[5A]. How long did this meeting take place for?
A. About half an hour.
Q[5B]. What, if anything, did you say to Karen?
A. Nothing.
Q[5C]. What, if anything, did you say to the accused, Mr Mura?
A. Nothing.
Q[5D]. What, if anything, did you say to [AG]?
A. Nothing.
Q[5E]. What, if anything, did Karen say to you?
A. Nothing that I know of.
Q[5F]. What about Mr Mura? Did he say anything to you?
A. No.
Q[5G]. What about [AG]?
A. No.
Q[5H]. Did Rino, Mr Mura, the accused, say anything about you to [AG] or Karen?
A. To [AG].
Q[5I]. Sorry, I missed that, sorry.
A. Yes, to [AG].
Q[5J]. Did [AG] say she’s only 15?
A. No.
Q[5K]. Your Honour [Toner DCJ], I have to put this question. And you say [AG] said you are only 15 in front of Karen?
A. No.’
Do you recall giving those answers to those questions [before Toner DCJ]?
A. Yeah.
Q[6]. Were those answers true and correct?
A. Yeah.
Q[7]. You swore to those answers in Court?
A. Yeah.
… [T 177 line 35:]
Q[8]. I’m suggesting to you that is the meeting that you said in evidence-in-chief that you said you were only 15, or words to that effect, you agree with that?
A. No.
Q[9]. You said you only met Mr Mura twice, is that right?
A. Yes.
Q[10]. One was a meeting where you arrived at the place with Karen – sorry. One was a meeting where Rino arrived at the place with Karen?
A. Yeah.
Q[11]. How many meetings took place?
A. One.
Q[12]. Is this the meeting that I’ve read out to you?
A. Yeah.
Q[13]. And the answers you gave were true and correct?
A. Yeah.
[The Crown objected several times. The questions were allowed.]
… [T 184 line 12:]
Q[14]. Ma’am is this the case that you gave evidence that at this first meeting at [AG’s] house the accused came over with Karen, you agree with that?
A. Yes.
Q[15]. You were standing outside the house, do you agree with that?
A. Yes.
… [T 184 line 47:]
Q[16]. This is the meeting where you say in your evidence in chief that you indicated that you were ‘only 15’ isn’t it?
A. Yes.
Q[17]. But when you were asked questions [before Toner DCJ] about this meeting at page 136 you were asked
‘[Q[17A].] How long did this meeting take place for?
A. About half an hour.
Q[17B]. What if anything did you say to Karen?
A. Nothing.
Q[17C]. What if anything did you say to the accused, Mr Mura?
A. Nothing.’
That answer could not have been correct, was it?
A. I don’t understand the question.
Q[18]. What if anything, did you say to the accused, Mr Mura? It must have been ‘I’m only 15 when he asked me how old I am’.
CROWN PROSECUTOR: Your Honour [Wass DCJ], I object again.
HER HONOUR: I’ll allow the question.
SAHADE [counsel for the accused]
Q[19]. That’s true, isn’t it?
A. Yeah.
…[T 186 line 22:]
Q[20]. Ma’am, in answer to the question what, if anything, did you say to the accused, Mr Mura. The answer being ‘nothing’. Is that answer true and correct or not?
A. No.
Q[21]. Not correct?
A. No.
Q[22]. What if anything did you say to the accused, Mr Mura?
A. That I was only 15.
Q[23]. What were the words he said to you that elicited that answer?
A. He didn’t say anything to me.
Q[24]. Beg your pardon?
A. He asked me how old I was.
Q[25]. I thought you said he didn’t say anything to you. Did I mishear that?
A. No, but I was thinking of another part. I was confused.
…[T 187 line 1:]
Q[26]. Yes, what were the words he used? If you can put it to the words to the effect as best you can.
A. ‘How old are you’.
Q[27]. What did you say?
A. I’m only 15.
Q[28]. This was said in front of the people at that meeting?
A. Yeah.
Q[29]. You’re sure about that?
A. Yes.
Q[30]. It was said in front of Karen?
A. No.
Q[31]. Wasn’t Karen with Mr Mura?
A. Yeah.
Q[32]. You see there was only one meeting, wasn’t there, that was outside the premises. Do you agree with that?
A. Yeah.
… [T 188 line 1:]
Q[33]. There was no meeting that took place inside the house, was there?
A. Yes, but I wasn’t involved in that.
Q[34]. You weren’t in that meeting?
A. No.
… [T 188 line 19:]
Q[35]. … You understood that you were talking about the meeting that took place outside the house, didn’t you?
A. Yes.
Q[36]. One of the questions you were asked [before Toner DCJ] at page 137:
‘Q[36A]. What about Mr Mura, did he say anything to you?
A. No.’
Was that a truthful answer?
A. No.
… [T 189 line 9:]
Q[37]. So why did you give an incorrect answer?
A. I’m not sure.” (Emphasis added.)
Re-examination before Wass DCJ
-
CL gave the following evidence in re-examination before Wass DCJ:
“Q. [CL], you were asked a number of questions about this meeting you had where you first met Rino and Karen at [AG’s], do you recall being asked those questions?
A. Yeah.
Q. Who was at the house on that day?
A. Me, [AG], my cousin [B], and then Rino and Karen.
Q. From the time that Rino and Karen came to the time that Rino and Karen left were they always together?
A. No.
Q. When were they not together?
A. When Karen went inside, she went to the bathroom.
Q. When Karen went inside the house where were you?
A. Out the front.
Q. And who were you outside the front of the house with?
A. [AG] and Rino.
Q. Did you have any conversation with [AG] and Rino at that time?
A. Yes.
Q. What was said at that time outside the house in the absence of Karen?
A. Rino told [AG] that he liked me. [AG] told me, and then Rino asked me how old I was, and I told him I was only 15.
Q. You were asked some questions earlier [before Wass DCJ] about a portion of your evidence from before [this is a reference to cross-examination before Toner DCJ that was not put in evidence before Robison DCJ] where it was suggested to you or asked of you what did Mr Mura say to you, and you said, ‘Nothing, he said nothing.’ Do you remember that being put to you?
A. Yes.
Q. At any time at this meeting were you ever inside the house when Mr Mura and Karen were there?
SHADE: I object to leading.
WITNESS: Yes.
…
Q. So at some stage you were inside?
A. Yeah.
Q. Who was inside when you were inside?
A. [AG], Rino, Karen, me and my cousin.
Q. Was there any conversation when you were inside the house?
A. Not with me, no.
Q. Did you hear other people talking?
A. Yeah.
Q. Who else did you hear talking?
A. Karen, Rino, and [AG] were talking.
Q. Did you talk to them when they were inside?
A. No.” (Emphasis added.)
AG’s evidence of the applicant being told of CL’s age
Examination in chief before Wass DCJ
-
AG gave evidence before Wass DCJ as follows:
“Q. You said it was at your house in [DLM] Street where Rino and [CL] first met. Is that right?
A. Yeah.
Q. How old was she?
A. I think she was 15.
Q. Was there any discussion at that first meeting about the fact that she was 15?
A. I’m not sure.
Q. Can you have a think about that?
A. I think so.
Q. When you say you think so what gives you that thought? What can you remember?
A. I’m pretty sure she told him she was only 15.
Q. Do you know what led to that conversation? Did he say anything to you about [CL] when he first met her?
A. That I think she was pretty, very pretty.
Q. So Mr Mura told you she was a pretty girl?
A. Yeah.
Q. And then you recall her saying she was only 15?
A. Yeah.
Q. To Mr Mura?
A. Yeah.” (Emphasis added.)
Cross-examination before Wass DCJ
-
AG was then cross-examined on her evidence as follows:
“Q. … I will point out to you that you did make one statement on 26 August 2015 relating to [CL]. At paragraph 11 of that statement it simply says:
‘Detective Wakeham has asked me whether either [CL] or I have told Rino how old [CL] was around the time this incident occurred. I don’t remember, it’s possible we did, but I can’t remember saying it to him’.
Do you remember saying that in the statement?
A. Yes.
…
Q. All right. I suggest to you that at that meeting there was no conversation whether by her [CL] or by you or in your presence that you were aware of about [CL’s] age, would you agree with that?
A. ..(not transcribable)..
Q. You don’t remember?
A. No.
Q. When you say ‘no’ you mean it could have been/might not have been, you just can’t remember it?
A. No, we had the conversation.
Q. I see. Who said that she was 15?
A. Either me or [CL], one of us.
…
Q. It was either you or [CL] but one of you said it?
A. Yeah.
Q. There’s nothing in your statement about that, do you appreciate that?
A. Yeah.
Q. When did you first recollect that something about it was said?
A. I’ve had six years to remember all of this. I remember it.
Q. The words you used in evidence-in-chief were to the effect ‘only 15’ do you remember that?
A. Mm.
Q. Who said the words, ‘only 15’, you or [CL]?
A. Me. Probably me.
Q. Probably you?
A. (No verbal reply)”. (Emphasis added.)
TB’s evidence of a conversation with applicant about her age
Examination in chief before Toner DCJ
-
TB gave evidence that “[w]ithin a couple of days” of the Count 2 offence occurring, she had a second meeting with the applicant at which an act of prostitution occurred (Count 3). She was asked as follows about whether anything happened on the way back from the hotel where the act occurred to AG’s house:
“Q. Did anything happen on the way back to [AG’s]?
A. Yeah, there was RBT at Warwick Farm.
Q. When you say an RBT do you mean one of those stationary—
A. Where they pull over and do the breath test, yeah.
Q. Was that on the route from the hotel back to [AG’s]?
A. Yeah.
Q. Was there any conversation in the car between the two of you when—
A. Rino had said to me, ‘You’re 16. Tell them you’re 17 and that you’re my niece.’
Q. Did you say anything back to him?
A. I said, ‘Why, I’m only 16?’ And he said, ‘Just say you’re 17 and that you’re my niece.’ And I said, ‘All right.’
Q. To who?
A. To the police if we got pulled over.
Q. Is that what he said?
A. Yep.
…
Q. What did he say?
A. ‘When we, if we get pulled over say you’re my niece.’ And he’s like, ‘You’re only 16. Say you’re 17’ and I said, ‘But I’m only 16.’ And he said, ‘Just say you’re 17’ and I said, ‘All right.’” (Emphasis added.)
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Their car was not pulled over by the police and they continued back to AG’s home.
Cross-examination before Wass DCJ
-
TB was asked as follows about an interview she had with police:
“Q. You were asked this question by the police officer at page 42, question 572:
‘Q. No, okay, how old were you at the time when this happened?
A. Nearly 16, I was turning 16.
Q. So do you know if you were 15 or if you—
A. I was 15 turning 16.’
Just stopping there for the moment, do you recall giving those answers?
A. Yes.
Q. Was that the case?
A. Yes.” (Emphasis added.)
-
Attention was then drawn to the evidence she had given concerning the conversation with the applicant in the car as they drove past an RBT unit:
“Q. If you were 15 turning 16 would you not have said to Mr Mura, ‘I’m 15, not 17’?
A. I told everyone I was 16 back then.
Q. Why?
A. Because I almost was 16.” (Emphasis added.)
-
The cross-examiner challenged TB’s evidence of the conversation in the car, including in the following exchange:
“Q. I suggest to you there was no conversation about him saying, ‘You’re 16, say you’re 17,’ it doesn’t make sense?
A. Well yeah, he did say that to me and he knew way before that that I had warrants for my arrest.”
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Police gave evidence that the RBT unit was set up where described by TB in October 2011. In light of this it was able to be calculated that TB was in fact aged 16 years and 5 months at the time of the alleged conversation with the applicant.
THE PRIMARY JUDGMENT
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In his 68 page judgment the trial judge described at length the evidence and submissions at the trial. On the issues of present relevance, the significant parts of the judgment are as follows.
CL’s evidence regarding her age (Count 1)
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The trial judge said in relation to CL that he was “impressed with her evidence” and noted that he had taken into account the fact that she had a drug addiction “when it comes to the extent to which she could recall certain things”.
-
His Honour referred to asserted inconsistences in CL’s evidence as follows:
“At times a witness, particularly when asked to recall events some time ago, particularly a number of years ago, it is not unusual to find that there are some inconsistencies when it comes to the extent to which a witness can recall things. Pure inconsistencies does not necessarily lead to a conclusion that a tribunal of fact ought to reject the evidence. Indeed at time inconsistencies can even enhance the evidence of a witness, particularly if it is supported by another witness. in this particular case there has been a focus on the credibility of the evidence of [CL] and I have taken all of the defence submissions into account to that end.”
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His Honour referred to CL’s cross-examination and said: “it's clear to me that there was an extent to which her age was communicated to the accused at the times indicated in this and other evidence”.
-
The trial judge then referred expressly to CL’s previous cross-examination before Toner DCJ where she was asked, “What about Mr Mura, did he say anything to you”, and she responded “No”; and then later said (before Wass DCJ) that that was not a truthful answer. The trial judge said about this: “I would have to say that is a matter that touches upon the credibility of the witness and indeed the reliability of certain evidence of this witness”.
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The trial judge went on to say that: “it would seem to me that when it comes to certain essential and critical matters, her memory appeared to be relatively intact”. His Honour’s acceptance of CL’s evidence was confirmed by his ultimate finding that the applicant was aware that CL was under the age of 18 years and his Honour’s conviction of the applicant on Count 1.
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His Honour referred also to the evidence concerning text messages (see the final dot point of [9] above) and that of AG (see [16]-[17] above). His Honour did not make any express finding about AG’s evidence.
TB’s evidence regarding her age (Counts 2 and 3)
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The trial judge accepted TB’s evidence, stating:
“on my assessment of her evidence overall, despite certain inconsistencies and other matters, particularly in the context of her drug abuse which also is relevant when it comes to [CL], overall she gave me the impression that she was a witness of truth… she gave me the impression that she was doing her best to recollect things.”
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In relation to the conversation in the car when it was in the vicinity of an RBT unit, his Honour said:
“Now, I appreciate there are certain inconsistencies about this journey but at the end of the day the impression I gained from the witness complainant was that she had a very clear recollection of that particular episode, namely the conversation on the approach to the RBT. She did not resile from that evidence.”
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His Honour also said that the applicant “in my view would have left an indelible impression upon [TB’s] mind”, despite her drug addiction; and said “I was somewhat impressed with her demeanour and her evidence overall”. He observed that: “Yes, it has to be said, there have been inconsistencies in her evidence, and that gives rise for a close focus on the witness' reliability and credibility and to some extent her honesty”.
-
The trial judge concluded his discussion on this issue:
“Yes, true it is that evidence is somewhat inconsistent with her age at the time, but I do not consider from her evidence overall that she was deliberately trying to lie to the police or to gild the lily, if I could use that terminology, when it came to her age. She maintained unequivocally that that discussion which she said occurred on the approach to the RBT occurred, she maintained that it did happen. She also said that she told everyone back then that she was 16 and the reason for that was, she said, that she was almost 16.”
Conclusions
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The trial judge rejected the applicant’s evidence that he believed that the complainants were at least 18 years of age, stating: “I find the evidence of the accused in relation to the first three counts on the indictment, particularly when it comes to the critical issue about the age, difficult to accept.”
-
In relation to the counts of present relevance, the trial judge concluded as follows:
“I now turn to the remaining counts, one, two and three. This is clear to me on the evidence. That in one way, shape or form the age of the two complainants was communicated or signalled to the accused. The evidence certainly speaks to that, despite the inconsistencies which have emerged here and there. I am also satisfied specifically in relation to the conversation that [TB] said that she had with the accused in the car, where the question of her age was indeed raised. I accept her evidence beyond reasonable doubt that at the very least at that time the accused must have known that she was under the age of 18 years, and I accept all of the Crown's submissions to that end. Those submissions in my view carefully and correctly are a true reflection of the evidence which I accept.”
DISPOSITION OF THE APPEAL
Count 1 – CL’s evidence
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On appeal the applicant submitted that the trial judge should not have relied on CL’s evidence in convicting the applicant on Count 1 because CL’s evidence that she informed the applicant of her age was not credible, in particular because in cross-examination she retracted the evidence she had given in chief. He submitted that her repetition in re-examination of the evidence she gave in chief did not repair the damage done to her credit by the cross-examination.
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This submission should be rejected because, when taken as a whole, CL’s evidence was consistently to the same effect and to the extent that a degree of confusion arose in her cross-examination, it resulted from a lack of precision in questions put by the cross-examiner.
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CL’s evidence was as follows. She said that she first met the applicant when the applicant came to AG’s house with his girlfriend Karen. The questions put to CL in cross-examination before Toner DCJ (and referred to in the cross-examination before Wass DCJ) assumed, without any basis in the evidence, that on this occasion all four persons (CL, AG, the applicant and his girlfriend) were in each other’s presence at all times and that there was a seamless single meeting between them. In fact, CL’s evidence in re-examination indicated that this assumption was unwarranted because, whilst initially all four were outside the house together, Karen went inside the house, leaving the others outside. The conversation that CL deposed to in chief then occurred in Karen’s absence, which is not surprising in light of its terms (it being suggestive of the applicant’s attraction to CL). There was then a conversation inside the house during which the four (together with CL’s cousin) were present but CL was not involved in the conversation: she listened to the others talking but they did not talk to her.
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CL’s answers in cross-examination to the effect that the “meeting” at AG’s house on that day took about half an hour, that none of the participants said anything to CL and that she did not say anything to the applicant (see [14] above at Q[5A] to Q[5K]) are readily explicable as a reference to the gathering inside the house that she described in re-examination.
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Towards the end of the cross-examination before Wass DCJ the following exchange however occurred (as also set out above in [14] at Q[20] to Q[21]):
“Q. Ma’am, in answer to the question what, if anything, did you say to the accused, Mr Mura. The answer being ‘nothing’. Is that answer true and correct or not?
A. No.
Q. Not correct?
A. No.”
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The answer of “nothing” was correct according to CL’s evidence, if the question were understood to relate to the half hour meeting inside the house during which nothing was said to or by CL. When CL was asked in cross-examination before Wass DCJ whether the answer above was correct it was however in a context in which it could well have been understood (and judging by her answers in re-examination, was understood) as relating to the occasion at AG’s house generally, that is, whether the people concerned were outside or inside the house. Apparently understanding it in this way, CL said the answer was incorrect because she had told the applicant her age when they were outside the house. This was confirmed by CL in re-examination before Wass DCJ.
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The confusion commenced when the cross-examiner before Toner DCJ asked how long did “this meeting” take without explaining to the witness (at least not in the cross-examination that was put in evidence before Robison DCJ) what part of the occasion he was referring to (see [14] above at Q[5A]). Thereafter he and the witness were to a significant extent at cross-purposes with the witness stating that she did not say anything to the applicant because the witness was referring to the gathering inside the house. The cross-examiner before Wass DCJ was then upbraiding her for giving evidence which was inconsistent with the evidence she gave in chief. The evidence in chief was not however inconsistent because the witness had been referring in chief to the gathering (which did not include Karen) outside the house. The witness made her understandable confusion clear when she said at one point in the cross-examination before Wass DCJ (see [14] above at the answer to Q[25]):
“… I was thinking of another part [of the meeting]. I was confused”.
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In these circumstances CL could not fairly be regarded as in cross-examination having retracted her evidence in chief. As a result, her evidence did not suffer from the defect alleged by the applicant.
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Similarly, neither of two other matters referred to by the applicant indicates that it was unsafe for the trial judge to accept CL’s evidence. First, the applicant refers to CL’s “significant drug taking” but the primary judgment demonstrates that his Honour was well aware of this and took it into account in assessing CL’s credibility and reliability (see [25] above). Secondly, an assertion by the applicant that it was significant that CL professed no recollection of an event involving the applicant, AG, CL and CL’s aunt at a police station is at its highest simply a matter going to CL’s credit which could not, standing alone, require his Honour to reject her evidence as to the fact in issue, when his Honour had concluded after consideration of her evidence as a whole (including that concerning the police station incident) that it was reliable.
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The applicant further contends that AG’s evidence did not afford any satisfactory corroboration of CL’s evidence. It may be accepted that there were unsatisfactory aspects of AG’s evidence but it does not appear that the trial judge relied on it in any significant way. His acceptance of CL’s evidence on an uncorroborated basis was sufficient to justify his conviction of the applicant on Count 1.
Counts 2 and 3 – TB’s evidence
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On appeal the applicant asserted first that it was unreasonable for the trial judge to rely upon TB’s evidence to find that the applicant had the requisite knowledge that TB was under 18 years of age. The applicant relied in this respect on an asserted inconsistency between TB’s evidence of the relevant conversation and answers she gave to police in a formal interview.
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As noted above in [18], TB said that the applicant told her to tell the police, if his car was pulled over at the RBT unit that they were driving near, that she was 17 and was his niece. She said that she replied “why, I’m only 16?”. On the other hand, in an interview with police in April 2012 TB was asked how old she was at the time of the incident giving rise to Count 3 (and therefore on the day that she and the applicant drove near to the RBT unit) and she responded “nearly 16, I was turning 16… I was 15 turning 16”.
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As noted earlier, because the date on which the RBT unit was in place at the relevant location was proved at the trial, it was able to be calculated that TB was in fact 16 years and 5 months old on the day in question.
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I do not accept the applicant’s submission that these matters revealed a fundamental flaw in TB’s evidence. First, there is nothing surprising about a witness such as TB, when describing to police an event that occurred several months before, being mistaken as to her age when the event occurred. TB would not have been mistaken as to when her birthday was but she could well have been uncertain as to when precisely the event occurred. Such a mistake does not of itself give rise to a serious doubt as to the witness’ recollection of the event.
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Secondly, there was an apparent inconsistency between TB telling the police that she was 15 at the time of the incident and telling police at the same time that at the time of the incident she had told the applicant that she was 16. She however provided in re-examination a reasonable explanation for this apparent inconsistency, that is, that she “told everyone I was 16 back then”, presumably not including the police in her reference to “everyone”. That a young person would do that is not surprising. The trial judge was conscious of the apparent inconsistency but was not troubled by it, particularly in light of the re-examination.
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A further matter relied upon by the applicant on appeal concerns the timing of the conversation TB says that she had with the applicant concerning her age. The applicant refers in this regard to the fact that the conversation in the car to which TB deposed occurred after the act of prostitution which gave rise to Count 3 (albeit that it occurred on the same day) and in particular occurred after the act the subject of Count 2, which was even earlier in time. The applicant thus contends that TB provided no evidence that at the time of the alleged offences the applicant was aware of her age.
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In response, the Crown points to the evidence that the Count 2 act occurred only shortly before the Count 3 act – TB’s uncontested evidence was that there were a “few days” between them.
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The applicant’s submission should in my view be rejected as it pays no regard to the fact that, depending on the circumstances, “retrospectant evidence” may prove a fact in issue. As stated in J D Heydon, Cross on Evidence (LexisNexis, online ed at 14 September 2021) at [1170]:
“The argument for the reception of retrospectant evidence is the converse of that which demonstrates the relevance of prospectant evidence: the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that an act was done, or that the state of mind or affairs previously existed. Thus, a driver's excessive speed may be proved to support the conclusion that he was going too fast a short distance further back. The volume of railway traffic at a later date can assist in establishing its volume at an earlier date. It is obviously of great assistance to a court charged with the task of determining whether A was alive on a given date when it is told by admissible evidence that he was alive 10 days or 10 years after that date. A person's anterior intention may also be proved by that person’s subsequent acts, although, as discussed elsewhere, this general principle of relevancy has had to give way to precedent based on the dread of manufactured evidence. It is not easy to infer from a later physical condition, such as is produced by an addiction to drugs, a similar physical condition at an earlier time.” (Citations omitted.)
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The principle is illustrated by the decision in R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847; [1988] 1 WLR 321 at 327 where there was an issue as to whether the buyer of a motor vehicle relied at the date of the sale upon the skill and judgment of the seller as to the condition of the vehicle. The Court held that evidence of reliance by the buyer two days after the contract was evidence of its state of mind at the date of the contract.
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The principle has been accepted in a number of recent cases including R v Biber [2018] NSWCCA 271 at [27], R v Musleh (No 5) [2018] NSWSC 1927 at [41] and Wright v Lemon (No 2) [2021] WASC 159 at [587].
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It was clear at the trial that the Crown’s case was that TB’s evidence of her conversation with the applicant concerning her age was evidence from which it could be concluded that the applicant was aware of her age three days earlier when the Count 2 act occurred (and, it followed, in respect of the Count 3 act which occurred very shortly prior to the conversation). The Crown expressly put that to the applicant in cross-examination and put it by way of submission to the trial judge (at tcpt, 22 October 2020, p 20; tcpt, 23 October 2020, p 67).
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The trial judge did not need to refer expressly to the point in his judgment because defence counsel did not submit to the contrary. Bearing in mind the availability of TB’s evidence of the conversation to support the convictions on both Counts 2 and 3, the circumstantial evidence referred to in [9] above and the availability of the evidence concerning Count 1 to be used on a tendency basis (being to have a sexual interest in young girls and to act on that state of mind), there was ample evidence to found his Honour’s conviction of the applicant on Counts 2 and 3 and to require the applicant’s contention on appeal that the verdicts and consequent convictions were unreasonable to be rejected.
CONCLUSIONS
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Having conducted an independent assessment of the evidence at the trial, both as to its sufficiency and quality, in accordance with the principles referred to in [3] above, I have concluded that it was well open to the trial judge to be satisfied beyond reasonable doubt that the applicant committed the offences charged in Counts 1, 2 and 3. In these circumstances, leave to appeal should be granted but the appeal should be dismissed.
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DAVIES J: From my own examination of the evidence, I consider that it was well open to the trial judge to be satisfied beyond reasonable doubt of the guilt of the applicant in relation to each of counts 1, 2 and 3.
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BEECH-JONES J: Subject to what follows I agree with Macfarlan JA’s reasons and proposed orders. I have reviewed the record of the trial and am satisfied that, upon a consideration of the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the accused’s guilt (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63; “M”). In addressing that question I have not disregarded or discounted the circumstance that the trial judge had the benefit of having seen and heard the witnesses (M at 493). To the contrary, in this case that benefit was considerable. Leaving aside the primary complaint about CL’s evidence which Macfarlan JA has demonstrated is based on a fallacy, even if the rest of the complaints about inconsistences in her evidence and that of TB were capable of raising a doubt in my mind, which they do not, they would nevertheless be matters that would be resolved by the advantage enjoyed by the trial in seeing and hearing the evidence given (M at 494).
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Decision last updated: 06 October 2021
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