Murray v The King

Case •

[2023] NSWCCA 79

•

12 April 2023

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Murray v R [2023] NSWCCA 79
Hearing dates: 1 February 2023
Decision date: 12 April 2023
Before: Rothman J at [1]
Wilson J at [4]
Yehia J at [126]
Decision: 1. Extend the time to file the application for leave to appeal as necessary;
2. Grant leave to appeal; and
3. Dismiss the appeal.
Catchwords:

CRIME – appeal against conviction – aggravated sexual assault – whether the verdict of the jury is unreasonable or unsupported by the evidence – lack of opportunity – whether the jurors were alive to the inconsistencies, discrepancies and other inadequacies in the evidence – complainant’s evidence not implausible or incredible – jury entitled to prefer evidence of the complainant – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

AJ v R [2022] NSWCCA 136

Category:Principal judgment
Parties: Jamie Murray (Applicant)
Rex (Respondent)
Representation:

Counsel:
A Evers (Applicant)
A Bonner (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2018/149713
Publication restriction: Statutory non-publication order protecting the identity of complainant.
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
14 December 2020
Before:
Blackmore SC DCJ
File Number(s):
2018/149713

JUDGMENT

  1. ROTHMAN J: In this matter, I have read and assessed the evidence given at Trial. I do not have a doubt of the kind that would enable the Court to intervene. I do not consider that the verdict of the Jury challenged is unreasonable or raises any doubt as to the guilt of the applicant.

  2. I have read the reasons for judgment in draft of Wilson J. Those reasons are, on my assessment of the evidence, such that I can agree and adopt those reasons as my own.

  3. It is obvious from the note from the Jury that the sleeping arrangements that were the subject of submissions and were said to be a cause for doubt were front of mind to the Jury, which plainly gave those aspects careful consideration in dealing with the credit of the complainant, including her reliability.

  4. WILSON J: For a week from 7 December 2020 the applicant, Jamie Murray, stood trial before the District Court sitting in Newcastle on an indictment charging him with a single count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The jury returned a verdict of guilty on 14 December 2020. A sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months was later imposed by his Honour Judge Blackmore SC. By notice of appeal filed on 19 September 2022 the applicant seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to challenge his conviction, raising a single ground, that the verdict was unreasonable and not supported by the evidence.

  5. As the notice was filed out of time and does not advance a question of law alone, the applicant requires both an extension of time in which to bring his appeal, and leave to advance it. The question of whether his applications in that regard should be granted will be addressed after the merit of the proposed appeal is considered.

The Evidence at Trial

  1. The nature of the proposed ground of appeal requires consideration of the evidence led against the applicant in some detail. That evidence is summarised below. As s 578A of the Crimes Act1900 (NSW) prohibits the identification of the 12-13 year old complainant, she will be referred to only as Ms M. Other witnesses whose identification could compromise the anonymity of Ms M will also be referred to by a pseudonym.

  2. At the time of the incident the subject of the charge, the applicant was living in a de facto relationship with Ms H. Ms H had three children, one of whom was Ms L, a school friend of the complainant. The Crown’s case was that the applicant had penile-vaginal intercourse with Ms M on a night when she was at Ms L’s home for a sleepover.

  3. The complainant gave her evidence by way of a pre-recorded interview that had been conducted by investigating officials on 22 March 2018, and pre-recorded evidence that had been taken on 8 April 2019 before a judge sitting without a jury, the latter pursuant to Part 29 of Schedule 2 of the Criminal Procedure Act 1999 (NSW), the child sexual evidence pilot scheme.

  4. The complainant described a somewhat peripatetic life at around the time of the incident, as she moved about between the homes of family and friends. In around 2017 when she was 12 years old, she came to live with her grandmother in a Newcastle suburb. At some stage in the second half of that year she enrolled at a local high school. On a day in the first half of 2017, prior to her enrolment at school and possibly in May, Ms M said she was at the home of a friend, Ms V, with whom she intended to stay the night. Ms V lived with her mother at a house that was directly opposite that where Ms L lived with her family and the applicant.

  5. On that day the complainant and Ms V argued, causing Ms M to leave Ms V’s home. She went across the road to the home of Ms L and asked to stay with her that night. Ms L agreed. The two girls smoked “some cones” of cannabis prior to bedtime.

  6. It was arranged that the complainant would sleep on “a little blue mattress” in Ms L’s bedroom, but the mattress was later moved to “the dining room kind of space”. Ms M was not sure why the mattress had been moved out of her friend’s bedroom. The applicant and Ms H had spoken to Ms L about moving the mattress and, although the complainant had asked Ms L about it at some stage, Ms L said that she did not know why the mattress was moved. It was the applicant who had “physically picked it up and put it in the kitchen” / dining area. Although Ms M asked Ms L “a couple of times” to sleep with her on the mattress, Ms L remained in her bedroom, and the complainant went to sleep alone on the mattress.

  7. The complainant said that she woke in the early hours of the morning to find the applicant standing over the top of her, touching her thigh. The applicant was not wearing a shirt. He put one hand over Ms M’s mouth and, although she could still scream, it “wasn’t loud”. Using his other hand, the applicant began to undo Ms M’s pants, the pants being either long pyjama or tracksuit bottoms. As he pulled her pants and underwear down, he moved his hand to the complainant’s vagina, trying to rub her. The complainant was asked about her lower clothing and how it was moved, with questions then moving to contact made with her vagina by the applicant’s hand:

“Q. Yeah, what was his hand doing?

A. Moving, like, down to my private part.

Q. OK. And you said, moving down to your private part. Did his hand actually touch your vagina?

A. Yeah.

Q. Yeah? OK. And when his hand touched your vagina, was that on the outside of the clothes, or inside?

A. Well, at the beginning, it was from the outside, and then it made its way to the inside - - -

Q. [11:51] OK, so how did you - - -

A. - - - and that’s when he - - -

Q. Sorry?

A. That’s when he took my pants off.”

  1. Soon after, the following question and answer was recorded:

“Q. OK. So you said that, um, he moved his hand on the, he was touching your vagina on the outside, but he moved, to have his hand on the inside.

A. Yep”

  1. Later, the interviewer returned to the same subject:

“Q. Yeah. You told me earlier that his hand moved inside, and was touching your vagina?

A. Mmm

Q. What was his hand doing when it was touching your vagina?

A. He was trying to, like, rub me and stuff.

Q. OK, what part of your body was he rubbing?

A. My vagina.

Q. OK. Was that on the inside of your vagina, or the outside of your vagina, or something else?

A. On the inside.

Q. On the inside?

A. Mmm.

Q. OK. What part of his hand was he using to rub the inside of your vagina?

A. Fingers.”

  1. The complainant said that, with the applicant’s other hand pushed hard against her mouth, she “couldn’t yell or scream for help”. Her head was forced back into the mattress; her teeth were hurting from the pressure on her mouth. Although it was hard for her to move, she began to kick in an effort to get the applicant off her. She was scared. The complainant said that she was,

“[…] just kicking with my legs, like, push and scratch and everything I could possibly do”.

  1. After a period that Ms M thought was about 10 minutes the applicant took his hand off her mouth, moving it to her chest. Ms M said,

“Then he raped me.”

  1. Ms M clarified that by “rape” she meant that the applicant put his penis inside her vagina without her permission. She said that when the applicant raped her, he had moved his body until he had “had enough”. She had felt scared and worthless, and her vagina felt sore. When she pulled her pants back up, she noticed that she was bleeding.

  2. She said that “after everything was done” the applicant told her not to tell anyone and then returned to the bedroom he shared with Ms H; she “picked up her phone and left”. She said that she,

“[...] just walked around, tried to get away from that, as far away as that, from that place as possible.”

  1. When the sun rose Ms M returned to Ms V’s house and asked if Ms V’s mother would take her home. When Ms V refused the request, the complainant went into the bush and sat for “ages”. She returned to Ms V’s house later that afternoon and, telling her friend that “Jamie had hurt” her, asked if she could telephone her mother, her own phone having no credit. She was allowed to make the call and, in tears, told her mother she wanted to go home. The complainant’s mother asked Ms V’s mother to drive Ms M home, and she was then taken home.

  2. Other than telling Ms V that the applicant had hurt her, the complainant did not tell anyone about the assault until an incident at school the following year led to staff members becoming aware of the allegation. Ms M and Ms V had an argument at school and the complainant had chased Ms V, in part because she believed Ms V must have known that when she complained of having been hurt by Jamie, she had been referring to rape, and that her friend had not cared. Part of the argument was overheard by a learning support officer at the school, Kylie Fowkes, and a senior teacher was then informed. Ms M thereafter disclosed the assault to Ms Fowkes, and police were contacted.

  3. In cross-examination Ms M said that her friend Ms V was a few years older than she was, she thought about 15 at around the time of the assault. Ms L was about the same age as she was. After the complainant moved to live with her grandmother, she said she often spent nights at Ms V’s house, or Ms L’s house. When she stayed with Ms L, she usually slept on the blue mattress in Ms L’s bedroom. Sometimes she and Ms L would both sleep on the blue mattress in the loungeroom. She said she did not know why the mattress was placed in the dining room on this particular occasion. The following evidence was given:

“Q. Did you ask [Ms L] why it got moved to the dining room?

A. No

Q. When the mattress got put out into the dining room, did you go out there onto the mattress straight away?

A. Not straight away, no. I was stuck around [Ms L] for a bit.

Q. So you stayed in [Ms L]'s room?

A. Yeah

Q. Did you ask [Ms L] to come out and stay on the mattress with you?

A. No.”

  1. Ms M was asked about calling or screaming for help. She said she screamed for help as loudly as she could, both when the applicant had his hand on her mouth and when he did not.

  2. She was also asked about the applicant putting his finger in her vagina, and said that he had not done so.

“Q. Jamie Murray never put his finger in your vagina?

A. Never

[…]

Q. […] one of the things that was said to you is that Jamie had not put one of his fingers inside your vagina. Do you remember being asked that?

A. Yeah

Q. Did that happen?

A. No, Jamie did not put his finger in my vagina

Q. Do you remember when you were being interviewed by police?

A. Yeah

Q. You had said that he had put his finger in your vagina

A. No.

Q. No, you didn’t say it or no, you—

A. No, I didn’t say it

Q. There’s a copy of the interview there with you. Could you have a look at that interview?

A. I remember saying he rubbed my vagina.

Q. What you’re saying now is that he didn’t put his finger inside your vagina?

A. No, he didn’t

Q. What he did was rubbed your vagina?

A. Yeah

[…]

Q. What do you mean by “on the inside”?

A. That it was on the inside of my pants, not the inside of my vagina.”

  1. On returning to her home and speaking with her mother, Ms M said that she told her mother only that the applicant had tried to touch her. Her mother was angry and told her she was not to go to Ms L’s home again.

  2. It was suggested to Ms M that she had made up her account of having been assaulted because she had gotten into trouble at school and was facing the unwelcome prospect of being suspended and moved to a “behaviour school”. She denied those suggestions. In re-examination Ms M said she had been suspended on a number of occasions.

  3. When asked whether the applicant put his finger in her vagina, she repeated that he had not. She was referred to her interview transcript (extracted above) and explained that she had been talking about her pants, and not her vagina.

  4. After the jurors had seen the recorded evidence from Ms M, they heard from Ms J, the mother of Ms V. Ms J was called on 8 December 2020 and confirmed that she and her daughter had lived across the road from Ms H and her daughter Ms L in 2017-2018. They had known both them and the complainant, and the complainant sometimes stayed at their house.

  5. Ms J did not recall an occasion when Ms M was expected to stay at her house for the night but instead went to stay with Ms L. She did recall a sleepover when the complainant had left the house after some girls arrived out the front and called out to her. On that occasion, of which she said she did not have a clear memory, Ms M had gone off without her bag and she or someone else had later come back to the house for Ms M’s bag. The complainant had returned to Ms J’s house the next morning. She had a cut to her lip, blood on her shirt, and she was in tears. She asked if she could use the phone to call her mother. Having made the phone call Ms J said that Ms M’s mother came to pick her up.

  6. Thereafter she understood that her daughter and Ms M had a falling out. She was aware of an incident a couple of months later when the complainant had chased her daughter around the school, but she did not know what this had been about.

  7. Ms V gave evidence before the jury next, also on 8 December 2020. She said she had been friends with the complainant, who had sometimes slept overnight at her house or at Ms L’s house across the road. She recalled more than one occasion when the complainant had intended to stay at her house but taking her bag, had left and gone elsewhere. She could only recall one such instance when the complainant had returned the following day.

  8. On that occasion, Ms M had left her house and returned the next afternoon. She was crying and very upset, and told Ms V that she had been bashed by a schoolmate. She had blood on her face and shirt. Ms M used their phone to call her mother, who came and picked her up. After that incident Ms V said she and Ms M stopped talking to each other.

  9. Ms V said there had never been an incident when Ms M complained about the applicant, and nor had there been a time when Ms M and she had argued at school, or Ms M had chased her around the school.

  10. Ms V’s evidence was completed on the afternoon of 8 December 2020.

  11. As with the complainant, Ms L gave her evidence by way of pre-recorded investigative interview and pre-recorded evidence. Her evidence was played to the jury on 8 December 2020.

  12. Ms L had been interviewed by police on 14 August 2018. She said that she had come to tell the police about a time when Ms M had been “touched […] Like in a bad way”. When asked to tell the interviewer about that time, Ms L said:

“Like, I don’t really remember the night. But like, I just remember her saying to me that, like, she’s getting’ touched, but I can’t even remem’, like, I remember sleeping with, I remember sleeping out there with her, but I don’t remember me being in my bed, like, as she said that like –”.

  1. She thought this occasion had been in May 2017. She said that she and Ms M had been friends for two or three years, and Ms M had often stayed at her house. They sometimes slept in her bedroom and sometimes on a fold out mattress in the loungeroom. She continued:

“But that night I think someone was on the lounge maybe, one of the boys […] or something’. But I really can’t remember that night.”

  1. Ms L said that the night of the sleepover had been the last night that Ms M had slept at her house. She was not sure who had been in her house that night other than her, her mother, and Ms M, although her brothers and the applicant might have been there. She later said all of these people were at home.

  2. On that night Ms L was sure that she and Ms M had slept together on the blue mattress in the dining room. When asked if she remembered the night at all she said:

“I only remember her waking me up and saying that, um, I’m gettin’ touched or somethin’, then I would have fallen back off to sleep and then the morning came and Mum woke me up and said, [Ms M’s] gone and we couldn’t find her. And I think she went to [Ms V’s]”.

  1. When asked where she had been when Ms M woke her, she said:

“Well, I, I think that I was out in the loungeroom with her. ‘Cause I don’t think I was in my room […] I can’t [1] remember ‘cause, I would never, like, sleep apart from [Ms M], I’d just always sleep with her”.

1. In the transcript that was before the jury, this was transcribed as “I remember”, rather than “I can’t remember”. The Court was invited to listen to the relevant portion of the recorded interview at the hearing of the application, because of an issue as to the accuracy of the transcript. It is quoted here as I heard Ms L’s answer to be.

  1. When asked what happened after her mother woke her Ms L said she was not sure. Ms L said that she did not speak to Ms M for a long time after that night. She said:

“Well it was weird because, like, we were talkin’ and everything was good. And then that just happened and then, like, everything just went down. And like, we didn’t […] see each other.

  1. When cross-examined during her pre-recorded evidence, Ms L confirmed that there was an occasion when Ms M had stayed the night but was gone when Ms L woke the next morning. Ms L said that, when her friend stayed at her house, they both usually slept on a fold-out mattress in the loungeroom, or in her bedroom. Ms L did not recall smoking cannabis on the day that Ms M came to her house to spend the night.

  2. Ms L’s mother, Ms H, gave evidence before the jury the following day, 9 December 2020. She said that she had formed a relationship with the applicant in 2015 and he had moved in with her and her children immediately. Her daughter and the complainant had been very close friends at the time, and Ms M was at her house for sleepovers constantly. During sleepovers, sometimes Ms M would sleep on a blue fold-out mattress ordinarily kept in Ms H’s room, that was placed in Ms L’s room; and sometimes both girls would sleep on the fold out mattress in the loungeroom. She said Ms M never slept in the loungeroom on the mattress alone.

  3. At some time in 2017 Ms M had stopped coming over to her house. She did not know why. The last time that Ms M had been to their house for a sleepover was in May 2017. On this particular night the applicant had been present.

  4. Ms M had arrived at the house late in the evening of that day after leaving Ms V’s house, something having happened there. Ms H’s daughter told her that the complainant and Ms V had had words, and Ms M would rather stay with Ms L. Ms H put the mattress in the dining room for Ms M and her daughter. When Ms H went to bed the girls were still up watching television. The applicant went to bed with Ms H.

  1. At some stage during the night Ms H was woken by the sound of a door closing “or something”. The applicant was not in the bedroom. Ms H told the jury:

“[…] I actually me ‑ we got up and went out to the back door, well actually looked over and Jamie was not there and I went outside and I called his name and no answer, then I've come back in and seen [Ms L] and said, "Where's [Ms M]?" and she said, "I don't know."

  1. Ms H looked for Ms M but could not find her. Her bag had gone from Ms L’s bedroom. Ms L said that the complainant had woken her and said someone was touching her. Ms L then fell asleep again.

  2. Ms H assumed that Ms M had gone home and did not think much about it. After that night Ms M did not come back to their house, and never stayed at her family’s house again. Ms H said that after that night:

“She stopped coming around.  She was very standoffish, you know, like, she was going to see [Ms V] occasionally, but she didn't want to come over to our place.  We didn't know why.  She kept just saying "No, no", and that's where I said to [Ms L], what's going on with the two of you?  You know, you had been so close, why aren't youse talking anymore?  She said, "I don't know, mum."

  1. Ms H told the jury that the complainant came to her home once after this night and:

“She's actually put herself in for about ten minutes, and then she goes.  So she's not very comfortable.”

  1. The applicant, having left the house at some stage during that night, did not return for about a month, being sometime in June.

  2. The Crown was given leave to refresh Ms H’s memory from the statement that she had earlier made to police in which she said that, after looking unsuccessfully for the applicant, she “went in and saw that [Ms L] was asleep in her bed”. Ms H speculated that there had been “a misprint” in the signed statement, and said that she had meant the mattress, which was her daughter’s bed for the night:

“Q.  In your statement you say that she was asleep "in her bed"?

A.  Well, yeah, it does say that, but I'm sorry.  You know, I might have said, "her bed", but it was still on the blue mattress.  She'd never really slept in her room that night, she stayed on the mattress with [Ms M].”

  1. Although Ms H conceded in cross-examination on this point by the Crown, with leave pursuant to s 38 of the Evidence Act 1995 (NSW), that her statement to police had been made in August 2018, closer in time to the incident, she maintained that she had not meant to refer to her daughter having slept in her own bedroom.

  2. In cross-examination Ms H said that, although the girls did not always sleep in the same spot, they did always sleep together. On that night, she had last seen them sitting in the loungeroom watching television. The blue mattress was nearby, ready for when they went to sleep. Her memory was that her sons had been at home on this occasion although she thought that earlier they may have been going out to a party.

  3. Ms H said that Ms M had never gotten up in the middle of the night before during a sleepover. She “just disappeared” and they did not hear from her again for an extended period. The applicant, by contrast, was in the habit of occasionally leaving her house after she had fallen asleep.

  4. Ms H said that the applicant stopped spending nights at her home in June 2017 and, in answer to questions from the trial judge, she said she thought that her and the applicant’s relationship had ended by that October or November [2017].

  5. The complainant’s mother, Ms C, was called to give evidence. She told the jury that her daughter had been in the habit of regularly staying over at the homes of Ms V and Ms L. The day after the last time Ms M ever slept at Ms L’s house, in the afternoon, Ms M was dropped home by Ms V’s mother. She saw her daughter walking up the driveway and could see that she had been crying. Although Ms C saw that Ms M was upset, Ms M said that everything was fine. After she had persistently asked Ms M what was wrong, Ms M said:

“[…] ended up saying that she woke up with Jamie standing above her”.

  1. When Ms C asked if anything else had happened Ms M said only, “Let it go, just let it go”. Ms M was crying, and her mother could see that she was upset. Although Ms C “knew something else was the matter”, Ms M “just wouldn’t say”. After that day Ms M had no contact with Ms L or Ms V and secluded herself, sticking by her mother’s side.

  2. Ms C remembered an occasion when she had been telephoned by her daughter, calling from Ms V’s house, and asked to pick Ms M up from there. On that day Ms M had been “jumped” and “flogged” by a schoolmate. She thought that it occurred some weeks before the occasion when Ms M came home from Ms L’s house upset.

  3. Much later, on 14 February 2018, Ms C was asked to attend the school because of a problem with Ms M’s behaviour. When she arrived, she overheard Ms Fowkes saying repeatedly to Ms M, “Just tell your mum”. When she asked her daughter what she had to tell her, Ms M referred to the night when she woke to find the applicant standing over her, and said:

“It was more than just standing over me […] He went all the way”.

  1. The complainant told her mother that the applicant had put his hand over her mouth and “did whatever he wanted”. At the time, Ms M was a “mess” and could hardly speak.

  2. In cross-examination Ms C said she had been aware that Ms M had spent the night at Ms L’s prior to the afternoon when she walked up the driveway in a distressed state, because Ms C had spoken to her on the phone that day. Ms C said she always checked up on her children by phone. She was quite sure that the plan had been for Ms M to stay at Ms L’s on the Friday and Saturday nights, and not to stay at Ms V’s house. It had been Sunday afternoon when Ms M was dropped home by Ms V’s mother. She understood that Ms M had spent the first of the two nights with Ms L, and the second with Ms V; she was “pretty sure” that this is what her daughter had told her had occurred.

  3. Ms C agreed that, when the possibility was raised of Ms M being sent to “behaviour school”, Ms M was upset and angry. She said, however, that Ms M had spoken with Ms Fowkes and then herself before anything was said about a school transfer. The behavioural school was discussed at a later meeting.

  4. After the completion of Ms C’s evidence, the complainant was recalled with the court’s leave to give some further short evidence, from a remote witness room via an audio-visual link. She was asked about the occasion when a schoolmate was said to have attacked her, telling the court that she had been attacked by a fellow pupil on a day prior to the incident involving the applicant, and likely some months before that time. She said that, after the assault (in which her phone was taken) she walked to Ms V’s house and asked either Ms V or Ms H for the use of their telephone to contact her mother. She was upset and crying, and she had blood on her face and shirt. Ms M called her mother, who came to Ms V’s house, spoke to Ms M, and then left to collect the stolen phone. Ms C returned soon after and Ms H drove Ms M and Ms C home.

  5. In cross-examination Ms M said there had not been an occasion when the schoolmate who had attacked her on this day had come to Ms V’s house to call her away.

  6. Ms Fowkes was the next witness before the jury. She deposed that Ms M had a history of non-attendance at school, and there were behavioural problems with her from July 2017, when Ms M returned to high school. Ms Fowkes tried to discuss any problem with Ms M, but she said only that she couldn’t tell Ms Fowkes. Ms Fowkes said:

“Her behaviour declined a lot in the time of her coming back to the following year [in July 2017].  I knew something was wrong with her but I, I did, I did ask her on multiple times, yes”.

  1. She recalled an incident in 2018 when there had been a dispute between Ms M and Ms V, with Ms V threatening to reveal something Ms M had confided in her. Both girls were suspended. Later, on 14 February 2018, at a “suspension resolution” meeting with Ms M, her mother, and the Deputy Principal, concerning Ms M’s return to school, there was a discussion about the option of Ms M transferring to a different school. The complainant stormed out of the meeting and Ms Fowkes went after her. She told the jury:

“I just sort of asked her that, like, there was really no need for the blow up to be about what it was.  And I just said to her, "Is there more going on", with her, and she said, "Yes, but I can't tell you."  I said, "[Ms M], like, this behaviour can't keep going.  Otherwise they are going to send you to another school."  Where she won't have my support.  And, yeah, she said, "I can't tell you", cause I was leaving, I was actually finishing up two weeks later, cause […] she knew I was leaving.  Which is why she didn't want to tell me, because she didn't think that I would be around to help her through it”.

  1. Ms Fowkes was able to get the complainant to talk to her about what was upsetting her. She said in her evidence:

“She told me that somebody had touched her, and had had sex with her.  And she was at a friend's place, and, yeah”. 

  1. Ms M told Ms Fowkes that the person who had assaulted her was Ms H’s boyfriend, whom she named as “Jimmy”. Ms Fowkes’ evidence continued:

“Q. Did she say how he had touched her or had sex with her?

A.  Yes.  So, she had a sleepover at [Ms L's], which to me, under my understanding wasn't unusual.  She was sleeping on a mattress on the lounge room floor, and [Ms L] was in her bedroom.  And Jimmy, she woke up to Jimmy standing over her, and then he put his hand over mouth, took off her underwear and had sex with her.

Q.  How was [Ms M’s] demeanour when she was telling you this?

A.  She was an absolute mess.  She was in tears, she didn't think anyone was going to believe her.  And I just informed her that that's my job, like, that I would have to report it.  Yeah, she was quite upset”.

  1. Ms Fowkes encouraged the complainant to tell her mother, and Ms M spoke to Ms C at the school. Afterwards, Ms Fowkes made a full file note of what she had been told by Ms M. The file note was read to the jury:

"After the meeting in [the Deputy Principal’s] office, [Ms M] made a disclosure revealing that she had been sexually assaulted by a middle aged man, Jimmy, last name unknown, stepdad of her friend, [Ms L].  [Ms M] was on a sleepover weekend at [Ms L’s] house at [address], around May last year.  [Ms M] was asleep in the kitchen area on a mattress and [Ms L] was asleep in her bedroom.  [Ms M] woke up through the night with Jimmy standing over the top of her.  He allegedly put his hand over her mouth and proceeded to remove her underwear, touch her, and then had sexual intercourse without her consent.  [Ms M] said she was unable to say anything as his hand was over her mouth the whole time and she was also extremely scared.  After the incident had occurred, [Ms M] went across the road to her friend [Ms V], at [address], and told her what had happened.  This young person was the only one that [Ms M] had confided in up until today.  [Ms M] then called her mum, [Ms C], and had said that she wanted her to come and get her, but had not told her exactly what had occurred.  [Ms M] only told her mum that she woke up to Jimmy standing over her, and that he had touched her.  [Ms M] was worried that her mum would be so upset and she would take matters into her own hands."

  1. In cross-examination, Ms Fowkes confirmed that at the meeting in February 2018 held to discuss Ms M’s return to school after a short suspension, the possibility of her transfer to a behavioural school was raised. The discussion made Ms M upset and angry. Ms Fowkes observed that the complainant’s behaviour had been poor since her return to school in July 2017. She said:

“We just noticed a massive change in her behaviour and her attitude towards male authority figures she, she didn't like it at all”.

  1. Ms Fowkes said that, although Ms M had always had issues at school, her behaviour towards male teachers on her return to school in July 2017 constituted “a massive change”. Ms Fowkes described the change as “weird”.

  2. The police officer in charge of the investigation was the final witness in the Crown case, telling the jury that the applicant was charged on 13 May 2018. The Crown case closed on the afternoon of 9 December 2020.

  3. On 10 December 2020 the applicant was sworn to give evidence. He told the jury that he had begun a relationship with Ms H in 2015. He came to know her children, and her children’s friends, one of whom was the complainant. The complainant stayed overnight at Ms H’s house from time to time, sleeping with Ms L either in Ms L’s bedroom on a blue mattress, or on a futon (also referred to as a fold out lounge) that was in the loungeroom. The applicant said that if the blue mattress had to be moved from its storage place in the bedroom of Ms H’s sons to another location, Ms H or one of the boys would ordinarily move it. He said he had no memory of an occasion when Ms M had slept on the blue mattress in the dining room. Nor did he have any memory of an occasion when he had gotten up very early in the morning when staying with Ms H and left.

  4. In March 2017 the applicant said that he ceased to stay with Ms H nightly, as they were having difficulties in their relationship. He did, however, continue to spend some nights with her. He thought they broke up permanently “not long after April” 2017. After the breakup, there were no occasions when he spent the night at Ms H’s home.

  5. The applicant denied assaulting Ms M as she alleged.

  6. In cross-examination the applicant insisted that he had never been involved with moving the blue mattress, or the fold-out lounge. He always left it to Ms H or her children. He said that Ms M stayed overnight regularly when he was living with Ms H, but he had not spent any nights at Ms H’s house after a time he nominated as “just before April”, when they had ended their relationship. When pressed about the timing of the end of his relationship with Ms H, the applicant said that he was not at her house “after April”. He subsequently said that he had spent one weekend at her home after April. Of the allegation he said, “Didn’t happen and I wouldn’t do it”.

  7. The applicant’s case before the jury closed.

The Application to this Court

  1. The applicant argues that the verdict of the jury was unreasonable and not supported by the evidence. He points to three flaws in the Crown case, being a lack of opportunity in which the applicant could have assaulted the complainant; the implausibility of her account of the incident; and questions as to Ms M’s credibility. The applicant submits that these features, when taken together, should have raised a reasonable doubt as to his guilt.

  2. As to opportunity, the applicant points to the differing accounts of the sleeping arrangements on the night of the incident. Of Ms M, Ms L, and Ms H, only the complainant asserted that she slept alone in the dining area of the house. Both Ms L and Ms H said that the two girls slept together; and all three witnesses said that this was the usual arrangement when Ms M stayed the night. The applicant submits that it might be accepted that, where two girls shared a sleepover, they would ordinarily sleep in the same space. Ms M could give no explanation for the change to the usual sleeping arrangements, further pointing to the inherent unlikelihood that they were as Ms M had deposed.

  3. If the sleeping arrangements were as Ms L and Ms H recalled, it is submitted that it would have been impossible for the assault, being a violent, noisy, and protracted incident, to have occurred as the complainant asserted.

  4. The applicant contends that the whole of the complainant’s account was implausible: that it could happen in a house full of people, one of whom was sleeping next to the complainant; that the applicant could have gotten the complainant’s pants down when she was resisting him by kicking her legs; that no other occupant of the house would have heard the altercation, given that the complainant said that the applicant’s hand was not over her mouth for the whole of the attack, and she was screaming loudly. He also argues that the absence of any support for the complainant’s account in the evidence of Ms L and Ms H should have cast real doubt on the reliability of Ms M’s evidence.

  5. The applicant also suggests that the complainant’s credibility must be regarded as doubtful. She gave an inconsistent account of whether the applicant placed his finger inside or outside her vagina. Neither Ms V nor Ms J confirmed Ms M’s account of the events of the afternoon following the incident, in circumstances where the event, if it occurred, should have been a memorable one. Similarly, Ms C’s memory of the relevant sleepover contradicted that of Ms M. Ms C said that the complainant had arranged to stay with Ms L, and she herself had checked up on her daughter to confirm her whereabouts on the particular occasion. The effect of this evidence should have been to cast serious doubt on the complainant’s account of having gone to Ms L’s home unexpectedly, following the argument with Ms V. It is argued that it was implausible the complainant would wait in bush for much of the day before returning to Ms V’s house to ask to use the phone, in circumstances where her mother said she maintained regular contact with her children, and Ms M had other acquaintances in the area from whom she could have sought help. Those matters should have been assessed having regard to the fact that the complainant was “a troubled child” who had very little supervision from her mother and had been suspended from school on occasion, all of which were features detracting from her credibility.

  6. These features are of such significance that a reasonable jury must have entertained a doubt about the applicant’s guilt, and this Court should conclude the verdict was not open.

Determination

  1. The principles of law applicable to the resolution of a ground of this nature are well established. A useful summary of them may be taken from AJ v R [2022] NSWCCA 136, in which Beech-Jones CJ at CL said, at [99]-[104]:

“The principles applicable to this ground so far as this case are concerned were enunciated in M v The Queen (1994) 181 CLR 487 at 493 to 494; [1994] HCA 63 (per Mason CJ, Deane, Dawson and Toohey JJ; “M”). It is appropriate to set out the relevant passages given the context in which they place the advantages enjoyed by the jury in seeing and observing the witnesses called at the trial. The operative principle was stated as follows (at 493):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (...). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

Their Honours then noted the view expressed by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35 that “if [an appellate] court has a doubt, a reasonable jury should be of a like mind” and a qualification to that view identified in M (at 494), that “account must be taken of the advantage which a jury has in seeing and hearing the witnesses”. In M v The Queen, their Honours reconciled that view and the qualification as follows (at 494):

“But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ….” (emphasis added)

In acknowledging the advantage enjoyed by the jury, this passage reflects the “special respect and legitimacy [afforded] to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials” (MFA at [59] per McHugh, Gummow and Kirby JJ), an aspect of which is that juries are “well able to evaluate conflicts and imperfections of evidence” (MFA at [96]).

At the core of the jury’s function in deciding “contested factual questions” is the assessment of the credibility of a witness on the basis of what the jury has seen and heard in the context of the trial (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]; “Pell”). Pell reiterated that the function and approach of the jury in making that assessment is very different to that of this Court in determining whether the jury’s verdict was “unreasonable”. At a practical level, this is reflected in the observation in Pell that it would only be an exceptional case in which this Court would need to view the video recording of a witness’s evidence to determine this ground of appeal (at [36]). At a broader level, Pell referred to the above passage from M v The Queen as reflecting the “functional or ‘constitutional’ demarcation between the province of the jury and [an intermediate appellate court]” (at [38]). Ultimately, Pell explained this Court’s role as follows (at [39]):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (emphasis added)

The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is given by a complainant. […]

These references to the “special significance” role of the jury, including the advantages it enjoyed in seeing and hearing witnesses, are of particular significance to this matter. The reference in the above passage from Pell to considering “inconsistencies, discrepancies, or other inadequacy; or in light of other evidence” must be read with the statement in M v The Queen that those matters be “such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”. Put another way, an assessment that the “evidence lacks credibility for reasons which are not explained by the manner in which it was given” is necessarily witness and trial dependent”.

  1. Having considered the whole of the evidence, and giving due weight to the significant advantage enjoyed by the jury in seeing witnesses examined and cross-examined before the trial court, I cannot conclude that there is a significant possibility that an innocent person has been convicted.

  2. The features raised by the applicant as necessarily casting such doubt on the verdict returned by the jury that it cannot be permitted to stand were, for the most part, features of great significance to the ultimate question for its members: whether the Crown had proved the elements of the charge brought against the applicant to the criminal standard. That the jurors were alive to the “inconsistencies, discrepancies, and other inadequacies” in the evidence is very clear from the notes that the jury sent to the trial judge during the course of the proceedings.

  3. On the morning of 9 December 2020, after Ms V had completed her evidence the previous afternoon, and before any further evidence had been called, a note was received from the jury. Marked for identification (“MFI”) Jury Note 1, the note read:

“We […] are considering whether the day that [Ms M] was “bashed” by other girls and the day [Ms M] was possibly sexually assaulted may have been different days and different events. [Ms M’s] story about the day leading up to the possible assault is different to the other witnesses so far. Is there some way we can get clarification about this?

It would be ideal if [Ms M] could comment on this, but understand it may not be possible. Can you give us any clarification how we can resolve this?”

  1. Trial counsel had, independently of being advised of the contents of MFI Jury Note 1 that morning, discussed the prospect of recalling Ms M to give some evidence about the occasion when she was “bashed”, and an application was made to the trial judge for that to occur. Leave was granted for Ms M to be recalled and the jury was told that she would return for further evidence.

  2. Ms V’s mother and the complainant’s mother then gave evidence. The court adjourned for luncheon. During the luncheon adjournment a second note was received from the jury. The note, which became MFI Jury Note 2, was dated 9 December 2020 and read:

“Would like clarification from [Ms M] while we have the opportunity to do so, about the sleeping arrangements on the night of the possible assault. Including:

Who put the mattress in the loungeroom?
Who slept on it? Did [Ms L] also sleep there? What was the usual arrangement for sleeping and why was this time different? We the jury feel that this is contradicting evidence with the other witnesses, and it is an important point.”

  1. In discussion between the court and trial counsel concerning the note, counsel for the applicant at trial observed:

“Your Honour, my view is most of those if not all of those issues were asked of the complainant in cross‑examination.  A lot of the time she couldn't remember or her evidence was at odds with the other witnesses which is you know, quite obviously some of the things the defence will go to the jury on”.

  1. There was then the following exchange:

“COUNSEL: My view would be that perhaps your Honour would simply answer that note to indicate that the evidence with respect to those matters they raise about the sleeping arrangements have already been covered within the evidence that they've already heard.  I don't know if your Honour wishes to say to them that they'll have the opportunity if they wish to request the transcripts back and to review the transcripts in relation to that specific evidence once they retire for deliberation.

HIS HONOUR: Yeah, I think they obviously seem to be quite well appraised with what is in the evidence.

CROWN PROSECUTOR: Yes, your Honour.”

  1. The jury was subsequently directed by the trial judge that:

“[…] the questions you're asking are covered in the evidence and you're perfectly right that there [are] contradictions now in the evidence between what one witness says and another witness says but that's just the nature of these sorts of cases.

If I was to let you or let the Crown or defence ask further questions about that we'd essentially just be going over the same material again.  So I haven't given leave for that […].”

  1. The complainant was called after receipt of this second note and asked about the incident with the schoolmate when she was “bashed”. She was not, quite properly, asked to repeat her evidence about the sleeping arrangements or as to who was in the house on the relevant night.

  2. The Crown case closed later that day, on 9 December 2020. On 10 December 2020, prior to the case for the applicant commencing, a third note was received from the jury, and became MFI Jury Note 3. It read:

“Seeking additional clarity from [Ms L] as to where she slept for the evening in question?

Are unsure as to whether the recorded statement information is consistent to the answers she gave about where she slept in her cross examination?

This is more important given the change or additional clarity [Ms H] provided about [Ms L’s] sleeping location between her written statement and cross examination yesterday.

The additional clarity would include, where she was;

- when she went to sleep?

- when she woke up?”

  1. In response to that note the jury was directed as follows:

“Thanks for your note again.  I was looking at this this morning as well, but the reality is this is the evidence.  You've got what the evidence is.  There are clearly some inconsistencies between what [Ms L] and her mother say and what the complainant says and also there have been prior inconsistencies between what [Ms L] says and what her mother says.  I've looked at the transcript.  It's available and if you need to you can look at it yourselves in due course.  Unfortunately, as with almost every single case I've ever done, there are inconsistencies and you, as a jury, have to kind of resolve those inconsistencies the best way you can.

So, no doubt the counsel will be addressing the way you can look at the evidence and try to help you make clear ‑ if it is possible to make it clear what was going on.  Sometimes it's just not always possible to be absolutely clear about it.  I can't really help you any more than that, but essentially the evidence is now complete.  Obviously, we haven't heard yet from the accused, we're about to do that now. […] As I say, there will be addresses after this, there will be my summing‑up.  Again, I'm not here to try and resolve all those issues for you, I'll just probably point out what the evidence is, as much as anything and maybe not in great detail about that, but if there are obvious things to point out, for example what [Ms L] and her mother say about the blue mattress, is right, well that's inconsistent with what the complainant says.  ..(not transcribable)..complain about it now because that's a fact.  I'll point that out to you and no doubt both of the parties will talk about that as well”.

  1. Subsequently, the jury asked for and were provided with the trial transcript.

  2. Following counsel’s addresses and the summing up by the trial judge, and after it had retired on 11 December 2020 to deliberate upon its verdict, it is clear that the jury were still earnestly considering the conflicting evidence as to the sleeping arrangements and other matters relevant to the night. A further note was sent to the trial judge on 14 December, MFI Jury Note 7. It read:

“[…]

If there is some form of evidence that [Ms H’s sons] were not in the house the evening of the incident, there may be some progress to consensus.

Were the boys interviewed and determined that they were confirmed to be somewhere else that evening, thus not part of the Crown’s case?”

  1. The jury returned to court and were told by his Honour that the evidence had finished. The jury was directed:

“You have to make a decision based on the evidence that has been led in the trial and that is all there is”.

  1. The verdict of guilty was returned soon after.

  2. Having regard to the notes from the jury, and the sequence in which the notes were sent to the trial judge, it is very clear that the jurors well comprehended the differences in the evidence of witnesses as to the sleeping arrangements, the circumstances of the partial complaint to Ms V, and other inadequacies, and what those issues might mean with respect to the reliability of the evidence of individual witnesses, including the complainant. It is equally clear that the jury gave those matters very careful attention. Unlike this Court, the jurors considered and resolved the inconsistencies and discrepancies with the significant advantage of having seen all of the witnesses, including the applicant, give evidence and be tested on that evidence. That advantage must be given full weight by this Court in determining this application.

  3. The applicant argues that the inconsistencies were incapable of resolution by the jury in any way other than by rejecting the account of the complainant. Whilst some features of the evidence can be pointed to in support of that submission, there are a number of other significant aspects of the evidence before the jury that were available to, and did in my assessment, point very strongly to the reliability of the complainant’s account of central events. Where there were differences between the accounts of witnesses, it was well open to the jury to prefer the evidence of the complainant.

  4. The most significant inconsistency is that concerning the blue mattress, and whether the complainant slept alone on the mattress, or whether Ms L was with her. The applicant argues that the jury should have accepted the evidence of Ms L and her mother, but that overlooks aspects of the evidence that point to the reliability of the complainant’s account of events, and likely unreliability of those of Ms L and Ms H.

  5. Until much later, neither Ms L nor Ms H had any real reason to recall that particular night as distinct from any other sleepover involving the complainant, such sleepovers having been “constant” at the time. Although many might perceive an incident in which a child went missing from a house during hours of darkness as highly memorable, neither Ms L nor her mother appear to have thought much of the complainant’s disappearance, Ms H telling the jury it “wasn’t a big deal”. Similarly, the complaint Ms L said Ms M had made of being touched during the night – whilst consistent with what the complainant said had taken place – does not seem to have been regarded by either Ms L or her mother as a matter of any concern.

  6. With that background, the realisation that the night had some special significance could only have dawned on each over time, as they came to realise that it was the last sleepover Ms M ever had at their house. Neither was asked to recall the circumstances of the night, in detail or at all, until many months later. Thus, there was no reason for either witness to have recalled specific details of that night, particularly in a context where it was one of many such nights.

  7. Further, the evidence of each concerning the sleeping arrangements has, on transcript, something of the flavour of a conflated account of a frequently recurring event, rather than of a specific memory of a specific night. The jury, with the advantage of having seen Ms L and Ms H give evidence, were much better placed to draw that conclusion than is this Court, but it was at least open to its members to do so.

  8. Such a conclusion is further supported by matters that actively cast doubt on the accuracy of the memory of each. Ms L began her evidence with an acknowledgement that she didn’t “really remember” that night, a comment she repeated later in her evidence. Ms H had told police in her statement, at a point in time much closer to the relevant night, that she had gone to see Ms L “in her bed” after discovering the absence of the applicant and the complainant. Whilst she insisted in evidence that she was referring to Ms L’s bed “for the night”, the jury may have rejected that explanation, and preferred the clear meaning of her statement to police as the reliable account.

  9. These features support a conclusion that the complainant’s memory of the night was to be preferred. Other features have that same effect.

  10. Whilst Ms H appeared to think nothing of Ms M going missing in the early hours of the morning, the jury was entitled to conclude that it was a matter of great significance that Ms M left Ms H’s home and, presumably, the relative comfort of a makeshift bed in her friend’s house, to go out into the streets, in the dark, where she had no shelter or safe place to go. It was well open to conclude that a 12 or 13 year old child would not simply walk out into the dangers of the streets at night unless something even more frightening at her accommodation compelled her to leave it. Ms M’s evidence that she had left the house and tried to get “as far away from that place” as she could, may have struck the jury as a particularly compelling sentiment, redolent of the fear she felt on remaining in the house where she believed her attacker to be.

  11. Similarly, that Ms M would abandon, without apparent cause, what was on the evidence of all witnesses who could have known, a very close friendship with Ms L, must be regarded as unlikely. Both Ms L and Ms H remarked on the strangeness of Ms M leaving the house where she was so frequently a guest, and never returning. Ms H’s account of Ms M visiting Ms V across the road occasionally but not visiting Ms L, other than on one day when she briefly entered the house before leaving it due to her discomfort, is conduct entirely consistent with Ms M’s complaint of what had happened to her in the house. Something happened to sunder an important friendship. The complainant’s evidence explained the broken relationship.

  12. It also explained the strange departure from the house by the applicant. On Ms H’s evidence she woke to find that her partner, like Ms M, had vanished from the house in the early hours, without explanation or farewell. It could not have been easy for him to do so, since the evidence was that he was not able to drive a car or ride a motorcycle, having been disqualified from doing so. He must have left on foot, a departure that the applicant said in evidence he had no memory of, and which was entirely unexplained, other than by an inference of flight from the scene of a serious crime. That the applicant did not return to Ms H’s house for a month is also an oddity capable of explanation by his flight following the assault as Ms M alleged it to have occurred.

  13. The evidence of the pronounced deterioration in the complainant’s behaviour at school, and particularly with adult male teachers, may have been regarded by the jury as significant, and suggestive of the truth of her allegation.

  14. There were differences in the accounts of what took place the following day, but none of the inconsistencies point inexorably to a rejection of what the complainant said had occurred. As the jury astutely realised at an early stage, the occasion when the complainant told Ms V that the applicant had hurt her, and the occasion when she had turned up with blood on her face and shirt were, as the complainant said, different occasions. That Ms V and her mother remembered the latter instance but not the former does not mean that the former never occurred. It can be readily explained by a failure of memory of what would have been a less significant incident than the one in which Ms M had appeared bloody and crying at their door, complaining to both Ms V and her mother of having been bashed.

  15. There is support for the complainant’s account in her mother’s evidence of Ms M telephoning her in tears, and later being brought home by Ms V and Ms J, to tell her mother that she had woken in the night to find the applicant standing over her. On Ms C’s evidence, as on Ms M’s, there were two separate occasions when Ms M had gone to the home of Ms V for help, and it was open to the jury to conclude that both had taken place as Ms M described them.

  16. Ms M gave the jury an account of having gone to stay with Ms L spontaneously, because of a dispute with Ms V, and not because of any plan to do so. The applicant points to the contrary evidence of Ms C as underlining the unreliability of Ms M’s evidence. However, it was a matter for the jury to assess the competing accounts, with the benefit of seeing the witnesses. Although Ms C was confident that her daughter had stayed at Ms L’s house and then at Ms V’s home, not least because, as she told the jury, she always checked up on her children to ensure they were safe and knew where they were, her insistence on this point was somewhat undermined by later questions about Ms M’s whereabouts on another occasion. When asked where Ms M was on a particular occasion, Ms C said, “I wouldn’t have a clue mate”. She also conceded that she had been unaware that Ms M failed to attend school on numerous occasions, only finding out much later that she had gone to “the plaza” instead. It was well open to the jury to conclude that Ms C was not as diligent in mapping her children’s whereabouts as she claimed.

  1. Whilst the complainant did not give an immediate account of everything that had happened when at Ms L’s home, the progressive disclosure she made and the circumstances in which it was made might have been regarded by the jury as consistent with what could be expected of a child. If Ms L’s account of Ms M telling her at some stage in the night that she had been touched was accepted, it is consistent with something of that nature having occurred. The terms of what was said on Ms L’s evidence were also very similar to what Ms M later said to others about being touched, or the applicant trying to touch her.

  2. Ms M’s initial diffidence with her mother and her failure to tell her mother immediately was both readily understandable, and explained by the evidence of Ms Fowkes, who said that the complainant was worried about what her mother might do if she had told her. It may have seemed to the jury that Ms C was a single parent struggling to cope with her children in circumstances where money was limited, and housing was temporary and insecure. That her response to a complaint of sexual abuse could be unpredictable and a matter of concern to Ms M was something the jury could reasonably accept.

  3. That Ms M would come to disclose the whole of the circumstances of the assault after she became distressed at the prospect of Ms V revealing what she had inferred from the limited complaint Ms M had confided to her could also be readily accepted. It is consistent with ordinary experience of children. Also consistent with experience and expectation is the evidence of Ms M’s demeanour when she made her complaint – she was described as “an absolute mess”, very upset, and hardly able to speak. That is a level of distress that the jury may have concluded reflected more than anger at the familiar prospect of being suspended from school, or even made to change schools.

  4. The complaint to Ms Fowkes, and then to Ms C was made in the same terms as Ms M’s evidence, with one exception. The former points to the credibility of the account; the exception can be understood as a mistake in communication as Ms M told the jury it was. Ms M’s account in her police interview of the applicant putting his fingers inside her vagina came at the end of a series of questions about how the applicant had undone and lowered the complainant’s pants and underwear, and whether his hand had been outside or inside her clothing. Question 400 asked of the complainant may have misled Ms M, as it was based upon an inaccurate recitation of what she had earlier said.

  5. That a 12-13 year old might mean to convey one concept but use words that muddied the meaning is not an incredible proposition, and particularly so for a child in a stressful situation such as a police interview describing an embarrassing and humiliating event. The jury had the benefit of seeing the complainant as she gave what reads like a clear account of the absence of digital penetration, and emphatic denials of ever having described such a thing. It was open to the jury to accept the complainant’s explanation of a failure of communication.

  6. It was also open to the jury to accept her account of events as neither incredible nor implausible. The applicant submits that the assault could not have happened as the complainant said and, if it did, someone in the house must have heard or seen it. That submission fails to place Ms M’s account in context.

  7. The evidence was unclear as to exactly who was in the house. Ms H thought her teenage sons were home, but also recalled them getting ready to go out, as Ms M said they had. Ms L thought there was “someone” sleeping in the loungeroom that night, but didn’t really remember the night, and also thought that she and Ms M had slept in the loungeroom.

  8. Regardless of who was present in the house, it could not be concluded that someone must have heard and been disturbed by the commotion of the assault on Ms M. Whilst Ms M said she screamed both when her mouth was covered by the applicant and when he moved his hand away, she also said that she was scared, and that the applicant told her repeatedly to “shut the fuck up”. Her evidence overall left considerable room for doubt as to just how much noise the complainant could or did make when she had had her head forced back, been hurt by what was done to her, was frightened, and was struggling against an adult male much larger than she was, all the while being aggressively told to be quiet.

  9. The same analysis is applicable to the contention that, if Ms M was kicking and scratching the applicant, it is implausible to conclude that he could have gotten her pants down and assaulted her as alleged. The applicant was an adult male and the complainant a young girl. It was entirely open to the jury to accept that the struggles of a child of that age against an adult male may have troubled the male very little, and did not prevent him from doing, as the complainant told her mother, what he wanted. It was also open to the jury to regard the description of the applicant securing Ms M with a hand across her mouth and then chest, his legs pressing on her, and by using the weight of his body, as a credible one. That he could, by using his greater strength, size, and weight overcome her attempts to fend him off was a conclusion available to the jury. I do not regard Ms M’s account of what happened to her as at all implausible or incredible. Rather, and very sadly, it has – on transcript – the ring of truth. How much better was the jury placed to make that assessment having seen Ms M give that account.

  10. The applicant’s final argument, that the complainant’s personal circumstances were such that she should have been considered an unreliable witness, must be very firmly rejected. The applicant appeared to suggest in both written and oral submissions that the complainant was an inherently unreliable witness because she was a “troubled” child. It was argued that because Ms M was someone who was unsupervised by her mother, who slept away from home regularly, who used cannabis, and who behaved badly at school, she was not to be believed. That submission comes close to a suggestion that there is a class of child witness, being the socially disadvantaged, materially deprived, and behaviourally troubled child, who should be treated as inherently incapable of truthfulness or accuracy. That submission, if accepted, would deprive an entire cohort of children of the protection of the law, and condemn them to being victims, as well as liars or confabulators. It is contrary to our system of individual justice, which relies upon a jury carefully assessing the evidence of each witness individually by reference to what the witness said and how the witness presented in the context of the whole, and not because of the witness’ assumed social or material worth.

  11. It is not the task of this Court to traduce a jury’s verdict because it was returned despite inconsistencies in the accounts of witnesses or other evidence. Criminal trials rely upon evidence drawn from the recollections of witnesses. It must be recognised that human memory is fallible and there will almost inevitably be at least some differences in the accounts of individuals who saw and heard the same event. The jury has the important role in our system of justice of examining the evidence, and deciding what of the evidence may be accepted, and what rejected. Here, the members of the jury were alert to the inconsistencies between accounts of witnesses and well aware of the unsatisfactory nature of some aspects of some witnesses’ testimony, as the jury notes made clear. In making findings of fact on the basis of the evidence as it was before the court, the jury had the benefit of being able to assess the witnesses called to give evidence, assisted by the addresses of trial counsel, and the directions of the trial judge. Its members discharged their duty and returned a verdict that was open.

  12. Having assessed the whole of the evidence, I am well satisfied that the verdict of the jury was neither unreasonable nor unsupported by the evidence. The orders I propose are:

  1. Extend the time to file the application for leave to appeal as necessary;

  2. Grant leave to appeal; and

  3. Dismiss the appeal.

  1. YEHIA J: I have had the benefit of reading the draft judgment of Wilson J. I have made my own assessment of the evidence given at trial. Following that assessment, and having regard to the matters outlined by Wilson J, I have concluded that it was open for the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

  2. The notes sent by the jury demonstrate that the jury was alive to the differences in the evidence of the witnesses about the sleeping arrangements. It was clear that the jury gave careful consideration as to how those discrepancies may impact upon the reliability of the complainant. In the end, and after careful consideration, the jury was satisfied beyond reasonable doubt that the complainant was both credible and reliable. I agree with the proposed orders of Wilson J.

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Endnote

Amendments

27 April 2023 - Pseudonymisation of witness referred to in paragraph [21] to protect the identity of the complainant.

Decision last updated: 27 April 2023

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AJ v R [2022] NSWCCA 136
M v the Queen [1994] HCA 63
M v the Queen [1994] HCA 63