Neuendorf v The King - [2023] SASCA 13

Supreme Court of South Australia
(Court of Appeal: Criminal)
NEUENDORF v THE KING
[2023] SASCA 13
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
23 February 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - JURY DELIBERATION - CONFLICTING EVIDENCE
The applicant was charged, and following a trial by jury, was convicted of one count of aggravated indecent assault, in contravention of s 56 of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending involved a single allegation that the applicant indecently touched the complainant’s vagina while they were sleeping together in a tent during an overnight camping trip. The complainant was the applicant’s granddaughter, who was seven years old at the time of the alleged offending.
The applicant seeks permission to appeal against his conviction on the sole ground that the verdict is unreasonable and unable to be supported by the evidence.
Held, per the Court, dismissing the appeal:
1.Having regard to the evidence as a whole, the jury was not required to entertain doubt as to the credibility or reliability of the complainant’s evidence as to the alleged offending, and hence as to the applicant’s guilt of that offending.

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 2017 (SA) ss 12AB, 13BA, referred to.
Dansie v The Queen [2022] HCA 25; DES v The Queen [SASCFC] 32; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Parker v The Queen [2022] SASCA 8; Pell v The Queen (2020) 268 CLR 123, considered.

NEUENDORF v THE KING
[2023] SASCA 13
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: Following a trial by jury, the applicant was convicted of one count of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act1935 (SA). The complainant is the applicant’s granddaughter.
The offending was alleged to have occurred during a camping trip in January 2014. It involved a single incident of the applicant indecently touching the complainant’s vagina while they were sleeping together in a tent. The complainant was born in January 2007, and so was seven years of age at the time of the alleged offending. The charge was aggravated by reason that the complainant was under the age of 14 at the time of the offending.
The applicant seeks permission to appeal against his conviction on the sole ground that the verdict was unreasonable and unable to be supported by the evidence.
Leave to appeal was referred for hearing as on appeal.
The prosecution case
The prosecution case at trial relied largely upon the evidence of the complainant, which was given at a pre-trial special hearing held on 9 August 2021. It was recorded and received pursuant to s 12AB of the Evidence Act 1929 (SA). The complainant was 14 years of age at the time of giving evidence.
The prosecution also called evidence from EC, who was the initial complaint witness, and from AD, who was the complainant’s mother, and whose evidence included an elaboration upon the initial complaint. The prosecution also led evidence from CB, who was a friend of the complainant’s father.
The complainant’s evidence
The complainant commenced her evidence in chief by answering several questions about her personal circumstances including her age, family dynamics and upbringing. She was asked about her relationship with the applicant and gave evidence that she spent quite a lot of time with him while growing up, including living with him for a period.
The complainant said that she often used to go camping in Renmark with the applicant. She said that she could not always remember the particular instances of camping, but that she remembered “snippets of some of them”.
The complainant described a specific camping trip to Renmark in January 2014. When asked how she knew it was that month, she explained that the camping trip was a couple of days after her seventh birthday. She said that she had received a quad bike for her birthday which she had taken with her on the camping trip. She said that the trip lasted two days and that they stayed overnight. She gave evidence that those present included her father, her grandfather (the applicant), some of her father’s friends, and some of the children of her father’s friends. The group stayed at a property owned by CB, who was one of her father’s friends. The property had a number of connecting houses and units situated on it.
During cross-examination, the complainant said that she had a broken leg at the time of the camping trip, and that she either had a cast on her leg or had just had the cast taken off. She said that she was nevertheless able to ride the quad bike.
According to the complainant, the applicant brought his Toyota Hilux utility vehicle on the trip, and it had a tent affixed to the top of it. The complainant said that she slept the night with the applicant in the tent affixed to his vehicle. She said that only she and the applicant had slept in the tent. Several photos of the applicant’s vehicle with an affixed tent were tendered during the complainant’s evidence.
The complainant said that, early the next morning, she woke with her back to the applicant and realised that the applicant was touching and stroking the outside of her vagina underneath her clothing in a repetitive stroking, or “up and down sort of motion”. She said that the touching continued for several minutes; that she did not know what was happening; that she was tired and was tossing and turning, trying to get back to sleep; and that eventually the applicant stopped. There was no allegation of penetration.
The complainant’s evidence was that she was not wearing underwear at the time, but that she could not recall if she was wearing pants or a shirt. Under cross-examination, the complainant initially said that she could not have been wearing long pants at the time because she recalled “skin-to-skin contact”; however, when pressed on this point, she later conceded that she may have been wearing pants at the time. Her evidence remained consistent that the applicant had touched her underneath her clothing; that is, he touched her directly on her skin.
The complainant said that she did not initially tell anyone what had happened. She explained that she did not feel the need to tell anyone at the time because she “didn’t know what it was.” Whilst she always had a memory of the incident, “it wasn’t constantly playing on [her] mind.” But her memory of the incident started coming back when she was a little older, perhaps nine, 10 or 11 years of age.
The complainant said that the first person that she told about the incident was her friend EC. She said that this occurred in 2019 or 2020. She said that the reason that she could not recall the timing with more precision was because “this process has taken ages”.
The complainant described the initial complaint as made in EC’s caravan. She said that she and EC were watching movies and talking, and were about to go to sleep, when it “just kind of came up”. She said that, at that time, they did not plan to do anything about the incident.
The complainant said that she had further conversations with EC about the incident. She thought that these conversations would have occurred in EC’s caravan, because that was where they would be alone and able to talk on their own.
The complainant said that she told her mother about the incident around six months after telling EC. The complainant said that she told her mother the same thing that she had told EC.
The complainant was asked about the nature of her relationship with the applicant since the alleged offending. She described it as being “just like a normal relationship between a grandad and a granddaughter”, and that she would still see him several times a month when she would go to visit her father. She said that she had never spoken to her grandfather about the incident, and that it had never happened again.
EC’s evidence
The prosecution relied upon a video recorded police interview of EC (the complainant’s friend, and the initial complaint witness). The record of interview was received pursuant to s 13BA of the Evidence Act. EC was 13 years old when interviewed by police on 2 May 2020. The recording was played to the jury and no further questions were asked of EC.
In her interview, EC said that she was there to speak to the police about her friend’s allegation that “her grandpa touched her somewhere”. She said:
Um, well we were at school one day, I’m pretty sure it was at recess it was a couple of weeks ago… she said that she remembered something… from when she was younger and she wanted to tell her mum but she wanted to tell me first, she said that she was sleeping in a tent with her grandpa and she woke up and she felt her grandpa touching her somewhere.
EC went on to say that the complainant used the words “down there” to explain where she was touched, and that she understood this to mean that the applicant had touched the complainant’s vagina. EC was asked whether the complainant had gone into any detail about where and when the alleged offending had occurred. EC described the complainant using the words “in a tent” and “when she was younger”, but said that the complainant did not provide any additional detail.
EC said that they did not speak further about the event other than EC advising the complainant to tell her mother about what had happened. EC said that the complainant had asked her not to tell anybody else what she had told her, and EC confirmed that she had not done so.
AD’s evidence
The prosecution called evidence from the complainant’s mother, AD, who was also cross-examined.
AD’s evidence commenced with an overview of the complainant’s relationship with her father and the applicant, including questions about the contact she had with them over time. AD gave evidence that the complainant’s relationship and contact with her father were somewhat sporadic. She said that while growing up, the complainant went on some holidays with her father, including day trips and overnight trips, but that these did not occur often.
AD was asked if she recalled a camping trip occurring at the start of 2014. She said that “a trip occurred” but that she could not remember exactly when. She confirmed that she did not attend this camping trip. AD said that she could not recall the reason for the trip but agreed that the complainant had received a quad bike for her birthday and that the trip may have been for the complainant to try out her bike. She confirmed that the complainant’s birthday was on 22 January. She recalled that the complainant was in a cast at the time of her birthday in 2014, having broken her leg in December of the preceding year. She said that the complainant had her cast removed in about February or March 2014.
During cross-examination, AD was pressed on the timing of the camping trip. It was put to her that the camping trip occurred later in the year. She said that she was unsure exactly when the trip occurred, and acknowledged that it could have been later in 2014.
AD also gave evidence as to the complainant’s elaboration upon the complaint she had made to EC. AD said that on 23 April 2020 she was eating dinner at home with the complainant and her other daughter. She said that the complainant told her that “her grandad… had touched her inappropriately when they were camping”. She said that she asked the complainant what she meant, and that the complainant clarified that he had touched her “between her legs”.
AD said that this was the first time she had heard of the incident and that the next day they told the complainant’s father and notified police.
CB’s evidence
CB gave evidence about his relationship with the complainant’s father, explaining that he had met the complainant through her father. CB confirmed that his family has a property at Paringa in the Riverland.
CB gave evidence that the complainant’s father would often camp at his family’s property and that there was an occasion when the applicant had also camped at the property. He said that on that occasion, he, his children, the complainant, and the applicant had camped at the property. During cross-examination, he also gave evidence that on that occasion another adult, JM, was present. He could not remember if the trip was for a specific reason or occasion. CB said that the children had had been playing with go-karts that he had owned. When asked whether they had used his ski boat during that trip he said that he could not recall, but that it was possible that they had.
CB was shown photographs of the applicant’s vehicle and confirmed that it was on his property during the trip. He could not recall precisely where the vehicle was set up during the trip, but said that the applicant did not stay in any of the houses or units situated on the property, but rather camped with his vehicle.
The defence case
The defence case was that the alleged offending did not occur.
The applicant was not called to give evidence. No witnesses were called by the defence.
In cross-examination of the prosecution witnesses, and in submissions, defence counsel emphasised several inconsistencies and other inadequacies in the evidence, contending that they undermined the complainant’s credibility and reliability.
In particular, defence counsel pointed to aspects of the complainant’s evidence that conflicted with the evidence of EC in relation to the initial complaint, as well as expressions of uncertainty within the complainant’s own evidence. The defence case was that these inconsistencies and inadequacies in the evidence left a reasonable doubt as to the applicant’s guilt.
The appeal
The applicant complains that the verdict was unreasonable and unable to be supported by the evidence. In his written and oral submissions, the applicant relies upon several suggested inconsistencies and inadequacies in the evidence, particularised as follows:
a.the complainant herself expressed doubts as to whether the incident had occurred;
b.the complainant’s evidence about the initial complaint demonstrated inconsistencies with the evidence of the complaint witness as to when and in what circumstances the complaint was made; and
c.the evidence displays inadequacies and lacks probative force such that it was not open to the jury to be satisfied of the applicant’s guilt beyond a reasonable doubt.
The principles governing a complaint that a verdict is unreasonable are well known and remain as expressed by the High Court in M v The Queen.[1] The Court must ask itself “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”.[2] In other words, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt as to the accused’s guilt.[3]
[1]     M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie v The Queen [2022] HCA 25 at [8] (the Court); Parker v The Queen [2022] SASCA 89 at [ 33]-[41] (Livesey P, Lovell and Doyle JJA).
[2]     M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[3]     Libke v The Queen (2007) 230 CLR 559 at [113] (Heydon J); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (the Court).
In undertaking this task, the Court must make its own independent assessment of the evidence.[4] It must determine whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the charged offence.[5] Ultimately, it must determine “whether the Court’s assessment of the totality of the evidence leaves the Court with a reasonable doubt as to guilt which the Court cannot assuage by having regard to such advantage as the [trier of fact] can be taken to have had by reason of having seen and heard the evidence at trial.”[6]
[4]     M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ).
[5]     Dansie v The Queen [2022] HCA 25 at [16] (the Court).
[6]     Dansie v The Queen [2022] HCA 25 at [16] (the Court).
As mentioned earlier in these reasons, the prosecution case was based largely on the evidence of the complainant. If the jury accepted beyond a reasonable doubt the credibility and reliability of the complainant’s evidence, then this provided a sufficient basis for the applicant’s conviction. The issue in this case was not the sufficiency of the evidence, but rather the credibility and reliability of the complainant’s evidence. Accordingly, the issue for this Court is whether the inconsistencies and other inadequacies in the evidence relied upon by the applicant undermined the complainant’s credit and reliability to such an extent as to require that a reasonable jury entertain a doubt about the applicant’s guilt.
In making this determination, this Court does not disregard or discount the fact that the jury is the body entrusted with primary responsibility for determining whether guilt is established beyond a reasonable doubt, or that the jury had the advantage of having seen and heard the witnesses evidence in the context of the totality of the trial. However, as recently explained by this Court in DES v The Queen,[7] it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or other witness, will be determinative. As the High Court explained in Pell v The Queen:[8]
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.
[7] DES v The Queen [SASCFC] 32 at [80]-[83] (Doyle J, Kourakis CJ and Livesey J agreeing).
[8] Pell v The Queen (2020) 268 CLR 123 at [39] (the Court) (footnotes omitted).
In that case, the High Court emphasised that when considering the significance of any inconsistencies or other inadequacies in the evidence, it is important to remember that the ultimate question is not whether it was possible that the alleged offending did occur as alleged by the complainant, but rather whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt present as to the applicant’s guilt.[9]
[9] Pell v The Queen (2020) 268 CLR 123 at [46] (the Court).
It is against this background that this Court must assess each of the particulars advanced by the applicant in support of his contention that the verdict was unreasonable and unsupported by the evidence.
Particular (a)
By his first particular, the applicant submits that that the complainant expressed doubt and uncertainty in various aspects of her evidence, both in relation to various surrounding circumstances and, indeed, in relation to whether the alleged offending in fact occurred.

As to the former, the applicant relies upon the complainant’s evidence to the effect that:
·she was “not a hundred per cent sure” whether past camping trips were regularly to the same location;
·she was not sure whether there were times that they went to that location without other children, and was not sure whether other children who were often at the location were absent at the time of the alleged offending;
·she was not sure whether some of her father’s friends were present on the occasion of the alleged offending;
·she was not sure whether the applicant had a dog with him at the time of the alleged offending;
·she was not sure what sleepwear she was wearing at the time of the alleged offending, and whether it was a cold and windy night; and
·she was not sure whether she was “tossing and turning”, or whether the applicant was patting her on the back because she was tossing and turning.
In our view, not much can be made of these expressions of uncertainty in the complainant’s evidence. There are several reasons for this. The first is that most of them relate to peripheral matters of detail in the complainant’s evidence, with only the last two relating to the circumstances of the offending itself. Given the passage of time, and the complainant’s young age at the time of the offending, it is to be expected that she might have difficulty in remembering some matters of detail. The second is that the complainant’s evidence on these topics did not generally involve instances of inconsistencies or uncertainty arising out of assertions of detail that she made in her evidence. They were not instances of her proffering detail that she then recanted from, or became uncertain about. Rather they were generally instances where she was frank from the outset in acknowledging that she was not able to be clear or certain. The third is that the complainant’s evidence on these topics tended to illustrate her understanding of the need to distinguish between the matters where she was certain about what happened, and those matters where she was not certain. A reading of her evidence as a whole reveals a witness who was attempting to observe this distinction. The fourth is that, as developed below, the complainant’s expressions of uncertainty about various matters of detail may be contrasted with the certainty with which she maintained her evidence as to the physical act constituting the alleged offending; that is, the touching of her vagina.
Bearing in mind the combined effect of the above considerations, we do not think that the equivocation or uncertainty in the complainant’s evidence on the topics listed above provides any basis for concluding that the jury must have entertained a reasonable doubt about the credibility or reliability of the complainant’s evidence as to the alleged offending.
Moving then to the applicant’s contention that the complainant expressed doubt or uncertainty about whether the alleged offending occurred, the applicant points to the following concessions made by the complainant in the course of her evidence in chief and cross-examination:
·when it was put to her that she didn’t tell anybody when the incident came back to her mind, she said “Yeah I didn’t tell anyone”. Asked “is that because you weren’t sure about what happened?”, she replied “Yeah”;
·she agreed that when she spoke to her friend EC about the alleged offending she still wasn’t quite sure what had happened;
·she agreed that she said to EC that “I think this kind of happened”;
·she agreed that in an interview with the police there were occasions when she questioned whether or not this had occurred;
·she agreed that it is fair to say that “over the past number of years when the thoughts have come back into your head, you’ve gone back and tried to remember what’s happened and you’ve picked up bits and pieces – I think you have said snippets of memory to try to recreate what’s happened and what led to this”; and
·she agreed that some of her “snippets” of memory could be wrong; that she wasn’t really sure what had happened; and that she had pieced it all together and this is now her memory of the event, made up of all those pieces.
In assessing the significance of these concessions of uncertainty made by the complainant, it is necessary to do so in the context of the complainant’s evidence as a whole.
In her examination in chief, the complainant described in clear terms, as summarised earlier in these reasons, the circumstances in which the applicant touched her vagina. She then elaborated upon her recollection and understanding of the incident in the following terms:
Q.      Did you tell anyone what had happened during the trip?
A.      No.
Q.      Why not?
A. I’m not really sure. I just – it didn’t – I don’t remember thinking about it afterwards, but I didn’t feel the need to tell anyone because I didn’t know what it was.
…
Q.    Have you always had a memory of this happening?
A. Well, I think I would have but it just wasn't constantly playing in my mind, like every second of the day.
Q.      Did you think of it from time to time?
A.      Yeah.
Q.      Do you mean over the years?
A. No. Mostly I think I was a bit older, like around like nine, 10, 11, it started to come back a little bit.
Q.      But it still wasn't something that you thought about all the time?
A.      No.
…
Q.      When you say it came back, what do you mean by that?
A. Like, the memories of it kind of just came back into my mind and I started thinking about it like from time to time, just little snippets of it.
Q.      So you are talking about something that was there but you weren't thinking about?
A.      Yep.
Q.      And it came back into your direct thoughts.
A.      Yeah.
Q.      When was that?
A.      The first time I remember thinking about it was like when I was around like 10.
Q.      Did you tell anyone about it at that point?
A.      No.
Q.      Why not?
A. Because I think I was just scared. I didn't know what it was. I didn't know why I thought about it.
During her cross-examination, the complainant was pressed as to her recollection of the incident:
Q.      So is it fair to say that it pretty much left your mind straightaway?
A.      Yeah.
Q. And then it first came back some, when you were nine to 11 years old or something, in that period of time.
A.      Yes.
Q. You didn’t tell anybody about the second occasion – sorry, that occasion when it came back to mind.
A.      Yeah, I didn’t tell anyone.
Q.      Is that because you weren’t sure what happened?
A.      Yeah.
Q. And it left your mind again and didn’t come back essentially until you told [EC], is it?
A.      Yes.
…
Q. Is it fair to say that when you spoke to [EC] you still weren’t quite sure what had happened?
A.      Correct, yeah.
Q.      And you actually said to her ‘I think this kind of happened’.
A.      Yes.
Q. When you were talking to police about [EC], you said ‘I told her what I thought had happened’.
A     Yep.
Q. And even in that interview with police, when you spoke with them, there were occasions when you questioned whether or not this had occurred, is that right?
A.      Yes.
Q. Is it fair to say that over the past number of years when the thoughts have come back into your head, you’ve gone back and tried to remember what’s happened and you’ve picked up bits and pieces – I think you have said ‘snippets’ of memory?
A.      Yeah.
Q.      To try and recreate what’s happened and what led to this.
A.      Yes.
Q.      And that some of those snippets I think you have agreed could be wrong.
A.      Yes.
Q.      You weren’t really sure what had happened.
A.      Yep.
Q. But you’ve pieced it all together and this is now your memory of the event, made up of all of those pieces.
A.      Yes.
Q. So it is possible then that you have got mixed up in the reconstruction of what occurred.
A. Possibly some of the snippets, but I think the whole foundation that I remember waking up to him was – that was a hundred-per-cent, that’s what I remember it was, yep.
Q.      So you could be confused about other children being there.
A.      Yes.
Q.      You could be confused about how your father got there.
A.      Yes.
Q.      You could be confused about how many times you’ve stayed with grandpa.
A.      Yes.
Q.      Could you be confused about whether this occurred with someone else, say.
A.      No.
Q.      On an occasion camping with somebody else.
A.      No.
Q.      Under all the same circumstances.
A.      No.
It was only at the very end of the complainant’s cross-examination that defence counsel challenged the complainant directly as to her recollection of the physical act constituting the alleged offending:
Q. Can I just finally suggest, I think I may have already touched on it, but if I suggested to you that your memory is incorrect, your grandfather didn’t actually do what you have said would that be correct or not?
A.      No, that wouldn’t be correct.
Q.      So if I suggest he did not touch you on the vagina, would that be correct or not?
A.      That wouldn’t be correct, no.
The complainant was also re-examined by the prosecutor regarding the reason that she had used the word “think” in her complaint to EC:
Q.      You were asked questions about when you told [EC] you used the word 'think'.
A.      Yep.
Q.      Can you just clarify for us why you used the word ' think'?
A. It was because I think it was such a touchy subject that I didn't want to be really out there and just say 'this happened to me.' So I just kind of said I think that this had happened, because I wasn't really sure and I was just trying to piece the things together and tell her what I thought had happened, so I just used the word 'think' because I didn't want to just say like 'this and this' I just didn't want to be bold when I said it.
Q.      But you knew that it had happened.
A.      Yes.
There is no doubt that the complainant expressed herself in uncertain terms at times in her evidence, and, indeed, that taken literally she appeared at times to express doubts about whether the alleged offending occurred. However, read more closely, and as a whole, we do not consider this to be a fair reading of the complainant’s evidence.
The first point to note is that each of the expressions of uncertainty relied upon by the applicant occurred within a relatively short passage of the cross-examination, as extracted above. This passage occurred towards the end of the cross-examination, after the complainant had been cross-examined at some length about the detail of the camping trip during which she said the offending occurred, and other surrounding circumstances. As already mentioned, she acknowledged some uncertainty about various of these details and circumstances. At least some of her references to the potential for uncertainty and reconstruction in her recollection – particularly her references to “pieces” and “snippets” of what occurred – may be understood as references to her evidence as to these details and circumstances, as opposed to the alleged offending itself.
Further, the relevant passage from the complainant’s cross-examination needs to be understood against the background of the complainant’s evidence in chief. As set out, the complainant made it plain in her evidence in chief that whilst she was able to describe what happened to her, she did not tell anyone about it at the time because she “didn’t know what it was”. Whilst she maintained that her memory of what happened was “something that was there”, it was not something that she thought about much until she was a few years older. Even then, she did not tell anyone about it because she was “scared”, “didn’t know what it was” and “didn’t know why [she] thought about it”. Properly understood, the effect of the complainant’s evidence in chief was not that she was uncertain about what physically had occurred, but rather that she did not initially understand what had happened to her; that is, she did not understand the significance or character of what had happened. It was only as she aged that she began to think about, and process, what had happened. This is hardly unexpected given that the complainant was only seven years of age, and sexually naïve, at the time of the offending.
In our view, it was open to the jury to conclude that in expressing uncertainty about what had happened – even when speaking to EC and the police – the complainant was referring to her difficulty in understanding and processing the proper character and significance of what had occurred, as opposed to her equivocating about the physical act that had occurred.
This interpretation of the complainant’s evidence is supported by the fact that towards the end of the relevant passage from the complainant’s cross-examination, when it was suggested to her that she might have been confused about, or to have reconstructed, what occurred, the complainant acknowledged that this was possible as to “some of the snippets”, but denied any doubt about the physical act itself. She said “but I think the whole foundation that I remember waking up to him was – that was a hundred-per-cent, that’s what I remember it was, yep.” The complainant was similarly emphatic in her evidence in the passage from the end of her cross-examination, rejecting as incorrect the suggestion that the applicant did not touch her on the vagina.
Given the complainant’s certainty when asked directly about the alleged offending, it would seem that her earlier references to uncertainty about what had happened or occurred are better construed as uncertainty about matters of detail or about the significance and proper characterisation of what had happened or occurred. Certainly the jury were entitled to take that view.
Understood in this way, we are not persuaded that the expressions of uncertainty in the complainant’s evidence provide a basis for concluding that the jury must have entertained a doubt as to the credibility or reliability of the complainant’s evidence, and hence as to the applicant’s guilt.
Particular (b)
By his second particular, the applicant relies upon what he contends were the inconsistencies between the accounts of the complainant and EC regarding when and in what circumstances the initial complaint was made.
As detailed earlier in these reasons, the complainant described first telling EC about the incident in EC’s caravan around six months prior to telling her mother (with her mother giving evidence that the complainant spoke to her in April 2020). The complainant also gave evidence that she had more than one conversation with EC after making the initial complaint.
On the other hand, EC’s account was that the complainant had told her about what happened “a couple of weeks” prior to EC giving evidence, and that the conversation occurred while the two were at school. EC gave evidence that the two did not speak of the incident again, but said that she continued to advise the complainant to tell her mother what had happened.
It is trite that, in considering the degree of consistency associated with complaint evidence, it is relevant to have regard to both the consistency between the terms of the complaint and the terms of the complainant’s evidence as to the offending, and the consistency of the complainant’s conduct in making a complaint to a person, and in circumstances, that one might expect. Here, the applicant does not challenge the consistency of the complainant’s conduct in either of these respects. Nor could he. The complaint made to EC, and elaborated upon when speaking to AD, was consistent with the offending described by the complainant in her evidence. And the complainant gave an explanation for the timing of her complaint, and why she complained to EC and then her mother.
The applicant’s challenge to the complainant’s evidence under particular (b) is confined to the inconsistency between the complainant’s evidence, and the evidence of EC, as to the timing and location of the complaint made to EC. While the divergence between the evidence of the complainant and EC in this respect was a matter to which the jury was required to have regard, we are not satisfied that the jury were required to regard it as a matter of much moment. In our view, it was entirely plausible – and the jury were entitled to proceed on the basis – that EC had not recalled the first occasion upon which the complainant raised the allegation of offending with her, but rather had recalled one of their subsequent discussions. While the complainant thought that their subsequent discussions had occurred in the caravan (because that was when they would have been alone), we do not think it particularly significant that she or EC might have been mistaken about the location of one of their conversations.
In short, we do not think that the divergence between the evidence of the complainant and EC as to the precise timing and circumstances of the complaint made by the complainant to EC required that the jury doubt the credibility or reliability of EC; at least not to the extent that required that the jury entertain a doubt about the reliability and credibility of the complainant’s evidence as to the alleged offending, and hence as to the applicant’s guilt.
Particular (c)
By his third particular, the applicant submits that as a result of the deficiencies expressed in particulars (a) and (b), the evidence displays inadequacies and lacks probative force such that it was not open to the jury to be satisfied of the applicant’s guilt beyond a reasonable doubt.
This particular was not developed in written or oral submissions. As we understand it, it is intended merely to address the cumulative effect of the matters addressed in particulars (a) and (b). Having already canvassed our reasons for concluding that the matters addressed under those particulars do not individually provide a basis for impugning the jury’s verdict, it remains to state our conclusion that we are also satisfied that their cumulative effect was not such as to require that the jury entertain doubt as to the credibility or reliability of the complainant’s evidence as to the alleged offending, and hence as to the applicant’s guilt of that offending. Upon our independent assessment of the evidence as a whole, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged.
Conclusion
We would grant permission to appeal but dismiss the appeal.