O'Connell v The The King - [2022] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O’Connell v R [2022] NSWCCA 213
Hearing dates: 17 June 2022
Date of orders: 07 October 2022
Decision date: 07 October 2022
Before: Ward P at [1]
Mitchelmore JA at [3]
Lonergan J at [116]
Decision:
(1) Grant leave to the applicant to file the Notice of Appeal after the expiry of the filing period.
(2) Grant leave to appeal.
(3) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – sexual intercourse with a child under 10 years and aggravated indecent assault – victim three years old – no direct evidence of acts the subject of the offences – evidence of witness about applicant sending videos by phone recording the two acts – WhatsApp exchanges between applicant and witness relied on as admissions and tendency evidence – evidence of second witness shown video of indecent assault by applicant on her phone
CRIME – appeals – appeal against conviction – extension of time in which to seek leave to appeal

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M(2), 66A, 578A
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Evidence Act 1995 (NSW), s 191
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(1)(b) and (5)

Cases Cited:
AJ v R [2022] NSWCCA 136
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Libke v R (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
SKA v R (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Rhiannan Lee O’Connell (Applicant)
Regina (Crown)
Representation:
Counsel:
T Hennessy (Applicant)
E Nicholson (Crown)
Solicitors:
P Williams and Company Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/201083
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 November 2019

Before:

Beckett DCJ

File Number(s):

2018/201083

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 22 November 2019, following a five-day trial in the District Court of NSW, a jury found the applicant, Rhiannan Lee O’Connell, guilty of one count of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW) (“Count 1”), and one count of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act (“Count 2”). The victim (“the child”) was aged three years at the date of the offences, and the applicant babysat her from time to time. The child did not give evidence in the trial.

The Crown relied on the evidence of the applicant’s husband, Mr O’Connell, and another man with whom the applicant formed a relationship, Mr Crews. Mr Crews gave evidence that the applicant sent him two videos by phone. Mr O’Connell gave evidence that after she returned home one evening from babysitting the child, the applicant showed him a video on her phone.

The first video that Mr Crews recalled receiving (he deleted it shortly after receipt) depicted an adult finger stroking the vulva of a young girl (being the act the subject of Count 2). Mr O’Connell’s evidence of the video that the applicant showed him on her return from babysitting the child was very similar to that of Mr Crews. Although neither the young girl nor the adult was identifiable from the video, Mr O’Connell’s evidence was that the applicant told him that it was her stroking the child’s vulva. The Crown relied on Mr Crews’ evidence of what he saw on the video, and the similarity of Mr O’Connell’s evidence of what he saw on the video that the applicant showed him.

The second video that Mr Crews received from the applicant (which he had also deleted) depicted a woman, whom he identified as the applicant, performing oral sex on a young girl (being the act the subject of Count 1). The Crown relied on Mr Crews’ identification of the applicant in the video.

Additionally, the Crown relied for both counts on a series of WhatsApp and SMS exchanges between the applicant and Mr Crews which related to the child and were explicit in their terms. They described, amongst other things, sexual acts that the applicant claimed to have performed on the child (on which the Crown relied as admissions) and referred to the “videos” that Mr Crews had received from the applicant. The Crown relied on the WhatsApp exchanges as tendency evidence of the applicant’s sexual interest in the child. It also relied respectively on the evidence of the other count (if accepted by the jury) together with charges to which the applicant pleaded guilty, which included aggravated film a person engaged in a private act (relating to 15 photographic images of the child in her underpants located on her mobile phone) and produce child abuse material (which related to the WhatsApp exchanges between the applicant and Mr Crews on three dates).

The applicant gave evidence at the trial. Her evidence was that the video said to depict Count 1 showed a woman performing oral sex on a doll. The applicant said that she had downloaded the video from the internet, cropped it, and sent it to Mr Crews. She denied the existence of the other video of which Mr Crews, and Mr O’Connell, gave evidence. She accepted that she had sent Mr Crews the WhatsApp exchanges on which the Crown relied as admissions and tendency evidence, but said that she had written them to arouse Mr Crews, who had a sexual interest in children, and that while she did not like that side of him she fabricated the messages to encourage their relationship.

The applicant sought leave to appeal, out of time, against her convictions on the sole ground that the jury’s verdicts were unreasonable and could not be supported having regard to the evidence.

The Court (Mitchelmore JA, Ward P and Lonergan J agreeing), granting an extension of time to file the appeal, granting leave to appeal, but dismissing the appeal, held:

In relation to Counts 1 and 2:

Although there was no direct evidence of the applicant engaging in the conduct the subject of Count 1 and Count 2, the Crown case on both counts was strong, and the whole of the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offences: at [1]-[2], [8], [105], [116].

Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 followed.

It was open to the jury to accept Mr O’Connell’s evidence as to what he was shown and what the applicant said while showing it to him. His evidence was corroborated by Mr Crews whose evidence about the video bore a striking similarity to the conduct of which Mr O’Connell gave evidence. The inconsistencies on which the applicant relied regarding the evidence they gave about what they saw on the video did not diminish the probative force of their respective evidence: [1], [107]-[109], [116].
The WhatsApp messages exchanged between the applicant and Mr Crews were powerful evidence, referring to the sending of “videos”, containing admissions on the part of the applicant as to engaging in conduct the subject of the charges, and otherwise showing that she had a strong sexual interest in the child. It was well open to the jury, having regard to the extent and nature of the messages that the applicant exchanged with Mr Crews, to reject the applicant’s explanation that the messages were a work of fabrication: [1]-[2], [110]-[113], [116].

Judgment

WARD P: I have had the advantage of reading in draft the judgment of Mitchelmore JA, with whose conclusions I agree. The question for determination on this appeal, as her Honour has noted, is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the relevant offences (see M v R (1994) 181 CLR 487; [1994] HCA 63 at 493 per Mason CJ, Deane, Dawson and Toohey JJ; SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA) at [11]-[14] per French CJ, Gummow and Kiefel JJ, as her Honour then was) or, differently phrased but to the same effect, whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt (see Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J). This requires an assessment of the whole of the evidence, not simply as to its sufficiency but also as to its quality (see SKA at [14]).
Mitchelmore JA has summarised the relevant evidence at the trial and I do not here repeat it. I have made my own independent assessment of the evidence, including the messages contained in Exhibits A and B and the transcript of the evidence given at the hearing. On my assessment of that evidence (in particular, the import of the communications between the applicant and each of Mr O’Connell and Mr Crews) and having regard to the matters outlined by Mitchelmore JA, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on both count 1 and count 2; and that it is not the case that the jury must have entertained a doubt as to the applicant’s guilt. Accordingly, I agree with the orders proposed by Mitchelmore JA.
MITCHELMORE JA: On 22 November 2019, following a five-day trial in the District Court of NSW, a jury found the applicant, Rhiannan Lee O’Connell, guilty of one count of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW), and one count of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act. The applicant seeks leave to appeal those convictions.
The sole proposed ground of appeal is that the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence. As the proposed ground gives rise to a question of fact alone, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The application for leave to appeal was filed out of time, meaning that the applicant also requires leave pursuant to r 3.5(1)(b) and (5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
I would grant leave to the applicant to file the application for leave out of time and grant leave to appeal. However, for the reasons set out below, I consider that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the two offences for which she was convicted. Accordingly, I would dismiss the appeal.

Leave to file the application for leave to appeal

As noted above, the application for leave to appeal was filed out of time. The background to the late filing is that on 15 July 2020, shortly after the applicant was sentenced, she filed, through her instructing solicitor, a notice of intention to appeal. Her solicitor filed subsequent applications for an extension of time to apply for leave to appeal on 12 January 2021 and 3 May 2021. No further application for an extension of time was made. The notice of appeal was not filed until 9 February 2022.
In an affidavit affirmed on 16 June 2022, the applicant’s solicitor provided an explanation for the failure to seek a further extension of time. He deposed to encountering a number of difficulties associated with the COVID-19 lockdowns in NSW, working from home and coordinating home schooling for his two children with his wife. The failure to apply for a further extension of time was due to an “administrative oversight” on his part, as was the delay in filing the application for leave to appeal. He deposed that the applicant had at all times confirmed her instructions to proceed with her conviction appeal. I accept the solicitor’s explanation (which was not challenged) and would grant leave to file the application out of time.

The proposed ground of appeal: the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence

Applicable principles

The High Court recently restated the principles regarding unreasonable jury verdicts in Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 at [8]-[10], by reference to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. In Dansie, the Court described the function of a Court of Criminal Appeal in determining an appeal on this ground as follows at [7]-[8]:

“… the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a Court of Criminal Appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function 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’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.”
[Footnotes omitted.]

The Court in Dansie at [9] set out what it described as the “carefully crafted” passage in M v The Queen at 494-495 regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

“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 [on the unreasonable verdict ground]. 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 a 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.”

In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38], the Court referred with approval to the statement in M v The Queen that the jury’s advantage in seeing and hearing the witnesses was capable of resolving a doubt experienced by a court of criminal appeal as to the guilt of the accused. The Court in Pell described this statement as reflecting “the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court”. Similarly, in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Court emphasised the need for appellate deference to be accorded to the verdict of a jury, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury: at [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ.
A distinction between the present appeal and cases such as Pell, where “the principal evidence against an accused person is given by a complainant” (cf AJ v R [2022] NSWCCA 136 at [103]), is that the victim of the offences for which the applicant was convicted was three years old at the time. By the time of the applicant’s trial, she was six years old. She was not called to give evidence.
The law prohibits the publication of anything which could identify the child named in the indictment: Crimes Act, s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Without intending any disrespect, I will refer to her throughout these reasons as “the child”.

The Crown case

The applicant pleaded not guilty to the following two charges on the indictment:

1. Between 1 January 2017 and 30 June 2017, at [a suburb on the Central Coast] in the State of New South Wales, did have sexual intercourse with [the child], a child then under the age of 10 years, namely 3 years.
S 66A(1) Crimes Act 1900 Law part code 85916
…
2. Between 1 January 2017 and 30 June 2017, at [a suburb on the Central Coast] in the State of New South Wales, did assault [the child] and at the time of such assault committed an act of indecency on [the child], a child then under the age of 16 years, namely 3 years.
S 61M(2) Crimes Act 1900 Law Part code 67803

The Crown relied on the evidence of three witnesses:

Timothy O’Connell, who was married to the applicant at the time of the offending conduct;

Mark Joseph Crews; and

Detective Senior Constable Katy Locke, who was the officer in charge of the investigation.

The Crown also relied on a number of SMS and WhatsApp message exchanges, primarily between the applicant and Mr Crews. The exchanges between the applicant and Mr Crews, which were from various dates between 29 April 2017 and 29 February 2018, were admitted as agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) and were Exhibits A and B in the trial.
Exhibit D also comprised agreed facts relating to each of the applicant, Mr O’Connell and Mr Crews. Exhibit D stated that the applicant had entered pleas of guilty to the following offences:

Aggravated film a person engaged in a private act, which related to 15 photographic images of the child, date stamped 17 September 2017, which were located on the applicant’s mobile telephone.

Intentionally record image without consent, which related to three photographic images of another young person, date stamped 2 March 2018, which were located on the applicant’s mobile telephone.

Produce child abuse material, which related to WhatsApp message exchanges between the applicant and Mr Crews on 5 May 2017, 16 July 2017, and 17 September 2017. (These exchanges were included in Exhibit A.)

Distribute intimate image without consent, relating to the applicant sending three photographic images of the other young person to Mr Crews via WhatsApp on 2 March 2018.

Exhibit D also recorded that Mr O’Connell had entered a plea of guilty to the offence of possess child abuse material, relating to approximately 50 images located on his laptop computer; and that Mr Crews had entered a plea of guilty to three counts of disseminate child abuse material, relating to the WhatsApp message exchanges with the applicant on 5 May 2017, 16 July 2017, and 17 September 2017.
In the course of her evidence, DSC Locke explained that written conversations can constitute child-abuse material at law. She also provided a description of the 15 photographic images of the child in relation to which the applicant was charged with, and pleaded guilty to, aggravated film a person engaged in a private act. According to DSC Locke, the 15 images were of the child in a state of undress (she was wearing underwear) which appeared to be focussed on the child’s genital areas.

The evidence of Timothy O’Connell

Mr O’Connell met the applicant in 2004 and commenced a relationship with her in 2005. There was a period of around three months in 2015 when they were separated, but they reunited and were living together in 2017.

According to Mr O’Connell, the applicant would babysit the child “[a]bout once or twice a month”, generally at night-time and generally on her own, although Mr O’Connell joined her “about six times a year”.
One evening in the first half of 2017, the applicant returned home from babysitting. When the applicant joined Mr O’Connell in bed, she told him that she had touched the child “inappropriately”. According to Mr O’Connell, “[the applicant] said that she wanted [the child] to feel good and so she started playing with her and touching her on the vagina”, using her fingers.
The applicant showed Mr O’Connell a video “of what she did to [the child]”, which was on her mobile phone. Mr Connell gave evidence that in the video, he saw “a close-up of a young, young girl’s groin area with a finger stroking up and down the vagina”. He saw the finger move up and down the middle of the vagina. The Crown Prosecutor subsequently clarified with Mr O’Connell that when he referred to the “vagina” in his evidence, what he meant was the “vulva”. Mr O’Connell did not see the finger depicted in the video enter the young girl’s vagina.
Mr O’Connell’s evidence was that the video was taken “close up” and at an angle focussed “over the vagina”, such that he could only see from around the young girl’s “lower belly” down to somewhere around her upper legs. The video ran for no longer than about half a minute on his estimate. He could not identify the person whose finger was depicted in the video and he did not hear any words spoken (although he did hear the young girl “giggling”, as it sounded to him). When the applicant showed Mr O’Connell the video, she said “a few times” that the child “was a good girl”, and that it was her (that is, the applicant) stroking the child.
The applicant told Mr O’Connell that she had taken the video “that night”. She said that the touching depicted in the video occurred when she was putting the child to bed; she was putting some lotion on the child for nappy rash and started touching her further. Mr O’Connell did not see the applicant applying lotion in the video: “It was just that’s how she said it started.” Mr O’Connell stated that after they watched the video, he and the applicant had sex. While they were having sex, the applicant told him how touching the child had sexually aroused her.
Mr O’Connell did not see the video again, and he did not have any conversation with the applicant about whether she had deleted it or not. At the time he gave evidence, Mr O’Connell did not know where the particular phone was. He agreed that at some stage in April 2017 their home was broken into and he accepted that it was possible that the phone could have been taken.
Mr O’Connell’s evidence was that a week or two after the applicant showed him the video, she asked him to accompany her to babysit the child so that they “could have some fun with her”. He said “no”. The applicant returned home from babysitting at around 1:00am, and when they were together in bed the applicant told Mr O’Connell that “she had wished that I was there because she had played with [the child] again” and that the child “seemed to enjoy it”. Although the applicant did not say what she meant by “played with”, Mr O’Connell took this to mean that she had played with the child sexually. After this conversation, Mr O’Connell and the applicant had sex, during which the applicant said to him: “she had wished that I was there, because she would have liked to have, been able to see me have sex with [the child]”. The applicant also said that she wanted to “lick her [the child’s], her vagina”.
Mr O’Connell gave evidence that there were times when the applicant had shown him some child pornography. He estimated that this occurred a “few times, maybe five or six times”.
In April 2018, Mr O’Connell reported the applicant’s misconduct to the police. His evidence was that he did not make a report earlier because the applicant was his wife and he loved her, and he did not want to get her into trouble. At the time he made the report, there had been no falling out between him and his wife and they were not separated, but the guilt “had just become too much”. Mr O’Connell said that he was suffering from depression, which had been affecting his work.
In the course of the execution of a search warrant at the couple’s address in April 2018, the police found images of child pornography on Mr O’Connell’s laptop, which was seized. He admitted before the jury in the applicant’s trial that he had pleaded guilty to possession of child pornography. He also gave evidence that he had not received any sentencing discount for giving evidence against the applicant.

Cross-examination

In cross-examination, Mr O’Connell accepted that both he and the applicant were “getting aroused” when she showed him the video; and that they were “engaging in foreplay” at the time, which led them to having sex. He accepted that there were times when he looked at pornographic sites involving teenagers for the purposes of sexual gratification, and there were other occasions when he and the applicant talked about “fantasies” for sexual arousal, including subjects which he described to the police as “taboo”. Mr O’Connell accepted that there were also times when his libido was low and the applicant would discuss things with him to arouse him sexually.
Mr O’Connell agreed that there was nothing on the video that enabled him to identify the young person, or to identify the person whose finger was touching the young person, and that he relied entirely on the applicant having told him that it was the child. As to the lighting of the room in which the footage was taken and the clarity of the footage, Mr O’Connell could not tell if it was day or night but he said that the lighting was sufficient for him to be able to make out what was depicted.
Mr O’Connell accepted that in the course of looking for child pornography involving teenagers (which he defined as “13 to 18”) he may have seen “some others” who were not teenagers. He denied having an interest in children but he accepted that he and the applicant would look online from time to time for content related to children.
On the occasions when Mr O’Connell attended the child’s home with the applicant, he believed that there were occasions when the applicant changed the child’s nappy. However, he never saw the child on a lounge “playing with herself”. He accepted that this may have happened while he was not there but he did not see anything like it.
The applicant’s counsel put the following propositions to Mr O’Connell, his response to which was that each was false:

The applicant never told him that she touched the child in a sexual way.

The applicant never told him that she had touched the child on the area of the outside of the genitals.

The applicant never showed him a video as he had described.

Exhibit A

The Crown tendered Exhibit A at the conclusion of Mr O’Connell’s evidence and before Mr Crews was called to give evidence. As I noted above, it primarily comprised a series of exchanges between the applicant and Mr Crews, via SMS and the WhatsApp platform. The jury were provided with copies of Exhibit A while the solicitor for the Crown read the document onto the record.
The Crown relied on the exchanges in Exhibit A for a number of purposes. As I will come to shortly, the Crown relied on some of what the applicant wrote in the exchanges as constituting admissions on her part as to the offending conduct. The Crown also relied on the exchanges as proof of the applicant’s tendency to have a particular state of mind, namely, a sexual interest generally in very young female children and, in particular, the child. I note in passing that the Crown relied on two further types of evidence for that purpose. First, and only if the jury were satisfied beyond reasonable doubt of the applicant’s guilt in relation to either of the counts on the indictment, the evidence was cross-admissible in respect of the other (undecided) count, depending on the order in which the jury undertook its task. Secondly, the Crown relied on the offences to which the applicant pleaded guilty, which were set out in Exhibit D.
The exchanges between the applicant and Mr Crews that form part of Exhibit A, including messages in relation to the child, are explicit and confronting (as are the exchanges in Exhibit B, to which I will come). As I noted above in the context of Exhibit D, WhatsApp exchanges on three of the dates were the subject of the separate charge of producing child pornography to which the applicant pleaded guilty.
Although I have read and considered Exhibit A in its entirety, I have sought to limit extracts from the explicit exchanges as far as possible. Reference to some of the content is necessary in order to contextualise the evidence of Mr Crews and the applicant, both of whom gave evidence about and were cross-examined upon the exchanges in some detail.

The evidence of Mark Joseph Crews

Mr Crews described meeting the applicant online in 2015. His friendship with the applicant progressed to a romantic relationship. They met in person four or five times, and had sex on a number of those occasions. Mr Crews was aware that the applicant was married, and he met Mr O’Connell on one occasion.
As part of Mr Crews’ relationship with the applicant, they engaged in a mutual interest in child pornography. In June 2018, he was arrested for offences involving child pornography. As reflected in Exhibit D, he pleaded guilty to three counts of disseminating child abuse material. Mr Crews received no discount on sentence for giving evidence against the applicant.
Mr Crews gave evidence that the applicant sent him two videos in “late 2016, early 2017”. In the first video, he saw “a very young girl and … a hand applying lotion to her vaginal area”. Mr Crews could only see the young girl from “the waist down” to “about her knees”, and he thought the image was filmed “from above and to the left”. He saw one finger touching the vulva area and did not see the finger penetrate the vagina. In his words, the finger “was applying the lotion to the vulva area so just – yeah, just stroking, I guess”. Mr Crews estimated that the video went for between 30 and 60 seconds. He did not see the faces of the participants; he did not recognise the finger; and he did not recall any sound.
Mr Crews’ evidence was that he received this first video from the WhatsApp account that he used to communicate with the applicant. He believed that the video depicted the child. Mr Crews knew the child’s name, but he and the applicant referred to her in their WhatsApp exchanges as “M3”, the “3” being a reference to the child’s age. The applicant told Mr Crews that the video was taken whilst she was babysitting. He believed that the applicant was in the video because it came from her WhatsApp account; and he recalled discussing it with her over WhatsApp, with each of them talking about how it made them feel “aroused”. Mr Crews gave evidence that he deleted the video not long after he received it, using “a file shredder app” which deleted files “in such a way that they cannot be recovered”.
Mr Crews recalled receiving a second video from the applicant in which he remembered “seeing a young girl who, who was naked from the waist down and then I saw Rhiannon [sic] perform oral sex on her”. As with the first video, he could not see the young girl’s face on the second video, with the angle of the camera being side-on and “just from the hips, her hips down”. Mr Crews identified the applicant because he “could see the side of her face”, and he saw her “licking her, the young girl’s vulva”. He could not recall whether the applicant’s tongue penetrated the lips of the young girl’s vulva, but he recalled seeing her tongue and believed that the applicant was giving the young girl oral sex. Mr Crews believed that the young girl depicted in the second video was the child.
As with the first video, Mr Crews estimated that the second video was “about 30 to 60 seconds in length”. The applicant and Mr Crews also spoke about how the video made them feel; his recollection was that the applicant said words to the effect that it made her “feel aroused”. He used the same “file shredder app” to dispose of Video 2.
Mr Crews was then taken to portions of the WhatsApp messages in Exhibit A. In one message exchange, dated 5 May 2017, he wrote to the applicant that “M3”, being the child, “is a wild mess now thanks to you”. He said that he meant by this that the child was aroused “because of what happened in the videos”. He clarified that this was a reference to the applicant performing oral sex on the child as depicted in the second video; he had a distinct recollection of this video and confirmed that it was “not a fantasy”.
Mr Crews’ attention was also directed to a particular message from the applicant on 22 May 2017, in which she wrote about the child lying on the lounge and exposing herself (to use a sanitised description) and said that it made her “excited and terrified”. When asked about his response to the applicant, in which he wrote, “Lol, why terrified? I doubt she’ll remember what you did to her”, Mr Crews said this was a reference to what the applicant had done to the child in the videos she had sent him.
When directed to another exchange with the applicant, on 11 August 2017, in which they discussed what they wanted to do to the child in explicit terms, Mr Crews confirmed that the exchange was not about something in which he had participated or seen occur, and was a fantasy. By contrast, in an exchange on 16 July 2017, in response to a suggestion from the applicant that he would want to feel a specific part of a baby’s genitalia under his fingers or tongue, Mr Crews wrote “[w]ell you know how that feels hehe”. Mr Crews’ evidence was that this was a reference to “the content of the two videos”. The applicant’s response to that message was “I’m not going to lie, fucking amazing”.
As part of the same exchange on 16 July 2017, Mr Crews sent a message to the applicant shortly thereafter which stated, “I still remember those videos”, to which the applicant replied, “Hard to forget”. Mr Crews’ evidence was that his next message, the precise terms of which I will not set out, referred to the first video, being “the one where lotion was being applied”. The immediately following messages were:

“Mr Crews: I wish I could watch them again.
Applicant: Me too.”

In the ensuing messages in the same exchange (again, I will not set out the precise terms), Mr Crews expressed a desire to see the applicant rubbing the child’s vagina, which he said was a further reference to the first video. He also wrote in a subsequent message that the applicant “got to taste it”, which was a reference to “the second video where [the applicant] performed oral sex on the child”. Similarly, in response to a message from the applicant on 17 September 2017 in which the applicant wrote, “Sometimes I look at her and still cannot believe what I’ve done with her”, Mr Crews wrote, “I know I can’t believe you fingered and licked her, tasted her”. Mr Crews’ evidence was that he was referring to the videos in which he saw the applicant doing these things.
Before Mr Crews was cross-examined, the Crown tendered Exhibit B, which contained a short number of additional messages between Mr Crews and the applicant, dated 17 June 2017 and 19 October 2017. As with Exhibit A, I have read and considered the content of Exhibit B, which the solicitor for the Crown also read on to the record before the jury.

Cross-examination

Mr Crews was cross-examined on his personal circumstances when he met the applicant. Initially, in 2015, he lived alone in Erskineville. Around the end of 2016, due to deteriorating mental health, he moved back in with his mother and stepfather. In September 2017, he moved into a flat in Botany. Mr Crews accepted that he and the applicant had sex “on a number of occasions” at various locations and communicated “quite a lot electronically”.
Mr Crews agreed that his exchange of sexual fantasies with the applicant were “two-way traffic”. Sometimes he was the “initiator” and sometimes she was. He said that the purpose was for them both to become sexually aroused. He accepted that some of the fantasies involved the applicant saying things online as if she were with him and physically doing things to him, which he reciprocated. Mr Crews also accepted that he had a “baby girl and daddy” fantasy which involved the use of those nicknames for each other.
When asked about the timing of his receipt of the two videos of which he gave evidence in chief, Mr Crews was unable to be more specific than “the earlier part of 2017”. He accepted that he had tried to forget the details of the videos, and that he could not precisely remember which video was sent first, although his “feeling” was that it was the video depicting the touching. Mr Crews was asked about that video, which the applicant’s trial counsel referred to as “Video 1”. It was put to Mr Crews that he had no idea how old the young person in Video 1 was, to which he replied: “[n]ot from the video, no”. He agreed that there was nothing on the video by which he could identify the young person, or the person applying the lotion, and he accepted that he made an assumption about whom and what it depicted, based on the source of the video as opposed to what he saw in it.
Mr Crews was shown an exchange of messages between him and the applicant in Exhibit B, which dated from 17 June 2017 and in which the applicant wrote that the previous evening, the child had “a rash all over her vagina so I had to rub cream over her and do you know how hard that was to do it normally?”. Mr Crews denied that he had substituted that message for a memory of there being a video. He also denied that was any possibility that he only saw one video, being the second video, and somehow thought he saw another.
In relation to the second video, which was referred to in the cross-examination as Video 2, Mr Crews said that the lighting “wasn’t great because it was on a – being filmed on a phone”. However, in response to the proposition that this impacted his ability to discern what he was looking at, Mr Crews replied, “I believed I could see what … I was looking at”. He accepted the possibility that the video could have been as short as ten seconds in duration but possibly a bit longer. He also accepted that there was nothing from the video that allowed him to make a conclusion about the age or identity of the child.
As to the adult person in Video 2, Mr Crews accepted that he did not see the full face of the person, only the person’s face in profile, from the forehead area down to the bottom of the jaw, including the ear and hairline. He was unable to describe the applicant’s hairline. He agreed that as a matter of common experience, there could be big variations as to how the same person appeared in different photographs. Mr Crews accepted that what he saw was “fairly limited”; he was unable to say anything about the person’s hair colour, and with the video quality he could not see anything to indicate the colour of their eyes. There was then the following exchange:

“Q.  Can I suggest this to you, that again, this was an item that came from a profile tied to Ms O’Connell, you agree with that?
A.  That’s right.
Q.  Is it the situation that you made a conclusion that because it came from her, it was her?
A.  I believe it was her based on the context of our conversations.
Q.  All right. So one of the things that you took into account when you came to the conclusion that it wasn’t someone who looked similar to her but was in fact her, one of the things that you took into account was the fact that she told you that it was her?
A.  She did not tell me in words that it was her.
Q.  She indicated that it was her, didn’t she, through various other conversations that you had?

A. Yes, in some cases.”

It was put to Mr Crews that around the time he received Video 2, the applicant sent him a photograph of herself smiling with the caption that said “[i]t tastes good”. Mr Crews did not recall this happening, although he could not exclude it as a possibility. When it was put to him that he had “jumped to a conclusion” that the person he saw in Video 2 was the applicant and not anyone else, he reiterated his belief that it was the applicant. That said, he accepted that when he came to that belief, he was (as it was put to him) “taking into account, consciously or subconsciously, the fact that it came from her account and the fact that she didn’t dissuade [him] from coming to the view that it was her”.
It was put to Mr Crews that Video 1 never existed; he denied that proposition. It was also put to him that Video 2 depicted someone other than the applicant. Mr Crews replied that he did not believe that it was somebody else, and then accepted that when he said he did not believe that, his belief was based on a combination of things including where it came from, and his conversations with the applicant afterwards.

The evidence of Detective Senior Constable Locke

DSC Locke, who was attached to the Central Coast Child Abuse Unit, was asked about the circumstances which led to the child being interviewed by police on 5 April 2018 and 17 April 2018, namely, the attendance of Mr O’Connell at Wyong Police Station on 4 April 2018. DSC Locke confirmed that the child made no disclosures about any offences committed against her in those interviews.
DSC Locke confirmed the seizure of the applicant’s mobile phone, a Samsung Galaxy S7 Edge, upon the execution of a search warrant at the O’Connells’ address, which the applicant confirmed was hers and for which she provided the PIN. She was taken to a COPS Event which recorded the applicant’s report of a break-in at the O’Connells’ address made on 15 April 2017, including the theft of a Samsung Galaxy S5, which the police never recovered. DSC Locke gave evidence that on the applicant’s seized phone there were 15 photographs of the child and three images of another young person (being the images in relation to which the applicant entered pleas of guilty (see Exhibit D)). The WhatsApp messages led to the detection of Mr Crews who, as noted above, was arrested and charged with dissemination of child abuse material.

Cross-examination

In cross-examination, DSC Locke accepted that in the approximately 1,700 screenshots of WhatsApp messages between the applicant and Mr Crews, there was “a lot of chit chat” between the two of them which was “just innocuous” (for example, things about football games and diets).

The applicant’s case

The applicant gave evidence, commencing with the background to her relationship with Mr O’Connell, including their temporary separation in 2015. She gave evidence about Mr O’Connell’s history of depression and his resistance to pharmacological treatment.
The applicant denied that she had ever told Mr O’Connell that she touched the child in a sexual way, including on the vagina. She also denied that she had ever taken a video of herself touching the child’s vagina or that such a video ever existed, or that she had ever taken a video of herself applying lotion to the child’s vagina. The applicant said that she had applied lotion to the child “once or twice” when she was babysitting and the child had a nappy rash. She accepted that she had referred to this in a message to Mr Crews.
The applicant gave evidence that she would babysit the child “[p]robably once every two to three months” as the “very last resort”. When asked about the child exposing herself on the lounge (see [46] above), the applicant said that this occurred when Mr O’Connell and the child’s sister were both present. She agreed that she told Mr Crews about this act.
The applicant explained the circumstances in which she met Mr Crews and gave evidence that she and Mr Crews started using WhatsApp after the break-in at her house in 2017. The applicant said that they used to provide each other with “emotional support”. They would also have conversations in relation to child pornography, although her evidence was that this was “[n]ot as often as we spoke about other things”. The applicant said that she met Mr Crews physically on five occasions, on three of which they had sex.
The applicant denied taking, and sending to Mr Crews, the video which he described as her touching the child. She denied that there was a video of her applying lotion to the child. In relation to Video 2, being the video about which Mr Crews gave evidence involving the act of oral sex, the applicant’s evidence was:

“It came from somebody else that I was speaking to on Skype. They sent it through and they told me that it was a doll in the video. They were talking about these dolls that you can get in Japan which are very much – well they’re – to put it bluntly, they’re pretty much used as an aid to help paedophiles act out their urges.”

The applicant described cropping the video “down to about ten to 15 seconds” so that it showed a woman “giving the doll oral”. She explained that the video depicted “the side of the woman’s face, the doll’s vagina, and the woman licking the doll’s vagina”, correcting this to “vulva”. Although the original video lasted for two or three minutes, the applicant did not look at the full video; rather, she “found what [she] could crop out of it and forwarded it on”. Her purpose in sending it to Mr Crews was to make him think that she was “the one that got away”, given his expressed interest in children. Straight after sending Mr Crews the video, the applicant sent him a photo of herself, with the caption “Tastes good”, intending that he connect the video with her. Although she did not tell Mr Crews at the time that it was her in the video, she said that in the WhatsApp message exchanges she made comments directed to the video, as did he. At no stage did she tell Mr Crews that it was not her in that video.
The applicant was directed to a message she sent to Mr Crews on 5 May 2017, in which she referred to the occasion where she saw the child expose herself (see [46] and [64] above) and attributed the child’s act to “a few rubs and one session of licking”. The applicant said that she sent the message to remind Mr Crews “of what I had previously told him”. Although she had not engaged in what was described in the message, the applicant’s evidence was that she wrote this to remind Mr Crews of something she said she had done, to “make him aroused”. She advanced the same explanation for sending the messages referred to at [47] above, and a further series of messages on 17 September 2017 in which she referred to Mr Crews being present whenever she had sexual thoughts about the child. In relation to a message she sent to Mr Crews the same day, in which she wrote, “I want to lick her again so much you have no idea”, the applicant denied having done that at all; rather, she wrote this because Mr Crews had brought it up, having sent a message talking about “the videos”. As to a message she sent to Mr Crews on 6 January 2018, in which she responded affirmatively to a question from Mr Crews about whether she still thought about the child’s “taste”, the applicant said she responded affirmatively to “keep up the pretence” that the video was actually her.
At the conclusion of her examination in chief, the applicant agreed that she had done a number of things to which she had pleaded guilty but that she did not do the things that were the subject of the trial:

“Q.  Particularly in relation to the first video, it never existed?
A.  Yes.
Q.  In relation to the second video, it was something that you made up from something that you received on the internet?
A.  Yes.
Q.  And then you had these conversations with Mr Crews to make him think that you were involved?
A.  Yes.”

Cross-examination

The Crown commenced cross-examination of the applicant with questions about Video 2. The applicant explained that she believed that Video 2 depicted a doll because it “didn’t move like a child would”. Her evidence was that her message on 16 July 2017, about Mr Crews feeling a specific part of a baby’s genitalia (at [47] above) was about the doll; she was referring to what Mr Crews had expressed in the past and she “knew just to say stuff like that which would make him aroused”. As to Mr Crews’ response, that the applicant knew “how that feels”, she believed that he was referring to the video of the doll and her further response was just following on from what he was saying. In describing the child as a “slut” in her further reply, the applicant was “sexualising the fact that [the child] climbed on the lounge and exposed herself” (see [46] above). When the Crown Prosecutor put to her that her message was not about that incident but was instead about what the Crown alleged occurred in Video 2, the applicant said that the conversation encompassed both the child exposing herself and the fake video. The applicant could not, however, point to where in the messages on this date there was any reference to the child exposing herself on the couch before her message describing the child as a “slut”. The Crown Prosecutor put to her that her comment about the child being a “slut” was a reference to, in effect, Video 2. The applicant denied this proposition.
The applicant was next cross-examined about a series of message exchanges with Mr Crews on the same day, which followed a reference to the child having exposed herself on the couch. These messages included explicit descriptions about the child’s vagina, including Mr Crews writing that the applicant had “got to taste it” and the applicant writing that the child was “probably wanting” the applicant to perform oral sex on her “again” (in more explicit terms than I have just used). When asked if this was a reference to Video 2, the applicant said that it was a reference to what she wanted Mr Crews to believe about that video. As to the applicant’s speculation in a message about what the child might do sexually when alone, she said that this was a reference to her earlier conversations with Mr Crews where they “discussed grooming young children for sexual acts”.
In the context of the Crown Prosecutor returning to Mr Crews’ message about still remembering “the videos” and the applicant’s reply, “Hard to forget”, the applicant gave the following evidence:

“Q.  So we’re talking about the videos, aren’t we, and what happened in the video. This –
A.  When he said ‘videos’ I was actually quite confused as to what he [meant] by ‘videos’ because as far as my knowledge was, that I’d only sent him one.
Q.  But you don’t say that, do you?
A.  Well, I wasn’t about to admit the truth to him.
Q.  What do you mean?
A.  Because I thought that this was what he wanted and therefore I kept up the pretence because I was very emotionally attached to him. He was a big emotional support in my life. This was a side of him that I actually didn’t like at all, but I wasn’t about to get rid of someone that I had a strong emotional attachment to.”

The applicant clarified that the side of Mr Crews that she did not like was his fantasies about child pornography, and that she used child pornography “as a manipulative thing to actually keep him in my life”. Further questioning on Exhibit A led to the following evidence:

“Q.  So you didn’t just send a couple of messages, did you?
A.  No.
Q.  You sent all of these over a period of, let’s just check the first one that was – and that’s just the ones that are here. 19 February 2017, the last one being 28 February 2018?
A.  Yes.
Q.  Over a whole year, you’re saying you didn’t like that aspect of him but you were prepared to use it so that he’d be sexually interested in you, is that what you’re asking this jury to accept?
A.  More than sexually interested, yes.”
[…]
Q.  What do you mean by that?
A.  He had a mental checklist of, what his perfect ideal woman was and one of the things on the checklist was a common interest in this and I wanted to tick as many boxes on that checklist.
Q.  Are you seriously expecting this jury to believe that over a period of a year, you engaged in extensive discussion about child pornography so that you could tick of a box of an interest he had?
A.  I was really infatuated with him, I –
Q.  Is that what you’re asking this jury to accept?
A.  Yes.”

The applicant denied that she fantasised about child pornography. She accepted that she pleaded guilty to taking the photographs of the child but she said that was very different to fantasising about the child sexually. She also said that she did not realise at the time that the photographs constituted child pornography because the child was “covered”. The applicant accepted that she “obviously was seriously mistaken”, and that she had made the same mistake in relation to the photos she had taken of the other young person.
When the applicant was asked about her stolen phone, which she described in a message to Mr Crews on 29 April 2017 as a “blessing or an arrest waiting to happen”, she said that she was worried about four images she downloaded from an internet site which “looked like child pornography”. She denied being worried about Video 2 because she “would have had the norm – the entire video that I cropped on my phone”. The applicant said that she would be happy if the stolen phone was recovered.
The applicant was taken back to the WhatsApp exchange of 16 July 2017, and a message that she had sent to Mr Crews which described a sexual act which she said she would “maybe” do “next time” to the child. The applicant denied that this was a reference to Video 2, but was instead another reference to the child exposing herself, which she said “horrified [her] actually” rather than aroused her, as she “wasn’t aware that a child could do something like that”. When asked about the explicit terms in which she expressed how the child exposing herself made her feel, the applicant said that she was “making out that that made me aroused” and that Mr Crews liked it when she was “explicit”. Explaining why she said in the messages that she was “excited and terrified”, the applicant replied that by “excited” she was keeping up the façade, while the “terrified” referred to the child continuing to act in this way, “and then something would happen to her”. She explained further that she was worried that talking about the child touching or exposing herself might show that “[the child] had been sexually assaulted or something”.
When the Crown Prosecutor put to the applicant that the child exposing herself because she (the applicant) “didn’t put her nappy on straight away” was nothing to be terrified about if she had done nothing wrong, the applicant responded that she was “not sure if [the child’s behaviour] constituted as normal behaviour in a child full stop, not having any children [herself]”. She said she was worried it could be a “big problem” but that she “should have brought it up”. When the applicant was again pressed as to why she was worried if she had done nothing wrong, she said:

“Because I was worried that something might have happened and saying it now obviously I should have said something, but I didn’t at the time because I didn’t want to be thought that it was me that done it.”

When it was put to her that the immediately following messages included the applicant writing that she wished she could “do it again”, the applicant said this was just part of the “façade” that she claimed she used to turn Mr Crews on. The Crown then turned to other messages (still on 16 July 2017) in which the applicant wrote, “I wish I could watch them again”, Mr Crews replied, “Me too”, and the applicant replied, “Didn’t want to risk it”. The applicant’s evidence was that the reference to risk was her way of getting out of sending him another “fake video”. The applicant denied that she was making up the fact that it was not her in the video participating in oral sex with the child. Her evidence was that she was just continuing with Mr Crews’ fantasy. At the conclusion of the cross-examination, the trial judge referred the applicant back to this exchange and her statement “I wish I could watch them again” and asked her what she was referring to as “them”. The applicant replied:

“Well, he said videos, so I just said them. I actually recall at the time I’m thinking, well I only sent you one why are you talking about others, thinking that perhaps he had sent me one or two in the past that I had forgotten about.”

The applicant denied that she took a video of herself performing oral sex on the child and sent it to Mr Crews, which caused her to be scared of getting in trouble. She also denied that she touched the child inappropriately and that this was why she described re-watching the videos as a “risk”. The applicant explained that she was in a “very bad spot in [her] relationship and [her] body image” and that she lied to Mr Crews, telling him that she had performed oral sex on the child, even though she never touched or licked the child.
The applicant was then taken through further WhatsApp messages, each of which she described as part of the “façade” or “fantasy”. Her evidence was that she took what she wanted done to her and made it involve a 3-year-old child. She continued to deny that she had performed oral sex on the child. She denied that she did not correct Mr Crews about his reference to the act constituting Video 2 because she had in fact done that act to the child.
The applicant admitted putting lotion on the child, which she initially claimed the child “asked for” (in contrast to a message she wrote to Mr Crews which said that the child “begged” for it), but denied that it was a “sexual thing”. The applicant then resiled from her answer about the child “asking for” the cream to be applied, saying that “it just had to be applied because she had nappy rash”. When asked about the exchange in Exhibit B from 17 June 2017, in which the applicant referred to having to rub cream all over the child’s vagina because she had a rash and wrote, “do you know how hard it was to do normally”, the applicant explained she wrote this to cause Mr Crews to think that she was aroused by it. She denied ever taking a video of such an act, and she denied showing it to her husband at the time and sending it to Mr Crews.
The applicant denied creating opportunities to babysit the child so as to record her doing things to the child; and reiterated that she was the “last resort”. The applicant said that if she was creating such opportunities, she would not have written to Mr Crews that “hopefully” she would be babysitting soon; she would have said she “should” be babysitting soon.
In relation to the names the applicant and Mr Crews used for the child and the other young person, M3 and M10 respectively, the applicant explained that the “M” part derived from a women’s magazine which referred to children as “Mr” or “Ms” with their ages. But she also accepted the lettering was a child pornography term, although she qualified, “I think they’ve actually changed it now, but at the time that’s what it was”. When asked about a message she sent to Mr Crews on 6 January 2018 about the child turning four, which contained an explicit reference to the child’s developing anatomy, the applicant said this was all part of the “fantasy”. In relation to the messages in which Mr Crews asked if she still thought about the child’s “taste”, to which she replied, “I really do”, the applicant continued to deny that her response related to something that had actually happened.
In a message exchange on 17 September 2017, the applicant sent Mr Crews images which she had taken of the child. The applicant’s evidence was that in taking these photos she had enabled that side of Mr Crews (being the side of him that she hated) “too much”. However, she denied that her plea of guilty to the charges relating to the taking of these images involved an admission of having a sexual interest in young children. The applicant also denied that the message she sent on that day, in which she said, “I still can’t believe what I’ve done with [the child]”, was to actually licking and touching the child. Rather, her evidence was that this was “building on the lie more” and “keeping it active”. When taken to further messages in which she said she wanted “to do it again and again”, the applicant said that she did not want to do it at all but only said that she did. As to a further message where she referred to performing oral sex “again”, the applicant denied that she had done the things with which she was charged.

The cross-examination moved to the allegation that the applicant showed Mr O’Connell the first video of her touching the child’s vagina, which the applicant denied. She also denied talking to her husband about what she had done with the child when she was babysitting, or discussing any fantasies that she was perpetuating about babysitting with Mr Crews. The applicant maintained that the child had exposed herself on the lounge when she was babysitting with Mr O’Connell. She said that she asked her husband if he found that arousing, and he said no. When it was put to her that she could not tell her husband that she was aroused by anything to do with the child because that would not fit with her account that her interest was all a façade for Mr Crews, she said that she never spoke to him about it.
The applicant was then taken to a WhatsApp message she sent to Mr Crews on 5 May 2017, in which she told Mr Crews that she had asked Mr O’Connell whether he found what the child was doing on the couch arousing and wrote that her husband replied: “it was only because he knew that I would be aroused by it. Not that I, not what I want but I guess it will do.” The applicant explained that in this message she was trying to make Mr Crews jealous. In relation to the inconsistency between her evidence (that her husband had no interest) and what she wrote in the message to Mr Crews (that her husband was aroused, because she would be aroused by it), the applicant said that she had taken words she and her husband used in role play and transposed them into the message to Mr Crews. There was then the following exchange:

“Q.  Because what actually happened wasn’t it, is that you showed him the video of you touching [the child’s] vagina, when you came back from babysitting –
A.  No.
Q.  – and then you had sex with [Mr O’Connell], didn’t you?
A.  No.
Q.  Because you were aroused by the video?
A.  No.
Q.  And you hoped he would be aroused by the video?
A.  No.
Q.  His reaction was not what you wanted and that’s why you said, ‘Not what I want but I guess it will do’?
A.  No.
Q.  That’s what that message refers to isn’t it?
A.  No.
Q.  You’re making this story up, aren’t you?
A.  No.
Q.  Trying to, as I said, cover up for all of these messages where you talk about child pornography, aren’t you?
A.  I’ve admitted to writing these messages.
Q.  And you were trying to say that you aren’t aroused by the child pornography to limit your involvement in this matter, aren’t you?
A.  I’m as fully as involved as it is, I’m just saying that yes I was involved in it too, a lot. I’m not denying that I wrote these, these messages. I’m not denying anything except for the fact that they actually did not sexually arouse me. I had a completely distant view on this whenever I texted. If I was sitting here talking to him directly about it, I would not be able to.
Q. So you’re admitting to writing them but you’re just saying that it was all Mr Crews that you were setting up the fantasy for?
A.  Yes.
Q.  And you’re shifting the blame to him because you wanted to impress him?
A.  I’m not shifting any blame I’m – the blame’s on me for perpetuating some fantasy that I should have told him to seek help for, that I should have actually ran in the opposite direction as soon as I found out.
Q.  Because –
A.  I wouldn’t be here saying that I manipulated somebody if I didn’t. I would probably sit here and tell you that I was aroused by these messages than tell you that I used child pornography to manipulate someone to fall in love with.
Q.  That’s what you did. You wrote all these messages, didn’t you, all of these child pornography messages, didn’t you, to arouse yourself?
A.  No.
Q.  And you are prepared, aren’t you, to lie to the Court and to police to get out of trouble?
A.  No.”

The applicant denied sending the videos to Mr Crews and showing them to her husband, she denied touching the child on the vagina, and she denied performing oral sex on her. The defence then closed its case. There was no case in reply.

Submissions of the applicant on the appeal

The applicant submitted that this Court should conclude that on the whole of the evidence it was not reasonably open to the jury to be satisfied beyond reasonable doubt of her guilt on Count 1 or Count 2. It was important to bear in mind, the applicant submitted, that there was no objective evidence of the existence of the videos which were alleged to have captured the applicant performing the acts which were the subject of the two counts. Nor was there objective evidence that the videos were in the applicant’s possession at the relevant time. Instead, for Count 1, the Crown relied on the evidence of Mr Crews in relation to Video 2. As to Count 2, the Crown also relied on the evidence of Mr Crews, and the evidence of Mr O’Connell.
In relation to Count 1, which involved Video 2, the applicant submitted that Mr Crews’ evidence identifying the applicant on Video 2 was significant and was undermined by a number of matters. Although his evidence was that he recognised the applicant from her side profile, he had been unable to confirm the hair and eye colour of the person in the video. He was also unable to provide a description of the applicant’s hair line, saying he did not know what it was.
The applicant contended that the WhatsApp messages between her and Mr Crews were consistent with her account that she was engaging in fantasies and using explicit language to ingratiate herself with Mr Crews. She submitted that the messages showed that Mr Crews was very receptive to the content and encouraged her to continue the conversations, giving by way of example his message in July 2017 that he “still remembered those videos”, the reference to which was not prompted by anything she had said in the preceding messages.
The applicant relied on the absence of any disclosures on the part of the child that any offending conduct had occurred when she was interviewed by police officers on two occasions. No further evidence was given by DSC Locke as to the circumstances of the interviews, for example, whether or not the child understood the questions or was suffering from some other difficulty that would have explained the non-disclosure. The applicant submitted that this was inconsistent with Mr Crews’ evidence, and consistent with her evidence that while she sent him a video, it was not of her and the child.
In relation to Count 2, the applicant relied on discrepancies between the evidence of Mr O’Connell and Mr Crews about the content of Video 1:

Both witnesses saw a video of a girl’s genital area being stroked, but they gave inconsistent accounts about whether they saw lotion being applied in the video (Mr Crews said he did, Mr O’Connell said he did not), the angle of the video, and whether they heard any sound on the video (Mr Crews did not give evidence about hearing anything, Mr O’Connell’s evidence was that he heard giggling).

Mr O’Connell said the applicant told him that it was her and the child in the video, whereas Mr Crews’ evidence was that he assumed it was the applicant from the conversation surrounding the video. The applicant, of course, denied that she had shown the video or even that she had made a video.

In relation to Mr Crews’ evidence that he assumed it was the applicant in the videos because he received the videos from the applicant’s WhatsApp account, the applicant relied on the absence of any evidence, in the WhatsApp messages in Exhibit A or in the evidence of DSC Locke, that demonstrated that the videos were sent from that account. The applicant submitted that even if Mr Crews deleted the video from his phone, there was no evidence that she had deleted the message sending the video from the WhatsApp service. The applicant contended that this was significant because Mr Crews’ belief that it was her in Video 2 was based in part on the fact that it was sent via her WhatsApp account.
The applicant again relied on the child not having disclosed any offending when she was interviewed by police. The applicant submitted that this supported her denials and was inconsistent with the evidence of Mr Crews and Mr O’Connell.
The applicant also relied on the passage of time between the witnesses viewing Video 1 and telling police about Video 1, with Mr O’Connell having seen the video only once and Mr Crews having deleted the video shortly after receiving it. Noting that both men gave evidence that the applicant had told them about an occasion or occasions when she applied lotion to the child, the applicant submitted that it was not unreasonable to conclude that their memories may have been altered by their conversations with the applicant, or other material that they watched.
The applicant further submitted that even if her evidence were rejected, the Crown case still suffered from inconsistencies in the evidence of the witnesses and deficiencies and inadequacies which could not have been resolved by the advantages that the jury had in observing the witnesses.

Submissions of the Crown

The Crown accepted that there was no physical evidence about the existence of the videos, in terms of electronic evidence confirming that the videos had been recorded or disseminated (noting that Mr O’Connell’s evidence was that the applicant showed him the relevant video on her phone). However, the Crown submitted that this was consistent with the evidence of the applicant and Mr O’Connell that the applicant’s phone had been stolen when their home was the subject of a break-in, in April 2017. The WhatsApp messages exchanged between the applicant and Mr Crews provided corroborative evidence of the existence of both videos, including as to the date of their creation and their content.
In response to the applicant’s submissions regarding the absence of disclosure by the child, the Crown noted that the trial judge had excluded evidence of complaint, on which the Crown had sought to rely. In the course of argument on the application, trial counsel for the applicant submitted that if the evidence was not admitted, he would not be submitting to the jury that the child had not made any complaint at all. In ruling that the evidence of complaint would not be admitted, the trial judge considered that it lacked probative value in respect of the issues in the trial; it would “questionably” not satisfy the test in s 65 of the Evidence Act and would fail the test in s 66; and it would otherwise engage s 135 or s 137. Immediately after giving that ruling, however, her Honour observed that “if it was to be asserted by the defence that [the child] had never said somebody had touched her then there might be a different application that might arise but that has already been discussed”.
The Crown submitted that the credibility and reliability of Mr O’Connell and Mr Crews was a matter for the jury to assess. While both witnesses had been convicted for offences bearing some relationship to the offences to which the applicant had pleaded guilty and with which she was charged, it was not put to either witness that they had any motive to be untruthful or that they were hostile to the applicant.
By contrast, the Crown submitted that the applicant was an unimpressive witness, with aspects of her evidence being “implausible, internally contradictory and inconsistent with the objective evidence”. Far from constituting a series of fantasy messages, the Crown submitted that the applicant had made a series of admissions in the WhatsApp messages, which the Crown substantiated with a number of examples.
In relation to Count 1, the Crown accepted that Mr Crews’ evidence about the content of Video 2 was a substantial aspect of the case against the applicant. In addition to that evidence, however, the Crown relied on the evidence of Mr O’Connell that the applicant had said to him that she wanted to lick the child’s vagina; and that she regularly babysat the child alone and had told him, after a subsequent babysitting visit, that she had “played with” the child. There were also WhatsApp messages from the applicant to Mr Crews which the Crown submitted amounted to admissions that the applicant had licked the child’s vagina. More generally, the messages on which the Crown relied, and the charges to which she pleaded guilty, demonstrated the applicant’s sexual interest in the child and her willingness to act on that interest.
In relation to Count 2, the Crown submitted that the accounts of Mr O’Connell and Mr Crews were consistent in critical respects, and provided strong evidence that was capable of supporting the jury’s ultimate findings. The differences between their accounts on which the applicant relied – if they were inconsistencies – were slight and consistent with natural differences in perception and focus. In circumstances where both witnesses gave an account of what could readily be inferred to be the same video, together with an account of direct admissions that the applicant made in person (Mr O’Connell) or by WhatsApp message (Mr Crews), the circumstantial case against the applicant was strong.
The passage of time between Mr O’Connell and Mr Crews viewing the video and speaking to police, of between 12-18 months for both witnesses, was insufficient to suggest that their respective memories were inherently unreliable. Further, the Crown noted the improbability that each witness’ memory had been affected in an identical way, so as to form identical false memories as to the content of the video.
In addition to the evidence of Mr Crews and Mr O’Connell, the Crown relied on the WhatsApp messages in which the applicant made admissions that she had sent videos (plural) to Mr Crews, which was inconsistent with her evidence that the video relied on for Count 2 did not exist. She also made admissions in these exchanges that she had rubbed the child’s vulva/genitals. As with Count 1, the Crown also relied on the tendency evidence for Count 2.

Consideration

Having considered the whole of the evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on both Count 1 and Count 2. The matters on which the applicant relied do not call for a contrary conclusion. Although there was no direct evidence of the applicant engaging in the conduct the subject of Count 1 and Count 2, the Crown case against the applicant on both counts was strong.
There was evidence that the applicant babysat the child, which created the opportunity for the conduct the subject of the two counts to take place during the period specified in the indictment. Mr O’Connell’s evidence was that the applicant showed him the video the subject of Count 2 after she returned home from babysitting the child, telling him that it was her stroking the child’s vulva. The applicant’s WhatsApp messages with Mr Crews also contained at least one reference to the applicant hoping to babysit the child again so that she could perform sexual acts on her.
In relation to Count 2, the Crown relied on the evidence of both Mr O’Connell and Mr Crews. Although the Crown did not have a video showing this conduct, it was open to the jury to accept Mr O’Connell’s evidence as to what he was shown and what the applicant said while showing it to him. His evidence as to the content of the video was corroborated by the evidence of Mr Crews that he had been sent a video the content of which bore a striking similarity to the conduct of which Mr O’Connell gave evidence. The differences in their respective accounts, on which the applicant sought to rely, do not diminish the probative force of the evidence of what each could, in substance, see: a young female person on the video and an adult finger stroking the young person’s vulva. The two men had only met on one occasion, and there was no suggestion that they had discussed their evidence, let alone colluded in respect of it.
Mr O’Connell’s evidence was that when the applicant showed him the video, she told him it was her stroking the vulva of the child. Mr Crews did not give evidence of the applicant saying anything of that nature at the time he received the video. However, a number of the WhatsApp messages corroborated his having received the video from the applicant and what it showed, including admissions on the part of the applicant that she had stroked the child’s vulva. In circumstances where the applicant denied having sent this video at all, it was significant that in a number of messages Mr Crews referred to the applicant having sent him “videos”, which she did not, by her contemporaneous responses, query or otherwise disavow (contrary to her evidence in the trial that she only sent one video).
Mr Crews also referred to the applicant having “fingered” the child. It was open to the jury to consider the applicant’s responses (to which I have referred at [49] above) as acknowledging that she had engaged in that conduct. In another message, in telling Mr Crews about an incident in which the child had exposed herself on the lounge, the applicant ascribed the child’s conduct to “a few rubs and one session of licking” (see [68] above).
In relation to the conduct that was the subject of Count 1, by contrast with Count 2 the applicant’s evidence was that she had sent a video to Mr Crews, but that it showed another person licking a young person’s vagina (she believed it was a doll). The applicant’s evidence in this respect undermined the emphasis she sought to give on the appeal to the absence of evidence, on any physical devices, of her sending a video to Mr Crews: there was also no evidence, on any physical device, that the applicant had sent the video to Mr Crews that she accepted she had sent. In any event, the absence of such evidence needs to be considered in circumstances where on the evidence of the applicant and Mr O’Connell (and their report to police), their home was broken into in April 2017 and the phone she had at that time was stolen. The applicant exchanged messages with Mr Crews indicating concern on her part as to what might be found on that phone, on which the Crown relied. Although the applicant said that her concern related to content she had obtained from the internet, it was open to the jury not to accept that evidence.
Mr Crews’ evidence was that he believed that he recognised the applicant in the video depicting the oral sex. The applicant draws attention to the equivocal nature of his evidence regarding the precise features of the person he saw. However, Mr Crews had met the applicant on a number of occasions. Further, and in any event, the Crown case on Count 1 relied on more than Mr Crews’ evidence of what he could recall of the video (having used a file shredding application to delete it). I have set out above the exchanges between the applicant and Mr Crews in which the applicant referred to having licked the child’s vagina, being the conduct the subject of Count 1. It was open to the jury to reject the applicant’s explanation for the content of these messages as being a work of fabrication on her part which was intended to sexually arouse Mr Crews, with whom she hoped to be in a relationship.
It was also open to the jury to take the view that the generally explicit nature of the messages in the WhatsApp exchanges involving the child, and the period over which those exchanges extended, demonstrated the applicant’s sexual interest in the child. Apart from the WhatsApp messages, the Crown also led evidence that the applicant had taken 15 photos of the child and sent them to Mr Crews, which was the subject of the charge of aggravated film a person engaged in a private act charge, to which she pleaded guilty. Although the applicant attributed this conduct to having taken her eagerness to please Mr Crews too far, it was open to the jury to reject that explanation.
In this respect, there is force in the Crown’s submissions that the evidence that the applicant gave at the trial was internally inconsistent and that she gave an account of her exchanges with Mr Crews that was implausible having regard to the extent of the messages and their content. It was certainly open to the jury not to accept her evidence although, of course, it did not follow from rejection of that evidence that the Crown had discharged its onus of proof. The jury was properly directed as to the Crown’s onus, including that the applicant had “nothing to prove at any stage of the trial”. There is no reason to think that the jury misunderstood that direction, the terms of which were not challenged by the applicant.

This was a case where, as the applicant pointed out, there was no evidence of complaint on the part of the child (noting the sequence of the submissions made in relation to the admissibility argument regarding complaint evidence to which I have referred above). However, the absence of direct complaint evidence did not materially weaken what was a strong circumstantial case. Having regard to the evidence as a whole, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of Count 1 and Count 2. The appeal should be dismissed.

Conclusion

I propose the following orders:

Grant leave to the applicant to file the Notice of Appeal after the expiry of the filing period.

Grant leave to appeal.

Appeal dismissed.

LONERGAN J: I have had the advantage of reading in draft the judgment of Mitchelmore JA. I agree with her Honour’s summary of the evidence. Having conducted my own independent assessment of the evidence and examination of the record of the trial, I am of the view that it was well open to the jury to be satisfied of the applicant’s guilt of both charges beyond reasonable doubt. I agree with the orders proposed by Mitchelmore JA.

**********

Decision last updated: 07 October 2022

Medium Neutral Citation:	O’Connell v R [2022] NSWCCA 213
Hearing dates:	17 June 2022
Date of orders:	07 October 2022
Decision date:	07 October 2022
Before:	Ward P at [1] Mitchelmore JA at [3] Lonergan J at [116]
Decision:	(1) Grant leave to the applicant to file the Notice of Appeal after the expiry of the filing period. (2) Grant leave to appeal. (3) Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against conviction – unreasonable verdict – sexual intercourse with a child under 10 years and aggravated indecent assault – victim three years old – no direct evidence of acts the subject of the offences – evidence of witness about applicant sending videos by phone recording the two acts – WhatsApp exchanges between applicant and witness relied on as admissions and tendency evidence – evidence of second witness shown video of indecent assault by applicant on her phone CRIME – appeals – appeal against conviction – extension of time in which to seek leave to appeal
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61M(2), 66A, 578A Criminal Appeal Act 1912 (NSW), s 5(1)(b) Evidence Act 1995 (NSW), s 191 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(1)(b) and (5)
Cases Cited:	AJ v R [2022] NSWCCA 136 Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 Libke v R (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 SKA v R (2011) 243 CLR 400; [2011] HCA 13
Category:	Principal judgment
Parties:	Rhiannan Lee O’Connell (Applicant) Regina (Crown)
Representation:	Counsel: T Hennessy (Applicant) E Nicholson (Crown) Solicitors: P Williams and Company Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2018/201083
Publication restriction:	N/A
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 22 November 2019 Before: Beckett DCJ File Number(s): 2018/201083