Parton v The Queen

[2016] NSWCCA 291

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Parton v R [2016] NSWCCA 291
Hearing dates:	5 October 2016
Decision date:	09 December 2016
Before:	Ward JA at [1]; Harrison J at [87]; RA Hulme J at [88]
Decision:	1.   Grant leave to appeal. 2.   Appeal dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – sexual intercourse with child under 10 – judge alone trial - whether trial judge’s verdict unreasonable and not supported by evidence – whether reasonable doubt as to whether incident the subject of the charge in fact related to conduct the subject of an earlier complaint against applicant – whether lack of specificity of complaint gave rise to reasonable doubt – leave to appeal granted but appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 66A Criminal Appeal Act 1912 (NSW), s 5(1)(a)
Cases Cited:	Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Ryan v R [2009] NSWCCA 183
Category:	Principal judgment
Parties:	Raymond John Parton (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Coady with Mr G Gee (Applicant) Ms N Williams (Respondent)   Solicitors: O’Brien Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/00124997
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 25 August 2015 Before: Acting Judge Walmsley SC File Number(s): 2013/00124997

Judgment

1. WARD JA: The applicant, Raymond John Parton, was convicted on 5 November 2014, following a trial by judge alone in the District Court, of one count of sexual intercourse with a child under the age of 10 years, namely 7 to 9 years, contrary to s 66A of the Crimes Act 1900 (NSW). On the indictment the Crown particularised the offence as having occurred at Yeoval between 4 September 2007 and 21 May 2010. The complainant (KW) was 14 years old at the time of the trial. The applicant is KW’s step-grandfather.

2. The applicant was sentenced on 25 August 2015 to 9 years’ imprisonment commencing on 9 August 2015, with a non-parole period of 5 years 8 months. He now seeks leave to appeal against his conviction on the sole ground that:

The Trial Judge’s verdict is unreasonable, and is not supported by the evidence to the requisite standard of proof.

3. The applicant requires leave to appeal pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) as the ground raised on appeal is a mixed ground of fact and law. Leave to appeal was not opposed by the Crown. As this is a serious offence and having regard to the ground of appeal sought to be raised, leave to appeal should be granted. For the reasons set out below, the appeal should be dismissed.

Background

4. The applicant places considerable weight on the chronology of events, this being identified as the crucial part of his conviction appeal. That chronology may be summarised as follows.

5. KW was born in June 2000. For some time prior to January 2007, KW resided at the Nanima Mission near Wellington with her maternal grandmother (LP) and the applicant (LP’s then de facto partner and later husband). KW’s mother (RW) had left KW and KW’s step-siblings (N,O and K), all of whom were under the age of 10, to live with LP and the applicant at the Nanima Mission due to RW’s problems with drug use. The applicant and LP had three children of their own (D, C and R), with their fourth child (AJ) being born in January 2007. Other than R, who was aged around 18 or 19, and C, who was around 15, most of the children were aged between 3 and 8. In particular, KW’s aunt (D) and her step-sister (N) were close in age to KW.

6. Towards the end of 2006, a complaint was made against the applicant in relation to KW (the first complaint). Other than that it was a complaint as to conduct of a sexual nature, there was no evidence at the later trial in the District Court as to what was alleged to have occurred in 2006. The first complaint was dismissed following a hearing in the Orange Local Court in late 2007. By the time of the District Court trial in 2014, the tape and transcript of the proceedings in that court had been destroyed, apparently in accordance with the Local Court practice. Relevantly, there was no evidence in the District Court proceedings as to how the matter had proceeded during the Local Court proceedings (such as whether or not KW had given evidence or whether any statement by KW had been tendered; nor as to whether there had been any cross-examination of KW or any witness).

7. Prior to the commencement of the District Court hearing the trial judge did, however, glean some information as to the subject matter of the 2006 complaint. This was in the context of an application by the applicant, by notice of motion dated 28 October 2014, for a permanent stay of the proceedings on the basis that it would be an abuse of process to allow the trial to proceed. On that application, as emerges from the transcript of the reasons given for the dismissal of that application as contained in the appeal book in the present proceedings, there was an affidavit from a solicitor in which the earlier allegations were described. His Honour, having regard to the record of two interviews that KW had participated in with police (on 25 February 2011 and 26 July 2012), concluded that the offences alleged were different in form, place and time and that there was no abuse of process in the trial proceeding. There is no complaint about that finding. When the trial judge came to rule on the charge which was before him, he quite properly had no regard to the evidence on the stay application as to the earlier allegations, which did not form part of the evidence at the trial.

8. Going back to the chronology of events, when the first complaint was made (at the end of 2006), RW gave evidence that KW moved back in with RW in Wellington for about a year (T 43.31-43). It is not clear whether the step-siblings also moved back to live with RW at that time. However, by reference to other evidence, to which I will refer shortly, it seems that they did.

9. From early January 2007 (until late August 2010), the applicant’s family rented a house on a farm at Yeoval (this was an agreed fact – Exhibit D). The arrangements for the applicant’s family to move to the farm at Yeoval were made with Mr Lyle Wykes, whose brother owned the property. Mr Wykes had met the applicant in about 2005 and they played in a band together.

10. There was some confusion in the evidence as to which children were living with the applicant and LP when they first moved to the Yeoval house. By around June 2008, at least, KW and her step-siblings were also living in the Yeoval house.

11. LP’s evidence (T 46) was that she, the applicant and their children R, C and D moved to Yeoval and that KW joined them there in 2008. She was “not too sure” but thought KW was with them before the “other kids” (presumably there referring to N, O and K) but said “I think it was 2008 anyway I think” (T 46.30). The trial judge described this evidence as quite indecisive. LP also said that her youngest child (AJ) was born when the family were living at Yeoval (T 45.37). AJ was born in January 2007.

12. RW’s evidence was that a couple of months after the dismissal of the first complaint (which would put this at around November 2007, since the first complaint was dismissed on 5 September 2007), KW asked to go back to live with the applicant and LP. Inconsistently with that, RW also said that she was “pretty sure it might be September” when KW returned to live with the applicant and LP (see T 44.2). RW said that it was another couple of months later that KW’s step-siblings (N, O and K) also went to stay with the applicant and LP at Yeoval (RW said they went there for a holiday and did not return; she denied that they went there because of problems with her drug use) (T 41-44).

13. KW’s recollection was that she was 8 years old when she moved to Yeoval. (She turned 8 in June 2008.) However, her recollection was that she had moved straight from Nanima to Yeoval. She did not recall having lived with her mother for the year before moving to Yeoval (T 8.1).

14. There was also some confusion in the evidence as to where the family was living when AJ was born. As already noted, LP’s evidence was that “we were in … Yeoval” when AJ was born and that he was born at Dubbo hospital. Mr Wykes initially gave evidence that AJ was born at Nanima not long before the family moved to Yeoval, but seems to have attributed his belief as to this to the fact that LP “had to go to Dubbo hospital”. He accepted in cross-examination that he was mistaken about AJ being born while the family was at Nanima.

15. Pausing there, the relevance of where the family was living when AJ was born related to one of the aspects of the complaint made by KW. She gave evidence that the offence occurred on a blue foam blow-up mattress in the lounge-room at Yeoval on which KW said the applicant slept. LP’s evidence was that when she was in the last stages of her pregnancy with AJ the applicant was sleeping on an inflatable mattress in the lounge-room at Nanima but that they did not have that blow-up mattress at Yeoval and that at Yeoval the applicant slept with her in her room (T 46.46). The significance that the applicant attaches to this evidence is lessened in force given the clear evidence of LP that she was living at Yeoval at the time AJ was born, since that logically would mean that she was also in the last stages of her pregnancy at Yeoval and that the reason she gave for the applicant sleeping on a blow-up mattress (that she was restless in the last stages of her pregnancy and the applicant was snoring – T 47.25) would presumably apply equally to the time at Yeoval before AJ was born on 17 January. Her evidence thus did not disprove that the inflatable mattress was at Yeoval at some point (consistent with Mr Wykes’ evidence that he saw it there).

16. A third matter about which there was confusion in the evidence was as to the sleeping arrangements when all the children were living at Yeoval.

17. KW’s evidence was that at the time of the offence she was sharing a bedroom with D (her aunt) and N (her step-sibling). She said that there was LP’s room, a room with K, O and AJ and the room she shared with N and D (see T 4-5). As the applicant points out, that leaves C and R unaccounted for in terms of the sleeping arrangements. LP’s evidence was that at Yeoval there was a room with C and D across from her room, and a room for R (T 46.21). She said that after KW and the other children came, when the girls were little, K, N, O and KW were in a room. (T 51.6). That, however, seems to tally to four rooms and there were only three bedrooms at Yeoval. The discrepancy between the respective accounts is not explained by any other evidence.

18. As to the circumstances in which KW came, in May 2010, to make complaint about the applicant’s conduct, these may be summarised as follows.

19. By May 2010, KW had been spending time (including, though she did not recall this, some overnight stays) at the home of Mr and Mrs Wykes. KW rode horses on their property, which was about 5km from the Yeoval property. One day in May 2010, when KW was at Mr and Mrs Wykes’ home, she refused to return home to the applicant’s house. She did not say why she did not want to return. They allowed her to remain at their place.

20. RW gave evidence that, in July 2010, KW’s step-siblings left the Yeoval home to live with RW in Dubbo (T 42).

21. According to Mr Wykes, in July or August 2010, as he was bringing KW home from a friend’s house in Yeoval, he asked her “Has [the applicant] ever touched you?”. His evidence was that KW replied “Yes, on my private parts” (T 21-22). He did not ask KW anything further. He said that the following day he received a call from the police station and he and Mrs Wykes took KW to the Wellington police station, where Senior Constable Shannon Farmer spoke with her in their presence. Pausing there, Senior Constable Farmer’s statement, which was read onto the transcript at the trial, recorded that on 15 August 2010, KW attended the police station with Mr and Mrs Wykes. Therefore, on Mr Wykes’ account the first disclosure to him must have occurred on 14 August 2010. As to what prompted his question in the first place, counsel for the applicant conceded that the evidence was that KW had become tearful and “was acting in an avoidant manner” and had refused to go back to the applicant’s home, which it was suggested had prompted “some sort of investigation” by the Wykes.

22. As to the interview with Senior Constable Farmer, her statement recorded that she was informed that KW was due to go back into the care of LP and the applicant and that KW did not want to go back into their care “as [the applicant] had previously interfered with [KW]”. In her statement, Senior Constable Farmer recorded that KW appeared upset at the thought of going back to stay with the applicant. The statement continued that “[b]ased on what [KW] told me about the previous incident and its sexual nature”, a Computerised Operational Policing System (COPS) check had been conducted. Senior Constable Farmer found that an event had been previously investigated by the police Joint Investigation Response Team (JIRT). She stated that she informed the Wykes to keep KW in their care until the then Department of Community Services (DOCS) could be notified to follow up the matter.

23. In examination in chief at the trial, Senior Constable Farmer did not remember the exact words that KW had said but she remembered that KW told her that something had happened previously with the applicant, and that it was Mr and Mrs Wykes who informed her that it was of a sexual nature (T 29/30). Asked whether KW had made any allegations of recent sexual misconduct, Senior Constable Farmer said that she had not – “She talked about a previous incident that police had previously investigated”. She said that KW did not say where the previous incident had occurred and had said that “it was a few years back” (T 30). In cross-examination, the officer was asked, and she accepted, that when she looked at the matter that had previously been investigated it related to matters said to have taken place in 2006.

24. On 19 August 2010, at the suggestion of the police, Mr and Mrs Wykes took KW to an interview at the DOCS office at Dubbo. That interview was conducted in the absence of Mr and Mrs Wykes. A DOCS officer, Barbara McLeod, asked a number of questions of KW “in an open and non leading manner”, which her fellow officer (Anthony Thurston) who was present at the interview accepted would allow a free narrative to occur (T 53). At that interview KW did not disclose details of any form of abuse or mistreatment. The DOCS officers were left confused as to why KW was with the Wykes and not her grandmother (LP) or mother (RW) (T 52-53.)

25. At around Christmas 2010, when KW again refused to return to the applicant’s home, Mrs Wykes asked her “did [the applicant] touch you with his private part?”. KW said “Oh, yeah”. On 8 February 2011, Mrs Wykes spoke to a detective from Dubbo police station about that conversation and that afternoon or evening Mrs Wykes said to KW “You’ve got to tell me exactly what [the applicant] did. Did [the applicant] put his private part in your private part”. KW said “Oh, yes” (V Wykes T 34.10-24.)

26. Following this conversation, KW was interviewed on 25 February 2011 by two male police officers at her school. She was 10 years old at the time. The interview was electronically recorded (the transcript is MFI-1). What transpired during the interview is set out in more detail below.

27. Around this time (on the agreed facts it appears this would be around late August 2010), the applicant and LP moved from Yeoval to Blayney. KW said in her February 2011 interview (Q 183-189; Q 202) that “a few weeks back”, D and AJ went with the applicant and LP to Blayney. O, N and K moved to Moree to live with their mother (RW). R moved to Orange. LP’s evidence was that they had to move as they were told the house was being sold. Mr Wykes said they were evicted for non-payment of rent. In any event, by the time of the 2011 interview KW was living with the Wykes and there was some suggestion in the evidence that there had been an application by them for custody of KW, though KW was unable to give any evidence of this.

28. On 23 April 2013, the applicant was arrested and charged with the offence of which he was subsequently convicted. On legal advice, he declined to participate in an electronically recorded interview. The arresting officer (Detective Gollan) agreed that when the applicant was arrested he (i.e., Detective Gollan) told the applicant that he had spoken to the solicitor because there had been some confusion as to whether the matters he was talking about were matters that had been dealt with previously in the Local Court and he agreed that the applicant had some of that confusion too (T 54.49-55.6).

February 2011 interview

29. The video recording of this interview comprised KW’s evidence in chief at the applicant’s trial, together with her identification of the diagram she had marked in that interview and her identification of a number of photographs that she identified as being of the house at Yeoval. It is not disputed that KW wrongly identified Exhibit 1 as being a photograph of her bedroom at Yeoval, whereas in fact it was the bedroom at Nanima – so identified by LP because there were three beds in the room. As the Crown points out, however, all that is visible of the room in Exhibit 1 is the bedding and it is not clear whether the bed coverings were the same at Yeoval. Therefore the significance attributable to this misidentification is somewhat moot.

30. From the transcript of that interview, it is apparent that there was confusion on KW’s part as to various matters, such as the age at which she moved to Yeoval and when she moved away from there (Q167-172; Q 190; Q 196-197), and there were a number of instances where KW said she did not remember things (for example, she did not recall how long she lived at Yeoval (Q 164) but said it was a long time; and she did not remember what the house at Nanima looked like (Q 151)). There were a number of instances where the transcript records that KW laughed; twice where she is recorded as having “sniffled”; and there were a lot of “um”s. There can be no doubt that the trial judge, who had observed the complainant both in her DVD interview and when she later gave evidence at the trial, was in the best position to assess the way in which KW answered the questions put to her at the 2011 interview.

31. In the interview, KW was asked when and why she had moved in with Mr and Mrs Wykes (see from Q 205-217), eliciting the following answers, not all of which were strictly responsive to the questions:

Q205   Yeah. OK. When did you move in with Lyle and Virginia?

A   Well, we went down there ’cause [the applicant] was in the band with Lyle.

…

Q211   OK. Yeah.

A   And I asked if I could ride a horse.

…

Q217   OK. So why did, why did you move in with Lyle and Virginia?

A   Because [the applicant] was, um, touching my private parts.

Q218   OK. Tell me more about [the applicant] touching your private parts.

A   Um, uh, I don’t remember that part. I do remember, but I don’t remember what he did.

32. KW was, however, able to answer questions as to where it happened: in Yeoval, on the farm, in the house, at night, in the lounge room (Q 219-224) and then when asked to tell the officer what happened, she recounted that:

Q225   … Tell me what happened.

A   Um, I was sleeping in with [D, her aunt] and [N, her sibling] on my own bed, then he got me out of bed and took me in to the lounge room.

Q226   Who did that?

A   [The applicant].

Q227   OK. Then what happened?

A   And, and I went back to bed.

Q228   So what happened, tell me more about what happened when he took you into the lounge room?

A   He got on top of me.

Q229   How did he do that?

A   Um, he just did.

33. KW was then asked questions as to whereabouts in the lounge room it happened, eliciting the response that it was on the floor, on the mattress; that it was a foam blow-up mattress coloured blue and that it was bumpy. She said the applicant was sleeping in the lounge room but she did not know why. She said no-one else (other than D and N) was in the bedroom. She described where the bedroom was in relation to the lounge room. She said she knew it was night because it was dark. She said it happened not long after she went to bed, “Until everyone else went to sleep, then he got me out”.

34. She did not remember what day of the week it was or how long ago it happened. In her answers, from Q 253, she described what had happened – in particular how the applicant had pulled her out of bed by grabbing her right arm. The transcript records her as sniffling at that point. She said that was when “he started touching my private parts”. She corrected the questioner when he said “So this is in the bedroom”, stating that it was in the lounge room. She said that the applicant put her in the bed (by which, in context, she must have been referring to the mattress) and again that he started touching her “private parts”, her “front part”. When asked “What do you do with that part”, she said “Put his private part in mine”. She marked on a diagram of a girl the area she was talking about.

35. KW was able, when asked, to describe what she was wearing (pink boxer shorts and a short sleeved white top). She was then asked to tell the officer more about the applicant touching her private parts:

A   Um, I don’t know anything else that he did.

Q286   Well, how did he touch your private parts?

A   Pulled down my pants.

Q287   When did he do that?

A   At night.

Q288   At night?

A   Yeah.

Q289   But when?

A   What do you mean by when?

Q290   Well, was it before he layed you on the bed, or while you were lying on the bed, or sometime else?

A   While I, while I was laying on the bed.

Q291   OK. So how did he pull your pants down?

A   He just got ‘em and moved ‘em.

…

Q296   So tell me more. After, after he’s pulled your pants down, OK, tell me more about what he’s done.

A   Then he got his private part and put ’em, put it near mine.

Q297   We’ll take a step back, you said he was touching your private part.

A   Yeah.

Q298   How was he touching it?

A   Um, I don’t know how he was touching it.

Q299   Well, what part of his body was touching your private parts.

A   His front part.

Q300   His front? What do you mean by his front?

A   His front part.

Q301   When you say front part, what part are you talking about?

A   I don’t want to say it?

Q302   Why? I’ve spoken to a lot of, a lot of children. OK. What you’re going to say, OK, I’ve heard lots and lots of times. All right. So don’t be embarrassed.

A   I don’t know.

Q303   Can you tell me, or not?

A   Nuh.

Q304   Why, why can’t you tell me?

A   Um, embarrassed.

Q305   You’re embarrassed? What are you embarrassed about?

A   I don’t know.

36. There followed further questions about what the applicant did with his private part. KW said “he put it in mine” (A 306); when asked how, she said “pushed it in” (A 308); when asked where was he, she said the lounge room (A 310); when the questioner clarified that the question was where the applicant was positioned when he did this, she said “on top of me” (A 311). Later, when asked if she could remember what he was doing after he pushed it in, she said “Um, dunno. Don’t know” (A 321) and then “going up and down” (A 322).

37. KW said she felt scared (A 312) and her body felt “not good” (A 313), identifying her “front part” as what did not feel good (A 314). Asked why it didn’t feel good she said “It just didn’t” and, when pressed she said that it hurt (A 315-316). She said she told the applicant “stop” (A 317) and then he told her to go back to bed (A 318) and not to tell anyone (A 328). Asked how long it lasted for, she said “long” (A 319) but she did not know how long (A 320). She said that she pulled her pants back up (A 332). She said that the next day she went outside and played with children (A 339); she was scared that he might do it again (A 340) and the front part of her was sore for quite a while (A 341-343). Asked whether it (the night) was hot or cold, she said it was hot (A 344-345). She could not remember how old she was or how long ago it happened (A 337; 346). She said that since then she had only told the Wykes about it (A 335) and that she said to them “He’s been touching my private parts” (A 336).

38. At least on paper, it would appear that KW was expressing some embarrassment or reluctance to talk about the physical aspects of what had occurred but her description of the applicant ‘pushing it in’ and ‘going up and down’, when read in context with her identification of his and her front parts, is clearly a description of penile/vaginal intercourse.

KW’s evidence at the trial

39. KW gave evidence via closed-circuit television. As already noted, her evidence in chief was largely comprised of the 2011 recorded interview.

40. In cross-examination, KW identified Exhibit 1 as a photograph of her bedroom at Yeoval. She identified the people living at Nanima when she was there as C, R, D, AJ, N, K and O (T 5.47). She said she did not really remember when she left Nanima (T 6.5) but that she went straight from Nanima to Yeoval (T 6.12). She said that she went to Yeoval with the applicant, LP, D, AJ, N, K and O (T 6.15). She disagreed with the proposition that AJ was born at Yeoval and was not living at Nanima (T 6.30).

41. She denied that one of the reasons that she wanted to live with the Wykes was because she was going to be allowed to ride horses a lot more than she was allowed to ride at Yeoval, saying that “No. The reason I left was because of [the applicant]” (T 6.38).

42. KW did not recall the court case in 2007 or giving evidence at the Local Court in Orange (T 7.40-44; 8.1; 10).

43. She was asked about her recollection of having made allegations that the applicant had touched her private parts (T 8.16ff), as follows:

Q.   You don’t recall that you made some allegations that [the applicant] had touched your private parts?

A.   Can you say that again, please?

Q.   Certainly. Do you remember telling police on another occasion, not the one that we’ve heard today, that [the applicant] had touched you on your private parts?

A.   Yes.

Q.   When did that happen? When did you make that statement; do you remember?

A.   I don’t remember that.

Q.   Was it before or after the interview we’ve just heard?

A.   Before.

Q.   Do you recall when you made a statement after this one as well?

HER HONOUR: Do you mean about the same issue or something else?

SIMPSON [counsel for the applicant]

Q.   About something else?

A.   I don’t remember.

Q.   The statement that you made before, do you remember that you said to the police that [the applicant] had touched your private parts?

A.   Yes.

Q.   The interview you heard today, we just heard before, is that about the same things that you told the police about in the earlier interview?

A.   Yes.

Q.   You told the police in your earlier interview that [the applicant] had been touching you on your private parts; correct?

A.   Yes.

Q.   This interview that you’ve just heard, is that the same – I will use the word “story” – is that the same story that you told police earlier in your earlier interview?

A.   I can’t remember.

Q.   You’ve just answered “yes” before; is that right?

A.   Yes.

Q.   What were you answering “yes” to? What did you understand I was asking you when you said, “yes”?

A.   I don’t know.

Q.   Do you listen to my question before you answer “yes” or “no”?

A.   Can you say that again please?

Q.   I’m just asking you a general question now. When someone asks you a question, do you listen to the question before you answer “yes” or “no”?

A.   Yes.

Q.   I asked you before whether the earlier statement that you made to the police and the statement that you gave today were about the same things. Are you okay? Do you want to have a break?

A.   No.

Q.   Are they about the same things that are said to have happened to you?

A.   I don’t remember.

Q.   What is it that you don’t remember?

A.   What I said earlier on with the first court case I had.

Q.   Do you remember going to court about that now?

A.   No.

Q.   But you remember speaking to the police; is that correct?

A.   Yes.

Q.   Do you remember being interviewed by the police?

A.   Yes.

Q.   Do you remember what you said to the police on that occasion?

A.   No.

Q.   The incident that we have heard about today, could you have been mistaken about that happening in Yeoval; in other words, could it have happened in Nanima?

A.   No.

Q.   You’re quite certain about that?

A.   Yes.

Q.   Is that because of who was living with you at the time and you can recall who was living with you at which placed [sic] at what time?

A.   Can you say that again?

Q.   Why are you certain that it happened in Yeoval?

A.   Because that’s where it happened.

44. KW agreed that the photograph which she had identified as being of her bedroom in Yeoval (Exhibit 1) helped her remember about the offence happening in Yeoval (T 10.13). She said that her evidence as to who was living at the premises in Yeoval did not help her remember about how it happened in Yeoval (T 10.19).

45. KW was then cross-examined about the blue blow-up mattress. She did not remember seeing it anywhere else and said it was only ever used in Yeoval. When asked “It wasn’t used in Nanima”, she answered “Not that I can remember” and she agreed twice that she was quite certain of this (see T 10.25-45).

46. There followed a series of questions (as to how old she was when this happened, how long she had lived in Yeoval for, what day of the week it was, whether it was a school day or weekend, and what month or time of year it was), to which KW’s consistent response was that she could not remember or did not know (T 11.1-17) but she said it happened after she was 8 and that it was not around Christmas time (T.11.5; 20). She did not remember seeing a Christmas tree up and said that if it was there she would have remembered it (T 11.23-29).

47. Cross-examined as to her evidence that it might have been hot, she then accepted that it could have been a cold night (T 11.35) and that she did not know whether it was hot or cold (T 12.2). In the course of a series of questions as to whether she had been just guessing when she told the police it was hot and as to why she had told police she thought it was hot (T 11.37-12.12), the cross-examiner asked KW whether she needed a break (T 11.41). (Earlier, at T 9.22, extracted above at [43]), the cross-examiner had asked KW if she was okay or wanted to have a break.) From this it might be inferred that there was some aspect of KW’s demeanour during the questioning or her answers that suggested to the cross-examiner that she might have needed a break for some reason.

48. The questioning then continued as to why KW was sure that it happened when she was older than 8 (“because it didn’t happen when I was eight, cause that’s when I moved to Yeoval” – T 12.25). From that point, there were a number of things that KW did not remember (speaking to someone from Community Services; applications in the Family Court about where she was going to live and who with; her ultimately moving and living with the Wykes; living with her mother between leaving Nanima and before she went to Yeoval; when she told Mrs Wykes about what the applicant had done to her or what she had said to the Wykes about that; whether the Wykes had bought her the horse before the first interview with the police and whether she had stayed at the Wykes’ house on other occasions before she moved in there – T 12.37-13.24; T 13.42-14.13).

49. She said that the applicant was sleeping in the lounge room and denied that he was always sleeping in his own bedroom with LP (T.13.31-38). She did not remember where the blow-up mattress was kept at Yeoval (T 14.19) but when it was put to her that no one slept on it other than for camping or if there were guests at Yeoval, she answered “[the applicant] did, but he took it into the lounge room” (T.14.25)

50. KW said that before she made her statement to the police she had told her mother “What [the applicant] was doing to me and that I didn’t like it” (T 14.41). It was put to her that the applicant never laid on top of her at Yeoval and never pushed his penis into her vagina. She maintained that he did. She maintained that she was telling the truth about that (T 15.1-9).

51. KW was then cross-examined as to how long she had been in bed before the applicant came and woke her up (to which she said she did not know) and was asked a series of questions as to how loud her voice was when she said “No” to the applicant (when he asked her to come with him) and whether it was loud enough for D and N to hear (T 15.26-16.5), culminating in the following exchange:

Q.   My question was do you think it was loud enough for them to hear?

A.   I don’t know. I can’t remember.

Q.   You can’t remember whether it was loud or not; is that right?

A.   Gosh.

52. After a luncheon adjournment, there was some cross-examination as to an occasion on which it was put to KW that Mrs Wykes came to take her from school and it was said that KW spoke to the principal and said she wanted to stay with LP and the applicant. KW did not remember such an occasion. She added “Why would I want to stay with [LP and the applicant] for?” (see T 16.16-49).

53. In re-examination, KW said that she could not remember what her bedroom at Nanima looked like. She gave a basic description of her bedroom at Yeoval (two beds, cupboards on the right and straight ahead as you walked through the door she thought there were two windows – T 17.3-11).

Applicant’s case at trial

54. The applicant, as was his right, did not give evidence at the trial. His case at trial was in essence that the offence never occurred and that the trial judge could not be satisfied beyond reasonable doubt that the offence for which he was on trial did not relate to the same alleged incident at Nanima in 2006 in respect of which he was charged and of which he was ultimately acquitted on 5 September 2007 at the Orange Local Court.

Reasons for Judgment – 5 November 2014

55. As already noted, the trial was heard by judge alone. In his Honour’s reasons for judgment, his Honour reminded himself of the relevant principles of law and appropriately directed himself in that regard. There is no complaint as to the adequacy of those directions.

56. The trial judge summarised the submissions made by the respective parties and then turned to his consideration of the facts and the sequence of events. His Honour was satisfied that there was a time, before KW moved to Yeoval, that KW ceased living with the applicant and lived with her mother. He inferred from KW’s answers in cross-examination that she had forgotten this due to her being young at the time. The trial judge noted RW’s evidence that KW had moved back to live with the applicant and LP (at Yeoval) a couple of months after the Local Court case had finished and inferred that this was in late 2007. His Honour also noted LP’s evidence that it was in 2008 but considered LP seemed “quite indecisive on the issue”. His Honour’s finding was that, by May 2010, KW had lived with the applicant and her grandmother “during 2008, 2009 and the first four and a half months of 2010”. (His Honour had earlier commented that LP was not an objective witness – p 10).

57. As to the complaint of abuse, the trial judge noted that KW had made no allegations of recent misconduct in her interview with the police officer at Wellington on 15 August 2010 and that she did not disclose any form of abuse to the DOCS officers in the interview that took place shortly thereafter. His Honour also noted that KW gave “some somewhat confused answers” in cross-examination but said that he bore in mind that she was very young at the time when these events occurred.

58. His Honour inferred that the meeting with the police at Wellington was a short one, judging by the note; said that Mr and Mrs Wykes “did not necessarily know enough at that stage to point out that this was a new complaint” and considered that this might account for why nothing further was said about the matter at that time. As to the DOCS meeting, his Honour again noted KW’s age. He said that he bore in mind that the DOCS officers were people she did not necessarily know whereas he inferred that KW felt safe with Mr and Mrs Wykes. He inferred that the meeting with the DOCS officers could not have been very long and that it was much shorter than the 2011 police interview and her evidence in court. He also inferred that KW was shy and noted that shortly before the DOCS interview she had been taken away from two adults she liked and trusted.

59. His Honour did not see either the DOCS interview or the incident at Wellington police station as inconsistent with KW’s evidence at the trial. His Honour reached that conclusion in part, it seems, on his own observation of KW. His Honour said:

I have had the benefit of watching the complainant over a lengthy time, both on the DVD and in her evidence before me. My observation is that patience was needed with her a great deal of the time. At times her responses were not very adult, either when she was interviewed by police or when she gave her evidence before me.

60. His Honour noted that there were “some problems” with KW’s identification of the bedroom photograph, the colour of the mattress and “other peripheral matters” but said those matters were half her life ago and he did not see them as significant with a child witness, particularly bearing in mind what had been said by Spigelman CJ in Ryan v R [2009] NSWCCA 183.

61. The trial judge considered that there was verisimilitude in KW’s description of the sexual assault in her answers at Q 217-260 of the recorded police interview. He noted that she had corrected the officer as to where the incident took place (Q 261) and considered the description given in response to a series of non-leading questions to be “somewhat vivid”. His Honour did not find out of the ordinary her errors of recollection as to where she was living and noted that she was firm in her evidence that she had left the Yeoval house because of the applicant. His Honour noted that there was some confusion in the transcript (at T 8-9) as to the two different complaints but that KW said she could distinguish them and that she was firm in the recorded interview in denying that the events she was interviewed about in 2011 had been about that earlier (2006) event.

62. His Honour concluded (at p 23):

Having considered all of the evidence and the submissions and especially considering the matters arising about the complainant’s credit and accuracy, I find beyond reasonable doubt the complainant was truthful and accurate. I, as I have observed, had an opportunity to observe her over a lengthy period, both on the DVD and in court, and I found her evidence compelling.

63. His Honour found beyond reasonable doubt that when KW was 8 or 9, the applicant had sexual intercourse with her by inserting his penis in her vagina; and thus found the offence proved beyond reasonable doubt.

Appeal

64. As already noted, the sole ground on which the applicant seeks leave to appeal is an unreasonable verdict ground. The applicant put this on two bases.

65. First, the applicant argues that the trial judge should have been left with a reasonable doubt as to whether the alleged incident (i.e., that which was alleged to have taken place when KW was aged between 7 and 9 and was living with the applicant on the farm at Yeoval) in fact related to conduct that had been the subject of the earlier complaint made against the applicant (which, though not particularised in the evidence at the trial, related to conduct alleged to have taken place when KW was about 6 and living with the applicant at Nanima).

64. Second, the applicant argues that the trial judge should have been left with a reasonable doubt as to the applicant’s guilt by reference to the lack of specificity of the complaint.

65. As to the first, the applicant notes that there was no express finding beyond reasonable doubt that the offence had occurred at Yeoval. Although he accepts that the location was not an element of the offence, he submits that given the circumstance of the earlier Local Court acquittal, the trial judge was required to be satisfied beyond reasonable doubt that the allegations were separate and that the allegation the subject of the trial did not occur at Nanima.

66. The applicant points out that the complaints made by KW to Mr and Mrs Wykes made no reference to the time or location of the offence. He submits that the complaints made up to the time of the recorded police interview were consistent with any incident involving KW and the applicant being one that had occurred at Nanima.

67. The applicant points to KW’s misidentification of the Exhibit 1 photograph as being of her bedroom in Yeoval (when it was in fact of her bedroom in Nanima) and to her acceptance that the photograph had helped her to recall that the offence had happened in Yeoval. Pausing there, it is by no means clear that KW understood the import of the question as to whether the photograph had helped her to recall that the offence happened at Yeoval, particularly when there was no suggestion that the offence had occurred in a bedroom. KW disagreed that her recollection of who was living at the premises at the time helped her to recall that the offence had happened in Yeoval.

68. As to the location of the offence, the trial judge expressly found beyond reasonable doubt that the offence occurred when KW was 8 or 9. There is no doubt on the evidence that this placed the offence as one that must have occurred at Yeoval, not at Nanima. His Honour was well alive to the confusion in the evidence as to when KW had moved to Yeoval and made the finding that she was in Yeoval in 2008, 2009 and the first four and a half months of 2010. The complaint as to lack of an express finding as to location is not justified.

69. Moreover, the trial judge was well aware of the contention put by the defence that he could not be satisfied beyond reasonable doubt that the offence had not in fact happened at Nanima. Not only was that at the forefront of the earlier stay application, it was a focal point of closing submissions for the applicant at the trial (defence counsel having submitted that if the trial judge was of the view that, if anything did happen, it happened in Nanima, then the Crown case would have to fail – T 73-74).

70. The matters to which the applicant points as giving rise to a reasonable doubt on this issue (apart from the reliability of KW’s recollection of events) relate broadly to the evidence as to the blow-up mattress on which KW said the offence took place and as to the sleeping arrangements at the time.

71. As to the reliability of KW’s evidence, there is no doubt that her memory was not reliable on a number of matters - particularly as to when she had moved from Nanima to Yeoval. However, as the trial judge noted, KW was young at the time she moved from Nanima to live with her mother (around six and a half). Furthermore, the trial judge was in the best position to assess whether KW’s inability to remember matters occurred at times in the interview or cross-examination when she was stressed or otherwise not focussing on the questions. This is a case where the ability to observe the complainant giving her evidence clearly played a critical role in the trial judge’s acceptance of her account of events.

72. There was support for KW’s allegation that the offence occurred in Yeoval insofar as Mr Wykes had seen a blow-up mattress in the lounge room of the Yeoval house. Mr Wykes gave evidence that the blow-up mattress was “on the floor” (T 24.36; 46). When asked to say where, by reference to the photograph of the lounge room at Yeoval, he said that the mattress was “just leaning in between the two floors” (T 26.28). True it is that his evidence that the applicant was sleeping on the mattress in the lounge room was based on what KW had told him (he not having gone up to the house at night and physically observed this). However, the presence of a mattress in the house and the fact that LP was in the last stages of her pregnancy while at Yeoval (and said that in the last stages of her pregnancy the applicant was sleeping on a blow-up mattress) is consistent with the offence occurring in Yeoval. (The suggestion that the incident described by KW, if it occurred at all, could have been an incident at Nanima in 2006 is not consistent with the timing of the applicant sleeping on an inflatable mattress during LP’s pregnancy – because KW had left Nanima at the end of 2006 and LP could not have been pregnant, let alone heavily pregnant, with AJ at that time given that AJ was not born until 17 January 2007.)

73. The fact that Mr Wykes incorrectly identified the lounge suite in Exhibit C image 1 as the lounge suite he recalled at the Yeoval property (when the photograph was taken later after the property had been re-tenanted) is another matter to which the applicant points. However, his erroneous identification of the lounge suite does not of itself cast doubt on his memory of there being a blow-up mattress at the Yeoval property. LP’s evidence that the blow-up mattress that had been at Nanima was left there was hardly in decisive terms (“No because we left the old - probably left it at Nanima” - T 48.4).

74. The fact that KW’s evidence about the children’s room arrangements at the Yeoval property left C and R unaccounted for does not raise a reasonable doubt that the offence, if it occurred, had occurred at Nanima. Nor does it raise a reasonable doubt as to whether the offence occurred at all - particularly given that she does not appear to have been asked to account for all of the children and that, even on LP’s evidence, there is some difficulty accounting for all of the children in the three rooms of the Yeoval house.

75. The applicant complains that, in finding that KW was “truthful and accurate”, and that her evidence was “compelling” (p 23), his Honour did not deal with the particular errors and inconsistencies in her evidence that went to the timing and location of the alleged incident. However, his Honour noted the various errors of recollection and explained why he did not consider them to be of significance, in light of KW’s age (see p 22/23).

76. Insofar as it is submitted for the applicant that the evidence of the police and DOCS officers as to the interviews in 2010 cast doubt on KW’s denial that the events she was interviewed about during the February 2011 interview were those the subject to the 2007 acquittal, those interviews were inferred by his Honour to have been short and the difficulty is that there seems to have been an assumption by the police officer (based on the COPS check) that the complaint about previous interference was the same complaint rather than any acceptance by KW that this was the case. It is consistent with the 2010 complaint relating to conduct at Yeoval for it to be described as being an incident that had not happened sooner than a few years back (see Senior Constable Farmer’s evidence at T 30.14-25) if it occurred back in June 2008 (that being the earliest of the range of dates that the trial judge considered applicable at p 4).

77. Another matter that in my view points against the 2010 complaint relating to the incident(s) of which complaint was made at the end of 2006 (though this was not referred to by the trial judge) is the seeming unlikelihood that a child who had been subjected at the end of 2006 to the conduct of which KW complained in the 2011 interview asking a year later to be allowed to return to live with the perpetrator. Counsel for the applicant argues (somewhat inconsistently with the premise on which the first basis for the unreasonable verdict ground is put) that this casts doubt on the original complaint the subject of the 2007 proceedings (see appeal transcript T 16.30). What is clear, however, and the applicant concedes this, is that in 2010 KW became upset at the thought of returning to live with the applicant and LP. That is consistent with her complaint relating to conduct that had occurred at Yeoval. (It seems to have been suggested that there might have been other reasons why KW might prefer to live with the Wykes – such as the purchase of a pony or the giving of presents to her. The Wykes denied having given KW a pony, though they accepted they had bought one at around the time of her tenth birthday, and they denied having given her any special presents as opposed to gifts of the kind they gave to one or more of the other children. In any event, this would not readily explain the tearfulness and “avoidant behaviour” conceded by the applicant to have given rise to the enquiries by the Wykes about the applicant’s behaviour.)

78. Finally, while there is no doubt that the questioning of KW by the Wykes was done in a leading fashion, the details given by KW of the conduct when she was interviewed in 2011 go beyond what might have been suggested to her by the Wykes’ questions and were elicited without any leading questions.

79. As to the second basis on which the unreasonable verdict ground is raised, the applicant argues that the lack of specificity and detail in KW’s account to the police of the alleged sexual intercourse should have given rise to a reasonable doubt that the act of sexual intercourse had occurred. In particular, counsel notes that there was a lack of evidence about matters such as: whether the applicant’s penis was flaccid or erect; any description of what his penis looked like; the positioning of KW’s body; whether the act was done forcefully or slowly; the specific location and nature of the “soreness” following the event; whether there was any bleeding and whether the applicant had ejaculated (see defence counsel submissions at T 77-78). It may readily be accepted that there was no evidence as to most of those matters, though there was sufficient specificity about the soreness of KW’s “front part” following the event to indicate interference with her vagina. However, what KW described (that the applicant lay on top of her, pulled down her pants, pushed his front part into her front part and was “going up and down”; and that it didn’t feel good because it hurt) is a sufficiently specific description by a child of penile/vaginal intercourse, particularly when followed by a complaint of soreness the following day. From the transcript of the police interview it is difficult not to conclude that KW was embarrassed about talking about personal details (see especially at Q 301 where her answer to what she was talking about when she referred to the applicant’s “front part” was “I don’t want to say it”). There was also specificity about what KW was wearing at the time, which was not challenged in cross-examination (and might well have been relevant to the age at which the incident took place).

Determination

82. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the majority (French CJ, Bell, Keane and Nettle JJ) made clear (at [11]-[12]) that the finding of guilt in a judge alone trial is to be treated as if it were a jury’s finding of guilt. Such a finding is not to be disturbed unless, relevantly, there is no or insufficient evidence to support the finding, or the evidence is all the one way or the finding is otherwise unreasonable (there being no suggestion in the present case that there has been a misdirection leading to a miscarriage of justice).

83. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, the High Court stated:

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

84. That said, it is recognised that a doubt experienced by an appellate court, making full allowance for the advantage enjoyed by the trial judge, will be a doubt which the trial judge ought to have experienced (see M at 494).

85. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) said the following of a ground asserting that a conviction was ‘unsafe or unsatisfactory’ (at [113]):

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt. (my emphasis; footnotes omitted)

86. In the present case, the trial judge’s advantage in seeing and hearing the evidence of KW (both in the DVD interview and during her cross-examination on closed circuit television) was in my view critical. The manner in which KW answered questions (particularly those questions to which she gave a series of answers to the effect that she did not remember; or where she was challenged on the subject of the earlier allegations; or as to matters such as whether she now recalled if it had been hot or cold and where she appears to have exhibited reluctance or embarrassment in answering questions) is something that the trial judge was best placed to assess and was more than capable of resolving any doubt experienced by this Court as to the aspects of the evidence to which the applicant has referred. Making full allowance for the undoubted advantage enjoyed by the trial judge in that regard, I am not of the view that the evidence is such that the trial judge must have entertained a reasonable doubt as to the applicant’s guilt. I am not persuaded that there has been a miscarriage of justice or that there is a significant possibility that the applicant has been wrongly convicted. In those circumstances I would grant leave to appeal but dismiss the appeal.

87. HARRISON J: I have had the advantage of reading in draft the judgment of Ward JA. I agree with her Honour that the appeal should be dismissed. Before arriving at that conclusion I reviewed all of the evidence and other material that was before the trial judge as well as his reasons for judgment. I have in the course of that process paid particular attention to the complainant’s answers to the questions asked of her in her interview and cross-examination and to his Honour’s treatment of that evidence. Having regard to those matters I am satisfied upon the whole of the evidence that it was open to this Honour, sitting as the tribunal of fact, himself to be satisfied beyond reasonable doubt that the accused was guilty.

88. R A HULME J: If the assessment of whether the Crown had proved the guilt of the applicant was a task confined solely to an examination of the transcript and exhibits that were before the primary judge I confess that I would have misgivings. It is important, however, to emphasise the following passage in the judgment of the majority in Filippou v The Queen to which Ward JA has made reference:

“[12] … It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen (15):

‘It is only where a [judge’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 … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], 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.’”

89. I respectfully agree with Ward JA that the trial judge's advantage in seeing and hearing the complainant's evidence was critical in this case. Taking that into account, I agree that it was open to the judge to be satisfied of the applicant's guilt beyond reasonable doubt.

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Decision last updated: 09 December 2016