PG v Regina

[2010] NSWCCA 216

New South Wales
Court of Criminal Appeal

CITATION:	PG v Regina [2010] NSWCCA 216
HEARING DATE(S):	23 August 2010
JUDGMENT DATE:	22 September 2010
JUDGMENT OF:	Beazley JA at 1; James J at 2; Hall J at 59
DECISION:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW - verdicts of guilty on some counts - inconsistent verdicts - Jones v The Queen (1997) 191 CLR 439 - unreliability of complainant's evidence on all counts - CRIMINAL LAW - verdicts of guilty on some counts - jury properly directed to give separate consideration to each count - verdicts not inconsistent - MFA v The Queen (2002) 213 CLR 606 - CRIMINAL LAW - sexual assault - competing medical evidence - no error in jury accepting one medical expert over the other
CATEGORY:	Principal judgment
CASES CITED:	Jones v The Queen (1997) 191 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 MFA v the Queen (2002) 213 CLR 606 R v TK (2009) 74 NSWLR 299
PARTIES:	PG (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/11195
COUNSEL:	E Baskerville (Appellant) J Pickering (Respondent)
SOLICITORS:	Hassetts (Appellant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11195
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	10 November 2009

- 1 -

2008/11195

BEAZLEY JA
JAMES J
HALL J

22 September 2010

PG v REGINA

Judgment

1 BEAZLEY JA: I agree with James J.

2 JAMES J: PG appealed against his conviction on seven charges of child sexual assault. The victims of the alleged offences were two girls CG and JG, who were half-sisters. CG was PG’s daughter and JG was PG’s stepdaughter, being a child of PG’s wife by an earlier marriage.

3 At the trial PG had been charged with nine offences. Short particulars of the charges in the indictment and of the alleged conduct giving rise to the charges are as follows:-

Count 1
A charge of aggravated indecent assault on a child under the age of ten years, namely seven years, the victim being JG. It was alleged by the Crown that the appellant entered JG’s bedroom at night and rubbed his penis on JG’s buttocks.

Count 2
A charge of sexual intercourse with a child under the age of ten years, the victim being CG. It was alleged by the Crown that the appellant had a shower with CG in the main bathroom of the house in which the appellant, JG, CG and the children’s mother were living. The appellant told CG that she was going to be washed with a special soap and told her to squat on his lap, with her back towards the appellant. The appellant then put his penis in CG’s anus and thrusted, while holding CG with both his hands on her waist.

Count 3
A charge of sexual intercourse with a child under the age of ten years, the victim being CG. It was alleged that, after CG had a shower in the laundry of the house, the appellant stood CG on a washing machine in the laundry and licked her vagina.

Count 4
A charge of sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of 16 years, the victim being JG. It was alleged by the Crown that the appellant went into JG’s bedroom at night and told her to go into the bathroom. In the bathroom the appellant picked JG up and put her on the basin of a vanity unit. He then put his penis in her vagina.

Count 5
A charge of sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of 16 years, the victim being JG. It was alleged by the Crown that the appellant entered a bedroom in which JG and CG were sharing a double bed and that the appellant licked JG’s vagina.

Count 6
A charge of indecent assault of a child under the age of 16 years, the victim being JG. It was alleged by the Crown that the appellant massaged JG’s back while she was sitting on the floor and in doing so touched JG’s breasts.

Count 7
A charge of committing an act of indecency towards JG. It was alleged by the Crown that the appellant masturbated in the presence of JG.

Count 8
A charge of indecent assault on a child under the age of 16 years, the victim being JG. It was alleged by the Crown that the appellant came into JG’s bedroom while she was in bed, turned her on to her back, unbuttoned her pyjamas and then touched her on the breasts.

Count 9
A charge of indecent assault on a child under the age of 16 years, the victim being CG. It was alleged that the appellant rubbed Vicks on CG’s back while she was sick and in bed and in the course of applying the Vicks rubbed CG’s breasts.

4 The jury returned verdicts of guilty on counts 1, 2, 3, 4, 6, 8 and 9 and verdicts of not guilty on counts 5 and 7.

5 The principal witnesses at the trial were the complainants CG and JG. Each of those witnesses gave evidence only about the offences allegedly committed against her and not about the offences allegedly committed against the other complainant, subject to the exception that on count 5, although the victim of the alleged offence was JG, the only evidence of the commission of the offence was given by CG, JG herself not giving any evidence of the alleged offence. On all counts the evidence of the complainant (or, on count 5, the evidence of CG) was uncorroborated.

6 Each of the complainants gave evidence by means of closed circuit television. Most of CG’s evidence in chief was given by the playing of a recorded interview of her by police, in which she answered questions by police officers which were relevant to the counts alleging offences against CG and to count 5.

7 The Crown also called persons who gave evidence of complaint by the complainants and a paediatrician, Dr Tzioumi, who gave evidence which was relevant to count 2.

8 At the trial a recording of an interview of the appellant by police was admitted into evidence in the Crown case. In this interview the appellant was asked questions about the alleged offences which were referred to in CG’s interview, that is the offences charged in counts 2, 3, 9 and 5. In the interview the appellant denied having committed any of these offences. The appellant was not asked any questions in the interview about any of the other offences allegedly committed against JG. The interview of the appellant was terminated after the appellant told police conducting the interview that he did not want to answer any more questions.

9 The appellant did not give evidence at the trial. The only witness called in the defence case at the trial was Dr Izzo, a medical practitioner who was a specialist in obstetrics and gynaecology. Dr Izzo gave evidence which was relevant to count 2.

10 The only ground of appeal against conviction was:-

The verdicts of guilty on counts 1 to 4, 6 and 8 and 9 are unreasonable and cannot be supported in light of the verdicts of not guilty on counts 5 and 7.

11 The principal submissions made by counsel for the appellant, in the order in which they were dealt with in counsel’s written submissions, can be stated as follows:-

1. The verdict of guilty on count 2 was unreasonable and could not be supported having regard to the evidence and particularly the evidence of Dr Izzo.

2. The verdict of guilty on count 2 was inconsistent with the verdict of not guilty on count 5.

3. The verdict of not guilty on count 5, on which CG was the only Crown witness, showed that the jury had rejected, or at least had not been prepared to accept, CG’s evidence on that count and that rendered unreasonable and unsupportable the verdicts of guilty on the other counts on which CG was the only Crown witness.

4. The verdict of guilty on count 7 on which JG was the only Crown witness, showed that the jury had rejected, or at least had not been prepared to accept, JG’s evidence on that count and that rendered unreasonable and unsupportable the verdicts of guilty on the other counts on which JG was the only Crown witness.

12 I will consider these submissions in turn. It is convenient to consider firstly the submissions about counts 5 and 7, before considering the other submissions.

The submission that the verdict of not guilty on count 5 showed that the jury had rejected, or at least had not been prepared to accept, CG’s evidence on that count and that rendered unreasonable and unsupportable the verdicts of guilty on the other counts on which CG was the only Crown witness.

13 In CG’s recorded interview the following questions and answers occurred, which were relevant to count 5.

Q.268 Can you tell me everything that you remember about what, what the awful stuff was with JG?
A. It was a double bed I was lying closer to the door and the bed was up against the same wall that the door was on so I would’ve been on the right hand side of the bed she was on the left, and that room has a built in cupboard which has just three mirrors as the panels, and so she would’ve been closer to the mirrors. And he came in and it was very early in the morning ‘cause the front two bedrooms had the dressers and mum and dad’s, they’ve got really, really ugly blinds but they reflect the light really badly, and it’s just really painful for your eyes so that’s how I remember the early morning. And he came in and told me to roll over and face the wall, and then he started touching JG and, and then I heard JG kind of, she was sort of like, no, don’t, no, you know. And then he was actually, shush, be quiet, be quiet you’ll wake up your sister, and then it was sort of quiet for a bit, and then I heard my sister make like a painful like gasp. And then I got up and I grabbed a book, ’cause I was, I wasn’t asleep I was just pretending to be asleep ‘cause he told me to just roll over and go back to sleep. And I got up and I grabbed a book and I made like I was reading but I could still see out of my like corner of my eye. He was performing oral sex on her.
Q.269 He was performing -?
A. Oral sex on my sister JG.
Q.270 When you say that can you describe for me in a little, in a bit more detail what you mean by that?
A. Well she was lying sort of on her back but sort of more on one side, and he had her leg up, and he was in between both of her legs, and he was doing the same thing to her that he had done to me.
Q.271 When, when you say he was in between her legs what, where exactly was his body in between her legs?
A. Well his body wasn’t on the bed it was just his head that was in between her legs.
Q.272 His head was in between her legs?
A. Yeah.
Q.273 Where was his body?
A. Like she was very close to the edge of the bed so he was, his body was sort of kneeling up against the bed so he was leaning against the bed using his head, mouth.
Q.274 OK. So your dad was kneeling on the floor but his head was in between JG’s legs. What was JG wearing?
A. she was wearing a singlet top I don’t, I don’t remember what she was wearing on her bottoms but I know that she didn’t have clothes on when he was there.
Q.275 How do you know that?
A. Because I could see.
Q.276 So, what could you see?
A. I could see that she wasn’t wearing anything below like her waist, she still had a singlet on.
Q.277 Yep, And what was your dad wearing?
A. He was still wearing clothes I don’t remember what exactly, but he was wearing clothes.
Q,278 What, how long did this happen for?
A. Half an hour.
Q.279 Half an hour and how do you remember it being half an hour?
A. I know that it was more than 10 minutes because it, it went on for quite a while, but I know that it wasn’t an hour because there wasn’t like, it wasn’t like a very, a very early morning sun where there’s just like little peeks. It’s like, around 6.00 it starts to get sunny and then by 6.30 it’s like very sunny, and so the sun in the room you know.
Q.280 O.K. Did he say anything to you or JG while this was happening?
A. But when he got up and walked out when he was done he turned to both of us and said, don’t say anything to anyone, don’t say anything ---
Q.281 Yep. What -
A. ….but not in like a, not in a nice way, like a threatening kind of way.
Q.282 Yep. Did JG say anything while this was happening or did you say anything while this was happening?
A. JG when, like before it started was very, stop, stop you know he was, he just kept going.

14 In oral evidence at the trial CG, after giving evidence that she and JG had been sleeping in the same bed, continued:-

“Yes, um and dad came in and, um, I’m a light sleeper, and I was woken up by that, and he told me to go back to sleep, and then he went over to the side of the bed that JG was lying on and I heard her say, ”No, don’t”. Then I heard him say “Shush, or you will wake your sister up. Shush”. I pretended to be asleep and I heard noises. I don’t know how to describe the noises. It was sort of like JG made like a painful sound. Then I got up and pretended to get a book and I was pretending to read, and out of the corner of my eye I saw his head between her legs, and it looked to be that he was performing oral sex on my sister”.

15 In cross-examination at the trial CG said that she saw the incident “out of my peripheral vision”, that she saw the appellant’s head in between JG’s legs “but I ….. didn’t really know what was going on”.

16 It was submitted on behalf of the appellant that the jury had returned a verdict of not guilty on this count, because they had not accepted CG’s evidence on the count; that there were no grounds for supposing that CG’s evidence was any more reliable on the other counts on which she gave evidence; and, consequently, the verdicts of guilty on those other counts were unreliable. Counsel referred to Jones v The Queen (1997) 191 CLR 439.

17 I do not consider that these submissions should be accepted.

18 In MFA v the Queen (2002) 213 CLR 606 Gleeson CJ, Hayne and Callinan JJ said at 617-618 (34-35):-

[34] Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie ( MacKenzie v The Queen (1996) 190 CLR 348). They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman (1987) 44 SASR 591 at 593), and referred to in later cases. it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
[35] It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski ( R v Markuleski (2001) 52 NSWLR 82 at 98 (64)) that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones . It also overlooks the principles stated in MacKenzie , which were not qualified in Jones , and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M ( M v The Queen (1994) 181 CLR 487 at 4930494), which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.

19 In MFA McHugh, Gummow and Kirby JJ said at 632 (89):-

“We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a Court of Criminal Appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified”.

20 Reference may also be made to the decision of the Court of Criminal Appeal in R v TK (2009) 74 NSWLR 299 especially per Simpson J at 324 (143).

21 In the present case the trial judge in his summing up directed the jury in the manner adverted to in MFA, that they had to give separate consideration to each count and that the evidence of a witness could be accepted in whole or in part and that they were to apply the criminal onus and standard of proof.

22 In the extracts from the judgments in MFA which I have quoted reference is made to the earlier decision of the High Court in MacKenzie v The Queen. In MacKenzie Gaudron, Gummow and Kirby JJ said at 367:-

“Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.”

23 In my opinion, the verdict of not guilty on count 5 in the present case can properly be explained in such a way that it is not inconsistent with the verdicts of guilty on the other counts on which CG gave evidence.

24 As already noted, the offence charged in count 5 was that the appellant had sexual intercourse with JG, without JG’s consent and knowing that JG did not consent. Count 5 was one of only two counts in the indictment (the other was count 4) in which absence of consent on the part of the complainant was an element of the offence charged.

25 At the trial JG gave evidence of much other sexual misconduct by the appellant, including evidence on count 4 which was another charge of sexual intercourse without consent, although involving a different kind of sexual act. However, JG, the complainant on the offence charged in count 5, did not herself give any evidence at all about count 5. As suggested by Gleeson CJ, Hayne and Callinan JJ in MFA, the jury, while not rejecting CG’s evidence, might reasonably have required some supporting evidence from the victim herself before being satisfied beyond reasonable doubt that the offence had been committed. That JG had not given any evidence in support of the charge was referred to in the Crown’s closing address, counsel for the appellant’s closing address and in the trial judge’s summing up.

26 In her oral evidence CG qualified her evidence to some extent. She said in her oral evidence, “It looked to me that the appellant was performing oral sex” and in cross-examination she said, “I didn’t really know what was going on”. CG did not in any part of her evidence give evidence of any penetration of JG having occurred.

27 Although CG gave evidence of conduct on the part of JG from which an absence of consent on the part of JG could have been inferred, the jury could have considered that some evidence of lack of consent from the victim herself was required before they could be satisfied beyond reasonable doubt of this element of the offence.

28 I conclude that the verdict of not guilty on count 5 should not be taken as showing that the jury had rejected or not accepted CG’s evidence on that count, thus rendering unreasonable and unsupportable the verdicts of guilty on the other counts on which CG was the only Crown witness.

The submission that the verdict of not guilty on count 7 showed that the jury had rejected, or had not been prepared to accept, JG’s evidence on that count and that rendered unreasonable and unsupportable the verdicts of guilty on the other counts on which JG was the only Crown witness.

29 JG’s oral evidence at the trial relating to count 7 was quite brief. The full extent of her evidence in chief was:-

A. ….. but there was a point in time that I do remember him masturbating in my bedroom, and I heard something hit the floor.
Q. Does that incident stand out in your mind?
A. Yes, it does.
Q. What was it about that incident that stands out in your mind?
A. Because, when I woke up the next morning, I stepped onto a wet part of my carpet, and I went and got a cloth and scrubbed my carpet.

30 As already indicated, there was no recorded interview of JG by police.

31 Counsel for the appellant made a similar submission to the submission he had made in relation to CG on count 5, that the jury had returned a verdict of not guilty on count 7 because they had not accepted JG’s evidence on that count, that there were no grounds for supposing that JG’s evidence was any more reliable on the other counts on which she gave evidence and that, consequently, the verdicts of guilty on those other counts were unreliable.

32 The authorities and the parts of the trial judge’s summing up which I referred to in considering the submission based on the verdict of not guilty on count 5 are relevant to a consideration of the present submission.

33 In my opinion, in accordance with these authorities a jury proceeding cautiously could have drawn back from being satisfied beyond reasonable doubt of the appellant’s guilt on count 7, without their assessment of JG’s general credibility being adversely affected.

34 As I have already noted, JG’s evidence about the commission of the alleged offence was quite brief. When asked what it was about the incident that stood out in her mind, she said that it was the wet part of the carpet the next morning and not the actual act of indecency allegedly performed by the appellant. By comparison, on counts 1, 4, 6 and 8, on which the jury returned verdicts of guilty, JG gave specific evidence of the acts she said the appellant had performed, which constituted the alleged offences.

The submission that the verdict of guilty on count 2 was unreasonable and could not be supported having regard to the evidence and particularly the evidence of Dr Izzo, the expert witness for the defence.

35 It was alleged by the Crown that the offence charged in count 2 had been committed when CG was only 4 or 5 years old.

36 In the interview CG answered questions about the alleged offence charged in count 2. She said in response to one question:-

“This was in our actual bathroom and it’s a very big bathroom but the shower is, it’s really big and there’s a step in the shower, like when you walk in there’s a step, and then towards where the tap is there’s another step. And I don’t know if mum said to me, just go into the shower with dad and he’ll wash you or dad said, look come in here I’ll wash you. But somehow I ended up in the shower with dad and he was washing me with soap, and the washing cloth thingy, and then he said, I’m going to wash you with special soap. And he sat down on the step and made me sort of sit in between his legs, but like, it’s really, really hard to explain in words. He was sort of sitting on the step with his legs sort of spread and then he sort, he sort of got me to just like squat in between his legs, but facing like my back towards him. And he, he didn’t use soap as he said he would, and I remember it hurting.”

37 A little later in the interview CG said that “he put himself in me”. In the interview she was not sure whether the appellant had put his penis in her anus or her vagina. CG said that she had felt “a very. very sharp pain”. CG had told the appellant “that the soap was hurting me”. The appellant had said, “It will stop hurting”. CG said in the interview that the appellant had been “thrusting”. She said, “I remember that I kept getting closer to him and sort of further away so, like his arms were moving so I assume that he was just moving me”.

38 CG was not sure how long the thrusting continued. After the thrusting had finished, “he got out of the shower and he put a towel around himself, and then turned the water off, and then got me out of the shower and put a towel around me, and that’s when I went to my bedroom and told mum that, that shower hurt me”.

39 Further questions and answers in the interview were:-

Q.173 What were the words that you remember?
A. I remember it wasn’t a good shower and she was like, why CG, why? And then that’s when I had said the shower was hurting. And then I think she was like, I think she was trying to say like was it too hot or, I think that’s what she thought I meant.
Q.175 O.K. Did you tell mum anything further than, other than the shower was hurting?
A. No.

40 In her oral evidence at the trial CG said that she had by then remembered that it had been anal and not vaginal penetration. She said, “I have had consensual sex and I know the difference between vaginal and anal”.

41 The appellant’s legal representatives obtained a statement from Dr Izzo and served it on the Crown. The Crown then obtained a report from Dr Tzioumi. Both Dr Tzioumi and Dr Izzo gave evidence at the trial. Although at the trial Dr Tzioumi gave evidence first as part of the Crown case, it is convenient first to consider Dr Izzo’s evidence.

42 Dr Izzo gave evidence that he was a medical practitioner who for 30 years had specialised in obstetrics and gynaecology. He had, however, had some experience of child sexual assault cases. He had been provided with a copy of CG’s interview and a further statement by her in which she said that the penetration had been of her anus and not her vagina.

43 In his evidence Dr Izzo expressed the following opinions:-

“…. one would have expected there to be evidence of trauma, be it a laceration, be it some bleeding, maybe even a redness in the area immediately after penetration having taken place”.
“…. It’s difficult to contemplate penetration without any degree of trauma and, in fact, I think both anal and vaginal penetration in a pre-pubescent child would lead to considerable trauma”.
“…. with every thrust, you’re increasing the risk of ongoing damage”.
“…. I would expect extreme pain”.
“…. I find it almost impossible to expect a child not to cry out, as an involuntary response, as children do to any sort of pain”.

44 The following question and answer occurred in the examination in chief of Dr Izzo:-

Q. Finally this, doctor. On the assumption, as provided to you, that this girl went to her mother who dressed her immediately after this incident, what, if anything, should have been evident to the mother if the incident took place as described?
A. Well, I would have expected that the mother should have been aware of something. I mean, if the mother is dressing the child, if you go through the sort or process of dressing someone, you know, you’re putting underwear on, you’ve got to lift one leg up and then the other leg up. So you’re actually sort of virtually separating the legs, so you – it brings into full view. So I would expect it that there either should have been, as I stated at the beginning, either some evidence of trauma, some evidence of blood, even some evidence that the whole area looked red or whatever. Yes, I would have expected something. It’s almost difficult to imagine with penetration having taken place that there would be no evidence immediately after the event.

45 Dr Tzioumi gave evidence that she was a consultant paediatrician and was the director of the Child Protection Unit at Sydney Children’s Hospital. She had been working in the area of child sexual abuse since 1998.

46 Dr Tzioumi gave evidence that, in cases where a child’s genitalia or anus has been penetrated, there could be “no injury at all to quite severe injuries”. The body has “a capacity to heal very quickly and if children are not examined soon after the event their injury may heal completely” (without being detected).

47 The following question and answer occurred in Dr Tzioumi’s evidence:-

Q. In this case, you were given material where the allegation made by the child was that her father was sitting down and placed her between his legs in a squatting position facing away from him where she described a thrusting movement and said that she remembered that she was hurting and she described it as a very sharp pain. In those circumstances, if you were to assume those allegations to be true, are you able to give an opinion as to what injuries may or may not be caused to a child in those circumstances, a young child?
A. Again, as I stated earlier, it can be a range from no injury to quite extensive injuries. The other point that I think it’s important to raise is that you can experience pain without injury. Pressure especially to the – what we call the perineal region, which is the genital region of a young prepubescent child is very sensitive, so touching that area is painful, even without injury per se.

48 When asked about Dr Izzo’s evidence that he would have expected CG’s mother to have observed any injury, Dr Tzioumi said:-

“That’s how I indicated earlier, it can be from no injury having occurred, even if the child has experienced pain, to a serious injury. It’s not – it’s only the more serious injuries, deep lacerations with bleeding, that you’d expect an adult caring for the child to notice, or if the child specifically says, ‘I’m sore’, and a carer looks – a parent looks – they may or may not see and they would only see the more obvious lacerations. Untrained people, they won’t be able to see tiny little scratch marks or little tiny bruises that we can see if we medically examined the child”.

49 It was submitted on behalf of the appellant that it had not been open to the jury to reject Dr Izzo’s evidence, particularly given CG’s evidence about the circumstances of the alleged offence, including the acts of thrusting by the appellant. It was submitted that when there were added to Dr Izzo’s evidence the factors that CG was only 4 or 5 years old at the time of the alleged offence, that the alleged offence was not reported until some years afterwards, that there was no evidence that CG’s mother had observed any signs of trauma when she dressed CG soon after the offence was allegedly committed and that CG’s mother had told police that neither of her daughters had complained to her of any inappropriate conduct by the appellant, this Court should hold that the jury should have had a reasonable doubt about whether the appellant was guilty of the offence charged in count 2.

50 As was pointed out by the Crown, neither Dr Izzo nor Dr Tzioumi had made an examination of CG and there were no medical records of CG which could assist in the formation of an expert opinion. Each of the witnesses had had to base his or her opinion on the witnesses’s general experience.

51 It was submitted by the Crown, and I would accept, that Dr Tzioumi was the more highly qualified of the two witnesses. Dr Tzioumi was a paediatrician who specialised in the area of child sexual abuse. Dr Izzo had had experience in observing victims of child sexual abuse but he was principally a specialist in obstetrics and gynaecology whose patients were adult women and not children.

52 It was submitted by the Crown, and I would accept, that it was open to the jury to accept Dr Tzioumi’s opinion that, on the facts testified to by CG, there could have been a range from no injury to CG to extensive injury to CG.

53 Although there was no evidence that CG’s mother observed any trauma to CG soon after the alleged incident, there was no evidence that CG’s mother had looked for signs of any trauma. CG did tell her mother that the shower had hurt her. However, CG did not say anything to her mother which would have alerted her mother to inspect CG’s anus. In my opinion, it was open to the jury to consider that CG’s mother would only have noticed any injury to CG, if it had been a serious injury, for example lacerations with bleeding.

54 Dr Izzo made some concessions in cross-examination. He conceded that “I think that in medicine nothing is always ……. so certainly, it’s not a matter of saying that there will always be a sign (of trauma)”.

55 During the cross-examination of Dr Izzo, the trial judge put the following question :-

“Perhaps to put it in its –the reality is, if you have a layperson, it really depends on how attentive that individual is in terms of whether they notice something that’s minor. It might be different, obviously, if it was a significant injury, you would think anyone would see it. But the less the injury, the less likely someone might observe it, and even that observation might depend upon how attentive that individual is and indeed what their accuracy of vision is like. Would you agree with that as a general --
Dr Izzo answered “Yeah, I don’t think you can argue with that”.

56 In the summing up the trial judge summarised a submission by the Crown, which I consider it was open to the jury to accept, as follows:-

“The Crown concedes that the evidence (of Dr Tzioumi) does not prove that there was penetration, but it disproves the defence proposition that there must have been something to be noted. Of course the Crown says when you look at Dr Izzo you have got to look at the practical things in terms of some of the things he said about dressing, well – and whether a mother would see any injury. Well, you know, we are not talking about dressing a little baby who is lying flat on a mat at twelve months of age and you are changing a nappy and, you know, you have got the genitalia looking you right in the face.
We are talking, the Crown says to you, about a girl who is four, five, six, and well you have your own experience, no doubt, to call upon in terms of the dressing of such children but there are lots of ways where you can imagine that they may be dressed without that meaning that the genitalia is exposed to examination…”

57 In my opinion, it was open to the jury to prefer the evidence of Dr Tzioumi to the evidence of Dr Izzo or, alternatively, simply to consider that the evidence of Dr Izzo was not an obstacle to the jury being satisfied beyond reasonable doubt of the guilt of the appellant on count 2. In my opinion, the verdict of guilty on count 2 was not unreasonable and unsupportable.

The submission that the verdict of guilty on count 2 was inconsistent with the verdict of not guilty on count 5 .

58 This submission depended on the submissions about the degree of strength of the Crown case on each of these counts, which I have already considered and rejected. Accordingly, I would reject the present submission.

Conclusion
Having rejected the submissions made in support of the only ground of appeal against conviction, I would dismiss the appeal against conviction.

I agree with James J.

**********