PGM v The Queen (No 2) - [2012] NSWCCA 261

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: PGM (No 2) v R

Medium Neutral Citation: [2012] NSWCCA 261

Hearing Date(s): 4 September 2012

Decision Date: 10 December 2012

Before: McClellan CJ at CL at [1]
Garling J at [100]
McCallum J at [101]

Decision:
1. Grant leave to appeal to raise the first ground of appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - where evidence of complainant about witnessing sexual assault of another child demonstrated to be false - directions - whether trial judge properly directed jury regarding "lies" of complainant - whether trial judge's directions regarding absence of complainant at trial were in error - where trial judge did not warn jury about dangers of convicting on evidence of absent complainant - where trial judge referred to forensic disadvantage suffered by Crown due to absent complainant - where trial judge suggested absence of complainant solely due to procedural legislation.

Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Criminal Procedure Act 1986

Cases Cited: Healey v R [2006] NSWCCA 235
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
RR v R [2011] NSWCCA 235
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Category: Principal judgment

Parties: PGM (Applicant)
Crown

Representation

- Counsel: Counsel:
S Buchen (Applicant)
F Veltro (Crown)

- Solicitors: Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2006/15199

Decision Under Appeal

- Before: Graham DCJ

- Date of Decision: 22 February 2008

JUDGMENT

McCLELLAN CJ at CL: On 16 June 2005 the applicant was found guilty of 3 counts contrary to s 66A, Crimes Act 1900 (sexual intercourse with a person under 10 years) and 3 counts contrary to s 61M(2), Crimes Act 1900 (indecent assault of a person under 10 years). The applicant was sentenced to an aggregate sentence comprising a non-parole period of 16 years with a balance of term of 6 years.
The applicant successfully appealed against his conviction: PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426. This court found that there had been a miscarriage of justice by reason of the admission into evidence of a collection of pornographic photographs found on the applicant's computer. For that reason the court ordered that there be a new trial.
The retrial occurred in 2007 and on 5 June a jury again returned verdicts of guilty in respect of three counts contrary to s 66A and three counts contrary to s 61M(2).
The applicant was subsequently sentenced to an effective aggregate sentence comprising a non-parole period of 4 years and 6 months with a balance of term of 2 years and 6 months. The sentencing judge also took into account on a Form 1, two offences of possess child pornography contrary to s 578B(2), Crimes Act 1900. That provision has since been repealed.
The Crown appealed against the sentence. The appeal was upheld and the aggregate sentence was increased to one comprising a non-parole period of 7 years and 6 months with a balance of term of 2 years. As a consequence the earliest date the applicant would be entitled to parole is 25 July 2013: see R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152).
The applicant subsequently made an application for special leave to appeal against his sentence to the High Court but that application was dismissed. He now seeks leave to appeal his conviction.
This appeal is significantly out of time and accordingly the applicant seeks an extension of time in which to appeal. That application is supported by an affidavit from his solicitor. It is apparent that although the applicant has always sought to pursue his right of appeal, and so much is plain from the course of the entire proceedings, his advisors have not always attended to their tasks in a timely fashion. This Court has previously emphasised the importance of finality in litigation and the public interest in the avoidance of delay. In this respect the impact on the victim of having the case reopened and the possibility of a successful appeal cannot be ignored. However, in the present circumstances, there being no identifiable fault on behalf of the applicant, I am satisfied that leave to appeal should be granted.
The indictment contained 7 counts (counts 5 and 6 presented in the alternative) alleging sexual assaults upon the complainant, CW, in premises at [......] between 1 October 2003 and 5 May 2004. At that time the applicant lived with his wife in the same street as the complainant and her family. The complainant was born in 1997 and was aged 6 or 7 years during the period of the alleged offences.
The relevant facts in relation to each of the counts on the indictment were conveniently summarised by Fullerton J in R v PGM at [13]-[23] when considering the matter of sentence. It is convenient to repeat her Honour's summary:
13 The victim in each of the offences was a neighbour of the respondent and his wife in a Sydney suburb. The young child lived with her parents and her siblings. The respondent was involved with a bush care group which maintained bushland at the rear of their suburban properties. He commonly hosted a barbecue at his home after these activities. It was in that connection that he forged a relationship with the child such that she visited his home on a number of occasions between October 2003 and May 2004 to help him with his gardening. Over the course of the seven months the child had her seventh birthday.
14 His Honour found it unnecessary to recount the details of the offences in circumstances where, subject to minor variations in the evidence before the jury in the second trial, the facts supporting the conviction on each count were adequately reflected in the remarks on sentence following the previous trial. Those facts in summary are as follows.
15 In respect of the first count on the indictment (a count of sexual intercourse likely to be the last in time) the respondent, after finishing some gardening with the young child, took her to his home to show her a video which the child said "had cats and music on it". It appeared on the evidence that this was a video of the musical "Cats". The respondent then put the child on the lounge, pulled her pants down, told her to open her legs and began licking her vagina. The respondent told her that he enjoyed this but to keep it secret. The young child then went home.
16 The second count related to an incident some months earlier in February 2004 when the child went to the respondent's house and was playing inside on the stairs. The respondent asked whether she wanted to do some gardening, in the course of which she recalled falling over. After a bandaid was applied she went with the respondent inside the house. On this occasion he took her to a bedroom, laid her on the bed and told her to open her legs. He then pulled her underwear down and sucked her vagina. He then pulled up her underwear and the child went home.
17 In respect of the third of the three counts of sexual intercourse (count 5 on the indictment) the evidence led at trial was that the respondent commenced to put his penis into the child's "private parts" but that it "came out". It was an incident said to have occurred before Christmas 2003. The sentencing judge noted that there was an issue at trial as to whether the conduct attributed to the respondent by the child on that occasion constituted sexual intercourse within the meaning of the Crimes Act, or whether it was simply an attempt to commit that offence. While his Honour acknowledged that the verdict of the jury must be taken as acceptance of the fact that sexual intercourse occurred and to the criminal standard, having regard to the evidence at trial, he took the view that the jury's verdict should be taken only as an acceptance of the proposition that there was sufficient penile penetration to amount to sexual intercourse. His Honour acknowledged that irrespective of the degree or extent of penetration, sexual intercourse of a young child was a serious offence deserving of condemnation and was properly characterised as a disgusting act on the part of a mature man.
18 An issue arises on the appeal as to whether, in light of that finding, his Honour gave sufficient weight to the objective seriousness of that offence when fixing a non-parole period of 4 years against a term of imprisonment of 7 years and, in addition, whether the objective criminality constituted by that offending was appropriately reflected in the overall sentence given that the sentence imposed on that count was to be served wholly concurrently with the other two counts of sexual intercourse.
(b) The three counts of indecent assault
19 In so far as the three counts of indecent assault are concerned, the first in time (count 3 on the indictment), occurred in the living room of the respondent's house when the respondent put cream on his penis after removing the child's underwear. The child described "white stuff" spurting out of his penis and hitting her vagina.
20 The second count of indecent assault (count 4 on the indictment) occurred in the lounge room of the respondent's home in circumstances where he showed the child an image on the computer of a naked young child with her legs apart. At the time of showing her the image the child gave evidence that the respondent said to her "that looks very nice". After retiring to the garden for a time the respondent then took the child back into the lounge room and, after removing her underwear and widening her legs, he put his penis on her vagina and "wiggled it". According to the child the respondent had his trousers down at this time and was standing above her whilst she was sitting. She gave evidence that she told him to stop after which he then pulled up his trousers.
21 The third count of indecent assault (count 7 on the indictment) also occurred in circumstances where the respondent and the young child had been gardening together. On that occasion the child was taken inside the respondent's home where she was given an ice-cream. Whilst in the living room the respondent rubbed the child's vagina with his hand.
(c) The offences on the Form 1
22 The offences of possession of child pornography were constituted by images of young children engaging in sexual conduct found on his arrest in May 2004 on a computer hard-drive at the respondent's home in a file which bore his name. A related offence concerned similar images on a CD-rom also in the respondent's possession.
23 His Honour purported to take that conduct into account when imposing sentence for count 4 on the indictment. The Crown submits that his Honour failed to augment the sentence in respect of count 4 in a way that reflected the nature and severity of the offences on the Form 1 and, further that by reason of the structure of the sentencing order, that offending effectively went unpunished.
There are three grounds of appeal.

Ground 1: the verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence.

Ground 2: the learned trial judge's directions concerning the complainant's demonstrated lies involve error, in that they denied or failed to acknowledge the fundamental significance of those lies to an assessment of the complainant's credibility.

Ground 3: the learned trial judge's directions on the absence of the complainant involve error, in that they:

(a) omitted to warn or direct the jury about the specific dangers of convicting on the evidence of the absent complainant;

(b) referred to forensic disadvantage experienced by the Crown as a result of the fact that the complainant was not compellable to give evidence in the proceeding; and

(c) suggested that the complainant's absence was solely attributable to procedural legislation.

The applicant pleaded a similar ground of appeal to Ground 1 in the first appeal. That ground was resolved adversely to the applicant. It was accepted by counsel that the decision of the earlier court, of which I was part, was of no relevance to the present appeal. For that reason there was no objection to my sitting in the matter.

The complainant's evidence was contained within two video tapes of her interview with the police and an audio recording of the evidence she gave at the first trial. Section 306B of the Criminal Procedure Act 1986 allows the prosecution to tender "the original evidence" of a complainant at a subsequent trial. Section 306E requires the evidence to be "best available record" which, in the event that an audio visual recording was not made, may be an audio recording of the evidence: (s 306E(2).
The Crown called a medical practitioner, Dr Mark Johnson, who gave evidence that he had examined the complainant a number of weeks after the last alleged assault. He said that he did not observe any injuries to the complainant's genitalia. Her hymen was intact. He gave the opinion that he would not expect any abnormal findings in the circumstances as he understood them.
The Crown also called the complainant's half-sister who gave evidence of the complaint made to her by the complainant. The complainant's parents also gave evidence of that complaint. There was also evidence from a police officer who said that he had located a pornographic image on the applicant's computer that was similar to the image described by the complainant to the police. This was important evidence corroborative of the complainant's account of the circumstances in which the assaults allegedly occurred.
The applicant gave evidence and denied any sexual misconduct towards the complainant. His wife also gave evidence. Their evidence contradicted the complainant in relation to the layout of their house, its furnishings, anatomical peculiarities of the applicant and his alleged opportunity to commit the offences.
More importantly and more significantly (he only gave evidence at the second trial) the applicant called a specialist in the field of sexual assault medicine, Dr Brennan. Dr Brennan said that she would "categorically" expect there to have been observable injuries to the complainant at the time of the examination by Dr Johnson given the nature of the allegations of sexual intercourse.
The approach that the court must take in determining a ground of appeal which alleges that the verdict of the jury is unreasonable are well known. They were authoritatively discussed by the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]-[14]:
"It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ:
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.
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act . In MFA v R [(2002) 213 CLR 606 at [58]], McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
...
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M , Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493]:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
The prosecution case was, as is most often the case in relation to sexual assault, dependent upon the jury accepting the complainant's evidence. The trial judge directed the jury that unless it could accept the complainant's evidence to the criminal standard of proof the applicant should be acquitted.
The applicant's attack upon the complainant's evidence in this Court was founded upon an account which she gave of observing the applicant engaging in sexual misconduct with another child. When cross-examined she conceded that she had made up this account. It was asserted by the applicant that the complainant's evidence was otherwise vague and confused and marked by internal contradiction. Furthermore, it was suggested that her evidence was inconsistent with the expert medical evidence of Dr Johnson. It was further submitted that the jury's capacity to assess the complainant's demeanour was compromised by reason of the fact that they did not see her in person but rather saw a video recording of her interview with the police and, assisted by the transcript, listened to an audio recording of her evidence at the previous trial.
The interview of the complainant by the police took a conventional form. In the course of the interview the complainant gave an account of sexual activity between the applicant and his son. During the course of the questioning the complainant was asked whether the events which she related "really happened." She responded by saying that they did and that she remembered them happening.
She gave details of the event in which she said that she had seen the applicant apply cream to his son's penis and said it "would squirt out" on the applicant. She said that she had seen the applicant "squirt cream" in the area of his son's "bum", while his son ran along with "his pant's zipper ... down." She said that she knew that the applicant did it because she saw the cream "on his [i.e. "the boy's] bum." She said that she was never told the name of the boy.
The complainant said that she was in the kitchen when she saw the cream on the boy's bottom. She also said this happened 12 years ago. When questioned about the time frame the complainant said that the incident occurred two to three years earlier. She also said that she had met the boy previously and saw him up to the time he was in a car crash.
There was evidence in the second trial that the applicant's son passed away at the age of 23 years following a car accident. The complainant's evidence would have meant that she was only two years old when the alleged incident occurred. Furthermore, the complainant's family did not live near the applicant until after his son had died.

In the course of her evidence at the first trial the complainant confirmed that she had told the police the truth when she was interviewed. She was cross-examined about the allegation concerning the applicant's son. Her answers contradicted the answers she gave to the police when she was interviewed. She said that she did not know whether the boy whom she had seen was the applicant's son. She said "I just thought he was his son." She said in her evidence that she could not remember when the incident took place.
Notwithstanding these answers the complainant continued to assert that the event which she had previously related had occurred. She said she had met the boy involved once in the applicant's house but could not remember his name. She thought the boy was older than her own age and was not in the company of anyone else. She said that she saw a boy with cream on his bottom while she was in the applicant's kitchen. She said that the event happened one day after school. When pressed about her memory of the incident she said that she could not remember "that much." She was then asked the following sequence of questions:
"Q: ... tell us what you do remember about the boy on that day?
A: (No verbal reply)
Q: [C] are you having difficulties answering my question?
A: Yes.
Q: Is that because you made it up about the boy?
A: Yes.
Q: Why did you make it up about the boy, [C]?
A: I don't know.
Q: You remember when you started the record of interview with [J] and [W] you promised you would tell the truth, didn't you?
A: Yes.
Q: They reminded you particularly when [J] reminded you during the tape you had to tell the truth, didn't you?
A: Yes.
Q: Bit [sic: but] in relation to this about the boy you just made that up, is that right?
A: Yes.
Q: When you say that you saw the boy with his pants off and cream on his bum, did you make that up?
A: Yes.
Q; When you talked about [the applicant] putting cream on his penis and squirting it on the boy, did you make that up?
A: I said he squirted it on me.
...
Q: Everything you said about the boy was that all made up?
A: Yes.
Q: ...'He put it on his penis and it would squirt out on [the applicant]' ... Did you make those words up about squirting out of a penis, about the boy?
A: Yes.
Q: You were asked ... 'Okay so did you know this boy was [the applicant's] son?' And you answered, 'Yeah.' Was that the truth?
A: No.
Q: I will ask you it again [C], do you know why you made up the story about there being a boy there?
A: No.
Q: Was there anything else that you said to [J] and [W] that day that you made up?
A: Not that I can think of."
The applicant submitted that this passage of evidence was of fundamental significance for the assessment of the complainant's credit. The applicant advanced four reasons for this:
The "lie" which it was asserted the complainant told did not concern matters of peripheral relevance or importance. It could not have been more material, as it concerned allegations of sexual abuse by the complainant upon a child.
The "lie" was not attributable to an isolated or anomalous remark. It was a deliberate work of the complainant's imagination, which evolved and developed in detail as the complainant was asked further questions. This process occurred on a number of occasions, both within the police interview and in her evidence in the first trial. The fabrication wove in pieces of information that the complainant acquired about the applicant (ie information about the death of his son).
The dishonest answers were given after the complainant was enjoined to tell the truth, and after she undertook to do so. This also occurred on multiple occasions. The conclusion necessarily follows that the complainant's repeated promise to tell the truth could not be given any weight. It was submitted that this was a highly significant matter.
The complainant was prepared to persist with the "lie" when she gave evidence in court and her initial answers support the inference that there was a degree of deliberation about this course. In particular, the shift in the complainant's evidence away from her claim of knowledge that the boy was the deceased's son (to the point of being a mere assumption) and her disinclination to nominate a timeframe for the incident, indicate an attempt to negotiate the most problematic aspects of the fabrication.
It was submitted that the "lie" was of such magnitude and character in the context of the other evidence in the case that there was no reasonable basis for satisfaction beyond reasonable doubt that the complainant's version should be accepted as the truth. The context included the absence of corroboration of the allegations, other aspects of the evidence that contradicted the complainant's account (or made it difficult to accept) and denials of the allegations by the applicant. It was further submitted that because the jury was deprived of the advantage of seeing, as opposed to hearing, the complainant give evidence it did not enjoy the advantage commonly attributed to a jury when assessing the complainant's evidence: see PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426 at [54]; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [13].
The applicant drew attention to other evidence of the complainant that, it was asserted, contained a "lie." In her interview the complainant said the applicant had lived next door to her home but then moved one house along. Although she adhered to this evidence in cross-examination she ultimately admitted that it was wrong.
The applicant also referred to the complainant's allegation of penile penetration of her vagina. In her evidence she said the applicant's penis felt "very hard" and said that "sometimes he would put it in ... like inside of it [her vagina]." She said that she knew the penis had gone inside her vagina because she "couldn't see the um, testicle ... I could just see the bit that joins it up." When referring to the "testicle" the complainant was actually referring to the top of the applicant's penis. The complainant had said that the applicant put his penis inside her vagina and wiggled it for five or six minutes. She said that when this happened it was "really hurting."
The Crown called Dr Mark Johnson to give evidence. He said that by the time he examined the complainant he would expect that there would only be signs consistent with penile/vaginal intercourse on the complainant if the assault had been particularly violent. He said that if the allegation was confined to an attempt to engage in penile/vaginal intercourse there would be no signs consistent with the attempt observable by the time he conducted his examination. He gave evidence that his examination did not enable him to say whether or not the complainant had been sexually assaulted. He did accept that if there had been full penetration of the complainant's vagina then "you might see" changes to the hymen, such as bruising and lacerations (up to a few days later) and scarring (potentially months or years later).
The applicant was critical of Dr Johnson's evidence. It was submitted that he had resisted answering questions and had volunteered the view that children are not accurate historians because they lack a sound understanding of their own anatomy.
The applicant called Dr Brennan who said that in his opinion penile/vaginal intercourse with a 7 year old girl would "categorically" have occasioned significant injury to the child and that such injuries had they occurred would have been discernible to an expert upon examination. She said that having regard to the complainant's history she would have expected "significant injury such as a transection in the hymen", which would have left discernible scar tissue.
The applicant submitted that Dr Brennan's evidence should have been preferred to that of Dr Johnson. It was submitted that she was vastly more experienced than Dr Johnson and had worked in sexual assault medicine since 1991. This was the area of her specialty in which she held a teaching position in forensic medicine at The University of Sydney. She had performed many examinations of persons complaining of sexual assault over many years.
It was submitted that Dr Johnson's examination of the complainant took place after he had been given an inaccurate or incongruous history of cunnilingus, digital penetration and attempted penile penetration. Dr Johnson understood that expression to mean "an attempt to insert the penis into the external genitalia of the vagina" which "failed" because the complainant moved. It was also submitted that there was evidence that the officer of the Department of Community Services who had referred the complainant to Dr Johnson had given an inaccurate account of some of the alleged events.
Finally, the applicant criticised the reasonableness and impartiality of Dr Johnson as a witness "on account of his repeated, combative responses concerning the limited significance of histories given by child complainants." It was submitted that his answers disclosed a reluctance to engage with questions put to him in cross-examination, a difficulty that was emphasised by the fact that he was not provided with an accurate history of the events by the investigator.
The applicant emphasised alleged inconsistencies and other problems which made the evidence of the complainant unreliable.
It was the Crown case that the complainant first complained to her sister on 6 May 2004. The complainant was spoken to by her parents very soon afterwards. The sister gave the following evidence:
"We were walking home and [C] asked if we could go through the pathway, the secret pathway down next to [the applicant's] house, apparently there was a shortcut and she said there was a secret hole in the fence and I said, no [the applicant] wouldn't want us to he isn't home. He wasn't home that day. So I said, no. And then [C] said it's one of our secrets. And I said what kind of secrets? ...And she said, [the applicant's] been to gaol. And I said, what for? And she said, he sexually abuses me and I said, what are you talking about? ...And then we went home...and I went into [C's] room with her and we sat down on the bed and I said, what are you talking about? And she said...[the applicant] touches her. And I said, where? And she said, on my fanny and I said...what is his face like when he does this? And she said, he's always smiling. And then I said, how many times has he done this and she said to me, about 30 times... I did ask her...is this really serious what you're saying because if you're [sic] tell me now that it's not serious I won't tell anyone and she said, no it's true, everything's true."
In her police interview on 12 May 2004, the complainant indicated that the conversation with her sister had occurred four or five weeks earlier. The complainant said that she told her sister that the applicant "was sexually abusing me"; but denied saying anything else. She said the complaint was made "some time after" (or not in the same week as) the last incident of abuse. The complainant later said that the conversation occurred on the same the day as the incident the subject of counts 5 and 6. After the interviewer indicated that she was "confused" about the timing of the conversation, the complainant gave an equivocal response.
In cross-examination and contrary to her sister's evidence, the complainant denied telling her sister that [the applicant] had been in gaol, or that he was going to gaol.
The complainant's mother gave evidence that the complainant said to her that the applicant "had touched her down there, had licked his fingers and touched her." The complainant was reassured that she was not in trouble. The complainant's father gave evidence of a subsequent conversation in which the complainant said, "he touched her." The complainant was then asked whether the applicant had done anything else to her; the complainant answered "no."
The applicant submitted that the evidence in relation to complaint contains discrepancies and contradictions in terms of both the timing of the conversations and their content. In particular the applicant submitted that:
The complainant's evidence to the effect that the conversation with her sister occurred four to five weeks before her police interview was, on the Crown case, plainly incorrect.
The complainant gave inconsistent answers about the proximity of the conversation to the last act of alleged abuse.
The sister's evidence about the statement "[the applicant's] been to gaol" raises further questions about the complainant's credibility, both in terms of the veracity of her statement to the sister in the first place, and her subsequent denial in cross-examination that she said these words. This is evidence of a possible further lie or fabrication on the part of the complainant about the applicant. Detective Kearns gave evidence that she made inquiries into whether the applicant had been incarcerated and confirmed that the statement was false. It was submitted by the applicant that the timing of the potential lie-during the utterance of the initial complaint-is significant.
The substance of the allegation made to the sister is inconsistent with the complainant's subsequent evidence. The complaint was to the effect that the applicant touched the complainant's vagina about 30 times. The ensuing conversations with the applicant's parents support the inference that this allegation was a reference to touching with the applicant's fingers. In her police interview, the complainant only spoke of one occasion on which the applicant touched her vagina with his hand. This was allegedly with the palm of the applicant's hand, not his fingers. The complainant did not tell police that the applicant licked his fingers. Indeed, the complainant initially denied: (1) that anyone had touched her vagina; and (2) that she had complained about this to her mother.
The complainant did not tell her sister or parents about the other alleged acts of sexual assault (cunnilingus and penile-vaginal intercourse), despite being specifically asked by her father whether the applicant had done anything else to her.
Toward the end of her police interview the complainant suggested that she stopped visiting the applicant's home prior to the Easter school holidays. If this evidence is accepted, the complaint was made weeks after the last alleged incident. The complainant gave inconsistent evidence about when the incidents commenced, but it was weeks or months before the last incident, possibly as early as the spring of 2003. This timing should be considered in the context of the complainant's evidence that she participated in regular child protection lessons, understood the concept of "sexual abuse" and knew that she should make an immediate complaint if inappropriately touched ("I would just go home and tell mum").
It was submitted that these discrepancies and the potential lie limit the extent to which the evidence of complaint provides "support" for the complainant's evidence. It is submitted that the level of contradiction and inconsistency provided a further reason to doubt the evidence of the complainant. The applicant acknowledged that the trial judge directed the jury on this issue.
The applicant further submitted that the evidence of the complainant about the timing of the evidence was confusing and contradictory and, so it was submitted, illogical. This submission was supported by the reference to the following matters:
In respect of an allegation of cunnilingus (count 1), the complainant said "that happened...five weeks ago...that's when I think it started happening"; It was submitted that this would suggest a commencement date for the offences of around 7 April 2004;
The complainant said that the last time it happened was "somewhere in March" which, if correct would pre-date the asserted commencement date;
Although not able to remember the first time it happened, the complainant said that she knew it happened "about the 1st of January...something in January...2003...no, sorry...it was about December something from...last year [2003]...After Christmas": It was submitted that this commencement date is inconsistent with the proposed April 2004 commencement date. It was further submitted that the timeframe was also contradicted by evidence given by the complainant's mother that the family (including the complainant) travelled to the United States of America from 21 December 2003 to 10 January 2004;
In respect of the allegation of penile-vaginal intercourse (relevant to counts 5 & 6), the complainant said that this occurred in 2003, before Christmas, when "it was kind of hot...I think it was spring." The applicant submitted this pre-dates, and hence is inconsistent with, the second commencement date described summarised above;
Describing the same incident, "that was the day that I told [the complainant's sister] and then she told mum and then mum told dad... I think...this happened last year after Christmas." The applicant submitted that it was the Crown case that the conversation took place on 6 May 2004 and this timeframe cannot be reconciled with the balance of the complainant's evidence;
While being questioned about the last time something happened, the complainant said that nothing happened since or during the Easter holidays, but then also denied that something happened before Easter;
In the course of cross-examination, the complainant said she stopped going to the applicant's house in "2003", before the trip to the United States. It was submitted that this would suggest that the alleged offences ceased no later than 20 December 2003 and that this timeframe cannot be reconciled with the balance of the complainant's evidence.
There were yet further inconsistencies that the applicant submitted were to be found in the complainant's evidence:
The complainant initially stated in the police interview that no one had touched her on the vagina. After being told by the interviewing officer that it was her job to find out if something happened and it was not the victim's fault if something did happen, the complainant then said, "It happened once to me" (the complainant proceeded to describe an act of alleged cunnilingus). A small number of questions later, the complainant said that it happened "about ten or fifteen" times. It was further submitted that the complainant made peculiar statements about modes of cunnilingus (sucking and licking) occurring on alternate days: "About Monday he would suck and Friday he would suck...And that Tuesday and Wednesday, probably Thursday, he would lick."
In cross-examination, the complainant estimated that she had been alone with the applicant in the upstairs bedroom on five occasions. She alleged that cunnilingus occurred on three occasions, but this was all that occurred when she was upstairs. The complainant accepted that there were no occasions in the bedroom when the applicant and the complainant had penile-vaginal intercourse or the applicant put his penis near the complainant's vagina. However, this evidence contradicts the complainant's answers in the police interview concerning alleged acts of intercourse in the bedroom. The complainant later alleged that three further acts of cunnilingus occurred in the lounge room. When asked if there were six times in total (there were no allegations of cunnilingus taking place outside of the lounge room or bedroom), the complainant then said that it was "definitely more than six...It was twenty I think...I don't remember but I know it happened more than ten." The complainant also alleged that she was certain that there were five occasions of penile-vaginal intercourse. However, no allegation to this effect was made in the police interview.
The applicant submitted that the complainant specifically alleged that semen was discharged onto the lounge and that the applicant wiped it off with a towel. However, there was evidence that specialist forensic testing designed to detect semen was performed on the applicant's lounge. No traces of semen were found. It was submitted that the Crown did not call evidence from an appropriately qualified expert to explain why the semen may not have been detected, had it actually been discharged on the lounge.

The applicant submitted that in other respects the physical evidence was lacking and drew attention to the following matters:
The complainant alleged she "would always see [the blankets on the applicant's bed] dirty." The stains were brown; they were "all around" the bed and they were from "dirt and coffee". The dirt was on the top and the side of the bed. The complainant later nominated that there were exactly four coffee stains on the bed. It was submitted that this evidence bears a quality of exaggeration and invention. Detective Kearns said that she did not observe any coffee stains on the bedding when the applicant's house was searched. The applicant's wife gave evidence that neither she nor the applicant drank coffee. She denied that there was dirt all over the bed.
In her police interview, the complainant described a picture hanging in the applicant's bedroom depicting a couple dancing. In cross-examination, the complainant maintained that she was sure that it was a picture of two people dancing, but claimed that she could no longer remember the picture and hence could not describe it further. The applicant's wife denied that there was a picture of two people dancing in the house. Detective Kearns gave evidence that she did not recall seeing the picture during the search of the applicant's home. It was submitted that it could be inferred from the trial transcript that the video recording of the search did not depict a picture of two people dancing.
When she gave evidence about the events leading up to viewing the pornographic image and the allegation relevant to count 4, the complainant stated that she opened the front door of the applicant's home by "using the door handle" and then walked in and found the applicant in the computer room. (In her police interview, the complainant gave a different account, stating that she knocked on the door and the applicant let her in. She denied in cross-examination that the front door could only be opened with a key. There was evidence, in the defence case that the front door did not have a door handle and could only be opened with a key. The Crown did not challenge this evidence.
The complainant alleged that multiple offences were committed in the living room (on the lounge), including cunnilingus and penile-vaginal penetration. Witnesses called in the defence case, who were familiar with the layout of the applicant's home, gave evidence that a person walking on the path to the rear of the applicant's home could see into this room. There was evidence that acquaintances of the applicant would frequently say hello to the applicant from the rear path, which was used by cyclists and walkers. It was submitted that it is implausible that multiple acts of sexual abuse would be perpetrated on the complainant in plain view of passers-by.
The applicant and his wife gave evidence of two idiosyncratic anatomical features on the part of the applicant. The applicant had a denture plate that had to be removed if the applicant wished to perform licking or sucking actions. The denture plate was tendered and admitted as exhibit 5. The applicant also had a distinctive mark on his penis. Photographs were tendered and admitted as exhibits 12 and 13. The complainant did not refer to either of these anatomical features in her interview or evidence. It was submitted that the omission to refer to the denture is significant, given the number of allegations of cunnilingus.
The applicant submitted that the evidence of the complainant that she had seen a pornographic image of a young girl on the applicant's computer should be treated with caution. The complainant alleged that on one occasion she observed the applicant in his computer room looking at a pornographic image of a young girl. The applicant allegedly said, "That looks very nice". The applicant and the complainant then did some gardening work together, which preceded the allegations referable to count 4. The complainant said that this was the only time she saw an image like that on the computer.
Detective Kearns gave evidence that the police seized a computer hard drive during their search of the applicant's home on 19 May 2004 and subsequently located a pornographic image on the drive, which was similar to the one described by the complainant. The officer was not able to say when the image was saved to the drive or when the image may have been viewed.
It was submitted that the inherent limitations of this evidence should be kept in mind in any assessment of its corroborative significance. The image referred to by the police officer was never shown to the complainant. It was further submitted that there is no evidence that the image had been saved/viewed in the timeframe of the allegations (to the extent that it can be said the complainant provided a cogent timeframe for the offences). The evidence was not relied on by the Crown for a tendency purpose (i.e. to establish that the applicant had a sexual interest in young children).
It was submitted that the evidence only goes so far as to establish that as at 19 May 2004 there was an image on the applicant's computer, which is consistent with an image described by the complainant. This evidence does not corroborate any of the allegations made by the complainant about particular sexual acts, whether the subject of counts in the indictment or otherwise. It was further submitted that the evidence provides limited support for one aspect of the complainant's evidence only, namely her allegation that she saw a pornographic image on the applicant's computer. The jury was properly directed that even if this evidence is accepted, it does not follow that the applicant committed any sexual offence against the applicant. It was further submitted that it is quite possible that witnessing an image of this nature might provide a motive for making a false complaint of a sexual nature against the applicant (although this possibility was not pursued with the complainant in cross-examination).

Consideration

As I have mentioned above the applicant submitted that the complainant had "lied" in two significant respects. The first related to seeing the applicant's son with cream on his bottom and related events and the second was the evidence that the applicant had at one point lived next door to them.
The complainant was 7 years old when she took part in the video recording and 8 years old when cross-examined at the trial. Some aspects of the complainant's account of the relevant circumstances were confirmed by other evidence. The applicant's son had in fact died in a car accident when aged 26. The complainant said that the applicant had told her this. The jury also heard evidence (not from the complainant) that the complainant had once met a boy who was 17 at the time of the trial at the applicant's house.
Under cross-examination at the first trial the complainant said that she could not remember saying that she saw the applicant's son with cream on his bottom but insisted that she did meet a boy at the applicant's home. She then said that she did not know whether the boy she met was the applicant's son. She thought the boy was older than her. When asked whether she made up the allegation that the applicant had put cream on his penis and squirted it onto the boy she said that the applicant had squirted it onto her. When confronted with the detail of the allegation she had made in the video recorded interview she agreed that she had made up the story about the boy and that it was not the truth.
At the very least it is plain the answers which the complainant gave in response to questions about these matters were confused. Having regard to all of her evidence in some respects they were not correct. It must be remembered however that by the time this issue was raised the complainant had been answering questions for in excess of 2 hours.
The difficulties with respect to the complainant's account of these peripheral events is not reflected in the evidence which she gave about the primary allegations. A reading of her evidence in relation to those allegations gives an impression quite different to her account of seeing the applicant with the young male person. Although she was tested in relation to her account of primary matters she did not waiver and the cross examiner was not able to obtain any concession or suggestion she had fabricated any of this evidence. Furthermore, the evidence she gave about these matters was consistent with her video interview. The applicant correctly identifies that in her video interview the complainant said that the applicant had at one point lived next door to her home and had subsequently moved from no. 5 to no. 7 in the street. She conceded that this evidence was not correct after she realised that she could not remember anything about the applicant being at no. 5. At this point when she was asked whether the applicant had actually lived at no. 5 she said "she didn't know." She then agreed with the suggestion that the applicant had never lived at no. 5.
The transcript of the trial confirms that these matters were emphasised by both defence counsel and by the trial judge in the course of giving directions to the jury. The jury was directed by the judge to scrutinise the complainant's evidence very carefully. That instruction was repeated on a number of occasions during the summing up. It is necessary to both Ground 1 and Ground 2 of the appeal to consider the directions which the trial judge gave to the jury including his discussion of the asserted lack of credibility of the complainant by reason of her concession that some of her evidence was not correct. I have set out relevant portions of the directions below:
"An important part of your responsibility as judges of the facts is the assessment of the reliability of the evidence given in the trial. There is, if you like, a central or crucial witness in the case and that is the complainant. The complainant is the only person, the Crown says, who was a witness to these alleged sexual assaults and so the Crown case rests very, very heavily indeed on the evidence of the complainant and, thus, her reliability as a witness is a central feature of this case and of your consideration of the evidence in the case. That is not only because she was the only witness to these alleged assaults, but also because the obligation is on the prosecution to prove the charge and to prove it beyond reasonable doubt, there being no onus on the accused to prove anything. He is not obliged to prove anything. So both of those are very powerful considerations for why you would need to give very careful scrutiny to the evidence of the complainant.
But what I want to say is not only referable to the complainant, these are observations which are relevant to your consideration of all of the evidence in the case. As I said, you have to decide whether the evidence is reliable evidence, whether you can safely act upon it and, before you could do that, you need to be satisfied that a piece of evidence you are considering is both honest and accurate. I say a piece of evidence because there is no rule that says you have to accept all of a witness' evidence or reject all of it. You are entitled to accept parts of a witness' evidence but to reject other parts of it. Equally you are also entitled to accept the whole of the witness' evidence or reject the whole of the witness' evidence.
But, in this case for example, the Crown submits that you would accept the evidence of the complainant, even though, on her own admission in the cross-examination in the previous trial, she admitted making up the material in the video taped interview about the accused moving from number 5 to number 7 in the course of his living in the street in which she was living. You know from other evidence that that move did not take place and that is not challenged. The Crown accepts, as I understand it, that that assertion was not correct and the complainant, ultimately, in her cross-examination conceded that she had made up that assertion and also, and perhaps more significantly, that she had made up the description of an incident involving a boy, initially or at least in part described as the accused's son and I will not go into the detail of it, but you might think, when you heard the description, she was giving quite a detailed description of an event which she claimed to have observed. Initially, in cross-examination she maintained that she had seen these things and then, ultimately, conceded that she had made up the story about the boy and that she did not know why she had made it up.
That issue of course raises, you might think, a very important, perhaps even crucial, point about the reliability of the complainant's evidence. After all, if she had made up that description, you have to very seriously consider whether she had made up other descriptions of events, including, most importantly, descriptions of events which are the foundation of the charges before you. If her evidence in relation to the incident with the boy is unreliable because it was made up, then, as I have said, obviously that is an important consideration for you as the judges of the facts in weighing up the reliability of the complainant's evidence generally.
But there is no rule that says, if a witness is unreliable in one respect, even dishonestly unreliable in one respect, that that witness' evidence cannot be accepted in other respects, but common sense obviously dictates, that when that situation arises, you are more careful and more likely to give much greater scrutiny to that witness' evidence to see whether it is reliable evidence in other respects and, particularly, in those respects which bear directly on the allegations which lie at the heart of each of the charges before you and where that witness is the only witness to those events.
So the first question you have to consider with a piece of evidence is whether it is honestly given, whether the person who is giving that evidence is doing his or her best to tell the truth about that issue or is trying to deceive you or mislead you or conceal from you the real truth of the matter.
The second question you have to ask is, even if that witness is doing his or her best to tell the truth about that matter, is this witness accurately giving an account of an event or accurately recalling an event at all. In that respect, you have to ask yourselves whether that witness is a person who has given inconsistent accounts of events, whether that witness' evidence seems to hold together and be a logical and coherent version of events, are there aspects of it that do not make sense, are not compatible with other evidence that has been given by that witness, and then you go through a similar exercise comparing that witness' evidence with other evidence in the case. Those tests are, I suppose, rules of thumb and they are not in any way precise or accurate measurements of a person's accuracy.
Similar considerations also apply to weighing up the honesty of a witness' evidence. You ask, does what this person say make sense, does it seem to fit into the overall scheme of things in the case, is it consistent, does the witness give the same account each time or is it changed on occasions, things added to it or taken from that account as the case progresses through various stages, is the witness saying one thing in evidence in chief and another thing in cross-examination? So you look for those questions, consistency and inconsistency, and as I said, there is an overlap between the considerations which you look at when you are considering honesty and when you are considering accuracy. Although they are different concepts, the same considerations and same rules of thumb often assist you from one to the other.
In the end, of course, it is a matter for you as the sole judges of the facts what facts you find. What I have said to you is simply intended to give you a few ideas that might help you in weighing up that evidence but what you make of the evidence, of its reliability, of the honesty and accuracy of a piece of evidence in the case, is a matter for you and entirely a matter for you as the sole judges of the facts in this case.
It is, of course, as I said, open to you to accept the whole of a witness' evidence or reject the whole of a witness' evidence or choose parts of it to accept and not accept other parts of it. Provided, whichever one of those things you do, you do so rationally and carefully and after a logical and careful examination of the evidence, then they are options which you, as the jury, have.
It is also, of course, important to bear in mind when you are considering the reliability of evidence, that witnesses can be quite honest but mistaken about matters and that is why it is necessary to look at both aspects of reliability. If a witness is being dishonest then that will, no doubt, raise quite a serious question mark, not only about the point on which they have given evidence which you think is dishonest, but also in relation to other aspects of their evidence. Similarly, if a witness is mistaken about some aspects or not accurate, then that may cause you to want to look very much more carefully at other aspects of their evidence to see just how accurate and, therefore, reliable that evidence is. These are all matters which are entrusted to you as the sole judges of the facts in this case.
As I have indicated to you, in this case, there is one witness who is essential to the proof of the Crown case in respect of each of the charges and that is the complainant CW. You should examine and scrutinise her evidence with great care before you decide whether you accept the evidence of that witness.
Since it is for the Crown to prove its case beyond reasonable doubt and the evidence given by that witness is the only evidence relating to an essential matter which the Crown must prove on these charges, then it follows that you must be satisfied beyond reasonable doubt that you should accept the evidence of that witness, CW, otherwise the accused must be found not guilty.
As I have already indicated to you, you will be concerned to assess not only what that witness says, but also her honesty and reliability as a witness. I will deal in due course with the evidence and submissions which are said to bear upon that issue.
On the other hand, the case for the accused is that you would not accept the evidence of CW as being that of an honest and reliable witness and, therefore, that you would have at least a reasonable doubt about acting on her evidence. Again I must emphasise that it is for the prosecution to establish that this witness, CW, is honest and reliable in giving evidence which is supportive of the Crown case. It is not for the accused to show that she was either dishonest or unreliable. By that I mean there is no obligation on the accused to show that she was either dishonest or that she was unreliable.
I want to say something at this stage about the evidence of the complainant. As you know, at the time these alleged offences took place, she was six or seven years of age. She turned seven in late March, just a few weeks before the discussion with her parents and the involvement of the police, leading to the interview on 12 May 2004. So, at the time she was interviewed, the age was within six or seven months or so of the beginning of the period of time it is alleged these incidents took place.
You had the opportunity, as I have said a moment ago, of observing her as she was being interviewed and making some assessment of her age and maturity at that time. You are also aware, as I have mentioned to you during the trial, that the evidence in the previous hearing was given in early June 2005, so it is two years ago but, at that stage, she was only just a couple of months over turning eight.
I need to direct you, therefore, that the evidence of the complainant may be unreliable due to her age. He age at the time of the alleged incidents but also at the time when she was recounting those events, when she was talking about them to the police and to the earlier court hearing.
I further warn you of the need for caution in determining whether to accept the evidence of the complainant and the weight to be given to it. That direction is a direction which I must give you but I stress that it is for you to weigh up that direction and to consider its applicability in relation to your assessment of the reliability of the complainant in this case. You must take account of that direction and give it due weight but, in the end, it is a matter for you to assess for yourself whether you are satisfied that, irrespective of her age or despite her age, the complainant is reliable. That choice, that decision, is ultimately one that you must make in the responsible exercise of your functions as the sole judges of the facts.
Similarly, as you are aware, in relation to each of the charges the only witness the Crown has brought in relation to the specific charge, the specific incident, giving rise to a charge in each instance, is the complainant herself. I must direct you that, in a case such as this, where one witness alone is asserting the commission of a crime, evidence of that witness must be scrutinised with great care. You give very careful consideration to the evidence of the complainant because, in the end, proof of the Crown case beyond reasonable doubt depends upon the reliability of the complainant's evidence and a satisfaction on your part that, in relation to a particular charge, you are able to reach a state of being satisfied beyond reasonable doubt that the complainant's assertions about that particular incident, in relation to the elements of the offence, constitute a reliable account of those events.
By that I mean it may be that you conclude that the complainant has given accounts of events which are very difficult to explain, such as her somewhat detailed description of events concerning the boy or the son of the accused which she conceded, ultimately in her cross-examination in June 2005, to have been made up. Also, for example, her concession, at the same time, that the assertion that the accused had, initially lived in [one place] and then had moved to [another place in the same street] was also something which she had made up. Those, you may think, are quite substantial matters particularly the lengthy description of events relating to the boy. Those are matter which you would in any event, as common sense would suggest, very carefully consider when weighing up the reliability of the complainant. Notwithstanding those matters, you are nonetheless entitled, as the sole judges of the facts, to conclude that the complainant is not a reliable or trustworthy witness on those matters but you accept the central allegations that she makes about each of the alleged offences. It is a matter for you whether you reach that conclusion or whether you conclude that those are matters so fundamental to her reliability that you could not accept her reliability on other issues. These are important tasks for you to perform in this case because the complainant's account of these events is crucial to the Crown case. If you cannot accept her on the central events relating to a charge, that is the allegation of an indecent assault or the sexual intercourse or an attempt, if you cannot accept her in relation to those central issues about each incident, then the Crown case has no other means by which you could be satisfied beyond reasonable doubt of the guilt of the accused on that charge. For those reasons you must scrutinise the evidence of the complainant with very great care.
Even leaving aside those two matters that I have identified (as to which the complainant conceded that she'd made them up) there are a whole host of other matters which have been raised in relation to the accounts given by the complainant, some of which I will deal with later. The Crown submits in essence, that all of these are really peripheral matters, they are not matters that should detract, ultimately, in the final analysis, from acceptance of the complainant as being a reliable witness.
The accused, on the other hand, submits that these matters, even if they appear in some respects to be peripheral and not central to the main issue in the trial, are none the less important indicators of what the accused submits is a significant range of areas of unreliability in the complainant's account of these events. A measure of unreliability so substantial that it undermines the whole reliability of the complainant's evidence. Now it is a matter for you how you weigh up those competing submission about the evidence of the complainant. My task is to direct you to scrutinise the evidence of the complainant with great care to ensure that it is reliable and to ensure that you are satisfied beyond reasonable doubt as to her reliability on the elements of these offences before you could find the accused guilty. If, after carrying out that very careful scrutiny of her evidence, you conclude that you can set aside those criticisms, that either they are not made out or they are not ultimately material to your consideration of the complainant's reliability, then you are entitled to find the complainant is a reliable witness and one whose account you can rely on in respect of the particular charge you are considering. It is a matter for you, ultimately, what conclusion you reach. My direction is that you must scrutinise the complainant's evidence with great care because it is crucial to the Crown case.
I direct you that it would be dangerous to find the accused guilty on the complainant's evidence alone. Nevertheless I direct you that, if you are satisfied as to its truth and accuracy, you are nevertheless entitled to act upon that evidence alone and reach a conclusion that you accept the complainant's evidence as being reliable, both true and accurate, and thus a foundation upon which to find the accused guilty.
As I have already indicated, I direct you that you cannot be so satisfied, without having first scrutinised the evidence with great care. I direct you that the carrying out of that scrutiny must take into account, carefully, any circumstances which are peculiar to this case which have a logical bearing upon the truth and accuracy of the complainant's evidence.
In particular, you are entitled to take into account, as part of the mix of circumstances, both the age and maturity of the complainant. You are also entitled to take into account, must take into account, the areas in which she conceded that she had made up evidence, or allegations, concerning the conduct of the accused or whereabouts he had lived. Also, the various matters which I will come to relating to the alleged inaccuracy or unreliability of the complainant as a witness.
I direct you that, at every stage of carrying out that scrutiny of the complainant's evidence, you must take serious account of the warning that I have given you that it is dangerous to act upon the evidence of the child alone to find the accused guilty.
This is the case where there is no evidence tending to confirm the complainant's account as to central element of any of these offences. There is some material upon which the Crown relies, for example, the image found on a search of the accused's computer equipment, which provides some support for the description of the event given by the complainant but there is no evidence which directly tends to confirm her account as to the essential ingredients of any of these charges.
As I have emphasised, this is a case where the sole witness in support of the Crown case is the complainant and so have directed you to consider her evidence with great care.
As I have already reminded you, there is a need for careful consideration in relation to that account about the boy and the cream. It is obviously a matter which is very important in terms of your assessment of the complainant. It is a matter which you have to consider very carefully, but I remind you that there is no rule that a witness, even a child witness, who has admitted making up a story on one occasion - or on this occasion, two occasions - must, as a consequence, be held unreliable when giving evidence about another matter. You are entitled to use the impression you received of the complainant from all her evidence in weighing up this particular piece of the evidence, not only what she has said on those previous occasions but, to the extent that you can, the way in which she said it, and her appearance as she said it, at least in relation to the videotape

With respect to the evidence of Dr Brennan, it is important to understand the evidence which the complainant gave. She said that she knew that the applicant had placed his penis into her vagina because she could not see the "testicle." However, it became clear that by the "testicle" she meant the top of the applicant's penis.
When cross-examined the complainant said that when the applicant was putting his penis inside her vagina it was "really hurting" and she told him to stop. She said he did this. She said that whenever she told the applicant to stop he did as he was asked.
Dr Brennan gave evidence that the hymen in a girl of the complaint's age was very sensitive to pain and if torn is particularly painful.
It is apparent that Dr Brennan gave her evidence with the understanding that the complainant inserted his erect adult penis fully into the complainant's vagina. With this understanding the doctor said:
"The passage of an erect adult penis into the - fully into the vagina of a 7 year old female under normal circumstances would produce dilatation of the introitus where the entrance is, markedly a greater diameter than the diameter. The diameter of the penis would be a markedly greater diameter than the diameter of the vaginal opening and I would expect under normal circumstances there to be some significant injury such as a transection in the hymen."
From this evidence it is apparent that it was open to the jury to have concluded that in the absence of observed injury the complainant may not have been giving an accurate account. However, this assumes that there was full penetration of the complainant's vagina. The evidence which she gave does not indicate that this occurred. Rather it would seem that the evidence was that the end of the applicant's penis was inserted into the complainant's vagina. This would not have had the physical consequences to which the doctor referred.
It is important to appreciate that both Dr Brennan and Dr Johnson gave similar evidence in relation to the fact that young girls are commonly confused about physical aspects of the vagina. Apparently they will often refer to their vagina when they are actually referring generally to their external genitalia. I am satisfied that this confusion was present in the complainant's evidence.
For these reasons I do not believe that the evidence of Dr Brennan has particular significance in this case. Certainly the jury were entitled to put it to one side as not relating to the events of which the complainant gave evidence. My own assessment is that the evidence was not relevant to understanding whether or not the complainant was giving an accurate account of the events.
The complainant did not initially tell anyone of what she later alleged the applicant had done to her. She said that she was afraid that the applicant would get into trouble and that she still thought he was a good man. She said that the reason that she told her sister was that the applicant kept doing things to her and she did not want it to continue to happen. She reported, as is common in these cases, that she had been told by the applicant to keep their activities a secret. She also said, which is not uncommon, that she did not have the strength to tell her mother and also thought that she may herself get into trouble.
To my mind it is important to appreciate that the complainant was of a young age when the alleged offences occurred and when she was interviewed and gave evidence. The offences allegedly occurred over a period of months. I am satisfied that it was open to the jury to regard the various discrepancies and contradictions as peripheral and not displacing the credibility of the complainant's evidence with respect to the central allegations.
The complainant knew the layout of the applicant's bedroom and that the applicant had one picture on the wall in his bedroom but believed it was a photo of two people dancing. By the time of the trial in 2005, she was unable to recall any further details about it.
The complainant gave evidence that sometimes the applicant would change the blankets on the bed because they were dirty. The complainant said that she once saw dirty footprints on the carpet and four coffee spots on the bed. She said that she did not see anyone spill coffee on the bed but that she could tell it was coffee because it smelt like it. It was not in issue that during the period in question renovations were taking place at the premises and the applicant often worked in his garden. Although the applicant's wife gave evidence that neither she or the applicant drank coffee, there was evidence that there was coffee in the house.
In respect to count 4, the applicant relies upon evidence given by the complainant at the trial to the effect that there was a door handle on the front door. The applicant gave evidence that there was no handle on the front door and it could only be opened by a key. However in her earlier recorded interview, the complainant gave evidence that she knocked on the door and was let in by the applicant. It was not in issue that the complainant had been to the applicant's on more than one occasion. The fact that 12 months after the complainant gave her video interview, she believed there was a door handle on the front door is not a matter that would to my mind adversely affect her credit.
The evidence of whether persons walking on the path at the rear of the applicant's home would be able to see persons on the lounge in the loungeroom (where some of the offences were allegedly committed) was speculative and far from clear. The jury had exhibit F (a plan of the applicant's home); exhibit H (photos of the loungeroom); exhibit 2 (aerial photo of the applicant's home); exhibit 21 (real estate advertisement with photos of the appellant's home); and exhibits 28 & 29 (photos of the rear of the appellant's home) to assist them. The evidence given about this issue was accurately summarised by the Crown in the following terms:
From the path one could not quite see the swimming pool because the applicant had big garden trees in his backyard. Whether you could see the loungeroom behind the swimming pool would probably depend on the light;
There were plants along the fence and whilst you could see a large window where the internal swimming pool was, one could not see the pool because it was glazed glass;
From the path at the rear of the applicant's home, one would have to look through a glass wall containing an internal swimming pool to see the living room and spiral staircase;
There was evidence that the swimming pool was heated;
There were also a number of trees in the backyard;
If someone was walking along the track one could see them from the loungeroom but not very well;
The acquaintances of the applicant would say hello to him from the path when he was outside in his garden, (not inside his loungeroom).
The applicant submitted that there was significance in the failure of the Crown to call evidence from an appropriately qualified expert to support the complainant's assertion that on one occasion the applicant had discharged semen onto the lounge and wiped it off with a towel. Evidence was led to the effect that tests were conducted to establish if there was semen on the lounge in the loungeroom. Forensic officers conducted an indicative test which was negative. The fact that the test was negative is not to my mind surprising. The test was conducted well after the event when the lounge may well have been cleaned and certainly used. The lack of any confirmed DNA is to my mind entirely neutral.
A similar response is to my mind appropriate in the present appeal.
Other aspects of the evidence relied upon by the applicant are the failure of the complainant to refer to the applicant's denture plate, which he claimed he had to remove if he were to perform licking or sucking actions, and the fact that he had a mole or mark on his penis. However, there was no suggestion that the applicant could not quickly remove his plate before undertaking those particular actions or that it was necessarily something that the complainant saw. The complainant was not questioned about whether she was aware that the appellant had a dental plate.
The appellant's wife described the mark on the appellant's penis as a "small brown mark." Whether a 6 or 7 year old child would consider a mark on a penis, (assuming she noticed it) to be something of significance, or which, if she saw it, she would remember may be doubted.
At the trial, the applicant objected to the admissibility of the evidence of the complainant saying that she had seen a pornographic image of a child on the applicant's computer on the basis that it was unfairly prejudicial. His Honour ruled the evidence admissible. There is no challenge to this ruling. In accordance with the ruling, the Crown led evidence from the complainant that the applicant showed her a picture on his computer of a naked girl aged about 10 years old with her pants off and her "legs split." When he showed her this picture he said, "That looks very nice." The Crown also led evidence from Senior Constable Kearns that an image of an apparently ten year old girl naked with her legs apart was found on the applicant's hard drive.
The judge gave specific directions to the jury in respect to this evidence. No objection was taken to these directions. His Honour told the jury that "... if she was shown such an image by the accused, that is a fairly significant piece of evidence and one which lends some support to her description of the general activity on that day, though not lending direct support to the proposition that the accused committed an indecent assault on her that day" (emphasis added). I am of the same view. The jury were entitled to reason that the complainant would only give evidence of this event if it had truly happened.
As I have previously indicated the applicant gave evidence at his trial. He said that he had suffered from post-traumatic stress disorder, depression and panic attacks and was an alcoholic. He denied sexually abusing the complainant. He also denied that there was an image on his computer of a girl around 10 years old naked with her legs apart. He claimed that he had never seen such an image. When cross-examined he was taken to the evidence that he had given at the previous trial where he had agreed that he had seen such an image and that it was on his computer. The applicant said that he could not recall giving that evidence and if he did that evidence was wrong. He also said that the evidence he gave at his previous trial to the effect that his wife went shopping by herself, maybe once a month was also not correct. At his second trial he said that his wife never went shopping by herself.
The applicant also denied that the complainant was a regular visitor to his house or that she would help him with the gardening or that she would watch TV or DVDs in his presence. When reminded of the evidence he gave at the previous trial that the applicant used to visit consistently at one time and would sometimes sit down and watch MASH on TV the applicant said he did not recall the evidence but if he did say those things he must have been mistaken.
A reading of the applicant's evidence leaves me in no doubt that he could not be accepted as a witness of truth. This of course does not mean that for that reason he should be found to have committed the offences with which he was charged. However, his evidence is so lacking in credibility that little weight could be placed in his denial of the alleged sexual acts.
The applicant's wife gave evidence which supported the complainant's account of her frequency of visits to their home. She said that the complainant would pop in whenever she liked and "take over the place." She said that she believed that the complainant had developed a crush on the applicant and if she and the applicant showed any affection towards each other the complainant would try and get between them. During 2003 and 2004 the complainant used to visit the applicant a couple of times a week, both after school and on the weekends. There was other evidence that supported a frequency of visitation by the complainant to the applicant's home.
I have carefully considered all of the evidence and in particular the criticisms which the applicant makes of the complainant's evidence. The jury had the advantage of seeing the audio visual recording of the complainant's interview and listening to the audio recording of her evidence. It is true that in some respects the complainant's evidence was unreliable and she conceded that in relation to those matters she had not told the truth. However, there is a clarity and directness about her evidence as to the central allegations which to my mind confirms that in relation to these matters she was telling the truth. As the directions given by the trial judge which I have included above indicate the jury were carefully and appropriately instructed as to how they were to evaluate the complainant's evidence and in particular that they must be satisfied of its veracity beyond reasonable doubt before they could convict the application. Having regard to these matters to my mind it was open to the jury to convict the applicant and I am myself satisfied beyond reasonable doubt that he was guilty of the relevant offences.

Ground 2:

The applicant submitted that the admission by the complainant that some of her evidence was not correct had fundamental implications for her reliability and credibility. In these circumstances it was submitted that the judge's directions failed to convey the significance of the admissions to the jury. In particular it was submitted that the directions:
Overstated the principle or "rule" that the jury was not obliged to reject all of the complainant's evidence on account of her "lies."
Left the issue open whether the "lies" possessed a fundamental significance.
Failed to adequately explain how the "lies" could or should be considered fundamental to an assessment of the complainant's credibility.
The applicant's written submissions contained a "primary contention" that "the only conclusion reasonably open is that the lies were fundamental to an assessment of the complainant's credibility, such that the jury could not accept the balance of the complainant's evidence."
It was further submitted that, although there was no rule to compel the jury to accept or reject all of a witness' evidence, the repetition of this principle by the trial judge served to undermine other directions given about the significance of the lies and the dangers of convicting on the complainant's evidence.
It was submitted that in these circumstances the trial judge was required to direct the jury on the manner in which the lies were articulated including:
their materiality;
their repetition;
the witness' adherence to the lies on different occasions and in different contexts (in a police interview and while giving evidence in court);
the proximity of the lies to promises by the witness to tell the truth;
in consequence, the reduced (or nil) weight that could be given to those promises to tell the truth;
and the dangers of accepting other parts of the complainant's evidence when the jury was not able to see the complainant giving evidence in person. This matter is the subject of the third ground of appeal.
No point was taken in relation to the trial judge's directions on these issues and accordingly leave is required under Rule 4 of the Criminal Appeal Rules. The fact that objection was not taken is not surprising. When the directions are carefully read it is plain that his Honour gave balanced and comprehensive directions to the jury as to the approach they should take to the assessment of the complainant's evidence. His Honour having provided the jury with appropriate directions as to the need for caution it was a matter for the jury to determine what they made of the complainant's credit in light of the fact that she admitted that some of her evidence was not correct. That admission was significant in two respects. It both indicated that the complainant had fabricated some of her evidence but also confirmed that when this had occurred she admitted the fact pointing to her account of the other events as being accurate. Her evidence on those matters withstood the force of cross-examination.
The correct approach to the application of Rule 4 has been discussed on many occasions. It was recently referred to by Bathurst CJ in RR v R [2011] NSWCCA 235 at [74]-[75] where his Honour referred to the judgment of McHugh J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [72].
I am not persuaded that his Honour erred in the directions which he gave on these issues. In my opinion leave to argue this ground of appeal should be refused.

Ground 3

The directions the subject of this ground of appeal were in the following terms:
"As you are aware, the complainant herself ... was not called to give evidence before you as a witness either at court or in a closed circuit television room. It is important to understand that, as a matter of law, the complainant cannot be called in these proceedings. You must not therefore speculate as to what else she may or may not have said if she was called in these proceedings. You must simply accept, as a matter of law, she cannot be called in this trial and you must not draw any adverse inference to the accused or to the Crown, nor must you speculate, you must simply act on the evidence of the complainant as it had been played to you in court on the video and on the tape recording.
Of course it is appropriate to take into account, as you would with other witnesses in the case, whether or not you have had the opportunity to see the witness as she gave her evidence. You have the opportunity to see her on the video tape as well as to hear her and, thus, some opportunity to assess her demeanour, her appearance, at the time she gave the evidence by way of that interview with the police. You have the opportunity, in viewing that video, not only to listen to her and watch her but to make some assessment of her level of maturity and apparent understanding and so on. The evidence from the earlier trial, which was given by close circuit television, is not available in video tape form. It is only available in audio tape form to the parties, so both the parties and you, as the jury, are, in effect, stuck with the fact that you are not able to see any vision of the complainant as she was questioned in that earlier trial.
The result of those procedures, which are perfectly lawful procedures laid down by Act of parliament is that there is, as might be apparent to you, some forensic disadvantage to both parties in the case. In other words, the prosecutor may have wished to ask further questions of the complainant, just as counsel for the accused, no doubt, wished to ask further questions of the complainant. You may feel that there are some areas of potential questioning or areas of potential evidence in relation to the complainant herself which have not been explored. Well, the plain fact is that both the prosecutor and counsel for the accused were stuck with the material from those previous recordings and could not, on either side of the record, do anything to obtain any further answers from the complainant.
Neither party could compel her to give evidence in this trial, therefore neither party could ask any further questions in-chief or in cross-examination. Now, having said that, it is important that you don't speculate as to what answers the complainant may have given. There may be some areas or some questions that you yourself may have been interested to hear put to the complainant and no doubt you would have been interested in the answers. But you must not speculate as to what the answers might have been. The reality is that both parties here are, in effect, stuck with the situation as it ended at the time of the completion of the evidence through the close circuit television system in June 2005.
As I think I've already made clear, neither of the barristers appearing in the trial on this occasion was engaged in the previous hearing. So, in that sense, they are stuck with what their predecessors to the brief on either side saw as the appropriate questions to ask and the appropriate way for issues to be run in that previous hearing.
That is the plain reality, you must not draw any adverse inference against either party form the fact that the complainant is not available at court on this occasion. You must not speculate as to what she may or may not have said if she had been available to be asked further questions in-chief or in cross-examination. (emphasis added)

Before his Honour gave these directions they were discussed with trial counsel. The issue first arose when there was argument in relation to the admissibility of evidence of the pornographic image found on the applicant's computer. Ultimately it was agreed that a balanced or "neutral" direction in relation to "forensic disadvantage" should be given. There was no complaint about the direction which was given and accordingly Rule 4 applies.
The applicant submitted to this Court that his Honour was obliged to warn or direct the jury about the specific dangers of convicting on the evidence of the absent complainant. It was submitted that the jury were confined in their capacity to assess the complainant's demeanour, especially in respect of the evidence she gave in the earlier trial. It was submitted that this impacted adversely on the Crown case and that it "was a possible reason for concluding that the Crown had not discharged its onus of proof."
It was submitted that rather than being instructed to consider how the shortcomings in the presentation of the complainant's evidence impacted on proof of the prosecution case, the jury was left with the impression that the complainant's absence at trial was a neutral matter that both parties had to contend with.
It was further submitted that a material misdirection will occur when it is suggested to the jury that the Crown may have lost an opportunity to adduce evidence that might have been supportive of its case. It was submitted that this can result in an impermissible bolstering in the prosecution case: Healey v R [2006] NSWCCA 235 at [75] and [78]. It was submitted that his Honour's direction was apt to leave the jury with this impression. It was submitted that the suggestion in his Honour's directions that there were questions which the complainant may have been asked if she had been a witness at the trial may have also undermined the warning given to the jury against speculation.
It was further submitted that the trial judge's suggestion that the complainant's absence from the trial was "a matter of law" attributable to "lawful procedures laid down by Act of parliament" was not correct. The applicant emphasised that the prohibition against compelling a complainant to give evidence at a retrial contained in s 306C of the Criminal Procedure Act 1986 only applied if the prosecution first exercised its discretion pursuant to s 306B(1), to tender as the complainant's evidence in the retrial a record of her original evidence from the earlier trial. The legislation does not prescribe that the complainant's evidence had to be adduced in this way. Furthermore, it was suggested that although the prosecution adopted this course the complainant could still have consented to give further evidence in the proceedings for the purpose, inter alia, of clarifying any matters relating to the original evidence: s 306D. It was submitted that the applicant was entitled to have the jury informed of these matters. It was submitted that for this reason it was inappropriate to speak of forensic disadvantage to the Crown or to assert that "the prosecutor [was] stuck with the material from those previous recordings and could not ... do anything to obtain any further answers from the complainant."
It is apparent that careful attention was paid by counsel and the trial judge to the directions which should be given. The directions which were given by his Honour made plain to the jury that they were not to draw adverse inferences from the fact that the complainant's evidence was played to them from a video tape or the recording of her evidence at the trial. Furthermore, they were told not to speculate about anything which the complainant may have been able to say if she had been present in court but to confine their deliberations to the evidence of the complainant as they were aware of it. They were also reminded that they were to reflect upon the fact that they did not have the opportunity to see the complainant as she gave her evidence as they were able to do with other witnesses. They were further told that there may have been some forensic disadvantage to both parties because they could not ask the complainant any further questions.
To my mind nothing turns upon the fact that the jury were told that the complainant's absence was attributable to procedural legislation. His Honour could have told the jury, as is the case, that the approach which was adopted in this case was the usual practice provided for by the relevant legislation. There was nothing to suggest that there was a tactical consideration influencing the Crown's decision to proceed in accordance with the legislation. The fact of the matter is that, if thought appropriate, the applicant could have made application for the complainant, with her consent, to give further oral evidence: s 306D. However, no application was ever made.
The applicant suggested that if the complainant had been called defence counsel may have sought to explore the issue of the pornographic image and whether the complainant actually saw it on the applicant's computer. It was suggested that it could have been put to the complainant that she never saw the image or that if she did it was on a computer which was not in the applicant's house.
This line of questioning was not followed by counsel at the first trial. There would have been considerable tactical matters to be considered before counsel chose that course. If the complainant had been challenged in relation to her recollection there was a significant possibility that the consequence would be to emphasise the issue for the jury and reinforce in their minds the applicant's interest in pornographic material.
As it happened, counsel for the applicant was able to submit to the jury that the evidence which was before it in relation to this issue was "vague." The image was never actually produced, there was no evidence of when it got onto the hard drive or on what particular part of the computer it was found. There was no evidence about the issue except that of the complainant to the effect that she and the applicant were present when it was viewed.
During the course of defence counsel's address he intimated to the jury that the applicant had not been charged or dealt with for some offence involving the particular image and said that there was no evidence as to when "the mouse was double clicked and the image was exposed." Counsel submitted "we say the Crown should have called such evidence and failed to do so." Counsel also submitted that it was a rational and probable inference that the acts of sex described by the complainant are acts of sex that she had seen somewhere else on the internet, perhaps at the house of one of her friends on a computer.
During the course of counsel's address the prosecutor interrupted to take objection and indicated that the applicant had been charged in relation to the pornographic images. The trial judge dealt with this issue by directing the jury that the absence of the image was due to a legal ruling and that they should not draw any inference about the absence of that image from the proceedings. His Honour however, directed the jury that they were entitled to consider the absence of any evidence about when the image got onto the computer and when it was actually accessed.
To my mind this ground of appeal must fail. It is plain that the course which the trial judge took was as a result of a discussion between his Honour and counsel. As the trial judge told the jury the course which was taken has been provided for by the Parliament. It is correct that there are potential consequences from the absence of a witness both for the Crown case and the defence. His Honour identified these matters in a balanced and fair manner ensuring that the jury did not draw an inference which was adverse to either party from the absence of the complainant.

Orders

In the ultimate the appeal must fail. Although I would grant leave to appeal to raise the first ground of appeal the appeal should be dismissed.
GARLING J: I agree with the orders proposed by McClellan CJ at CL for the reasons which he gives.
McCALLUM J: I agree with the Chief Judge at Common Law. As to ground 1, I have undertaken my own independent assessment of the evidence. I share the conclusion reached by the Chief Judge on that ground, for the reasons stated by his Honour.
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Amendments

25 Jan 2013 Removed complainant's name where mentioned. Paragraphs: [53]

14 Feb 2013 removed applican'ts wife's name Paragraphs: [45]

18 Feb 2013 address removed Paragraphs: [53]

Case Title:	PGM (No 2) v R
Medium Neutral Citation:	[2012] NSWCCA 261
Hearing Date(s):	4 September 2012
Decision Date:	10 December 2012
Before:	McClellan CJ at CL at [1] Garling J at [100] McCallum J at [101]
Decision:	1. Grant leave to appeal to raise the first ground of appeal. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - where evidence of complainant about witnessing sexual assault of another child demonstrated to be false - directions - whether trial judge properly directed jury regarding "lies" of complainant - whether trial judge's directions regarding absence of complainant at trial were in error - where trial judge did not warn jury about dangers of convicting on evidence of absent complainant - where trial judge referred to forensic disadvantage suffered by Crown due to absent complainant - where trial judge suggested absence of complainant solely due to procedural legislation.
Legislation Cited:	Crimes Act 1900 Criminal Appeal Rules Criminal Procedure Act 1986
Cases Cited:	Healey v R [2006] NSWCCA 235 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426 R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 RR v R [2011] NSWCCA 235 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category:	Principal judgment
Parties:	PGM (Applicant) Crown
Representation
- Counsel:	Counsel: S Buchen (Applicant) F Veltro (Crown)
- Solicitors:	Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2006/15199
Decision Under Appeal
- Before:	Graham DCJ
- Date of Decision:	22 February 2008

25 Jan 2013	Removed complainant's name where mentioned.	Paragraphs: [53]
14 Feb 2013	removed applican'ts wife's name	Paragraphs: [45]
18 Feb 2013	address removed	Paragraphs: [53]