PH v The Queen

[2017] NSWCCA 194

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	PH v R [2017] NSWCCA 194
Hearing dates:	31 July 2017
Date of orders:	16 August 2017
Decision date:	16 August 2017
Before:	Johnson J at [1] Davies J at [2] Lonergan J at [88]
Decision:	(1) Leave to appeal granted.  (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeals – appeal against conviction – aggravated indecent assault of child – whether jury’s verdict unreasonable or cannot be supported by the evidence – uncle of 11 year old complainant – uncle instigates tickling game - physical acts not in dispute – whether the contact was intentional or accidental –– whether complainant’s opinion about applicant’s intention relevant – whether complainant’s evidence unreliable - appeal dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 W v R [2014] NSWCCA 110
Category:	Principal judgment
Parties:	PH (Applicant) Crown (Respondent)
Representation:	Counsel: S Buchen (Applicant) C Webster SC (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/367183
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 September 2015 Before: Baly DCJ File Number(s): 2013/367183

Judgment

1. JOHNSON J:   I have had the advantage of considering the judgment of Davies J. In approaching the sole ground of appeal which asserts that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence, I have considered the entirety of the evidence adduced at the trial of the applicant. Having done so, I have concluded that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the two offences charged against him. I agree with the reasons and proposed orders of Davies J.

2. DAVIES J:   On 26 June 2015 the applicant was convicted by a jury of two counts of aggravated indecent assault of a child. The offences occurred on the same day on a date between 1 June 2013 and 16 September 2013. The complainant was the niece of the applicant.

3. On 18 September 2015 Judge Baly SC sentenced the applicant to a term of imprisonment of 18 months on each count but suspended the sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentences have now expired. The applicant is referred to by initials in this judgment as identification of him would tend to identify the complainant: s 578A Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW).

4. The applicant seeks leave to appeal on one ground only, namely, that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence.

The facts

5. The complainant, then aged 11 years, was staying overnight at the house of her aunt, the applicant's wife, in Yagoona. The complainant slept in her aunt's bed. The applicant, then aged 56 years, was an interstate truck driver. He arrived home early in the morning and slept on a couch in the lounge room.

6. The complainant said the applicant woke her later that morning after her aunt had left for work. He jumped on the bed and started playing a game 'Call of Duty' (also referred to as 'COD' in the evidence) on the PlayStation.

7. She said that the applicant started a game of tickling, and squeezed and held her breasts under her t-shirt with both hands (Count 1) and then touched her in the groin area with his left hand, under her pyjama pants and underpants (Count 2). She resisted the touching, and the actions ceased.

8. She got off the bed and went to the computer in that room. She said the applicant hugged her when she was sitting at the computer, asked her what she was playing and gave her a kiss on the cheek.

9. She said she went to the bathroom because she was scared. Later she went back into the bedroom and onto the computer. The applicant was playing the PlayStation.

10. Later that day the complainant and the applicant walked to nearby shops. The complainant did not complain to her aunt when her aunt returned from work or to her parents. The adult son of her aunt and the applicant, was at the unit in his own room but the complainant did not see him that day.

11. There was evidence of complaint made by the complainant to a cousin slightly older than her the day after the relevant events. The cousin JB gave evidence. He was 13 at the time of the events and 15 at the time of the trial He placed the disclosure on a Friday in July or August, after he and the complainant had gone ice skating, as they regularly did.

12. JB said the complainant told him that the applicant had started tickling her and touching her in the wrong places, on her breasts and "down there", she felt scared and didn't know what to do. He said she told him that she didn't want to be mean to her uncle, so she didn't want to yell at him or push him off or punch him or anything in case it was an accident if he didn't notice he was touching her or not. She also said things like "I can't believe he did that to me, 'cause my own uncle, it's just sick".

13. Both the complainant and the cousin were interviewed by police in 2013. Audio recordings of those interviews were played to the jury, and each gave evidence (remotely).

14. The applicant’s account of what happened may be summarised as follows:

15. The applicant agreed that he had touched the complainant in the places and on the occasion identified by the complainant, but said to police and in his evidence before the jury that the touching had been accidental.

16. He said that when he woke up she was playing on the computer. They talked about what was happening that day, he made coffee and began watching a movie. She was nagging him to take her to the shops with their dog. He told her to wait as he wanted to watch the movie.

17. He said that while he was lying on the bed, and the complainant was standing next to him to his right, he grabbed her around the waist with both hands, lifted her up and across his body and dropped her to his left on the bed, in doing so his hands slipped up her torso, underneath her armpits, and came in contact with her chest. She laughed at the surprise of this.

18. He then started tickling her, she was prodding him, she was rolling away then rolling towards him, he was tickling her tummy and around her ribs. None of this took very long but at one point he had his left arm under her back and was tickling her with his right hand when she pulled her knees up to her chest (the foetal position) and the applicant's hand slipped down towards her groin area underneath her pants for a second or two.

19. The applicant denied the complainant's account of the relevant events. When interviewed the applicant said he'd never wrestled and tickled the complainant before.

20. The applicant's wife made him aware of the complainant's allegation and he presented at Bankstown Police Station wanting to give his version of events, before he had to leave for a week or so on an interstate trip.

Submissions

21. The applicant submitted that five matters taken together demonstrated that the jury’s verdict was unreasonable. Those matters were:

(1)   The applicant consistently denied that he deliberately touched the complainant’s breasts and groin area;

(2)   The applicant was of good character;

(3)   The evidence from JB of what the complainant told him shortly after the incidents;

(4)   In cross-examination, the complainant came to accept a number of aspects of the applicant’s account of the events;

(5)   Other matters that threw doubt on the evidence of the complainant.

22. The applicant submitted that it was not sufficient for verdicts of guilty that the jury accepted the complainant as a truthful witness. For the jury properly to convict the applicant it had to be satisfied beyond reasonable doubt that his version of events could not possibly be true.

23. The applicant submitted that the evidence of the complainant’s cousin JB was decisive. He was the first person to whom the complainant made complaint. JB told the interviewing police that the complainant had said, after telling him about what happened, that she did not know what to do “just in case it was an accident” and that the applicant “didn’t notice he was touching her or not”. The applicant said that provided strong support for his version of events.

24. The applicant submitted that in cross-examination the complainant agreed with substantial aspects of the applicant’s version of events and in that way abandoned or contradicted aspects of her own account. The applicant submitted that the complainant also contradicted the order of the touching of her breasts and groin area. Initially she did not refer to touching in the groin area but when she later made the allegation she said that occurred after the applicant touched her breasts. In her evidence at the trial she said he first touched her groin area and subsequently touched her breasts.

25. The applicant pointed to what were said to be certain implausible aspects of the complainant’s evidence, particularly her returning to the room where the events took place notwithstanding her asserted fear of the applicant. She also said that he had tickled her for some 40 minutes. There were other inconsistencies in relation to her stated desire to the applicant to go to the shops.

26. The applicant submitted that the case did not involve immediate complaint, particularly to her aunt with whom she had a good relationship at the time. Nor did she use her mobile phone to contact her mother or father. Further, she continued to visit the applicant’s apartment after the incident.

27. Because there was no video (as opposed to audio) recording of the complainant’s interview with the police the applicant submitted that the jury was in no more advantageous position than this Court to determine the reasonableness of the verdict although the applicant accepted that the jury had the advantage of observing the complainant give evidence at the trial.

28. The Crown submitted that the issues now raised by the applicant were raised by defence counsel at the trial in his address to the jury. Those matters included the implausibility of the complainant remaining in the bedroom after what had occurred, the change in the order of the touching as told by the complainant to the police and, subsequently, the agreement in cross-examination by the complainant with a number of aspects of the applicant’s version of events, and the fact that JB said in his evidence that the complainant raised the possibility that the touching may have been accidental.

29. The Crown submitted that there was no material inconsistency in the order of the touching events. What was significant was that two different touchings occurred. It was likely that what the complainant said closer to the events was the more accurate memory.

30. The Crown submitted that although the jury did not see a video of the complainant and JB when they were initially interviewed, they had the advantage of seeing them give evidence in Court and being cross-examined.

31. The Crown submitted that the jury must have accepted the complainant’s version of events and rejected the applicant’s version. It was open to the jury to conclude that the applicant’s version was implausible.

32. The Crown submitted that there were adequate explanations for what were said to be the implausible events. As for returning to the bedroom, there was abundant unchallenged evidence that the complainant was in no position to leave the unit on her own. Her unchallenged evidence was that she did not know the way to her own house from the unit. Further, the only person there at the time was the applicant’s adult son who, the applicant agreed, was a somewhat hermit-like person. Further, the jury had evidence from which they could conclude that the complainant did not have above average levels of comprehension and articulation. The diagrams drawn during the complainant’s interview indicated poor spelling.

33. The Crown submitted that the lack of immediate complaint was well addressed by the evidence of the complainant’s unfortunate family circumstances particularly regarding her own parents. Although the complainant had her own phone she understood both her mother and aunt to be at work. There was also evidence that her mother was objectively uncaring.

Legal principles

34. The approach to be taken by this Court when considering a ground that a verdict is unreasonable is set out in SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 as follows:

[11]   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 The Queen 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".

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen 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'."

[13] 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."

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

[14] 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:

"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'."

…

[21]   To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. …

[22]   On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. …

[23]   It was not sufficient to say that the complainant's account of the incidents was sufficiently particular to enable a jury to accept it. The complainant's evidence as to when they occurred was also part of her account and, potentially at least, a matter by which her other evidence fell to be considered. … (citations omitted)

35. In W v R [2014] NSWCCA 110 this Court (Bathurst CJ, Hoeben CJ at CL and Bellew J agreeing), having quoted what was said in SKA above, went on to say:

[151]   It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks:

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

[152]   However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [26] and [55]-[56]).

36. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the joint judgment said of a judge-alone trial where it was asserted on appeal that the verdict was unreasonable at [56]:

[T]he question for the Court of Criminal Appeal was not whether it was “satisfied that the judge’s account was correct” but whether her Honour’s findings as to the sequence of events were not reasonably open.

37. Of the five matters put forward by the applicant the three significant matters for consideration concerned the evidence of JB, the acceptance by the complainant in cross-examination of a number of aspects of the applicant’s account of events, and two matters otherwise throwing doubt on the complainant’s reliability, those being that she could not remember the words she had used to JB and the fact that she suggested the order of events in terms of the touching was different from that which she had initially stated.

38. The first two matters, that the applicant consistently denied that he deliberately touched her genital areas and that he was a person of good character, must of course be taken into account when assessing whether the verdict was unreasonable. However, they are entirely subsidiary in the sense that those matters were put to the jury as a basis for the jury to accept the applicant’s account of the events but ultimately the jury did not accept the applicant’s account.

(a)   The evidence of JB

39. JB was interviewed on 8 November 2013. He recalled that the complainant had spoken to him about the incident with his grandfather in July or August 2013. He said that September 26 was his birthday and he remembered that she did not tell him during that month.

40. Relevantly, he said this:

A.   'Cause I remember her telling me in July or August because September's, September the 26th is my birthday and I remember that month she didn't tell me then.

Q50   [05.48] She didn't tell you?

A.   Yeah.

Q51.   O.K. And where were you and [RX] [the complainant] when she told you that?

A.   She told me that 'cause when she came over my house to sleepover and we went down to the car park to play handball and she told me that then.

Q52.   O.K. And to the best that you can remember, what exactly did she say to you?

A.   He started tickling me.

Q53.   Ah hmm.

A. and then he started touching me in the wrong places---.

Q54.   O.K.

A.   And so she felt scared.

Q55. Ah hmm.

A.   So she said she got scared   she didn't know what to do 'cause she didn't want to ? him 'cause she was, she, that's her Uncle.

Q56.   Yeah, O.K.

A.   So she didn't want to just in case it was an accident if he didn't notice he was touching her or not.   

Q57.   Ah hmm.

A.   So she didn't want to yell at him and push him off or punch him or anything

Q58.   O.K.

A.   That's what she said.

…

Q61. That's all right. So, and when [RX] told you this, how was she? Was she upset, was she happy or was she something else?

A.   She was down.

Q62. Down.

A.   She wouldn't even play anymore.

Q63. She wouldn't play - - -

A.   She always plays handball with me.

Q64. O.K. And this particular day, she didn't want to play handball?

A.   (NO AUDIBLE REPLY)

Q65. O.K.

A.   She just was sitting like down, she wouldn't talk to me. I just asked her what's wrong with her and she told me.

…

Q149.   O.K. So there was just one day, which you believe was a Friday, in either August or July, that you were playing handball with [RX] in the car park at your flats.

A.   Oh she didn't play.

Q150. She didn't play, that's right. And that she looked a little bit down and then she told you that ---

A.   I asked her what was wrong.

Q151. O.K. And that's what, that's when she told you?

A.   Yes.

Q152. Is that right?

A.   (NO AUDIBLE REPLY).

Q153. And you said that your Pop touched her breasts and her vagina, tried to touched her vagina. Is that right?

A.   (NO AUDIBLE REPLY).

Q154. Can you remember anything else about that conversation?

A.   Ah, well, what, what she said to me?

Q155. Yeah. Was there anything else?

A.   I think that was about it. She was just like said "I can't believe, I can't believe he did that to me" and stuff, like, "'Cause my own Uncle, it's just sick".

Q156. You said before that they were wrestling or playing a game?

A.   Tickling.

Q157. Tickling. So tell me about that.

A.   Urn, she was sleeping in her room, this is what she told me. She was sleeping in her room and he came in and just started tickling her and then she like got up and she said, "What, what, why are you?" And then he said "Well get out of my bed." And then she said "It's not your bed" and then he started, then he started tickling her and then yeah and then he's, well I don't know if he actually did it. I, I, I just, I don't know 'cause I wasn't there.

Q158 [29.15] Yeah. That's all right. Just remember what [RX] told you.

A.   Yeah. She said that he touched her in the rude part, in the breasts and

all that stuff.

41. When he was cross-examined at the trial the following evidence was given:

Q. Yes. Did you listen to the tape this afternoon while it was being played in court?

A. Yes.

Q. I just wanted to ask you about one part of it. Do you have a copy - I don't know if you do - a copy of the actual - okay, no, I think it won't help if I ask you about that, but I just wanted to read one of the things you told the officer. He asked you: "To the best that you can remember what exactly did she say to you?" and the tape seems to record you saying, "He started tickling me and then he started touching me in the wrong places", so you were saying what your cousin had told you? Remember?

A. Yes.

Q. "And so she felt scared", and then it goes on and you say, and it's a little bit hard to hear, but it seems that you said, "She didn't know what to do because she didn't want to mention because she was - she - that's her uncle", so saying this person that she was saying had touched her was her uncle and that would cause problems with her mentioning it to anyone.

A. Yeah.

Q. Do you remember her saying something like that to you?

A. Yes.

Q. And she went on you told the officer: "So she didn't want to just in case it was an accident, if he didn't notice", what I heard you say was, "he was touching you there." Do you remember telling the officer that she had said to you she wasn't sure if it was an accident?

A. Yeah.

CROWN PROSECUTOR: I object to that because that's not what he said.

42. Debate then ensued about whether the cross-examiner had accurately put what was recorded in the transcript. The judge allowed the answer to remain and said that the Crown could re-examine on it. In re-examination the Crown prosecutor merely obtained agreement from JB that the recording of the interview was more accurate than his memory at the trial.

43. The complainant was subsequently recalled to ask her further questions about speaking to JB. The following evidence was given:

Q. I'm sorry. I don't want to confuse you about this, so I'll start again. Do you remember telling [JB] that you didn't know what to do about the tickling incident?

A. Yes.

Q. And did you give him two reasons why you didn't know what to do?

A. I can't remember.

Q. Did you tell [JB] that one reason was because he was your uncle?

A. Yes.

Q. And was the second reason just in case it was an accident if your uncle had not noticed he had private parts or your body (sic)? Did you tell [JB] that as well?

A. No.

44. The complainant in her record of interview said this in relation to telling JB about what happened:

Q263. O.K. So who was the first person that you told of this?

A.   My cousin.

Q264. Which cousin?

A.   [JB].

Q265. O.K. How old is [JB]?

A.   He's 12.

Q266. All right. And when did you tell [JB]?

A.   The day after that day.

Q267. All right. And do you remember the words that you used when you told him that?

A.   No, I can't remember.

Q268. Did you tell him everything that you've told us?

A.   Yeah.

Q269. O.K. And what did [JB] say to you?

A.   He said just don't worry about it.

45. Although the applicant submitted that the complainant’s possible belief that the applicant’s touching her may have been an accident provided significant support for his account of the events, it is difficult to see why that is so. There was no issue in the case that the applicant had touched her breasts nor that his hand had gone beneath her clothing into the groin area. The question the jury had to determine was whether that was accidental or intentional. That determination had to be made objectively although the jury clearly had to take into account the applicant’s evidence in that regard.

46. It is not clear, however, how the belief of the complainant could be a relevant consideration. It could only have been relevant if the issue was whether or not the applicant had touched her in those places. If that had been the issue and she had had some doubt about whether there had been a touching, such doubt would have provided strong support for a defence on that basis. But where the physical act was not in doubt her belief in whether it was deliberate or not is simply not relevant. That would involve her endeavouring to infer the applicant’s intention. Such evidence would be inadmissible. She could only give evidence of what happened, and it was for the jury to decide, taking into account her description of the events together with the applicant’s evidence, whether the touching was intentional.

47. In any event, if that evidence of the complainant is to be taken into account, the jury would also have needed to take into account what JB asserted the complainant said in the answer to question 155 where he reported the complainant as saying:

"I can't believe he did that to me” and stuff, like, “cause my own uncle, it's just sick".

That might suggest rather strongly that the complainant ultimately had little doubt in her own mind about her uncle’s intention.

48. The jury also had to decide if they accepted JB’s evidence asserting that the complainant had a doubt about whether it was an accident or not. The complainant denied that she said that to him. She agreed that she said that she did not know what to do because he was her uncle but not that it was an accident in her own mind.

49. In the submissions, counsel for the applicant made much of the fact that JB was a Crown witness and ought to be regarded as reliable. However, in this case, as in many others, there was disagreement amongst witnesses called by the Crown and who were obliged to be called by the Crown. The jury had to determine, where there was a conflict, whose evidence should be accepted.

50. In my opinion, JB’s evidence does not provide support for the applicant’s account of events.

(b)   The complainant’s evidence

51. The account given by the complainant in her record of interview on 18 October 2015 was as follows:

my aunty was at work the next day and I was still asleep and he jumped, he opened the door and jumped on the bed and he woke me up and then he just like started playing a game urn, PlayStation 3, COD, and then urn, I woke up. Then he sat on the bed and then he said that he was gunna play a game, a tickling game urn, and then he urn, he like starts holding me and then he starts touching me and he was holding my breasts and he was holding them so hard that I, like I tried to get out but I couldn't because he was holding, squeezing onto me. Then I said I'm gunna go and then I crawled off him and then I went to go jump on the computer. He told me to go back into bed but I said no 'cause I didn't want to. And he kept on telling me but I said no and then I went up to the bathroom and um, because I was scared and then um, yeah, and then I went back in and then he's still playing that game. Then we went down to the shops and we came back.

52. She expanded on this in some later answers as follows:

Q80. [00.20] O.K. So you said, you said that your aunt went to work the next day, he came in and jumped on the bed. Can you tell me more about that?

A.   Um, he just like came in the room and I was still asleep and I was really angry because he woke me up and I wanted to still sleep. And um, then he just jumped in and then he just like started and then he was just playing the game.

…

Q102. O.K. No worries. The next thing that you told me is that you were awake and he said that he will play a tickling game. Tell me more about that.

A.   Um, he said that he was going to play a game with me, like tickles game and so I said O.K. 'cause, and then he like starts tickling me and then um, he was holding onto me for a very long time and I wanted to get off but he wouldn't let me. And the dog was there.

Q103. O.K. Can you tell me more about the tickling game?

A.   He was holding onto me um, my breasts and then he like, trying to go down and then he like, he was trying to touch my vagina but I said no and then I pulled his hand away.

Q104. So when you say he was trying to touch your vagina, how was it that he was trying to touch your vagina?

A.   Um, he was like going down, he was going like that and then …   

Q105. O.K. So you've just put your hand and, down the front of your chest down between your legs. I just need to say it out loud just because we're recording it. So is that right what I've just said?

A.   Yes.

Q106. Is that how he tried to do it?

A.   (NO AUDIBLE REPLY)

Q107. And which hand did he use?

A.   His left.

Q108. O.K. You said he touched your breasts, how was it that he touched your breasts?

A.   Um, he like was squeezing them.

Q109. Squeezing them. Which hand did he use when he was squeezing your breasts?

A.   Both.

Q110. [00.25] Both. O.K. Now was this over your clothes or under your clothes or something else?

A.   Under.

Q111. Under. So it was under your clothes. Were you still wearing your shirt at that time?

A.   Yes.

Q112. O.K. And how was it that he got his hand under your clothes?

A.   Um, he went up, he just went like that   

Q113. O.K. So can you describe the action that you just did?

A.   He put his hand up my T-shirt,

Q114. O.K. So he's gone in from under your T-shirt and up to your breasts with both hands. O.K. Was anything said?

A.   He said, "Ssh, don't worry about it."

…

Q117. Oh, O.K. What, what I mean is when this is happening between yourself and the uncle are the two of you still on the bed, so when he was playing the tickling game ---

A.   Oh, yeah.

Q118. O.K. All right.

A.   Oh, no, no, I went to the computer. The computer was there.

Q119. O.K. So when you went to the computer was that while he was still playing the tickling game as he said ---

A.   Um, yeah.

Q129   ---or had it finished by then?

A.   Like I was on the ground and then he like keeps on pulling me up and

then he's like still playing and then I said I don't want to play any more and then I went to go on the computer.

…

Q127.   … O.K. So the next part you told me was that I went to the bathroom as I was scared. So how long was it from when you were on the computer to when you went to the bathroom?

A.   Like um, half an hour.

Q128.   O.K. And what, what was it that made you scared and want to go to the bathroom?

A.   Um, he like touched me. That's what made me scared.

Q129. O.K.

A.   Because he wouldn't leave me alone.

…

Q232. O.K. So what, when he first touched you under your clothing where did he touch you for the very first time?

A.   My breasts and my vagina.

Q233. O.K. You said earlier that he tried to touch your vagina and you stopped him, so whereabouts on your body did he touch you before you stopped him?

A.   My breasts.

Q234. Yeah. And you said you, he went down towards your vagina but you stopped him, so how far down your chest or your stomach did he get before you stopped him?

A.   Got there.

Q235. So you've just pointed to your waistline?

A.   Um, a little bit under that.

Q236. [00.54] A little bit further down. O.K. And I know you said you were wearing pants before, were you wearing anything under your pants?

A.   Yes.

Q237. What were you wearing?

A.   Undies.

Q238. O.K. Do you remember what undies you were wearing?

A.   No.

Q239. All right. And you also said that he was holding you for a very long time.

A.   Yes.

Q240. Can you tell me how he was holding you, where his hands were on your body?

A.   On my breasts.

Q241. O.K. And where were you when he was holding you on your breasts?

A.   In the bed.

…

Q250.   All right. How many times did he try to touch your vagina?

A.   Twice.

Q251.   O.K. And how many times did he touch your breasts?

A.   Um, he was holding onto them for a long time. I don't know.

Q252.   When he had his hands on your breasts what did his hands do?

A.   He was like squeezing them.

Q253.   O.K. Was it hurting you?

A.   Yes.

Q254.   O.K. Did you say anything to him?

A.   No.

Q255   Did he---

A   I said stop but he wouldn't let me go.

53. The evidence that the complainant gave in Court when cross-examined was relevantly this:

Q. What I want to suggest to you is that you woke up in the morning and your uncle was asleep on the couch in the lounge room. Do you remember that? A. No.

Q. What I want to suggest to you is that he didn't wake you. By the time he was awake you were up playing on the computer.

A. No.

…

Q. And he wasn’t playing Call of Duty, he was watching a movie. What do you say about that?

A. He was playing Call of Duty.

…

Q. Your uncle was wearing shorts and a singlet when he was watching the film.

A. Yes.

HER HONOUR: She doesn’t agree that he was watching the film.

BARROW: That’s true. I take that back. I won’t combine the two things.

Q. When he was on the bed, he was wearing shorts and a singlet.

A. And a like brunch coat thing.

Q. He was, I'd suggest, watching this film and pretty quickly you started to ask him to take you to the shops. Do you remember asking him to take you to the shops?

A. Yes.

Q. It was something that you were pretty keen to do.

A. Yes.

Q. And there was, I think, a dog to take to the shops too.

A. Yes.

Q. Do you remember asking him, while he was watching the film, do you remember asking him a number of times, "Let's go. Come on, it's time to go"; that sort of thing.

A. Yes.

Q. He was saying to you, "We'll go soon. Leave me alone. We won't go just yet." Do you remember him telling you to wait a bit?

A. Yes.

Q. He was lying on the bed watching the film, I'd suggest.

A. I can't remember.

Q. You weren't on the bed. You were standing beside him to his right when you were asking him to take you to the shops.

A. Yes.

Q. I don't want to be disrespectful to you but do you think it might be that you were nagging him to take you to the shops? Do you know what that word means?

A. Yes.

Q. Would that be a way of describing what was going on? You were hassling him to take you?

A. Yes.

Q. Because it was quite an interesting prospect: going to the shops, taking the dog, maybe getting something for yourself while you were there.

A. Yes.

Q. What I want to suggest to you is that after that exchange, if you like: "Take me to the shops; let's go; let's go", him saying, "Not yet, not yet", that he reached over and he grabbed you around the waist with both his hands and he lifted you up across his body. Do you remember him doing that?

A. Yes.

Q. When he did his hands slipped up your torso, didn't they, up underneath your armpits and came into contact with your chest. Do you remember that? A. Yes.

Q. As he pulled you over he sort of dropped you to his left onto the bed. Do you remember?

A. Yes.

Q. And all of that was unexpected from your point of view.

A. Yes.

Q. It was a surprise.

A. Yes.

Q. And it was funny and it made you laugh. Do you remember?

A. Yes.

Q. After that you were on the left side of him and he tickled you and you were prodding him.

A. Yes.

Q. And you were laughing and it was funny.

A. Yes.

Q. What I want to suggest to you is that that all took just a few seconds, the process of whipping you across him onto the bed and then tickling you. It was really something that happened very, very quickly. Do you agree with that?

A. Yes.

Q. When you were on his side, you were prodding him and he was trying to tickle you some more. Do you remember?

A. Yes.

Q. You were in a way trying to get away from him. You were rolling away from him and then rolling towards him and he was tickling your tummy, tickling around your ribs. Do you remember?

A. Yes.

…

Q. What I'm suggesting is, while he was tickling you, you pulled your knees up towards your chest. Do you remember doing that?

A. No.

Q. When you did that, I'm suggesting that that was when his hand did go down towards your groin area. It was only for a few seconds, but it happened in the way that I've described to you. What do you say about that?

A. I don't remember doing the knee thing but I do remember him putting his hand near there.

Q. All I'm suggesting to you is it happened in that way that I've described with him taking you across his body, he was tickling you, you were laughing and struggling and resisting and it was a big surprise and it was fun, but it was in those few moments that his hand did go towards your groin, towards your - underneath your pants, if you like, that's what I'm suggesting.

A. Yes.

Q. And it was something that only happened for a second or two. Do you agree with that?

A. Yes.

Q. And it only happened once, didn't it?

A. Yes.

Q. When his hand did go towards your groin area, that's when everything stopped. Do you remember?

A. Yes.

Q. He stopped and he said, "Let's go", and he got up at that point.

A. No.

Q. What do you say happened?

A. He put his hand near the grind (as said) area and then I moved it and then he put his hand - hands up my top.

Q. What I'm suggesting to you is that the only time his hands were near your breasts or your chest was when he lifted you across his body and his hands slipped up your torso. That was the only time. Do you understand?

A. Yes.

Q. Do you agree with that?

A. No.

Q. Do you agree that he got out of bed and went and had a shower?

A. Yes.

…

Q. So can I just, if you like, summarise the things that I think you've agreed with, so that I'm clear about it? Do you agree that, I think this is clear enough,

you agree that he lifted you up, over his body and onto the bed?

A. Yes.

Q. You agree that his hand slipped up your torso when he did it?

A. Yes.

Q. That his hands went up under your armpits, and did come into contact with

your chest area?

A. Yes.

Q. There was some tickling when you were on his left-hand side?

A. Yes.

Q. During that process, that's when his hand went close to your groin area? A. Yes.

Q. You agree with those things?

A. Yes.

Q. When that happened, the tickling and everything stopped?

A. Yes.

Q. He said, "Let's go," and got up?

A. Yes.

Q. He went and had a shower?

A. Yes.

Q. You, I think you said, you got dressed?

A. Yes.

Q. And after that, you went with him to the shops?

A. Yes.

…

Q. So you told the investigating person, "Then I said, 'I'm gunna go, and then

I crawled off him. And then I went to go jump on the computer. He told me to

go back into bed. I said, 'No,' because I didn't want to."

A. Yes.

Q. "He kept on telling me, but I said, 'No,' and then (indistinct) went up to the bathroom." And then you say, "And because I was scared," and then, "Yeah," and then, "I went back in," and then, "He's still playing that game." Do you see those things that you said back then?

A. Yes.

Q. Now, in fairness to you, those things weren't true, were they?

A. They were true.

Q. I've asked you about what happened, this morning. You didn't mention any of that, did you?

A. No.

Q. See, what you told the investigator, and if I could just take you, you were asked some questions about that, later on in the interview. I just wanted to ask you about those. If I could just take you to question 125, and it's on page 11, towards the bottom of the page. Have you got that in front of you, question 125?

A. Yes.

Q. And the person asking you the question says, "So when we first went through the events, you said that, 'I got off and went to the computer,' and you told him to go. Can you tell me more about that?" And you told this person, "I just said, 'He's just playing cod [ie COD],' and I, just, like, jumped off the bed, went on the computer." See that answer?

A. Yes.

Q. Then I think you show on the diagram where the computer was. If I could just take you over the page, and you're asked, it's part of question 127, "So the next part you told me was, 'I went to the bathroom as I was scared.'" "So how long was it from when you were on the computer, to when you went to the bathroom?" And you said, "Half an hour." You see that? It's question 127, the top of the page, and your answer.

A. Yes.

Q. The next question was, "What was it that made you scared and wanted to go to the bathroom?" And you said, "He, like, touched me, that's what made me scared." And then you continued, "Because he wouldn't leave me alone." And the officer asked you some more questions, "Do you mean that when you were at the computer, he tried to touch you again?" And you say, "Yeah, he was, like, hugging me." And you're asked, "Can you tell me more about him hugging you?" "I was sitting on the computer, and he just went like that, and he was just hugging me for a while, and then he walked off." And the next question, "And he gave me a kiss on the cheek," and you describe that.

Now, a bit further down the page, or just before I go further, what you've described to that interviewer is quite different to your evidence this morning, isn't it?   

A. Yes.

CROWN PROSECUTOR: I object to that, because my friend has only asked particular questions.

HER HONOUR: Well, she's answered it. You can re-examine on it, Mr Crown.

…

Q. I want to suggest to you that all of that that you told the officer that I've read to you you simply made up.

A. No.

Q. I want to suggest to you that your uncle never encountered you at the computer and hugged you or kissed you in the way that you told the investigator.

A. He did.

… (emphasis added)

54. In re-examination the following evidence was given:

Q. Can you tell us in which order these things happened: uncle putting you on the bed and the answer that you've given to question 103? Which came first and which came second?

A. I think correctly he put me on the bed then we laid still and he started touching my breasts - no, he went down to my grind(as said) and then started touching my breasts.

Q. When you say that he went down to your groin, just so we're clear about it, is it in the way that you've explained in your interview or a different way?

A. It's explained in my interview, yep.

(c)   The applicant’s evidence

55. As noted earlier, the applicant presented himself at Bankstown Police Station after his wife made him aware of the allegations. The applicant spoke to Detective Senior Constable Adam Hunt who made a note in his police notebook of what the applicant said. Detective Hunt gave evidence of what he recorded in his notebook as follows:

We were at home. I was on the bed and [RX] was on the floor nagging me to go shopping. I picked her up to stop her and when I went to lift her over me to put her on the bed her shirt lifted up and my hands were over her breasts. It wasn't on purpose. I put her down and she got off the bed and went around and tried to pull me off the bed with my leg to hurry me up to go into town. I pushed her away and my hand went down there. Well, not right down there but in that area.

56. Detective Hunt also recorded the description of the hand movements that the applicant gave in these terms:

While describing lifting the child, the accused put thumbs under his armpits with hands across his chest. While describing pushing child away, the accused put his hands just above his pubic region below stomach.

57. The applicant took part in an ERISP on 5 December 2013. What Detective Hunt had recorded the applicant as saying and his description of the hand movements was read to the applicant who agreed with it.

58. Having described how he picked the complainant up and lifted her onto the left side of the bed, during which time her shirt went up and he had his hands on her chest for two to three seconds, the interview continued in this way:

Q109.   So you're both lying down and she's on your left side? So what's the

next, very next thing that's happened?

A.   Um, she said, "Come on. Come on. Let's go", and I just says, "No", and then I started, um, she started prodding me so I started tickling her and I said, "Oh tickle on your, ah, itchy spot", and then, um, she was just giggling and laughing and carrying on. And, and I was, and I was doing, I was trying to tickle her around the rib area, around the rib cage.

Q110.   Mmmhmm.

A.   Um, and that and that was it.

Q111.   How long were you tickling her for, roughly?

A.   3 or 4 seconds.

Q112.   OK. And then you said, "Come on. Let's, let's get up", so what's the next thing, the very next thing that's happened?

A.   And, um, she, she said, "Come on. Come on. Let’s go", and I just says, "No, not yet. I don't want to go yet", and she says, "Yeah, yeah, come on. Come on. Let's go down town", and l says, "No. No. I don't want to go". And so she started prodding me again so I started tickling her around the stomach and she was rolling away from me, rolling back to me, rolling away, rolling back and then that motion, my hand's ended up on, down on her groin.

Q113   [13:25] OK. So when you started tickling her again a second time, was she lying down or she, something different?

A.   Ah, she was still lying down on the bed, sort of ---

Q114.   And what did you do?

A.   ---sort of half propped and ---

Q115.   What did you do?

A.   Half on, half on her side. I was still lying, lying down.

Q116.   OK. And you were tickling her stomach? So how long do you think you were tickling her stomach for, roughly?

A.   3 or 4 seconds.

Q117.   So what caused you to touch her on the groin area?

A.   Oh, cause the way she was rolling away from me.

Q118.   OK.

A.   As, as she was rolling away I was, I was trying to grab her around the

waste and then she folded up.

Q119.   Right. What clothing was she wearing?

A.   Um, l think a T-Shirt and either shorts or jeans.

Q120.   So did you, when you touched her groin area, was that on the outside

of her clothing or the inside of her clothing?

A.   It was initially on the outside but as she was rolling away my hands was, ended up inside her, her jeans or her shorts, whatever she had on.

Q121   So if she was rolling away from you, how does your hand move further down her, into her groin?

A.   Because I was trying to roll her back as she was rolling away and, ah ---

Q122.   So … as I told you before, one of these disks can't see what you're doing so you're, you're motioning like you're trying to wrap both arms around her, is it, would that be right?

A.   Yeah.

Q123.   [13:26] Would you say?

A.   Yeah.

Q124.   So, with your left arm, was that underneath her body or was it doing

something else?

A.   No … was lying down and it was underneath her. I was trying to

grab her to roll her back off to there.

Q125.   OK. So one hand was under, you were both lying down. One of your arms was underneath her body and one of your arms was over the top of her body and you were trying to roll her back?

A.   [NO AUDIBLE REPLY]

Q126.   And at some point when she was rolling back and forth, which hand has gone, and which hand has touched her groin area?

A.   Right.

Q127.   OK. And you said before that it, a little, a part of your hand went on the inside of your pants, is that right?

A.   Yeah.

Q128.   So tell me more about that?

A.   That was it.

Q129.   I mean, how, how much of your hand went, or how far into, past, say her waistline, but her pantsline, did your hand go underneath her pantsline?

A.   Yeah   

Q130.   How far would you say?

A.   About two or three inches.

Q131.   OK. And how long did you touch her in that position for?

A.   2 seconds.   

Q132.   So what did [[RX]] do when your, your hand went underneath her pantsline?

A.   Nothing.

Q133.   [13:27] Did she say anything or did she change her ---

A.   No. She didn't ---

Q140.   …behaviour?

A.   She didn't say anything. Um, she just rolled away and then I'd realised that I'd touched her ---

Q134.   Mmm hmm.

A.   --- so I says, "Come on. Let’s go", and I got up.

Q135.   Yeah. So after that point when you said, "Let's go", and got up, did any more tickling or wrestling or anything like that happen?

A.   No.

59. The applicant gave evidence. That evidence was consistent with what he had said in his ERISP. The only further matter of any relevance was that the applicant said that he thought that the complainant was 12 or 13 years of age.

Assessment of the complainant’s evidence

60. It may be accepted that at one point in the cross-examination the complainant said that the applicant put his hand near her groin (she actually used the word “grind”) and then moved it up her top. To the next question she did not agree that the only time the applicant had his hands near her breast or chest was when he lifted her across his body and his hand slipped up there. The difficulty about the latter question was, as with a number of other questions asked, there were two questions asked in one. The question asked whether “His hands were near your breasts or your chest”. The applicant had himself said that he was trying to tickle her around the ribcage area which, given the dynamics of a tickling situation, was likely to mean that his hands were near her chest or breasts. That question and answer do not provide clear evidence of a different order of events.

61. However, even if it is accepted that the complainant provided some answers suggesting that the touching of the two body parts was in the reverse order, when her evidence is viewed as a whole including the matters she disclosed in her police interview, it seems clear that the events happened as she first said. Moreover, that evidence is consistent with the applicant’s own evidence which was that he accidentally touched her breasts when he lifted her over the top of him to the left side of the bed and subsequently touched her in the groin area when she was rolling to and from him on the bed.

62. The situation is not one where the applicant had always maintained one order of events with the complainant saying the opposite but in cross-examination the complainant agreed with the applicant’s evidence. Here, both had in their original interviews said the same thing, the applicant maintained that position in evidence, the complainant maintained that position until this point in the cross-examination where she appeared to become a little confused. In my opinion, her answers relied on by the applicant to show unreliability are of little or no consequence.

63. The other particular matter relied upon by the applicant that is said to cast doubt on the complainant’s reliability is that she could not remember the words she had used when she told JB about what happened. The submission of the applicant was that if the complainant could not remember the words she used to tell JB in 2013 it was unreasonable for her two years later at the trial to be denying something he had asserted she told him on the night following the events.

64. A few things should be said about that. First, she was asked by the interviewer “do you remember the words that you used when you told him that?” Like many witnesses, she remembered what she told him as the next question and answer make clear:

Q.   Did you tell him everything that you have told us?

A.   Yeah.

She did not, however, remember “the words”.

65. Secondly, witnesses and people generally can frequently say that they cannot remember a particular conversation but when asked if they said a particular thing can reliably say they did or they didn’t as the case may be.

66. This evidence was given when the complainant was recalled after JB’s evidence. She was further cross-examined and the following evidence was given:

Q. I'm sorry. I don't want to confuse you about this, so I'll start again. Do you remember telling [JB] that you didn't know what to do about the tickling incident?

A. Yes.

Q. And did you give him two reasons why you didn't know what to do?

A. I can't remember.

Q. Did you tell [JB] that one reason was because he was your uncle?

A. Yes.

Q. And was the second reason just in case it was an accident if your uncle had not noticed he had private parts or your body (sic)? Did you tell [JB] that as well?

A. No.

67. Although initially the complainant could not remember giving JB two reasons why she did not know what to do, when prompted, she remembered one reason but denied that she provided the second reason put to her. There is no reason to think that this evidence was unreliable just because she had not been able to remember the details of the conversation. In my opinion, her inability initially to remember the reasons she gave can scarcely be said to impact on her reliability. She was being asked about the conversation with JB almost two years later and that conversation might be thought to be peripheral to the incident itself involving the applicant.

68. The matter of the complainant’s acceptance of a number of aspects of the applicant’s evidence requires a consideration of the manner in she was cross-examined. She denied that she was awake when the applicant came into her room. She denied being on the computer when he came into her room. She said that she was asleep. She maintained that he was playing Call of Duty, and not a film, before the tickling game commenced. It should be noted in that regard that JB volunteered in his interview that the applicant plays Call of Duty. All of that was consistent with the interview.

69. She was then asked about what the applicant was wearing followed by this question:

He was, I’d suggest, watching this film and pretty quickly you started to ask him to take you to the shops. Do you remember asking him to take you to the shops?

She answered “Yes” to that question.

70. It is difficult to ascertain from simply reading the transcript what the applicant was agreeing to. The question was a double question, and despite the trial judge having just corrected the cross-examiner for asking questions on the assumption the applicant was watching a film when the complainant had denied that, the question (and others) contained the same assumption. Certainly, the only question asked was if she remembered asking him to take her to the shops. What had been put to her earlier in the question was a suggestion which she was not asked to agree to. The jury was in a more advantageous position than this Court in understanding what the applicant was agreeing to.

71. She agreed in a number of questions and answers that she was keen to be taken to the shops. She agreed that she was hassling him to take her. She was then asked another double question to which she assented. That question was:

What I want to suggest to you is that after that exchange, if you like: “Take me to the shops; let’s go; let’s go”, his saying, “Not yet, not yet”, that he reached over and he grabbed you around the waist with both his hands and he lifted you up across his body. Do you remember him doing that?

72. Again, and bearing in mind that this was a 13 year old girl being cross-examined, it is not clear again from the transcript whether she was agreeing to the applicant grabbing her around the waist and lifting her up or whether she was agreeing to that action having taken place immediately after she had the conversation with him about attending the shops. Whilst an adult might be expected to connect all of what was put to them it is more difficult for this Court than it would have been for the jury to perceive what the complainant was agreeing to.

Was the verdict unreasonable?

73. However, it is not necessary to resolve this issue by an analysis of the particular questions asked and whether one event in the chain preceded or was followed by another. Two things are clear. The first is that the cross-examiner asked specific questions about particular aspects of what happened so that his criticism of her, that she did not mention when she gave her evidence particular things such as that she went up to the bathroom and then went back in to the room where he was still playing the game, was unfair. The Crown prosecutor made a similar point in a rather belated objection which the trial judge said could be dealt with by re-examination.

74. The second thing that is clear is that the precise course of events, whether they occurred as the applicant alleged or as the complainant alleged, do not alter the fact that the playing of the tickling game resulted in him placing his hands in two different places on her body where they should not have been. That it happened is not in dispute. The jury had to decide if the touching was accidental as the applicant asserted and in the manner he explained the touching.

75. It may be accepted that the verdict cannot stand if the applicant’s account is reasonably possibly correct. In my opinion the following matters do not cause me to have a doubt about the correctness of the verdict.

76. First, the jury clearly did not accept the applicant’s account of the events.

77. Secondly, apart from the slight confusion about the order of events the complainant’s evidence was consistent from the time of her interview. Significantly, it was not suggested to the complainant in cross-examination that the applicant did not squeeze her breasts nor that his hands only touched them momentarily as he lifted her, nor that he did not say “Ssh (sic), don’t worry about it” after his hands touched her breasts, although the applicant denied saying these words in his own evidence. The jury may also have considered that the applicant’s explanation of lifting the complainant under the armpits might not have been the same as what happened when the complainant said that he squeezed her breasts.

78. Thirdly, her agreement in cross-examination to a number of things put to her did not mean that she abandoned or contradicted her own earlier evidence. This evidence merely supplemented her evidence or filled in some details which she had forgotten. When account is taken of the aspects of her evidence from which she did not deviate (in particular, the matters in [68] above and the assertion that her breasts were squeezed), and of the applicant's acceptance that he did touch her in the two areas concerned, it is far from clear how the cross-examination diminished the weight or significance of the essential parts of her evidence.

73. As mentioned earlier in a slightly different context, this is not a case where the complainant said that the applicant touched her breasts and groin area but the applicant denied it. In such a case the reliability of her evidence would be a significant matter. The point at which the reliability of her evidence is of any significance concerns only the touching of her breasts. She claims the applicant squeezed them for a few seconds. He accepts that he touched them more fleetingly as he lifted her across him onto the bed. As noted above, the complainant was not challenged about the assertion of squeezing the breasts nor, more significantly of whispering to her not to worry about it after it happened. The jury could comfortably accept that those things happened as she said, notwithstanding the applicant’s denials. The jury might also have expected that if the touching of the breast was accidental the applicant might, instead of saying, “Ssh (sic), don’t worry about it”, have apologised and thereafter have left her alone. Such a conclusion would not be contrary to the coincidence direction the trial judge gave because it says nothing about the second count charged.

74. There was no factual dispute about the touching of the groin area except the applicant’s assertion that the complainant folded her legs up which she denied. Her agreement with other things put in cross-examination was, in those circumstances, inconsequential.

75. Fourthly, not only did the complainant tell her cousin about it the next day but she did that in response to a request by him to tell him what was wrong because she seemed down and didn’t want to talk to him or play the game with him. To the extent that the applicant seeks to rely on the evidence of JB about possible “accident”, this evidence of her demeanour strongly suggests that she perceived something untoward had occurred.

76. Fifthly, the jury was entitled to take into account that on the applicant’s own evidence he instigated a tickling game with a girl thought by him to be 12 or 13 years of age and who was not a direct relative in circumstances where nothing like that had previously occurred. That involved him lifting her up to put her on the bed next to him and then trying to grab her when she rolled towards him and away from him on the bed. Further the tickling involved him aiming to tickle her near her rib cage. The jury was also entitled to take account of the fact that when he made his initial statement to Detective Hunt the applicant made no mention at all of any tickling game. The clear impression given in that statement was that there were two momentary contacts with the complainant’s breast and groin area as the applicant attempted to stop her unwanted attentions.

77. Sixthly, the applicant did not give any satisfactory explanation for how his hand found its way under her underpants nor why he left it there for either 2 or 3 seconds, even accepting that most people estimate time badly. Had the touching been accidental the jury may well have wondered why he had not said that he removed his hand immediately particularly when it was inside he underpants. Although he could not explain how his hand ended up under her clothing, he said that it happened when she had drawn her legs up into what might be called the foetal position. That she did so was denied by the complainant at all times. If, as seems likely, the jury accepted that she did not draw her feet up, there was no explanation at all of how the applicant’s hand went down below her waist and under both her pants and underpants.

78. Finally, the so-called implausible behaviour of the complainant afterwards of going back into the room or of not telling any adult including her mother and her aunt takes no account of what by now must be well-known behaviour of even some adults but certainly of children when they have been sexually assaulted. Children are frequently scared that they have done wrong or that they will be punished for what has happened because they see the matter as their fault. That was borne out in the present case by the complainant’s own evidence as follows:

Q. When did you next see your aunt after the tickling game?

A. That night.

Q. Did you tell her about the tickling game?

A. No.

Q. Can you tell us why you didn’t tell her about the tickling game?

A. I think it's because I was scared that something was going to happen.

Q. When did you next see your mother after the tickling game?

A. I think it was a couple of days - the day after.

Q. Did you tell your mother about the tickling game and what your uncle had

done?

A. Yes.

Q. When you next saw your mother did you tell her straight away?

A. No.

Q. Can you tell us why you didn’t tell her straight away?

A. Because I was scared that she was going to do something.

Q. Like what?

A. I don’t know. I just - I got nervous.

85. The evidence was that there were problems with the complainant’s parents’ care of her to the extent that the month after she reported these events FACS had decided she should no longer live with her parents. Further, she said that she did not leave the flat after these events because she did not know the way home from the applicant’s flat.

86. The matters identified by the applicant do not lead to the view that the jury must have had a doubt about his guilt. The jury were told both by the applicant’s counsel and the trial judge that the applicant was a person of good character which could be used by them in relation to his credibility and the likelihood of his having committed the offences. They were also told that he had consistently denied that the touching was other than accidental. Those would be more significant matters if there was some real doubt about the Crown’s case and the complainant’s evidence in particular. The jury, no doubt, considered those two matters, but they must be regarded as subsidiary in the light of the matters discussed above. Those matters demonstrate that there was abundant evidence to support the verdict and that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the offences.

Conclusion

87. In my opinion the following orders should be made:

1. Leave to appeal granted.

2. Appeal dismissed.

88. LONERGAN J:   I agree with Davies J and his reasons and analysis. I have independently assessed the whole of the evidence to determine whether verdicts of guilty were unreasonable or cannot be supported having regard to the evidence. I have concluded that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the two offences charged.

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Decision last updated: 16 August 2017