R v BM

[2021] NSWDC 488

District Court

New South Wales

Medium Neutral Citation:

R v BM [2021] NSWDC 488

Hearing dates:

10 September 2021 – 15 September 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

Orders.

1. The appeal is allowed.

2. In respect of count 1 the charge is dismissed.

3. In respect of count 2 the charge is dismissed.

4. Sentencing orders set aside

Catchwords:

CRIME — Child sex offences — Intentionally sexually touch child <10

CRIME — Child sex offences — Intentionally carry out sexual act with child <10

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Appeal & Review) Act 2001 (NSW)

Criminal Procedure Act 1999 (NSW)

Cases Cited:

Lunney v DPP [2021] NSWCA 186

Pettit and Riley [2021] NSWDC

Vince Sunter v District Court of NSW [2008] NSWCA 313

Liberato v The Queen 159 CLR 509

Murray v The Queen 211 CLR 193

AG v DPP (NSW) [2015] NSWCA 218

R v Markuleski (2001) 52 NSWLR 82

De Silva v The Queen [2019] HCA 48

Category:

Sentence

Parties:

Regina (Crown)
BM (Accused)

Representation:

Magni Solicitor Employ of the DPP NSW

Schleiger Solicitor for the appellant

File Number(s):

2019/00225453

Publication restriction:

Unrestricted

 Decision under appeal 

Court or tribunal:

Court

Jurisdiction:

Local Court of NSW

Citation:

Unreported

Date of Decision:

16 July 2021

Before:

I Rodgers, LCM

File Number(s):

2019/00225453

Judgment

Introduction

1. This is an appeal of 2 convictions in the Local Court. One was under section 66DA(a) of the Crimes Act, the offence of intentionally sexually touching a child under 10 years of age and the second was under section 66DC(a) of intentionally carrying out a sexual act with or towards a child under the age of 10 years. There was a third charge which was dismissed in the Local Court which was an allegation under section 61M(2) of indecent assault of a person under the age of 16 years. It may be that the facts of that allegation are of some relevance in this appeal because the dismissed allegation involved an incident in 2018 which the facts of the second count may arguably have been confused with. The two counts the subject of the appeal both arise from the one occasion in 2019. I note that the issue of whether there should be any reference to the 2018 allegations in this appeal was raised with the parties and both parties were of the view the evidence should be before this Court.

2. A sentence of eight months with a non-parole period of four months and 10 months with a non-parole period of four months, wholly concurrent, was imposed in respect of counts one and two respectively. The appellant (hereafter “the accused”) also appeals the severity of the sentences. None of the material concerning the sentencing proceedings was before the Court, other than the fact the accused has no criminal history, which founds his reliance on his good character.

3. The conviction appeal is brought under section 18 of the Crimes (Appeal & Review) Act (“CARA”). There remains some variability in the view as to what the correct approach to a s18 appeal is, as there is Court of Appeal authority supporting the view that no error is necessary and also supporting the view that error is necessary. In the most recent decision on this topic of Lunney v DPP [2021] NSWCA 186 the view adopted was that error was necessary however it was accepted by both the accused and respondent in that case that was the position. The point made in Lunney is that it is not necessary for the District Court to hear the whole of the evidence of the court below but rather to conduct the appeal on the basis of the evidence (the words of section 18). The Court of Appeal agreed with the submission of the respondent in Lunney that a conviction appeal under section 11 of CARA does not require the District Court to undertake “a freestanding review of the evidence” in the absence of guidance and particular submissions by the parties. In that case there were two particular aspects of the reasoning of the magistrate that were challenged and the District Court having rejected those two complaints was not then obliged to review the whole of the record with a view to determining guilt.

4. In Pettit and Riley [2021] NSWDC a number of the cases supporting error and a number of cases not supporting error were referred to. One example is Vince Sunter v District Court of NSW [2008] NSWCA 313 where at [27] of the reasons of Allsop P the view is clearly expressed that “the question to be addressed on such an appeal is ‘not whether error is shown, but whether the District Court judge is satisfied beyond reasonable doubt of the guilt of the claimant’”.

5. For the reasons discussed in Pettit and Riley I approach the conviction appeal presently being considered on the following basis:

5.1. That the matters proceed as a rehearing on the evidence below, with any further evidence for which leave was granted;

5.2. The advantage of the magistrate in evaluating witnesses’ credibility, and obtaining a feeling for the case must be observed;

5.3. To determine whether the appealed decision was correct, that is neither the result of “some legal, factual or discretionary error”, nor attended by procedural error, and noting that the term “error” has no precise meaning. It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected.

5.4. To not approach the matter as merely being an assessment as to whether the decision was reasonably open.

6. Further, in line with Lunney the nature of a section 18 appeal is not such as to necessarily require a complete review of the evidence. In the present case the accused provided no written statement of his argument. When asked at the commencement of the hearing the basis of the appeal the accused’s solicitor stated that the evidence was contaminated. This was a reference to the initial recorded interview between the complainant and her mother (“the mother’s interview”) and the interview of the complainant with the police later that same day. It would be an understatement to refer to both of those interviews as being littered with leading questions and the point as to contamination is readily understood. The nature of the point taken on this appeal requires that there be a review of the evidence of the type referred to in Sunter and which in the facts of this case is consistent with the approach in Lunney.

The facts

7. The evidence in this case consists mainly of the mother’s interview and a recorded interview of the complainant with the police and a recorded interview between the accused and the police. Those interviews will be considered below. It will also be necessary to consider the cross examination of the complainant, and the evidence of the mother, stepfather and the complainant’s brother Corey is also noted.

8. Broadly speaking the allegations presently before the court, that is, the two on which the accused was convicted, are alleged to have occurred on the one occasion in July 2019. The circumstances were that the accused was staying overnight at the home of the complainant as he was a friend of the complainant’s brother. The accused was sleeping in a room which was at that time ordinarily the complainant’s room and the complainant was staying in another bedroom referred to in a diagram which became Exhibit 7 in the court below as the “kids old room”. At the time of the allegations the complainant was 9 and the accused 19 years of age (he would turn 20 the next day). The complainant’s room was formerly Corey’s room. The references to the different rooms is confusing. In this judgment, where the accused slept on the night in question is referred to as “Corey’s room” and where the complainant slept is referred to as “the kids old room”.

9. The complainant says that the accused came into the kids old room where the complainant was sleeping and asked her to come to Corey’s room in which he was sleeping for a cuddle as he was cold. The allegation is that she did so and when he was in bed with the complainant he touched her sexually and also masturbated, being the acts relied upon for the two offences. The accused says that this did not occur but rather he masturbated twice during the night and on the second occasion at about 4:30 AM the complainant walked into Corey’s room whilst he was masturbating and he pulled a blanket over himself. The accused says the complainant then left the room to watch TV.

10. The next morning after the accused had left the house the mother’s interview took place. That interview was played at this hearing just as it was played before the magistrate. The transcript of that interview was also before the court. Present for the interview were the complainant, her mother and her father and according to the transcript an unidentified child. The mother is the chief interrogator. The evidence showed the mother had placed a box of toys and a stool behind the door of the kids old room. In her evidence in chief at the hearing the mother says before the interview she asked the complainant whether she had opened the door where the stool and box of toys had been and the complainant said that the accused did. Thereafter her conversation was recorded in the way I will refer to below. The first point to note however is that totally unprompted the complainant says that the accused opened the door to her room. Also before turning to the interview I note that in the evidence of the mother at the hearing she told the court that the complainant suffers from ADHD, ODD, Tourette’s syndrome and autism. The evidence was that this affected her in that she struggled in social situations and did not know boundaries or social etiquette and struggled with anger and temperament. The mother also identified photograph 58 of 90 which formed part of Exhibit 4 and which showed a box of toys with what looks like a wooden step in front of it which in turn is contiguous with a door which is the door of the complainant’s room. I note also that unlike what she said in her evidence in chief, in the course of the interview at page 5 the mother says that after the complainant said that the accused had moved the box of toys that “then she started telling me about how [the accused] was, came in for a cuddle, and she said but and I also want to tell you something but he said not to say anything”.

11. In her cross examination the mother agreed that a few days after the first time the accused stayed over (that is 2018) the complainant came to her and said that the accused laid down next to her and cuddled her whilst she was in bed. She volunteered that on this occasion the accused said he was cold and wanted to cuddle but when the questioner put that that relates to 2019 and then asked that there was not anything about being cold in 2018 the mother said “I think so. Perhaps not. She just said he wanted to cuddle I think”.

The interview with the mother

12. I note the following from the mother’s interview:

12.1. First, having heard the recording it is in my view a very intense conversation or interview. In no way should my remarks be seen to be a criticism of a mother who has very justifiable concerns for the welfare of her daughter. Acknowledging that, it remains for this evidence to be analysed in an objective way to determine what weight can be given to it in deciding this serious criminal charge. Not only would I describe the interview as intense, there was about the interview a heightened emotional air at times bordering on the hysterical.

12.2. On page 3 of the interview the father says “I never liked him from the get go” and the mother says “he’s never welcome here again” to which the complainant says “why”. At this point the extent of any complaint is that the accused came in for a cuddle. The mother then says “and I don’t even have to wait till she tells me what happened”. The made up mind of the mother, the questionner, that something untoward has occurred is clear.

12.3. The complainant said the sky was grey and it was nearly morning. She said the accused said he was just a bit cold and she just wanted to give him a little cuddle. To this the mother says “no, no, did he say he wanted to give you a cuddle”. This is an example of the mother correcting the complainant and possibly influencing the complaint. The complainant then says that the accused said “I’m a bit cold you want to come and give me a cuddle and help me warmup”.

12.4. Next there are questions about which room they went to and when a specific answer was not given the mother suggests Corey’s old room. That is the mother’s suggestion, not the complainant’s. To this the complainant says “no, no I just came in there”. In considering this it pays to remember that the accused says that the complainant walked in on him at about 4:30 AM, something plainly consistent with what the complainant here says.

12.5. This is followed up by the mother saying “right so you got up out of your out of where you were sleeping and walked out and went into your Corey’s old room which is your room now”

12.6. The complainant then says that she was just laying there hugging him and he was hugging her. There is then a series of leading questions to establish their positions. More leading questions go to ultimately suggest that he touched her “boobies” which the complainant rejects. Next is to suggest that the accused was getting a bit close to the complainant’s “girly bum”. Then was this question “lift it up oh my God lift up your nightie, lift up your nightie. So it’s it’s mummy it’s fine. So that’s your girly bum, was he there?”, a proposition the complainant rejects.

12.7. At page 9 the mother asked “did he say keep it a secret or anything?” And the answer was no. I note this contradicts what the mother had said was said earlier by the complainant; see at [10] above. Then the complainant offered this (removing interjections) “he said look how big my mouth is and then and then yeah and he and he told me that I was about I was about to reply to that but like but he said you’re too young to know this and I said what is it and then and he said you’re just too young to know it and I said like well wait what are you trying to say and that and he like our I kinda forgot like I think he said I’m big enough to fit in there. Like I don’t know”. This was unprompted though it was said in the course of a dialogue of encouragement and followed by the mother suggesting “fit in your mouth or your girly bum or what” and the complainant said “my mouth but he meant that as a joke” and the mother says “yeah no it wasn’t a joke darling”. The mother then suggests “so do you think he wanted to put his boy bum in your mouth?” And the complainant said no. When the complainant persisted to say that she thought it as meaning a joke the father says “that’s what they all say”.

12.8. At this point the complainant was becoming distressed most likely because she is unable to remember what the accused was allegedly talking about fitting in her mouth. The mother says she thinks she knows what it was anyway.

12.9. At page 12 the complainant says he just wanted him to give her a normal hug for a couple of minutes and then she could go back to bed. This supports the allegation of the hugging occurring in the accused’s bed in Corey’s room.

12.10. The mother then says he was doing a very bad thing and the complainant says that the accused said he likes playing with his boy bum and she tried to look away. She said he had the blanket down and his shirt up and pants pulled down. That is a scenario consistent with what the accused said happened when he was walked in on.

12.11. The complainant then volunteers that she tried to move back and lean against the bedside table so she could stay away and not touch it by accident. If this is accepted it would plainly place her in a far different position than the walking in upon position stated by the accused.

12.12. The mother then asked “did he grab your hand and try and make you touch it” which the complainant rejects and the mother then goes on to tell the complainant that the accused is trying to do the “lovey” thing, and later that he wanted sexual acts from her. There was then some further very adverse comments made by both the mother and the father including the father saying “I’m gonna break his arse out” and the mother said “he did the worst thing anyone could ever do to a child apart from physically hurting them as well”. Soon after this (at p17) the complainant then says that the accused said “he doesn’t care if I see it”. That is followed by the complainant saying she only saw it for a split second and “I didn’t know he was gonna have his pants literally down and his shirt up” which again is not far removed from what the accused says. Following this there are more references to the accused being sicko and that what happened was horrible. At page 21 following this the complainant offers up another disclosure namely “he said will you let me play with your private part when you’re older” and shortly after that she says “I told him like after he was playing with it go wash your hands or don’t touch me”. My concern as to these revelations quite well into the interview amidst this heightened language is that by this stage the complainant is well and truly influenced in my view by what she is hearing from her parents. She has gone from being calm, to distressed, and to thinking some things were a joke, to being alarmed. This is supported by the complainant saying at page 23 when talking about whether his hand were dirty, and thinking of one of the hands she thought was not dirty, said “but now I’m starting to think maybe it was”; in other words the recollections of the complainant are changing as this interview progresses. The complainant then starts talking about it being a good thing she does not have periods so she can’t have a baby. The mother then says that the accused jerked off under the blanket. Whilst there is evidence that would support this as an inference, the complainant never says this beyond her description of his shirt being lifted and his pants down and she saw “it” twice, briefly. Notably, the whole notion of seeing “it”, which I take to mean the penis of the accused, is first raised by the mother at page 13. The mother asked there whether the accused showed his “boy bum”, which I take also to mean penis, and the complainant replied “no, no, he said, no, if you don’t mind, he , like, he said he likes playing with his boy bum”. The complainant did not say the accused was playing with his boy bum, though that inference is plainly open.

12.13. At page 26 the mother asked if the complainant felt any wetness at all. The answer was no. There is no suggestion of ejaculation here, beyond inferring upon the inference of masturbating that it ultimately occurred. That there was no ejaculation is consistent with the accused version of events.

12.14. The mother then asked, when it all finished “what did he say to you” and the complainant says nothing and the mother then says “did he say don’t tell mummy and daddy” and the complainant says no and that was only when he said the remark about when she was older could he play with her private part. The mother presses on and says at p27 “did he say that’s our secret or anything like that” and the complainant agrees. This is another version of the “don’t tell anyone / secret” aspect of the evidence. The variations and the method of obtaining them are in my view unpersuasive, and further, are a cause for concern as to the reliability of the complainant.

12.15. At page 29 the complainant, who by this time is crying, says “I just thought he was cold” and “He said that and then and he said he was just a bit cold you want to come and cuddle me and to help me warmup. And I just went in there for a nice little cuddle. All I wanted to do it’s a nice happy time there. Nothing yucky or anything”.

12.16. Another concern about this interview is that not only is its own content called into question but the influence it has on the complainant may then lead to the contamination of the police interview to be dealt with next.

12.17. At page 33 are questions about whether he made her touch “it” and she said no but he did have it sticking out. The complainant says she saw it and looked away because she didn’t like it (p34). The mother then checks whether that was the previous time and the complainant says no. The mother asked “so when he walked in your room you could see it sort of sticking out could you?”, and the complainant replies “nuh, nuh it’s when you said, I want to play with my private part now”. This evidence confuses the events of 2018 with those alleged to be in 2019. Coupled with the nature of this interview, I consider there is a real risk of the complainant mixing the alleged events.

The police interview with the complainant

13. Despite the transcript of the mother’s interview stating it was recorded on 23 July it is accepted by the parties that it was recorded on 20 July. Later that same day there was the child interview conducted by the police. Unlike the mother’s interview this had vision as well as sound. It starts by the complainant seeming to be very preoccupied and including slapping herself in the face. When asked if she knows what the police officer wants to talk about the complainant says “I think what happened in the toilet” and talks about toilet paper and how she thought it belonged to 2 other toilet stalls and she put them back. Following that unpromising beginning from the prosecution point of view I note the following:

13.1. At page 5 without any leading questions the complainant says “the accused woke me up and said I’m getting a bit cold do you want to come and cuddle me to help me warmup” and then adds “but he was just doing that to try and get me in the room”. The first part of this is consistent with her unprompted remarks to the mother; the second is very suggestive of being influenced by the mother in the first interview.

13.2. She recounts the accused having her hand somewhere and she asking him to move it up a bit. She later said she felt him move it down and he said sorry again.

13.3. At page 6 the interviewing police officer asked where this happened and unprompted the complainant recounts the version regarding her mouth saying he said “look how big my mouth is just got to show that I was just getting older and bigger. And he said I’m big enough to fit yo yeah it is big enough for me to fit in there. And then he said I’m too young to know this what am I gonna say. And I say what is it? And he said can you too young to know about it but what it. And I said what it but what is it. He said I’m big enough to fit in it”. When asked to explain this the complainant said that was the trickiest part and “just don’t worry about it”. On one view, what is being discussed is potential fellatio; on the other, the complainant herself does not know what is being spoken about.

13.4. At Q69 the officer starts off a leading question “And then he took you in the…..” and the complainant answers “He just, no, just tried to, into the room he was in”

13.5. At Q74 the officer says something else happened with him to is that right? And then says “you saw his rude part?” The complainant rejects that saying no not that and says she said look how big my mouth is, which is perhaps more likely a reference to what she just said then to the allegations. She then largely repeats what is set out above but adds in the words “I’m just about to rub hard” as being said by the accused, supporting the masturbation allegation. That was not something said in the mother’s interview.

13.6. She then says that he had his pants down and shirt up and she actually saw “it” twice. Rather than asking what “it” is the officer suggests it is his “private part”. The complainant says “Yeah, accidentally twice”. This is another piece of the complainant’s evidence that is consistent with the accused’s version of events, of being walked in on with his pants down and shirt up.

13.7. Not so consistent is when at question 102 she says that he went back to hugging her consistent with them being in bed together. She says she then said she was going to get out now because she didn’t want weird stuff to happen and then, with strong echoes of the mothers interview said “he was just trying to do the lovey thing that’s all”, a comment which strongly supports the accused’s argument as to contamination. There was then followed an exchange about making babies and the officer asked what was he trying to do and the complainant says “no no this isn’t real I’m just trying to tell you what that means”. The complainant is trying to explain “the lovey thing” to the officer, something clearly still in her mind from the mother’s interview, and which she says at Q115 she did not think the accused was trying to do.

13.8. At question 118 the complainant offers that the accused said “would you let me play with your private part when I am older? And I said no I wouldn’t like that and then he just said sorry”

13.9. When asked whether he asked her to touch it the complainant dismissed that suggestion.

13.10. When asked when he was playing with his private part was she in the same bed she answered she was in the same bed. She said he was lying on his back and she was lying on her side and she tried to move back when he was playing with his private part. This has some air of actuality about it by being able in a non-leading way to describe their respective positions.

13.11. At Q173 when asked whether this was the first time something like this had happened the complainant said “I did it once before”. She said she was feeling something wet and gooey and she washed her hands and she said and told the complainant his private part was sticking out. At question 198 she says that on this occasion (2018) he came into where she was sleeping and gave her a little hug and said that she was cute. His pants were up but his zipper was down and his private part was sticking out and she accidentally touched it. What is being described as happening in 2018 is similar to what is being described in 2019, and in my view, given the manner in which the information is being obtained from the complainant, there is a risk of the different occasions being merged or confused.

14. Corey gave evidence and began by apologising “in advance” for his poor memory. He said on this morning he woke up anywhere between 7 and 9 AM. He could not remember if his stepfather was home at that time saying that his brain doesn’t normally work in the mornings. In cross examination he agreed that the morning was normal, no different than any other morning. He also agreed that he was there to stick the boot into the accused and qualified that by saying he did not want it to happen to anybody else.

15. The stepfather also gave evidence. He woke at about 3-3.30 in the morning to go to work. He went to the lounge room and Cory was on the lounge, a time significantly earlier than the 7 o’clock that Cory said he woke up though perhaps Cory had not yet gone to bed.

16. The evidence of the officer in charge established that there were tests done on the accused tracksuit pants and T-shirt which produced negative results for semen.

The complainant’s cross examination

17. Prior to giving evidence the magistrate asked questions of the complainant to determine whether or not she was able to give sworn evidence. He determined that she could not. Accordingly her evidence was given unsworn. Neither party takes any issue arising from this. It was put to her that the accused had never given her a cuddle in bed and she disagreed. It was put the accused had never been in bed with her and she disagreed. She also said her mother had never said bad things to her about the accused which based on the mothers interview is incorrect. At page 30 of the transcript of 25 September 2020 she was being asked about the first occasion that she says the accused went into her bed. When asked who she first told about that she said “I have no idea what you’re talking about and also I don’t know”. When asked some further questions about the first occasion of allegations she said at transcript page 31 when asked how far down his the was she said “only a little bit. Sorry I’m just really bored I don’t want to do this”. Although that evidence is in connection with the first occasion alleged in 2018 it reflects poorly on the quality of the evidence.

18. At page 32 of the transcript when asked what happened the first time the complainant gave answers that he was asking that he was cold somehow and asked me to come in there to hug him to warm him up and said “that was only a little trick to get me in there”. This shows her answering questions about the first time that on the Crown case relate to the second time which she confirms in the next answer and also shows the influence of the mothers interview.

19. At transcript 34.05 in what seems to be a reference to the 2019 occasion she says “he said he was going to play with it or something and he said when I when when I grow up can I play with yours and I said no I don’t know and he said okay forget that ever happened”.

20. It is noticeable that when questions are asked about the first occasion she reverts or converts the answer to be a reference to the second time including by saying it T 36.01 that he “tried to lure me into my room”. The complainant agreed that “lure” was a word her mother had used when saying to her “That was him trying to lure you in”; see T36.24.

21. At T 37 line 5 when asked if she remembers saying to her mother that the accused likes playing with his boy bum the answer was “no I no I’m just saying that he said he was going to do it. He said he was going to play with it like “if you don’t mind I will play with it”. That’s what he said and I said okay okay or something like that in a confused way”. On this version there is no masturbation. It is also an unlikely sounding conversation.

22. At T 37.37 there is some consistent evidence of the accused hand moving up and down her torso and she asked him to keep it in the middle. She said she wasn’t thinking much of it until after a while she asked could she go and he said okay.

23. At T 38.07 the evidence supports that she is now saying that he was playing with his thing.

24. When challenged as to whether the second occasion ever happened she answered “yeah I did. He did lure me in the second time”; T 40.40.

25. I note that it was put to her that she went to get her phone charger and she said she did not have one.

26. Lastly and again consistent with the Crown case when the complainant at T 40.50 was asked whether she walked into her bedroom while the accused was there (which I take to be Corey’s room) she said at T 41.02 “no I didn’t walk in then he came, he came in my sister’s room where I was leaving to come and get me in. He asked like if I could come in there with him and snuggle him because he was cold”.

27. In my view this evidence in some respects as indicated supports the basic allegation made by the complainant of the accused coming into where she was sleeping and asking her to join him where he was sleeping because he was cold and warm him up. It also has characteristics that are somewhat odd and would make a fact finder wary. Those characteristics are the confusion of the first and second allegations in 2018 and 2019; the at times disinterestedness of the complainant (“I’m bored”); and the express references to things having been said by her mother.

The ERISP

28. The accused of course is not required to give an interview to police. Having taken advice he chose to do so. He denied the allegations and denied that at any time on this night or any other time that he had been in bed with the complainant. The accused was told the allegations were that the complainant got in bed with him and he rubbed her chest area and belly area or stomach area and at around the same time he masturbated next to her and thirdly that about 12 months ago he cuddled her with his penis being exposed out of his fly. I note the following from the ERISP:

28.1. At Q 27 after the introductory part of the interview he was told the three allegations were being investigated and was asked if he knew who [the complainant] was and he volunteered that she had seen him masturbating at about 4.30 that morning and she came into the room where he was staying and that she walked in on him and it was awkward.

28.2. Next he said 12 months ago there was an incident where he had gone in for a shower and she walked in when he was undressing.

28.3. I will give my impressions of this evidence below but would note that at this stage I formed a favourable impression of the answers being given by the accused. His initial statement of what he said happened was not responsive to the actual question but I consider understandable given he has just been listening to the allegations being made against him. Thereafter at this point at least he was responsive and appropriate.

28.4. He said he knew it was 4.30 because he woke up to go to the toilet and before that had looked at the time and checked his messages; Q 80. He explained that this toilet that he went to at 4.30 is the one that access is gained without going into the room in which the complainant was sleeping. Exhibit 7 shows a bathroom which the evidence was had a shower, accessible through the old kids room, and a toilet unconnected to the kids old room towards the back of the house. The accused confirms this at Q140, referring to the second toilet as the back toilet.

28.5. He describes what he is doing from about Q150 which begins by saying the complainant walked in and suggesting that Corey had probably woken her up. Other evidence suggests that Corey was up at about 3.30. The accused said he had his shirt on and his trackies still sort of on and when he saw the complainant he grabbed a blanket and pulled it over him suggesting that he was on the bed or certainly near it. He said the complainant stood there kind of shocked at first and he was sort of sitting there and apologised to her and she walked back out and watch TV with Corey and he came out about 15 minutes later.

28.6. The accused goes on to say that they watched TV with Corey and either he or both he and Corey went to McDonald’s for breakfast. Corey gives no evidence of this nor is it put to him however Corey says he has a terrible memory and the evidence conflicts as to his estimate of waking up at 7 o’clock.

28.7. At Q175 the accused was asked whether he ejaculated and he said not really because he had masturbated at 2 o’clock and had ejaculated then and referred to using or trying to use a sock at that time, to catch the semen. I observed the accused in giving this evidence and it was plain that he was embarrassed by stating these details and he even said that he felt awkward saying what he had said. This adds to my favourable view of the accused who in my view appeared genuine. There was no evidence of the police investigating or seeking out a sock though other clothing was tested.

28.8. At Q196 the accused says he got to the house about 930 or 10 PM and at Q208 fell asleep at about 11 o’clock, woke up at 2 o’clock and then again at 430.

28.9. At Q238 it was put to him that he went into the complainant’s room and woke her up and told her he was cold and he was asked if he remembered anything like that happening and he said no but added, at Q239, “I remember I do remember walking having to go through to get to the shower at once and waking waking her up walking through the rooms”. This is a reference to the fact that in between the parent’s bedroom and the kids old room is a bathroom (referred to as a “Jack and Jill bathroom”) with access from both bedrooms. To access this bathroom you need to enter one of those bedrooms. He then said however that was not on this night but ages ago. The allegation is then again put, in a fairly confused way at Q243, and is again denied. The accused denies waking her up and denies going into the room. Again at Q280 he said he did not go into that room last night.

28.10. There are then some questions as to whether the accused would have touched the door handles of “that room” which is a reference to the room the the kids old room. At Q299 the accused is asked if there was a reason he would have touched the door and he said not that I can think of apart from to go to the shower. Which on the basis of the interview to this point would be a reference back to Q242. However at Q302 when asked if he remembered going to have a shower he said he remembered going in to rinse his mouth and stuff as he had a really nasty taste in his mouth from smoking cannabis. And he then explained how you get into the bathroom between the two bedrooms which involves going into the room the complainant was in.

28.11. This is very damaging for the accused. He has unequivocally said earlier that he did not go into the complainant’s room that night. He has said that ages ago he went in there to go to use the shower. When asked whether he touched the door he makes reference to the time of ages ago to go to the shower or at least that is the inference. Then when asked whether he remembers having a shower he says he remembers going to rinse his mouth out. He had not mentioned this before and even allowing some leeway for such a mundane act not being stated earlier this answer is a concession that he had been in the bedroom and contradicts his earlier evidence. The answer to Q311 says he walked into the parents room though my recollection of the tape was that he did not go through that room. He confirms this at Q317 and Q318 confirms that he went through the kids room that is the kids old room where the complainant was sleeping that night. The concession becomes greater at Q321 because he now says that he was pretty sure the complainant was asleep in the room at the time he walked through.

28.12. The second version is perhaps encapsulated at question 324 when the accused answers “I got up before I went to sleep got up went into the bathroom rinse my mouth out and then went into the bedroom there and yeah then went to sleep and then yeah. That was last night” and he goes on “and then yeah up at 2 in the morning and then went back to bed got up again at 4.30”.

28.13. Also unfavourable to the accused is there does not seem to be any reason why he would walk through the kids room to rinse his mouth out when there is the back toilet available with most likely a basin that is also available.

28.14. At Q344 he says he rinsed his mouth on the way to bed which in my view is largely consistent with having lay down for a while and then rinsing his mouth before going to sleep. On this version he would be going through the kids old room at about 11pm.

28.15. At Q351 it was put to him that he had said he had not been in the room where the complainant was last night and he answered “no like you were meaning in regards like this morning though when you? You when you asked me that”. The evidence recounted above is very clear that he was denying being in that room for a considerable period prior to the night in question.

28.16. At Q357 he then confirms that he opened the door that night and it sort of hit something that was behind it and he thought there was a cupboard there or something. This is obviously consistent with what the mother had placed behind the door.

28.17. The accused maintained his denials of the complainant getting into the bed with him. He was then asked about the messages he said he checked at 430 and his answers to that were far from convincing and with the effect that he thought he might have got one from his girlfriend. He said he stopped masturbating when the complainant walked in and she grabbed her phone charger and was there for about 10 to 15 seconds. As noted above the complainant denies having a phone charger.

28.18. As to the allegation concerning the words he spoke to her including how big the complainant’s mouth was and how he could fit in there he answered “that’s just fucking weird”. I note the magistrate appears to find some support for the prosecution in this answer and that is justifiable on the basis of perhaps too much protestation. My impression when I heard this evidence was that it was a genuine statement.

28.19. In relation to the charge from 2018 he again gave an answer of going for a shower and being walked in on by the complainant. As to the cute comment he said he had said that to her when they were playing on the trampoline.

28.20. At almost the end of the interview for some reason he was asked as to whether he had seen the complainant lie and said he had. Including when to get out of trouble. No great reliance is placed on this if any by the accused and it is best perhaps to put it out of consideration

The charges

29. To make out the charge under s66DA(a) the Crown must prove beyond reasonable doubt the accused:

29.1. Intentionally;

29.2. sexually touches;

29.3. a child who is under the age of 10 years.

30. Here the sexual touching is said to be of the torso, and not including the breasts or the groin area, in the context of being in bed and hugging. There was no argument against that view. The question is whether the Crown has satisfied the onus to prove that the act occurred.

31. The elements of the charge under s66DC(a) are that the accused:

31.1. Intentionally;

31.2. carries out a sexual act;

31.3. with or towards a child who is under the age of 10 years.

32. Here the sexual act is alleged to be masturbation. As with the first charge the question is whether the act is proven beyond reasonable doubt.

The magistrate’s reasons

33. The magistrate set out the evidence of the complainant being woken up by the accused coming into her room and asking her to come to where he was sleeping and asking for a cuddle. Her evidence was his hand was on her stomach and torso and she asked him to move it a number of times. The magistrate recounts the evidence of her cross examination of when he asked for a hug she said to him that “you’re playing with your thing” and he said he wasn’t with one hand and also said to her “when I’m older can I play with your private part” and she said “that sounds yucky”. I note the magistrate states the complainant said after the reference to the accused playing with his thing that she said “I think he was like going up and down”. That clearly supports masturbation, yet it was not what was said in the transcript; the up and down reference was to the hand on the torso. The magistrate sets out that the evidence was of the accused telling the complainant not to tell anyone and it was their secret. The complainant next morning complained to her mother

34. The magistrate then dealt with the facts of the 2018 allegations.

35. The magistrate set out the accused version of events and gave himself the appropriate good character direction. He also gave himself a Liberato/DeSilva direction.

36. The magistrate sets out the evidence relating to the interview with the complainant’s mother in which the complainant says the accused touched her belly and denies that he touched her breasts.

37. The magistrate considered and then rejected the accused version of events and then properly instructed himself that it was therefore necessary to return to the prosecution case. Indeed favourably to the accused he gave himself a Murray direction in that he said that he must “closely scrutinise” the prosecution case particularly where almost exclusively if not exclusively it relies on a single witness, the complainant. He then addresses the point of contamination.

38. The magistrate noted that in some ways the complainant appeared impressionable and that there were inconsistencies in her evidence and also evidence of her being influenced by the questions asked of her. He acknowledged the leading nature of the questions asked by her mother and by the police officer. He nevertheless considered her to be credible, reliable and believable. This was based on the firmness she showed in her evidence as to what occurred and what did not, and her denials of certain things occurring which were put to her. He also noted her evidence that “she just wanted a nice cuddle” and he also noted some of the unprompted details that emerged such as the comment of “look how big my mouth is” and the statement of the accused of saying “this hand isn’t dirty”. In the circumstances in which it occurred he found the touching of the torso was sexual touching within the meaning given in the Act. He further found that the accused touched his penis in the presence of the complainant so as to constitute a sexual act establishing the second charge.

The parties’ arguments

39. The accused argued that the magistrate was wrong to have rejected the accused’s version of events. The accused further argued that the complainant should not have been accepted as credible and I would add reliable because she was confused at different times in her interview and also because of her recollection of events having been contaminated by the manner of her interview with her mother.

40. The nature of this appeal has been discussed above. I query whether the argument of the accused constitutes an error of fact, law or discretion. Arguably, on the view that error is required to succeed in a s18 appeal, a question arises as to whether, if no such error is found, can the accused succeed?

41. In this regard I note the following passages at [34] and [37] per Basten JA in AG v DPP:

Although the cases dealing with appeals (as distinct from further hearings) frequently refer to discernment of “error”, that term has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was “wrong and should be corrected.”[38] Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors.[39] Indeed, a miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term.[40]

The issue of practice concerns the standard notice used to commence an appeal to the District Court from the Local Court. No standard form is prescribed, but one is supplied by the Court. For an appeal against conviction, the notice effectively requires that the appellant mark a box giving as the reason, “I am not guilty”. That would be appropriate for a fresh hearing, but not for an appeal by way of rehearing. Arguably, the form itself does not comply with s 14(2) of the Appeal and Review Act which requires the notice to state “the general grounds of appeal.” That statutory language implies the need to state, at least in general terms, some basis upon which the magistrate is thought to have erred.

42. Here, I accept that the accused’s position, as stated above, albeit brief, relevantly identifies a basis of error by the magistrate. The accused has been able to state a basis for why he says the magistrate’s decision was wrong in the broad manner set out above.

43. The Crown provided helpful submissions in writing. These were supplemented orally. The Crown frankly conceded there was contamination. It concedes that some of the matters may have coloured what the complainant said and gave the examples of the mother using the word “lure” and the mothers talk of the accused wanting sex.

44. The Crown however pointed to matters that could be seen to have emanated from the complainant herself and where she was not parroting what her mother had said or what may have been suggested by the questioning by her mother or the police. It relies on a number of factors it says the complainant mentioned first before being suggested by the mother and argues that the complainant’s evidence is internally consistent. The Crown also made the persuasive point that there were a number of occasions where leading questions were asked which were firmly rejected by the complainant. One example of this was when asking if the accused had touched her “boobies” and she firmly said “no”.

45. The matters relied upon as being internally consistent and originating from the complainant included the following:

45.1. That the accused came into the complainant’s room (the old kids room) in the early hours of 20 July. I accept that this did originate from the complainant. It need also be noted that although the accused contradicted himself and lied initially when he said he did not go into the kids old room, his second version saw him in that room at about 11pm, not early in the morning as the complainant states, so that there remains an issue as to when the accused was in the kids old room.

45.2. That the accused said he was cold and wanted a cuddle; this extended to her being asked what the accused said without it being suggested to her what that was and she said “do you want to come and give me a cuddle and help me warmup”. An issue here is whether there is some confusion on the part of the complainant of 2018 and 2019.

45.3. As I understand the argument the Crown also relies on evidence of the complainant of lying down in the bed with him in Corey’s room and cuddling him. I note that evidence was largely led by the mother.

45.4. The Crown then relies on the rubbing of the stomach by the accused. In this regard the evidence is stronger for the prosecution because for example at page 7 of the mother’s interview she urges the touching of boobies which is rejected and it is here the complainant gives a good description of the touching of the belly and moving up and down with her telling him to move his hands to the effect that they would be on her belly.

45.5. The offering by the complainant of the odd conversation about how big her mouth is. That forms no part of the allegations forming the actual offending but is an example of something that was not prompted. This was also the subject of express rejection by the accused in terms that I consider genuine namely “that’s just fucking weird”.

45.6. That the accused was masturbating. The reference given by the Crown is to page 13 of the mother’s transcript. That follows a number of comments by the mother including that the accused is doing a very bad thing. The mother then asked if he showed his boy bum and a few questions later asked “did he have it out did he?” and the complainant said “he had the blanket down and then his shirt up and his pants pulled down”. The complainant said she tried to move away. She says she saw his penis twice and I base that on her reference to seeing “it”. Well into the interview the complainant offers some further conversation of “will you let me play with your private part when you’re older” as being said by the accused and then on page 22 she says she told him to wash her hands after he was playing with it. At the top of page 23 is an answer reflecting a change in thinking which reflects the danger of the influence of the mother. Adverse to the Crown case is the mother then talks at page 24 in these terms “he jerked off in front of her”. There was then talk of wetness which again carries with it the concern of confusion with the previous year.

45.7. The Crown also relies on the evidence of the accused asking her to keep it their secret. I have canvassed this above. I am not satisfied that suggestion originates from the complainant for the reasons discussed above; see for example the top of page 27 of the mother’s interview.

46. Based on these internal consistencies the Crown’s argument is that even allowing for the risk of contamination which it accepts the Crown case was made out. The Crown submissions referred to the fact that the appropriate Liberato/DeSilva direction was given as requested by the defence and that the accused version was rejected as not being reasonably possible and had the appearance of being a reconstruction. In considering the Crown case as then required the submission is the magistrate’s verdicts should stand.

Discussion and findings

47. In arriving at the following findings the advantage of the magistrate in observing the witnesses is recognised. In this case that relates to the evidence given in cross examination by the complainant and the evidence of the mother, the father and Corey. Neither party placed much if any emphasis on the evidence of those 3 last named witnesses. As to the evidence of the complainant the evidence in chief is contained in her certified recorded interview. The magistrate does not enjoy any advantage in that regard, though he does with respect to her cross examination. Nor is there any advantage of the magistrate in relation to the mother’s interview or in relation to the ERISP.

48. The first unprompted statement of the complainant was that the accused opened her door. On the accused version, he did, when going to rinse his mouth out earlier in the evening. As identified above that constituted a significant contradiction of his earlier evidence. I do not take this into account as consciousness of guilt and it was not argued that way. It does allow a definitive finding that the accused did enter the complainant’s room.

49. The accused however says that he entered the room much earlier in the evening at a time when he was rinsing his mouth out prior to going to sleep at about 11 o’clock. It does not amount to an admission of entering into the room at a time the sky was grey and close to morning as is the allegation. The problem for the accused is that it amounts to a contradiction and there is also the question as to why he would go into the bathroom to simply rinse his mouth out as opposed to going into the other back toilet that he used later in the evening.

50. Corey was up at about 3.30am, according to the stepfather. This is not a markedly different time to that suggested by the accused, and the evidence does not make clear whether Corey had not yet gone to bed, or had, and had then got up. Certainly the possibility of him being up and for the complainant to watch television with him is open.

51. The complainant was not prompted in stating the words allegedly spoken by the accused as to wanting a cuddle, though even here care is needed; see par 12.3 above where the mother in effect corrects the complainant’s version.

52. It is the mother who suggests they went into “Corey’s old room”; see 12.4 above. Further the complainant says “I just came in there”, consistent with the accused version of being walked in on.

53. The words in bold in the section headed “Facts” above are to emphasise what I consider to be unprompted evidence of the complainant. That was:

53.1. Of the accused hugging the complainant.

53.2. That she tried to move away so that she would not touch it;

53.3. That she went in there (I infer Corey’s room) for a nice little cuddle.

53.4. The evidence concerning the size of the complainant’s mouth and what is alleged to have been said by the accused.

54. I note the process of going from her room into his room is entirely extracted by leading questions of the mother.

55. The evidence of it being a secret is entirely prompted by the mother.

56. There was no submission made as to any error by the magistrate as to the directions he gave himself. The magistrate also implicitly gave himself a Murray direction by his reference to the need to scrutinise carefully the evidence of the complainant. No issue was taken with that on appeal and it is a matter that favours the accused. It may well be that a Murray direction was appropriate as there are a number of factors present here beyond the accused being the essential witness. In any event the fact finder in this case needs to be satisfied beyond reasonable doubt as to the accuracy and reliability of the complainant in order for the Crown to meet the high onus of beyond reasonable doubt.

57. The magistrate did not make a Markuleski direction. In my view he should have. However neither party made submissions to this effect. I would also note that the reason for rejecting the 2018 charge was the issue of consent and not one of credit. As an aside I note the observation of the Crown that by reason of section 80AE consent was not an issue.

58. The magistrate did give himself in understandable short form a Liberato / de Silva direction. That direction is that it is not necessary that the accused’s evidence or account is believed by the finder of fact before there can be an acquittal. I note the suggested direction originating in De Silva v The Queen [2019] HCA 48 to the following effect:

58.1. First, if the fact finder believes the accused’s evidence they must acquit.

58.2. Second, if the fact finder finds difficulty in accepting the accused’s evidence but thinks it might be true, then they must acquit.

58.3. Third, if the fact finder does not believe the accused’s evidence then they should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

59. This is a hearing involving criminal charges of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. Suspicion is not a substitute for proof beyond reasonable doubt.

60. No reference was made by the magistrate to s293A of the Criminal Procedure Act. I consider the magistrate was doubtless aware of that provision. By that section a fact finder should be made aware that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is my job, and entirely a matter for me as the judge of the facts, to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability. In the present case there are two versions, and possibly a third in the cross examination. To the extent that they vary, the variations have been noted above. This case is not however one that turns so much on differing versions at different times, but whether the history given by the complainant is one that reflects her recall of the alleged events, or is it one that has been affected, or impacted on, by a similar allegation of 2018, and the manner of her version being extracted by the mother’s interview and the police interview.

61. A further direction that is ordinarily given and I have no doubt the magistrate was cognizant of is that it is open to accept part of a person’s evidence and reject another part of a person’s evidence if there is a basis for doing so. I consider this to be a matter of significance in this case. The magistrate rejected the accused version of events as being not reasonably possible, and as being an apparent reconstruction.

62. The basis for that rejection can be discerned from pages 13 and 14 of the transcript of 15 April 2021. The magistrate allows that in the almost endless variety of possible occurrences in life the accused’s version is possible. He then, in one sentence summarises the version of the accused as follows “but a person who had arrived at a friends house went to bed was laying there at 2 AM missing his partner, he masturbates, ejaculates, goes back to sleep, wakes to go to the toilet at 4 or 4:30 AM, goes back to bed, commences masturbating again, is masturbating for half an hour and then the complainant walks in”. The magistrate then allows for the possibility of the complainant having been woken up by Corey who he accepted was up in relation to his morning coffee and that it was possible that she was playing games and watching TV and then states “in my view the evidence that is set out in the taped interview is not reasonably possible when viewing the evidence as a whole”. The basis for that seems to be in the next paragraph starting at line 50 of page 13, specifically that the assertion of going to the bathroom to rinse his mouth and of the complainant coming into the room to retrieve a phone charger appeared to be a reconstruction. The magistrate considered them fabrications. Based on these two assessed fabrications the conclusion was reached that the accused versions as to these events are not reasonably possible.

59. I agree with the magistrate that the accused lied in so far as he initially said he was not in the kids old room. I do not agree that the evidence of rinsing his mouth out can be said conclusively to be a fabrication. I consider it possible that the accused lied in the first instance for fear that his admission of being in the kids old room would inculpate him in regards to offending he did not commit. Nor do I consider that the assertion by the complainant that she does not have a phone charger in cross examination (a matter not relied on by the magistrate) means that the accused is lying when he said she came to get her phone charger. The magistrate based that finding on how that evidence appeared to him on the taped interview; see T14.02. The magistrate accepts it is possible the complainant was playing games, see at T13.45, and I infer this is a reference to games on her phone.

60. The view I take is supported by the overall favourable impression I gained of the accused in the ERISP, apart from the lie as to being in the room just discussed.

61. It is further supported by the fact that there are aspects of the complainant’s version that are consistent with the accused’s version. For example, see at [12.4] above concerning the possibility of the complainant walking into Corey’s room. Further, her description of him as noted at [12.10] above is in line with the accused’s own description. And on either version, there was no ejaculation; see at [12.16] above.

62. There is further support for my view in that the magistrate accepted that the complainant may have been woken up by Corey, which I also accept. It needs to be remembered that things are happening at this house in the very small hours with the father going to work and Corey being up and about. It does not seem fanciful to me that the complainant may have been woken and may have walked about the house, including to watch TV and not beyond the realm of possibility to look into her room where the accused was staying.

63. I recognise the strength in the prosecution case based on what was some unprompted evidence of the accused approaching the complainant and asking for a cuddle. In that regard it needs to be remembered that there was alleged to be a similar incident the previous year. I consider those two incidents as described by the complainant to have marked similarities, and have possibly been confused together by the complainant.

64. The result is that despite the obvious lie on one aspect of the accused’s evidence I am not satisfied beyond reasonable doubt that the Crown has satisfied the onus it bears. Having assessed the evidence I am of the view that the version given by the accused might be true with the result that in line with de Silva he should be acquitted.

65. Further, if that be wrong, and the accused’s version was to be rejected, so that the task remained to consider the Crown’s evidence and determine if the elements of the offences had been made out beyond reasonable doubt, my ultimate conclusion would be the same. This is because I consider the mother’s interview so contaminated the evidence of the complainant that I have no confidence in the version of events given by the complainant. Similarly the manner of conducting the police interview with the complainant removes most if not all of its evidentiary weight due to the suggestive manner of the questioning. The matters set out and discussed at [12] above in my view largely show how the manner of conducting the mother’s interview could influence the complainant, or to use the accused’s expression, could contaminate the evidence. There is evidence of there being a hug in bed; see [12.9] and [12.11], but those matters are more than outweighed by the concern that I find must exist as to the legitimacy, or reliability, of evidence obtained in that manner. Similarly at [13] above, the review of the ERISP reveals irrelevancies (toilet paper), varying accounts (“he tried to”), confusion, and matters consistent with the accused’s version, and obvious indicators of things being said influenced by the mother. Additionally, without in any way wishing to be critical of the complainant, she did not present well in cross examination and appeared at times disinterested. When the simple guide of needing to be satisfied that the complainant is both an honest and a reliable witness to enable conviction is borne in mind, I consider the conclusion to be clear that the complainant’s evidence is not reliable.

Orders.

1. The appeal is allowed.

2. In respect of count 1 the charge is dismissed.

3. In respect of count 2 the charge is dismissed.

4. Sentencing orders set aside

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Decision last updated: 21 October 2021