Regina v Byrnes

[2000] NSWCCA 304

CITATION:	REGINA v BYRNES [2000] NSWCCA 304
FILE NUMBER(S):	CCA 60728 of 1999
HEARING DATE(S):	13 July 2000
JUDGMENT DATE:	15 August 2000
PARTIES :	REGINA v BARRY FRANCIS BYRNES
JUDGMENT OF:	Mason P at 1; James J at 71; Sperling J at 72

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0189
LOWER COURT JUDICIAL OFFICER :	Job DCJ

COUNSEL :	Crown: R D Cogswell SC Appellant: S R Norrish QC
SOLICITORS:	Crown: S E O'Connor Appellant: Dooley & Associates
CATCHWORDS:	Sexual assault - adequate warning as to reliability of complainant’s evidence - findings of fact on which the judge relied - verdicts reasonable - not incumbent upon trial judge to detail each and every error of witness - no error in determining that appellant’s ERISP answers were "not really denials" - Longman warning - judicial direction under s405B Crimes Act - ND.
DECISION:	Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60728/99
DC 98/51/0189

MASON P
JAMES J
SPERLING J

Tuesday 15 August 2000



REGINA v Barry Francis BYRNES

JUDGMENT

1    MASON P: On 1 November 1999 the appellant was indicted in the District Court on seven charges of sexual abuse of his stepdaughter. He pleaded not guilty and was tried before His Honour Judge Job sitting without a jury. On 3 November 1999 he was found guilty on all charges. Sentences were imposed on 15 December 1999. 2    This appeal is against conviction. 3    The complainant was born in 1980. Her mother and the appellant started a relationship when the complainant was four. The family moved into the appellant's house where the complainant shared a bedroom with her sister who was 2 years younger than her. The appellant married the complainant's mother and they had a son, born in 1988. The first incident charged occurred in 1985 when the complainant was in kindergarten and the last incident charged occurred when she was 13. 4    In 1994 the complainant was interviewed by officers of the Department of Community Services (DOCS). She told them that her stepfather was not interfering with her. In her evidence, she said that this was a lie as the result of fear. She said that the appellant had threatened to shoot her if she told the DOCS officers anything. 5    According to the complainant, in early 1997 she told her mother that the appellant had sexually abused her. This evidence was disputed, as was her evidence that the appellant had tearfully admitted the abuse. It was common ground that the appellant was given a caravan shortly after this conversation, but hotly disputed whether this was an agreed “payoff” for the complainant’s silence. 6    In March 1998 the complainant went to the police and make the first of two statements that led to the appellant's arrest in July of that year. 7    The appellant participated in an ERISP. Some of his answers were interpreted by the learned trial judge as being “not really denials” and this conclusion is the subject of the third ground of appeal. 8    There were seven counts in the indictment. 9    Count one was a charge of sexual intercourse without consent with a person under the age of 16 years (Crimes Act 1900, s61D(1)). The Crown case as presented through the evidence of the complainant was that this occurred in 1985 when the complainant was sharing a bedroom with her younger sister. The complainant said that she was asleep when the appellant came into the bedroom. He pulled the blankets down and touched her breasts with his fingertips, moving them in a circular motion. The appellant then put his hands down her underpants and started stroking the outside of her vagina. He then removed her underwear and put what she thought was his middle finger up into her vagina. The complainant said that it was very painful and that the same thing happened two or three times a week. 10    Count two was a similar charge. The Crown case through the complainant was that this occurred in early 1986 when the family were living in different premises but when the sisters were still sharing a bedroom. The complainant said that the appellant would come into the bedroom when she was asleep and kneel down beside her bed on the left-hand side of the room. He would then lift up her nightie and move his fingertips in a circular motion on her chest area. He would then put his hands down her pants and rub the outside of her vagina. He would then remove her underwear and place his finger inside her vagina. This occurred two or three times a week. 11    Count three was a charge of aggravated sexual intercourse without consent with a person under the age of 16 years and under authority (Crimes Act, s61D(1A)). The Crown case through the complainant was that this occurred in 1987 when the complainant was in second grade. The appellant continued to come into the bedroom at night. He would remove the blankets from the complainant's bunk bed. Once again there would be touching of the complainant’s chest area, putting his hands down her pants and touching the outside of her vagina. After removing her pants, the appellant would then place his finger up inside her vagina, going in and out for about 10 minutes. 12    Count four was a similar charge. The Crown case through the complainant was that the abuse “got worse” after the birth of the complainant's brother in June 1988. The appellant started to use his tongue. The first time that this happened the appellant told the complainant to get up and put her arms up. He removed the nightie up over her head and then told her to lie down. He then removed her underwear. He would then lick around her chest and breast area and sucked her nipples. He also licked and sucked her vagina. This occurred two or three times a week from then until the complainant turned ten in 1990. 13    Count five was a similar charge. The Crown case through the complainant was that this occurred in 1990 just before Christmas. The three children were playing a board game in the lounge room. The complainant's mother was at work. The appellant told the complainant that she had to come with him quickly. She followed him up the hallway and into his bedroom. He then removed all her clothes and threw her onto the waterbed face down. The complainant said that she was scared because the appellant had "never done it before like that". She heard the appellant close the venetian blinds. He then got undressed. The complainant said that he was wearing a blue singlet and blue shorts and that she had never seen him naked before. He then put his hands under the complainant’s arms and moved her up to the top of the bed. He was lying on his left side and running his right hand up and down his penis. He then put his penis inside her bottom and moved it. It went on for about five minutes and it hurt. The appellant then got up, threw her clothes at her and told her that there was $20 on the dressing table. As he left, the door banged against the wall. The complainant was "all wet, yucky and gooey and gross and it hurt". She sat on the toilet for half an hour before showering. She then went outside and played until her mother came home. She was ill for two or three days and could not go to the toilet without hurting. 14    Count six was a charge of aggravated sexual assault without consent with a person under the age of 16 years and under authority (Crimes Act, s61J(2)). It is relevant to a matter debated in the appeal that the charge in the indictment was that the offence occurred between 1 January 1991 and 31 December 1993. The complainant said that she was given the old gun room to sleep in, the guns being moved into the garage. While she was sleeping in this room, the appellant came in, sat on her single bed and told her to sit between his legs. He then lifted his bottom and pulled his shorts down to around his knees. He then told the complainant to pull his shorts down to his ankles. According to the complainant, he "then told me to suck it". The complainant just sat there. The appellant then pulled her head down and “his penis was in my mouth and he held my head there and he moved”. When the appellant let her go, she crawled under the bed with her body curled up into a ball. She could hear the appellant sitting on the bed breathing hard. After about two minutes she heard the appellant get up and leave, closing the door as he went. 15    When the complainant was 12 the family went on a trip around Australia travelling in a campervan. The complainant gave evidence of an occasion when she was in a double bed with her sister at one end of the van. Her sister was asleep. The appellant came in and with his fingertips moved around her breasts and nipples and then rubbed the outside of her vagina and then left. The complainant thought that there was some insertion into her vagina "but not full on". This event was not the subject of a charge, because it allegedly happened outside New South Wales. It was, however of some relevance to the timing of the offence alleged in count six and it was the subject of detailed cross-examination. 16    Count seven was a charge of aggravated indecent assault (Crimes Act, s61(1)). The Crown case was that this occurred when the complainant was 13 years of age. She had contracted chicken pox and was taking a bath in a solution to reduce itching. The complainant was then developing breasts and pubic hair and was extremely embarrassed about being naked. The appellant walked into the bathroom and began to wash the complainant using the face cloth. The appellant started feeling her breasts, “like big handfuls”. She threw the soap at the appellant and told him not to touch her. The complainant said that this was the last time that it ever happened. 17    The family moved to a country town when the complainant was 16 years of age. One afternoon after school, when the complainant was 17 years old, her mother was telling her how wonderful the appellant was when she replied "He's so wonderful that he sexually abused me". The complainant then ran crying into her room. About half an hour later the appellant and her mother came to her door and knocked. Her mother said that they had to talk. The appellant was crying and said that he had confessed to her mother. The appellant then said that they could get the complainant a caravan or a car. Her mother thought a caravan would be better because she could live outside. A caravan was provided. 18    The complainant adhered generally to her testimony in cross-examination. I shall refer to particular aspects of her evidence in addressing the appellant's challenge to the verdicts. In cross-examination, the complainant agreed that people from DOCS had interviewed her about the appellant in 1984 and that she had told them that her stepfather was not interfering with her. She said that she lied to DOCS out of fear. In re-examination, she said that the appellant had told her that he would shoot her and her sister if they said anything. 19    The Crown called the complainant’s mother. She recalled a conversation between herself, the complainant and the appellant as to whether the complainant should get a car or a caravan, but she denied that the complainant had ever said anything about the appellant sexually assaulting her. She also said that she had never observed any sign of injury or bloodstains on the complainant’s bedding. 20    The other principal item of Crown case was the ERISP following the appellant's arrest on 16 July 1998. 21    The appellant gave evidence. He denied each of the allegations. 22    He also gave particular evidence relevant to some of the counts in the indictment. In relation to count 5 he tendered a picture of the marital bedhead (Ex D) to challenge the complainant's description of it. He said that the venetian blinds had been removed from the room in 1987 or 1988. He denied ever wearing blue singlets while he was working in Sydney, and said that he always wore white. (His wife corroborated this.) In relation to count six he gave and tendered evidence establishing that the complainant did not occupy the renovated gun room until late 1993. He gave evidence relating to the ERISP. He denied any threat preceding the DOCS visit. 23    The appellant said in his evidence that there was a confrontation in 1988 when the complainant said that he was abusing her. However, he denied having confessed or admitted anything to the complainant’s mother or the complainant. He said that the idea of a caravan was discussed with the complainant a few days later but this was because the complainant wanted more freedom. He denied having admitted sexually abusing his stepdaughter in the conversation with his wife that preceded the discussion about the caravan. Later, when pressed in cross-examination about the conversation, he explained the conversation as being about “our arguments that had been taking place over a short period of time” (Tr p127). This statement that the topic was verbal abuse was totally at variance with his account of the conversation in the ERISP, which acknowledged explicitly an allegation of sexual abuse by the complainant (Q & A 267-279). The cross-examination and re-examination of the appellant on this issue would have been damaging to the appellant’s credit. I record that this variance has significance to me in the analysis of the general attack on the verdicts. 24    Judge Job delivered an extempore judgment after hearing final addresses. He reminded himself that he was required to consider each count separately and that the Crown had to prove the elements of the charges beyond reasonable doubt. Suspicion, no matter how grave, was insufficient. 25    His Honour gave himself the following warning (the corroboration warning):

This is a case where the Crown relies upon the evidence of L… T… S…. Without her evidence there would be no case at all. I therefore have to look at her evidence with great care, scrutinise her evidence with great care, and only bring in a verdict of guilty if I bring in a verdict of guilty at all, if I am satisfied I don’t believe (sic) reasonable doubt as to the truth of that particular witness. I will be of course, looking as to whether there is any other material in the case which may support what she says, but it is true, without her there would be no case.

26    The facts of the various charges as recounted by the complainant were then recited. His Honour noted in passing that the evidence referable to the early charges was described by the defence “as some ritual type of events” . In the course of his recitation, he referred to the appellant’s denials that the various incidents occurred as well as to details of his evidence suggestive of the unlikelihood of events happening as recounted by the complainant (see eg J4-5, 5-6, 6.4, 6.5). 27    His Honour recorded the absence of any complaint to the complainant’s mother until the occasion in 1997 when the complainant was 17 that has been referred to above. The details of the complainant’s evidence (recording a clear admission by the appellant) were recounted together with the opposing evidence from the appellant and the complainant’s mother on this topic. Later in the judgment there was further reference to the mother’s evidence denying any admission by the appellant and corroborating the appellant’s evidence that he did not wear blue singlets while the family lived in Sydney (J14). 28    Once again his Honour recorded (J9) that there was no evidence of any recent complaint. In this context he said:

The fact that no complaint was made is a matter which I have to take into account in relation to the credibility of the complainant.
I also have to take into account the fact that when something was said about it was some years later, after it was said that the event had occurred in 1993.(sic) The complainant did not go to the police until 1998, so that is some five years later. That is a matter, again, which I have to take into account in relation to the accused’s ability to meet the allegations; that if the allegation had been made at an earlier stage, the matter could have been more fully ventilated, which is a matter I must consider.

I shall refer to this as the Longman warning.

29 Judge Job then effectively directed himself in accordance with s405B of the Crimes Act, noting that the accused was the complainant’s stepfather and that young people may find it extremely embarrassing to talk about these particular matters. His Honour then referred to the visit of the DOCS officers in 1994 when there was an express denial of any abuse in response to questioning from officers whether the complainant’s stepfather had been abusing her. He then recorded the complainant’s evidence that she was scared and that just before the DOCS officers came the appellant “told us he would shoot us if we said anything, so we didn’t”. Judge Job recorded that this evidence could have been called in chief and he also referred to further evidence on the topic given by the complainant in further cross-examination. 30    Turning to the ERISPs, his Honour referred to what appeared to him to be quite extraordinary answers made by the accused on the video. He set out a number of questions and answers (Q & A 58, 97, 101, 116, 132, 139, 267, 465). The learned judge said that he was prepared to accept from Answer 465 and other answers given that the accused was not really denying that some form of sexual touching at least took place between himself and the complainant. 31    There was then some general analysis of the complainant’s cross-examination. Judge Job expressed the view that she gave every indication of doing her best to tell the truth. He was satisfied that even though she had made some errors in relation to some matters, basically she was attempting to tell the truth. By way of detail the complainant’s evidence referable to the seventh count was set out with the comment:

“If it were to be suggested that these are entire fabrications, one would have to wonder as to why she chose to stop at that particular stage after what would appear, on the face of it, to be a relatively minor incident.

32    His Honour then referred to the appellant’s evidence, noting that he had not been obliged to enter the witness box and that the same principle applied to the evaluation of his evidence as applied to the complainant. 33    Judge Job recorded that the accused denied that he had ever sexually interfered with the complainant in any way at all. His Honour referred to the appellant’s evidence explaining his conduct in the ERISPs, stating that when the police came to see him he was extremely nervous, upset and confused. He was aware, before being interviewed, that some type of complaint had been made. He did not really know why he had given some of his answers in the way that he did. When he said “I have no recollection of it” , he was not saying “I might have done it and I blocked it out”. 34    The judgment concluded in the following terms:

I did not find the accused to be a convincing witness. I found it very difficult to accept his explanations as to why he said certain things to the police. I am of the opinion that the complainant, as far as she saying what happened to her in relation to each of these accounts, was telling the truth, and I am satisfied beyond reasonable doubt that these offences occurred.
I find the accused guilty in relation to each of the seven counts in the indictment.
Ground 1: Failure to warn adequately as to reliability of complainant’s evidence.
Ground 2: Failure to analyse the respective cases adequately: verdicts unreasonable.

35 It is convenient to address Grounds 1 and 2 together. The appellant’s attack on the judgment moved back and forth across these two grounds and the dual aspect of the second ground. I shall do likewise to a degree. 36 Section 33 of the Criminal Procedure Act 1986 requires a judge trying criminal proceedings by judge alone to include in the judgment “the findings of fact on which the Judge relied” (subs (2)) and to “take [any necessary] warning into account in dealing with the matter” (subs (3)). 37    The principles are set out in Fleming v The Queen (1998) 197 CLR 250. As to the requirement in s33(2) to include the principles of law applied and the findings of fact on which the judge relied, the Court said (at 263) that:

… there must be exposed the reasoning process linking [the principles of law and the findings of fact] and justifying the latter and, ultimately, the verdict that is reached.

38 Section 33(2), as explained in Fleming, does not require a trial judge to chase every factual issue down its burrow. It speaks of “the findings of fact on which the Judge relied” (emphasis added). The principles concerning the adequacy of judicial reasons are well established. 39 As to warnings, s33(3) was held (at 264):

…to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation.

40    As indicated above, Judge Job enunciated a warning in accordance with Longman v The Queen (1989) 168 CLR 79 (as regards the impacts of delay in complaint). The submission that his Honour gave mere lip service to such warning must be rejected. It was not incumbent upon this experienced judge to spell out how delay may have reflected upon the complainant’s credibility or how the appellant’s ability to meet the individual charges was thereby affected. What is required by way of comment or direction must depend on the whole of the circumstances, including the matters actually put in issue in evidence and addresses (R v Johnston (1998) 45 NSWLR 362 at 369). Nothing in the record suggests that particular problems in either category were invoked by the appellant’s counsel in address. The evidence is entirely silent on the matter. 41 Specifically, it was submitted that it was incumbent on the judge to link the Longman warning with the issues about when the appellant first started wearing a blue singlet and the description of the bedhead in the appellant’s waterbed on which the offence in count five occurred. I disagree. I would add that both the appellant and his wife gave evidence about the wearing of blue singlets and that the appellant was able to produce a photograph of the bedhead. 42    Complaint is made that the trial judge failed to consider each charge separately, notwithstanding his early self-admonition to do so. In this connexion, particular reference is made to count 6 which was the subject of an emphatic denial in the appellant’s ERISP and was the subject of some confusion on the complainant’s part as to date. I deal with the attack referable to count six below. I do not agree that the verdict on this count was unreasonable or that the complainant’s confusion as to the date of the incident significantly undermined her credibility generally. His Honour did not overlook the differences in the appellant’s responses to the various allegations in the police interview. In my view it was well open to the trial judge to accept the complainant’s essential case in its entirety. 43    The appellant correctly submitted that the judge was required to consider closely the issue whether, if he was satisfied on one count that the appellant was not guilty because the complainant was not telling the truth, he could then conclude that the appellant was guilty of the other counts (cf R v RAT [2000] NSWCCA 77). The difficulty about this submission was that this was a case where the judge was satisfied to the requisite standard as regards each count. He reached such satisfaction after recounting separately the evidence referable to each count and after addressing such significant controversies at trial as touched on individual counts. 44 I do not accept the submission that the judgment indicates that the trial judge dealt unfairly with the cases of the Crown and the defence. Given that the defence case was essentially one of denial, then it is understandable that more time was taken in setting out the elements of the various charges. Throughout the judgment there is advertence to particular aspects of the defence case which were advanced as casting doubt upon the essential Crown allegations. 45 In one sense, the Crown case was entirely dependent upon the reliability of the complainant’s evidence. However, corroboration was found in the ERISPs, and properly so as I shall indicate when reviewing the third ground of appeal. 46 The appellant referred to a range of matters which it was submitted should have cast doubt upon the credibility of the complainant. These were invoked in support of the submissions that the judge did not truly heed his own warnings and that the verdicts were unreasonable. 47 In my view the judgment clearly and adequately refers to the “the findings of fact on which the Judge relied” (cf Criminal Procedure Act, s33(2)). It addresses what appears to have been the principal issues as to the credibility of the complainant, specific conflicts on matters of detail and the analysis of the ERISP. I am satisfied that his Honour took genuine account of the warnings which he gave himself. 48 On the issue of the unreasonableness of the verdicts, I take the test to be in accordance with the following recent formulation:

The ultimate question is whether there has been a miscarriage of justice. Where the ground of appeal is that the jury’s verdict was unreasonable, the test promulgated in M (1994) 181 CLR 487, as explained in Jones 191 CLR 439 is whether it was open to the jury to be satisfied of the necessary elements of the charge beyond reasonable doubt, making due allowance for the advantage of the jury in seeing and hearing the witnesses ( R v Mitchell [2000] NSWCCA 188 at [5] per Sperling J, with whom Spigelman CJ and James J agreed).
This test is apt to be applied to a judge sitting alone, subject to such adjustments as flow from the provision of reasons.

49    Particular attack is focussed on the dating of the incident charged as count six. Throughout her evidence relevant to count six, the complainant located that incident in the renovated gun room. Her first evidence on this count was in the following terms (Tr p13):

Q. Now sometime after that were you given a new room to sleep in ?
A. Yeah, in 1991 I was given a new room.
A few questions later, the complainant agreed that something happened after she was given the new room.

50    In cross-examination the complainant agreed that there was only one occasion when the appellant forced his penis into her mouth. She said that it happened in her own room and that she thought it was just after she turned 11, ie in April/May 1991 (Tr p43). Later it was put to her that she did not move into the converted gun room until the garage had been constructed and that this occurred sometime after mid 1993. She readily agreed that this could have been the case (Tr p57). She also agreed that count six accordingly would have occurred in the second half of 1993 and after the trip around Australia. Thereafter there was further cross-examination along similar lines. 51    In my view, the trial judge was entitled to accept the complainant’s evidence, notwithstanding the initial error as to dating. The count in the indictment spanned the whole of the relevant period. The complainant’s readiness to acknowledge her error as to date and the terms in which she did so was, in my view, capable of satisfying the Judge that the substantive evidence was reliable. The critical point was that the event took place in the complainant’s new bedroom, as her earliest evidence on the topic made plain (par 49 above). His Honour dealt expressly with this difficulty with the complainant’s evidence (J6). He was entitled to accept her evidence notwithstanding. 52    Unlike the situation discussed in MacDonald (1995) 84 A Crim R 508, count 6 did not involve an element of “time of the essence”. Nor was there any procedural unfairness. The only matter “of essence” was that the offence occurred in the particular room and that it occurred within the time frame alleged in the count. 53 In written and oral submissions the appellant complains of aspects of the case reflecting on the credibility of the complainant which were not adverted to in the judgment or, if mentioned, not given adequate weight. I have considered these submissions. But, like the trial judge, I am entitled not to discuss each and every one of them. A judgment is not defective for want of chasing every rabbit down its burrow. I shall, however, deal with the salient points. 54 The appellant has not placed any material before the Court that would indicate that a matter raised in counsel’s (unrecorded) address was overlooked in the extempore judgment which followed. Furthermore, the judgment records that his Honour was aware that the complainant had “made some errors in relation to some matters” (J13). It was not incumbent upon his Honour to detail each and every error, although he clearly intended to encompass the mistake about the date referable to count six. 55    The complainant’s denial to the DOCS officers that sexual assault had occurred was not overlooked in the judgment and there was an explanation of it which his Honour was entitled to accept. 56    I find unconvincing the suggestion that the conviction is unsafe because the younger sister must have been awoken on one or more of the occasions recounted in the complainant’s evidence. Mostly these occurred after the sisters had gone to bed. The complainant’s sister was younger than her. It is unnecessary to consider whether there was evidence in the present trial of sexual abuse of the complainant’s sister, although it is clear that the complainant was asserting as much. 57    The possible discrepancies in relation to the blue singlets were matters dependant upon the trial judge’s assessment of the credibility of the three witnesses and is not something that casts any real doubt upon the conviction. 58    The absence of evidence to suggest that the complainant ever received injury that led to bleeding is sufficient to rebuff the main force of the appellant’s submissions to the effect that the mother would have seen signs of bleeding on the sheets or that medical check ups would have detected as much. 59    The evidence relating to the pinning of a corsage on the complainant by the appellant and the baking of a birthday cake in 1998 do not render the conviction suspect in my eyes. 60    The appellant complains that his Honour’s assessment of the credibility of the complainant was based exclusively upon her appearance in the witness box. I do not agree. The Judge was entitled to give effect to what he observed both in examination and cross-examination, but it is equally clear that the totality of the two cases was examined in the process leading to the acceptance of the complainant and the conviction on the seven counts.

Ground 3: Error in determining that appellant’s ERISP answers were “not really denials”

61    On any account, the ERISP evidence was unusual. To those used to crisp and well-directed police interviewing as portrayed in the television series “The Bill”, the police interviewing was hesitant, non-directive and laid-back to the point of being supine. There was a complete absence of any eye-contact as the two police officers shuffled their papers nervously and the appellant hung his head down with his hat covering his eyes. 62    The appellant was aware that he was to be interviewed in relation to complaints of sexual abuse of his two step-daughters. He was understandably and visibly nervous. His delivery was soft, slow and (in the main) very hesitant. His firmness in dealing with the allegations referable to count six (Q & A 139) and when he denied forcefully and with interruptions aspects of the discussion concerning the caravan (Q & A 277-281) was exceptional. 63    The appellant’s evidence at trial was that he was extremely nervous, upset and confused. There is little doubt about the first two descriptions. However, having viewed key portions of the ERISP, I have concluded that his Honour was not bound to accept the evidence that the appellant was confused. Nothing suggests misunderstanding. It was at least as likely, if not more so, that the responses to a number of questions were indicative of shame and acknowledgement. There were times when the appellant appeared to be crying. 64    On many occasions throughout the interview one of the police officers read the substance of the complainant’s statement referable to a particular count and asked “What do you say about that?” There was nothing ambiguous about the allegation. As his Honour records, the appellant’s response to several of these questions was: “I have no recollection of it” or words to similar effect. Elsewhere, when asked whether it was possible that an incident may have occurred, the appellant responded:

I don’t think so. I don’t think so.

(The video shows the appellant as extremely unemphatic in the delivery of these answers.)

65    This category of answers contrasts with the emphatic denial to question 139 dealing with the allegation of anal intercourse. When that allegation was put, the appellant said (A132):

It never happened. Maybe sometimes I’m unsure of things but I’m not unsure of things like that. I would never ever do something like that. Never.

66    Towards the end of the interview the appellant was asked whether there was anything further he wished to say about any of these matters. His answer (A465) was:

Only that whatever happens I, I want to get it over and done with. If I’ve done any of those things it’s, if I’ve done any of those things I’ve got to face up to it but there are things there that there’s just no, no way, that I would do, no way.

67    His Honour records that in the video this was a very slow and deliberate answer. He was prepared to accept from that answer and other answers that the accused was not really denying that some form of sexual touching (at least) took place between himself and the complainant. In my view, this conclusion was well open and it was one that must have impacted adversely upon the totality of the complainant’s case, albeit that there is no doubting the emphasis of the denial of the allegation of anal intercourse. 68    It is true that there are denials or non-admissions of the various allegations. True, in a formal or pleading sense in that one can find answers which either do not admit or which deny each of the incidents alleged in the indictment. But it is equally true that portions of the ERISP betray either a strange lack of recollection as distinct from denial or sufficient evidence of acknowledgement to support the trial judge’s conclusion about the ERISP. Such conclusion provided corroboration for the complainant and undermined the credibility of the appellant’s firm sworn denials at trial. 69    I have already referred to the ERISP answers admitting that the complainant made an allegation of sexual abuse in the presence of her mother and stepfather (par 23, above). This was significant evidence which must have undercut the mother’s sworn evidence that no such conversation took place and the appellant’s sworn evidence that they were talking about verbal abuse. 70    I would dismiss the appeal. 71    JAMES J: I agree with the judgment of Mason P. 72    SPERLING J: I agree with the order proposed by Mason P and with his reasons.

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