SKA v Regina

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SKA v Regina [2012] NSWCCA 205
Hearing dates: 14 December 2011
Decision date: 20 September 2012
Before: Beazley JA at [1];
Adams J at [262];
Hislop J at [323]
Decision:
1. Appeal allowed;
2. Quash the convictions in respect of all counts;
3. Order that the appellant be acquitted in respect of counts 4 and 5 of the indictment;
4. Order that the matter be remitted for a retrial in respect of counts 1, 2 and 3.

Catchwords:
CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Challenge to jury verdicts - Whether verdicts unreasonable and not supported by evidence - Whether on whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that accused was guilty - Court undertakes independent assessment of evidence.

CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Context evidence - Correctness of directions - Risk that jury might use as propensity evidence - Separate consideration of counts - Whether directions adequate - Whether conviction dangerous - Significance of complainant's evidence as to dates - Whether new trial appropriate.
EVIDENCE - Application to adduce new evidence - Principles governing the admissibility of new evidence - New evidence sought to be adduced not of such cogency as to cause the court to entertain a reasonable doubt as to appellant's guilt - Application dismissed.
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411
Chivers v R [2010] NSWCCA 134
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Douglass v The Queen [2012] HCA 34
DTS v R [2008] NSWCCA 329; 192 A Crim R 204
JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333
Jones v R [1997] HCA 56; (1997) 191 CLR 439
Kaifoto aka Teaupa v R [2006] NSWCCA 186
Longman v The Queen [1989] HCA 60; 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Morris v R [1987] HCA 50; 163 CLR 454
Murray v The Queen [2002] HCA 26; 211 CLR 193
Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v ATM [2000] NSWCCA 475
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
R v Prasad (1979) 23 SASR 161
Ratten v The Queen [1974] HCA 35; 131 CLR 510
Rees v R [2010] NSWCCA 66
RGM v R [2012] NSWCCA 89
Seymour v R [2006] NSWCCA 206; 162 A Crim R 576
SKA v The Queen [2011] HCA 1; 243 CLR 400
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: SKA (Appellant)
Regina (Respondent)
Representation: H Dhanji SC; C Alexander (Appellant)
J Girdham (Respondent)
Crawford and Duncan Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/2784
Publication restriction: No
Decision under appeal

Date of Decision:

2009-02-06 00:00:00

Before:

Finnane DCJ

File Number(s):

2008/11/0763

HEADNOTE

[This headnote is not to be read as part of the judgment]

SKA was convicted of five offences of sexual assault, aggravated sexual assault and aggravated indecent assault of his niece by marriage. SKA unsuccessfully appealed to the Court of Criminal Appeal against his convictions.

The High Court granted special leave to appeal against the convictions on limited grounds. The High Court allowed the appeal, set aside the Court of Criminal Appeal's order dismissing the appeal against conviction and remitted the matter to the Court of Criminal Appeal for re-determination of the appeal.

Five grounds of appeal were raised before the Court of Criminal Appeal:

(1) Whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence;

(2) Whether leave ought to be granted to adduce new evidence;

(3) Whether the trial judge erred in failing adequately to direct the jury not to engage in propensity reasoning;

(4) Whether the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately;

(5) Whether the trial judge erred in failing to adequately direct the jury in accordance with R v Murray (1987) 11 NSWLR 12.

A. Context evidence in sexual assault cases is admissible to enable the complainant to give a coherent account involving the charged misconduct and to avoid the apparent lack of credibility which a partial account might have, subject to the discretionary power of the trial judge to exclude it where its admission would be unfairly prejudicial.

The trial judge directed the jury that the context evidence could be used to prove that the 'true' relationship between the appellant and the complainant was a sexual one in support of the complainant's evidence, as well as going to proof of the charges and making what occurred easier to understand but could not be used to show that the appellant had a tendency or propensity to commit any offence.

Held per Adams J (Hislop J agreeing):

The direction invited the jury to use the context evidence in proof of the offences rather than for the purpose of understanding the complainant's evidence as to the charged conduct, a purpose for which it as not admitted and for which it could not be used. In effect, despite the qualification, it also invited the jury to use propensity reasoning. It also invited the jury to use evidence as to uncharged misconduct and on the other charges for the purpose of determining the particular charge when they should have been directed to consider each charge separately and the relevant evidence in respect of each charge clearly identified.

B. The trial judge directed the jury, in substance, that if they found that the complainant was to be believed on one count, that they would have to be very cautious about doubting her truthfulness and reliability in respect of the other counts and they should ask what is there that would make her unreliable in relation to them.

Held per Adams J (Hislop J agreeing):

This was an error. It was correct to direct the jury to the effect that, if the complainant was disbelieved in respect of one alleged assault, it would be difficult to accept her evidence in respect of the others. However, the other counts must be separately considered. Although favourable findings as to the complainant's credibility as to the other charge or charges may be borne in mind, it is not correct to approach her evidence on the remaining charge or charges as reliable unless there were something that established otherwise.

Held per Beazley JA (dissenting):

(1)The principles governing 'fresh evidence' and 'new evidence' are well settled in the case law. The new evidence sought to be adduced did not satisfy the requirement that it be of such cogency as to cause the Court to entertain a reasonable doubt as to the appellant's guilt: [184].

Followed: R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417

Considered: Wood v R [2012] NSWCCA 21

(2)The task for the Court of Criminal Appeal is to determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences with which he was charged. The Court is required to make an independent assessment of the evidence: [182].

Followed: M v The Queen [1994] HCA 63; 181 CLR 487

(3)The trial judge's written directions to the jury specifically stated that the jury could not use evidence of other acts in substitution of proof of the acts charged. That statement obviated the risk that the jury would engage in propensity or tendency reasoning. The trial judge did not fail to adequately direct the jury not to engage in propensity reasoning: [204].

Considered: JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333; Rees v R [2010] NSWCCA 66

(4)The question whether a jury has been adequately directed or misdirected falls to be considered having regard to, and in the context of, the directions given by the jury as a whole. A fragmented examination of a trial judge's directions can itself lead to error and is likely to give an unrepresentative view of the directions: [208].

(6) In determining whether the jury has been adequately directed or misdirected in respect of a fundamental matter, in this case context evidence, it is relevant that no complaint was made at trial by experienced counsel for the appellant: [237]-[238].

(7) The Court of Criminal Appeal is entirely dependent upon the record and is not privy to the tone or inflection of the trial judge's voice when giving directions, in the same way that the Court is not privy to the nuances of the oral evidence of a witness: [238].

(8) Whether or not a direction in accordance with R v Murray (1987) 11 NSWLR 12 ought to be given is a matter for the discretion of the trial judge. There is no prescription as to the words to be used: [254].

Considered: Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118

Cited: Kaifoto aka Teaupa v R [2006] NSWCCA 186

Judgment

BEAZLEY JA:

Introduction

On 10 October 2008, the appellant, after a trial by jury, was convicted of a total of five offences of sexual assault, aggravated sexual assault and aggravated indecent assault of his niece by marriage. The offences were alleged to have occurred in 2004 and 2006 when his niece was under the age of 10 in respect of the 2004 offences, and 10 years of age in respect of the 2006 offences.

The appellant was sentenced to a total term of imprisonment of 4 years 9 months and 15 days with an additional term of 4 years. Execution of the sentence was stayed and the appellant was granted bail pending an appeal to the Court of Criminal Appeal. That bail was subsequently revoked. The appellant appealed, unsuccessfully, to the Court of Criminal Appeal against his conviction. His application for leave to appeal against sentence was allowed but the appeal was dismissed. The Crown appeal against the sentence imposed in respect of count 1 was allowed.

The appellant was granted special leave to appeal to the High Court, on limited grounds. The appeal was heard instanter. The High Court allowed the appeal, ordered that this Court's order dismissing the appeal against conviction be set aside and that the matter be remitted to this Court for re-determination of the appeal: see SKA v The Queen [2011] HCA 13; 243 CLR 400.

On the hearing of the remitted appeal, the appellant proceeded by way of an amended notice of appeal filed on 20 October 2011 in which he raised the following grounds:

(1)the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence;

(1A)the appellant seeks leave to rely on the new evidence contained in the affidavit of Michelle Louise Duncan dated 6 October 2011;

(2)the trial judge erred in failing adequately to direct the jury not to engage in propensity reasoning;

(3)the trial judge erred in failing to properly direct the jury with respect to the need to consider each count separately;

(4)the trial judge erred in failing to adequately direct the jury in accordance with R v Murray (1987) 11 NSWLR 12.

The reasons of the High Court

The central question raised on the appeal to the High Court was whether the verdicts of the jury were supported by the evidence. This ground was directed to the alleged failure by the Court of Criminal Appeal to comply with the Criminal Appeal Act 1912, s 6(1) to independently assess the whole of the evidence. Section 6(1) provides that the Court of Criminal Appeal:

"... shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ..."

The plurality (French CJ, Gummow and Kiefel JJ) confirmed that the task of the Court of Criminal Appeal pursuant to s 6(1), was as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ stated, at [58], that the reference to "unsafe and unsatisfactory" in M was the equivalent of the statutory test in s 6(1) of "unreasonable" or such as "cannot be supported, having regard to the evidence".

Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. However, as had been stated in M in the joint judgment, at 494:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

Earlier in M, at 492, their Honours had said:

"... the court does not consider as a question of law whether there is evidence to support the verdict ... The question is one of fact which the court must decide by making its own independent assessment of the evidence ..."

In SKA, at [20], the plurality identified this Court's fundamental error on the first appeal as being that the Court concerned itself, as a matter of law, with the question whether there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. Their Honours reiterated that the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence in order to determine whether the jury's verdicts of guilty could be supported.

Their Honours held that in making that fundamental error, this Court had erred in two respects. First, it had failed to determine the date upon which the complainant alleged the appellant had committed the 2006 offences, that is, the offences subject of counts 4 and 5. In this regard, the plurality stated that the Court was not bound by the dates identified by the trial judge as being the dates upon which the complainant alleged the offences had occurred. However, the Court was required to form an opinion as to the date of the 2006 offences so as to assess the whole of the evidence in the case.

The second error flowed from the first. The Court's failure to determine what date the complainant contended those two offences had occurred, led it into error in assessing the evidence for itself. Without that determination, the Court could not weigh the competing evidence to determine whether the verdicts could be supported. Their Honours pointed out, at [23], that the complainant's evidence as to when the conduct occurred was part of her account of the incidents and, at least potentially, was material against which her other evidence was to be assessed.

The factual background to their Honour's observations was that the complainant, in her ERISP, had identified dates just before Christmas as being the occasion on which the conduct in counts 4 and 5 occurred. The appellant had adduced alibi evidence in respect of the three days prior to Christmas 2006 to meet the complainant's allegations.

The family constellation and circumstances and summary of the central allegations

The appellant and complainant (M) were related by marriage. M's father and the appellant's wife are brother and sister. The appellant and his wife have a daughter, Sh, born in 1999, who was aged about 7 when the last of the charged assaults was said to have occurred. A second daughter was born in 2006. The appellant and his wife purchased their home in April 2001. The home had two bedrooms and was described as "not being large". In late 2002 or early 2003, they carried out renovations to the home which involved the addition of a family living area to the kitchen.

M's family comprised her parents and two older sisters, although the oldest sister did not have any involvement in the case. The prosecution revolved around the evidence of M, her sister L, who is three years older than M, and the evidence of the parents.

The families of the appellant and M were close, although the nature and extent of that closeness differed on the evidence of the two families. The relationship and the frequency of contact between the families was relevant, as M gave evidence that the appellant's sexual conduct towards her had commenced in 2001 when she had commenced having sleepovers at the appellant's home and had continued since that time. The appellant and his wife denied that sleepovers had commenced in 2001 or that they were as regular as M contended.

M's family had lived with the appellant's family for about six months when they first came to Australia. There was differing evidence as to whether there had been strained relations between the families for a period in 2002 to 2003, apparently arising out of an argument between the appellant's wife and M's parents such that the families did not see each other frequently.

According to M and her family, M and her sister L had sleepovers at the appellant's house from about the time Sh was born until late 2006. M slept over more frequently than her sister. The evidence varied as to how frequently the sleepovers occurred, from approximately weekly to two to three times a month, sometimes with longer gaps, to about once a month but more regularly during the holidays. When M, or M and L slept over, they slept with Sh in Sh's bed, which was a queen sized bed placed against the wall in her bedroom, identified in the evidence as bedroom 2.

M said that the appellant had commenced to touch her in 2001 when she was 4 years of age and this had continued every time she slept over. Her account changed as to whether the conduct had commenced in the school holidays in January or September of that year. I will return to that later. The charged offences were alleged to have occurred in June/July 2004 (counts 1, 2 and 3) and December 2006 (counts 4 and 5). The actual date that the 2006 offences were alleged to have occurred was a critical issue in the trial. In her ERISP, M said she thought the date of the 2006 offences was the day before Christmas Eve.

The applicant filed an alibi notice in respect of his activities on 23 December 2006 in the following terms:

"(i) On the morning of Saturday 23 December 2006 [the appellant] was at his residential address at ********** with wife and children.

(ii) About 1.30 pm to 1.40 pm [the appellant] in the company of his wife and children left their residential address and travelled to the premises of [RK and SK]. [RK and SK] reside at **********. Telephone number ********. ([RK and SK] will be overseas from 3 August 2008, until 12 August 2008).

(iii) Approximately 4.45 pm [the appellant and his wife] in the company of their children left the premises of [RK and SK] and returned to the residential premises. Upon returning home [the appellant and his wife] changed clothes so as to attend evening mass.

(iv) Approximately 7.05 pm [the appellant and his family] left evening mass and returned to their place of residence where they remained till about 8.30 pm to 8.45 pm.

(v) Somewhere between 8.30 pm and 8.45 pm [the appellant and his wife] in the company of their children left their residential premises and travelled to the premises of [SJ] at *********. [SJ's] telephone number is ********. [The appellant and his family] arrived at [SJ's] premises at about 9.00 pm and they remained at those premises till about 10.30 pm or 11 pm. Also present at these premises were [BR] and his family. [BR] resides at ********** and his telephone number is ********.

(vi) Some time between 10.30 pm and 11.00 pm [the appellant] in the company of his family left the premises of [SJ] and travelled to their residential premises where they remained until the following morning."

RK and SK are family friends of the appellant and his wife.

The appellant also adduced evidence of his and his family's activities on Friday 22, Saturday 23 and Sunday 24 December 2006.

Paragraphs (ii) and (iii) of the alibi notice were contradicted by the evidence of SK, who gave evidence that she had made a mistake about the date. SJ gave evidence in support of para (v) and (vi) of the alibi notice.

It is necessary to consider the evidence in detail. I propose to do so by reference first to M's ERISP as to general matters and her evidence in respect of those matters. I will then deal with her ERISP, her examination in chief at trial and her cross-examination in respect of counts 1, 2 and 3 and then counts 4 and 5.

M's evidence

General

M's evidence at trial was given first by way of a video recording of her ERISP taken on 10 April 2007 and then by way of further oral evidence in chief and cross-examination. The ERISP was taken three months after M complained to her mother about the appellant's conduct and approximately three and a half to four months after the last of the alleged assaults. M was aged almost 11 at that time. Her evidence at trial was given in August 2008, approximately 20-20.5 months after the last of the alleged assaults, when she was 12 years of age.

In her ERISP, M told the interviewing officer that she was there to talk about her uncle having "touched" her. She said the last time that he had touched her was "[a]bout, just before Christmas, around then". Having identified that time as being the last occasion upon which her uncle touched her, M was asked to state what had happened "from the beginning until the end".

It is not necessary at this point to deal with the detail of what M said happened to her. The matter which assumed importance at the trial, as a process of testing M's veracity as to whether any such conduct happened at all, revolved principally around her identification of when the conduct occurred. In this regard there was M's general evidence as to sleepovers and then her more specific evidence as to when the conduct commenced and the occasions when the conduct comprised in counts 1, 2 and 3 and counts 4 and 5 occurred.

As to the conduct occurring during sleepovers, M said in her ERISP:

"Q356 OK. You said before that it's happened, happened a lot of times, like a number of times.

A Yeah, quite a lot.

Q357 Quite a lot?

A Yeah, 'cause I'd sleep over a lot of times.

Q358 OK. And so when you say you slept over a lot of times, did this happen every time you stayed over, or sometimes, or something else?

A Every time.

Q359 Every time?

A Yep.

Q360 OK. And of all the times of when it's happened, obviously it's happened like a lot of times, is there any other times that you can think of that you remember when it was?

A I think it was just usually every, around every one or two nights, I think.

Q OK.

A. That's, I don't know specific times, but I know around every one or two nights."

M said that she was very close to the appellant's daughter, Sh. She said they slept in "this big bed and he would come to tuck us in at night". M said that the appellant would "go behind me and he'd touch me". She said she did not understand and thought that "[t]his must happen to everybody". She said that she realised what he was doing when she was around eight or nine years of age and that she could tell her parents about it. She said, however, that she was afraid that if she did so, she would not see her cousin, Sh, again. She said she was "really confused" and reiterated that she was going to tell her parents but got "really scared" and was afraid they would be angry with her or that nobody would believe her. She said that her uncle had:

"... made up this thing, like he said that I, I lied to my auntie, because he knew that if one day [she told her parents, they would think] she's just lying, she's just joking"

M said she had told her mother about the appellant's conduct "in the last school holidays, the big ... 6 week holidays ... around then". She said the subject of her uncle came up in a conversation about 'mothers' such as a friend's mother and M's aunt. M's mother asked whether she would like to be with her aunt and uncle (the appellant). M replied that she would not mind being with her aunt, but not with the appellant. She said her mother kept asking her about what she meant. M said that initially she said that she did not want to talk about it but "eventually it got out". She said her mother was "really sad" and told her father and they all sat on the couch together and "were crying and crying".

M said that the situation "wound up in this huge mess" as about that time the appellant and his wife had a new baby and her sister had been chosen to be the godmother. M said that the rest of the family had now "all turned their back against" them and did not believe them. In addition, her grandmother had been coming from India to visit. Everybody had been excited, but when her grandmother "found out, she turned her back against us, as well". M said "it was kind of like a family crisis" and now her family could not "do many things". She said the biggest problem for her would be if her cousin Sh found out, because if she did "she would probably hate me for the rest of my life". M had not had contact with Sh since April 2007 when she went to the police.

At the commencement of her evidence at the trial, M corrected the time she said that the first assault occurred, that is, in 2001. In her ERISP, she had said it had occurred in the December/January holidays. In her evidence, she said that she did not think it was the January holidays, she knew it was in the holidays sometime, but it may have been "in September even, I'm not sure, but sometime or other".

M was cross-examined as to when the appellant's conduct commenced, having regard to the evidence she had given in chief, that his conduct had commenced in the September school holidays, not the previous December school holidays, as she had said in her ERISP. In the course of the cross-examination, counsel for the appellant obtained M's agreement that it was "very important" to be accurate.

Counsel then reminded M that the appellant and his wife had not purchased their home until April 2001, so M's evidence that the appellant's conduct had commenced in the school holidays in December 2000/January 2001, "would cause a problem". It was suggested to M that that was the reason that she had changed the time she said the conduct first commenced. M agreed that it "might be part of the reason", but also because she had "thought about it a little more".

M was questioned further as to why she had changed the date. She said that she had heard it mentioned that the appellant and his wife came to Australia after M's family. It seems that from this evidence, M was indicating that was the factor that had caused her to rethink the date upon which the appellant's conduct first began. However, her memory on this point was inaccurate, as the appellant and his wife had migrated to Australia before M's family.

M was also challenged in cross-examination as to whether the relationship with Sh had really only commenced in 2004, when Sh went to the same school as M. This cross-examination was placed in a context in which it was suggested that the relationship between the families was strained and almost non-existent during the years 2001-2003. M was cross-examined directly that there were no sleepovers in that period and that the first sleepover was in April 2004. M replied that she was "pretty sure" there were sleepovers before that. She said she was 5 years of age when the appellant's conduct first commenced, so there would have to have been sleepovers prior to April 2004.

Counsel for the appellant then returned to M's ERISP where she had said that the appellant's conduct occurred every one or two nights: see at [28] above, Q and A 360. M denied she had told the police that the conduct happened every one or two nights. Her questions and answers were then read out to her. M said: "Sorry, I must have meant to say months instead of nights". The trial judge asked the following questions:

"Q. How often did you sleep over?

A. Once every one or two months.

Q. You're saying that when you did sleep over it happened every night when you slept over?

A. Yes.

Q. Is that what you meant to say?

A. Yes."

The cross-examination continued:

"Q. The fact that you said one or two nights twice to the police that was a mistake?

A. Yes.

Q. Nights grows into months, is that right?

A. I must have meant to say one or two months."

Counts 1, 2 and 3

M's ERISP

M identified the occasion upon which counts 1, 2 and 3 occurred by reference to having watched a movie whilst in bed with Sh and L. In her ERISP, she initially said that the movie was Chicken Little. She immediately corrected herself and said that it was The Incredibles. She said that they were watching the movie on a computer.

M's evidence at trial

In her evidence in chief at trial, M confirmed that the incidents the subject of counts 1, 2, and 3 occurred around the time of her mother's birthday in 2004. Her mother's birthday was on 20 June. She was cross-examined about the movie she watched on this occasion:

"Q. You've told the court that in 2004, sometime in June if I can just be that vague, sometime in June 2004?

A. Yes.

Q. Your Uncle sexually assaulted you again?

A. Yes.

Q. And on that night you say you had watched a movie or something?

A. Yes.

Q. And what movie was that?

A. I think it was The Incredibles.

Q. And indeed, you mentioned another movie to the police and then you settled on The Incredibles because you're pretty sure it was The Incredibles?

A. Well I think it was The Incredibles.

HIS HONOUR

Q. Think it was I'm sorry?

A. I think it was The Incredibles that I watched. It was - I remember watching that.

[Counsel for the appellant]

Q. And you watched it on a computer or?

A. Yes.

Q. On the computer, on the laptop computer, in [Sh's] room?

A. Yes.

Q. What if I was to say to you that in 2004, [the appellant] did not have access to a laptop computer?

A. Well I said it was on a computer. I remember watching The Incredibles on the computer. It - from what I remember it was most likely on that night that I watched The Incredibles. I did watch a movie on that night though.

...

Q. You're sure you watched it on a computer?

A. I think it was - -

Q. Don't get upset, don't get upset, just settle down. And just think nobody's rushing you sweetheart, just take your time. Feeling a bit better now?

A. I remember watching The Incredibles on a computer. I think it was on that night. I do know I did watch a movie on that night.

Q. On a computer?

A. Maybe on a computer but I do remember watching a movie that night and I do remember once watching The Incredibles in their house on that bed, in that room, on a computer.

...

Q. So it would have had to have been on a computer?

A. Well, it could have been on that if it was a projector it could have been that, I don't know, I just remember watching a movie that night from this room."

It was suggested to her that if she was told that the appellant did not have a projector in his house in 2004, that would also rule out having watched the movie on the projector. The cross-examination continued:

"Q. Are you sure you saw The Incredibles in that room on a computer and you watched a movie on that night that you say you were sexually assaulted by your uncle in June 2004?

A. Yeah."

M was asked why, on this occasion, she didn't wake L so as to obtain her assistance in relation to the appellant's conduct. M did not give a specific answer, other than to say that she "just didn't". She was also challenged as to her evidence as to the position of herself, L and Sh in bed, it being suggested to her that Sh was always in the middle. M responded that Sh was not always in the middle.

M was again challenged as to why she did not elicit L's assistance:

Q. ... When [the appellant] first got into the bed [L] was awake wasn't she?

A. Yeah.

Q. You told us that?

A. Yeah she probably was.

Q. She was sitting up?

A. Yeah.

Q. So why on earth couldn't you elicit her help?

A. Pardon?

Q. Why on earth, I'm sorry about that, why on earth [couldn't you] ask her for help?

A. I don't know it didn't occur to me at the time."

Counts 4 and 5

M's ERISP

M was asked by the interviewing officer to state what happened the "last time". M gave the following account:

"A40 ... I was having a sleepover at [Sh's] house ...

A41 ... and we were all on the bed. And then he just, I don't, do I have to say?"

M was encouraged to continue and was asked "what happened next, when you were in the bed?" She answered:

"A42 ... we were watching Charlie and the Chocolate Factory ... [L] was there with us ... [L] fell asleep ... And then [Sh] fell asleep. So then I fell asleep. And then he came back to tuck us in, and I don't know what he was doing, but he just, he got into the bed and I was like, he got behind me and then he just, like touched me down here."

M said that she started getting uncomfortable and had said she wanted to get a drink. She said she pretended to go and get a drink, but went into the laundry and sat there for "quite a ... long time". She said the appellant came and asked her if she was "OK". M said that she told the appellant that she was and she got up and went back to bed. She said "eventually he left and I was all calm and everything, and it was over".

The interviewing officer asked M whether she knew what day this had happened. M responded that she could not remember what day it was. She was then asked whether it was a weekday, or weekend, or something else. M said:

"A57 ... I think it was a Friday. No, wait, it was, it was the day before Christmas Eve.

Q58 The day before Christmas Eve?

A Yes, I think so. I think that was when ... I got dropped off there around 3.00, 4.00 in the afternoon ... my family came at around 6.00ish, 7.00ish, around then.

...

Q69 ... What did you do when your family was around?

A ... we ... watched a movie and we'd talk about just random things. We'd have dinner and everything. And they came to our house on Christmas Eve.

...

Q76 And whereabouts were you watching Charlie and the Chocolate Factory?

A In [Sh's] room ... they have ... a corridor and she is on the left, the last room to the left.

...

A77 We were lying down, on the bed, under the blanket.

...

Q79 And who was lying in the bed with you?

A .. [L]. Sometimes she would do that. [Sh] ... and me. And then my uncle would like come a bit later."

M then said that she did not think that L did stay that night. At this point in the ERISP, M appeared to have drifted into a general narrative as to what would happen when the appellant came into the bedroom. The interviewing officer directed M's attention back to the occasion she was watching Charlie and the Chocolate Factory. M said that on that occasion, she thought that L went home with the family and did not stay overnight.

M was asked to draw the layout out of bedroom 2. She drew a bed, which she said was a large bed, a projector, a screen on the wall, the door and window, a mirror, a table with an iron on it, and some mattresses next to the screen. M marked where Sh was, where she herself was and where her uncle was "when he hopped into bed with you".

The interviewing officer asked what happened when the appellant came to tuck them in. M then described the detail of the assault that she said occurred on this occasion:

"A119 He just come behind me and then he just put, like his hand, on my, my, on this. Then, yeah, he'd just do that. And then I'd kind of just shift over and move and try and get a bit away ...

...

Q130 And you said that he put his hands in your undies, tell me about your undies? What, what undies were you wearing?

A I was wearing my plain pink ones.

Q131 Plain pink. And do you know what your uncle was wearing?

A No. Sorry.

Q132 That's OK. OK, so you said that he put his hands inside your undies. What happened when he put his hand inside your undies?

A He just touched there and ...

Q133 OK. So, when you say, There, what do you call, There?

A My, my private parts and things.

...

Q140 Yes. And when you say he touched you on the vagina, what did he touch you with?

A His hands.

Q141 His hands. And what could you feel when he touched you on your vagina?

A Just that, and he just fiddled around his fingers in there.

...

Q156 OK. And what did, what did he do with his fingers when he put them inside your vagina?

A He just moved them around and pushed them in.

Q157 And pushed them?

A Yeah."

M's evidence at trial in respect of counts 4 and 5

In her evidence in chief at trial, M was asked to clarify whether L had been present on the occasion which was identified in the question as being, "the very last time it ever happened, this is the time you told us just before Christmas Eve". M answered that she thought that L was there, saying, "I think I do remember her being with us when we watched the movie. So she would have fallen asleep there". M confirmed that the movie they watched was Charlie and the Chocolate Factory.

The prosecutor asked M to state what happened on the "last time" which he identified in his question as "just before Christmas in 2006". In response to being asked how she felt at the time about what her uncle was doing, M replied:

"I thought it was wrong, I thought it was unfair and I thought it shouldn't have happened and even though it was happening I had to put an end to it somehow."

The concluding question and answer in her evidence in chief was:

"Q. You've told us about a couple of things, that you might be confused about the school holidays of when you were four, but apart from the things that you've told us about, is everything else that you told the police officer the truth?

A. Yes it is."

The appellant's counsel at trial drew M's attention to the architect's plan of the house, Exh C, which had been shown to M earlier in her evidence. The cross-examination continued:

"Q. And you remember his Honour asked you some questions about some dotted lines and perhaps some renovations?

A. Yeah.

Q. And you said so far as you were concerned and correct me if I'm wrong, or somebody will anyhow, that so far as you were concerned that plan showed the house as it was when you used to go to it?

A. Yeah.

Q. And that's right up until you say, 23 December 2006?

A. Yes but it may have - may have not been 23 December but - -

Q. I see - -

A. - - like I guessed that it may have been the day before New Year's Eve because I do remember some celebrations around then but it could have been maybe even a week before that.

Q. I see so why are you changing that?

A. Well because I've thought of it. I thought maybe - and I've watched the video I've thought, oh well then I think I thought that it may have been the day before New Year's Eve, but it may not have been. I thought it was around that time - -

Q. The day before Christmas Eve?

A. Yeah it's Christmas Eve, sorry.

...

Q. What I was asking you was the house the same as is shown in that plan, as it was at the time of the last sexual assault on you as you allege, by your Uncle?

A. Yes it was always like that as I remember.

Q. Always as far as you can remember?

A. Yeah.

Q. If I told you that the place renovated rather dramatically with walls removed and added and windows closed and things as indicated on that plan - -

A. Yes - -

Q. - - during to a four to five month period in 2003, would you be surprised?

A. Yes I would be.

Q. Would that be because you didn't start going to [the appellant's] place particularly to stay, until 2004 like I suggested before?

A. No.

Q. Now when you had that first sleepover that you've told us about back when you were four or five in 2001?

A. Yes.

Q. There was no movies and television or anything like that, that night was there?

A. No I don't think there was." (emphasis added)

The appellant adduced alibi and other evidence in respect of his activities on Friday 22 December, Saturday 23 December and Sunday 24 December 2006. The appellant's counsel cross-examined M about these occasions. He reminded M she had told police that the last occasion of the appellant's conduct towards her was "the day before Christmas Eve", namely, Saturday 23 December 2006.

The appellant's counsel sought agreement to the proposition that the day was a Saturday, which would fit in with M's overall evidence that she slept over on weekends. M responded that as that was a holiday time, it didn't have to be a Saturday. This led to cross-examination to the effect that M was saying she slept over "on days other than the weekend because it was school holidays".

The appellant's counsel then focused on Saturday 23 December, asking M whether she went to Mass with the appellant and her aunt on that day. M said that she did not remember that and added, "I did say it may have not been the day before Christmas Eve". Counsel reminded M that she had only said that in her evidence in court and it was not what she had told the police in her ERISP. On being further pressed on this topic, M said, "I may have gone to mass with him, I'm not sure. I don't remember". Her evidence continued as follows:

"Q. What I'm going to put to you now is that you didn't, you certainly didn't go to [your aunt and the appellant's house] on 23 December 2006, you definitely didn't?

A. I could have. I may not - -

Q. But you told the police fairly certainly that you did?

A. I told the police that I wasn't sure.

Q. Yes but then you settled, you said you thought it was the Friday and then you said, 'no it was the day before Christmas eve'?

A. Yes but I said I thought it was the day before Christmas eve I wasn't sure.

Q. But that's the only day you identified wasn't it?

A. That's the only day I thought it may have happened. It could have happened any other time.

Q. It could have too. It could have happened any time I suppose but it's a bit hard to answer if we don't know when you say it happened. So I suggest to you that you didn't go to [the appellant and your aunt's house] at all on 23 December 2006. You say you may have or you may not have is that your answer?

A. Yes.

Q. And that's a good an answer as you can give?

A. Yes."

Counsel again challenged her to the effect that the appellant in 2006 had only had access to a projector on two occasions, neither of which was in December. M said that she did not remember. The cross-examination on this aspect concluded as follows:

"Q. Irrespective of what day this last event occurred in 2006 it was in December 2006 and it was shortly before Christmas?

A. Yes.

Q. That occurred in bedroom 2 on the plan?

A. Yes."

M was re-examined by the trial advocate:

"Q. [M], I'll only just be a few more minutes. You were asked a question just a few minutes ago about the incident you described in December 2006, the very last time?

A. Yeah.

Q. The time that was just, it was some time before Christmas in December 06?

A. Yeah.

Q. You were also were asked about that a few times by the police during the interview?

A. Yep.

Q. You referred to a question and answer that you gave during the interview by my learned friend that question was, 'Do you remember was it a week day, a weekend or something else?'

A. Yes.

Q. Your answer was, 'It was, I think it was a Friday, no, wait it was, it was the day before Christmas Eve.' The police officer then asked you the question, 'The day before Christmas Eve?' And your answer is, 'Yes I think so.' Remember that?

A. Yes.

Q. Why did you say, 'I think so'?

A. Because I wasn't completely sure that it was that day.

...

Q. You say, 'Yes, I think so, I think that was when cause we were having that kind of, like since our families are really close we'd just go over to their house and we'd have that little family get together and so we went there, like I got dropped off there around 3:00, 4:00 in the afternoon and then like my, my family came at around sixish, sevenish, around then and yeah'?

A. Yeah.

Q. Now, and I think you've answered but I want to ask, but when you say 'I think so', the reason you said that is what?

A. Is because I wasn't completely sure that that was the exact date.

Q. When you were first asked by the police at the very beginning of the interview with the police when they started asking of this particular incident, the police asked you, 'So when was the last time that your uncle touched you?' and you answered, 'Around, just before Christmas, around then.' Now why did you use - I'll just put it again - you said, 'About, just before Christmas, around then'?

Q. Why did you use the words around and about?

A. Because again like I wasn't exactly sure what date it was. I do know it was before Christmas because I remember the last time I saw them which was the night of Christmas Eve and they were just leaving just before 12.00 and I was complaining because I wanted them to stay till the thing go to - the clock go to Christmas, so I do remember the last time was before Christmas, some time within December."

L's evidence

L also provided a statement to the police by way of an ERISP on 15 May 2007. She was then aged 14. She said that the two families were close and they did a lot of things together. She said that she sometimes stayed over at the appellant's home, but not as frequently as M did. L said that she stayed over about every three months. She said Sh "was always in between us".

L said that her uncle would sometimes come in and kiss Sh, his daughter, good night. She said she was usually asleep and she did not know if he ever stayed in the room. She said that there was an occasion when they were watching a movie that was projected onto the wall:

"... and [Sh] was asleep and [M] was going to fall asleep and [the appellant] just came round and he put his arm around me and stuff and I was just really uncomfortable and my parents, we'd all come over to his house because my parents were in the family room but you couldn't see our room from there."

She said that she did not say anything, just waited for him to leave and "eventually he did".

In her evidence in chief, L said that when she stayed over at the appellant's house, she slept in bedroom 2, except once when she slept in bedroom 1. She identified that occasion being when they were watching a projection of Charlie and the Chocolate Factory. She said this was in 2006, but was not sure what month.

L was asked if there were other occasions when they had watched movies in bed. She said that if they watched movies on a projector screen that would be in bedroom 1, but sometimes they watched movies on a laptop in bedroom 2. She remembered this occurring once or twice but she remembered a particular occasion when they watched a film called Lilo and Stitch on a laptop in bedroom 2. She said Lilo and Stitch was an animated movie. She said she could not remember the date they had watched that, but said it was in 2006. In cross-examination, L said she was sure that when they watched movies projected onto the wall, they were in bedroom 1.

L remembered that renovations were carried out on the appellant's home in 2003. However, she could only remember the kitchen being changed. She was asked about her statement to the police in which she said that Sh always slept between her and M. She responded by saying "[u]sually yes". She agreed she had told the police that Sh always slept in the middle.

M's mother's evidence

M's mother (Mrs R) gave evidence. She said the appellant and his wife arrived in Australia in early 2000, about three months prior to her family's arrival. She said that her family lived with the appellant and his wife for a short time when they first arrived in Australia. She said they got along very well and were "a very close family". The appellant and his wife purchased their house in 2001. She was not sure of the date but said "it would be after February".

She confirmed that M and to a lesser extent, L, frequently stayed overnight at the appellant's home. She said that this occurred "very often, every week, more often in the holidays". She said that this pattern remained the same, both in June and July 2004 and in December 2006. She also confirmed that M and the appellant's daughter, Sh, were very close. She described them as being "like sisters".

Mrs R said that when either or both of her daughters stayed over, they slept in bedroom 3, which she described as "like a playroom. It was used for sleeping in when my children went over". She said that bedroom 3 had a double bed in it. She disagreed that they slept in bedroom 2 because bedroom 3 was where they had toys and "the video, they would lie in bed and watch the video". She said that "maybe [they slept in] bedroom two" but usually they slept in bedroom 3.

Mrs R said that M was happy after her sleepovers at the appellant's house, but there was one occasion, late in 2006 when it was "different". She gave the following evidence about that occasion:

"Q. What happened on that occasion?

A. [M] took a while coming out of the bathroom and I asked her, 'Why are you taking that long?' And she said, 'It's all right.' And I said, 'Why are you taking that long?' I persisted. And she said, 'It's hurting a bit down there.'

Q. When she said 'down there' what did you think that meant?

A. I thought it was in her vagina area.

Q. And what did you do?

A. So I said, 'Can I come in?' And she said, 'Yes' and as I was helping her and looking to see what was happening, I said, 'Did you fall over, did you get hurt, did anyone touch you?'

Q. In particular, when you asked, 'Did anyone touch you' what did she say?

A. 'No, no,' she said.

Q. And what did you say in response to those question?

A. I said, 'I really think you should hop in the bath. You didn't have a shower last night, did you?"

Mrs R was then asked about the events of 8 January 2007 when M told her that she was "the best mum in the world". She confirmed that during the course of that conversation, M mentioned the appellant's name. She said that that evening and over the following weeks she and her husband had discussions and on 19 March 2007 she made contact with the police.

In cross-examination, Mrs R said that it was "not true" that there had been no sleepovers during the first year that the appellant and his family moved into their home. She agreed there had been an argument between herself and the appellant's wife when her mother-in-law had visited. She accepted that this was probably in early 2002. It was suggested to her that the argument had soured relationships between her and the appellant's wife. Mrs R responded, "No, she apologised and we put that away straightaway, before night on the same day". She denied that the relationship between her and the appellant's wife had soured to the extent that Mrs R's husband became involved in an argument with the appellant's wife. She denied that any rift in the relationship continued into 2003.

Mrs R was asked about renovations to the appellant's home in 2003, which extended over four to five months. She said there were renovations, but she did not know how long they took. She denied that sleepovers stopped whilst the renovations were being undertaken.

It was suggested to Mrs R in cross-examination that there was only a video and television in bedroom 3 shortly after the appellant and his wife moved into the house and that it was then moved into the living room. Mrs R did not remember there being a DVD player in the living room. She accepted it was possible that there was a television in the living room but said that the children watched a video on a laptop as well.

It was also suggested to Mrs R that after the birth of the appellant's second child, the sleeping arrangements changed so that the appellant and his wife occupied bedroom 2 and the new baby was in bedroom 1. Mrs R said that she did not know what the arrangements were. It was suggested that this was in the October, November, December period of 2006. Mrs R said that she did not recall that.

The appellant's counsel then suggested that there had been no sleepover in the appellant's house after the day of the Rugby League Grand Final in 2006. Mrs R denied that suggestion and said, "There definitely were. There were sleepovers all the time".

Evidence of M's father

M's father (Mr R) also confirmed the good relationship between the families, the close relationship between his daughter M and the appellant's daughter Sh and the sleepovers at the appellant's home. He said that when his family visited, the adults would be in the living room and the children would most often be in the room at the back, which he identified from the plan as being bedroom 3. He said that he was not sure where M slept when she stayed over. He said that the sleepovers occurred randomly. He said it could be two or three times a month but there could have been three weeks without any sleepovers.

It was suggested to Mr R in cross-examination that the children only ever slept over at the appellant's house on weekends. He said that the sleepovers occurred more frequently on weekends, but during school holidays there was no fixed pattern for it. He said: "[a]ll I know I remember it was being frequent".

Mr R agreed that there had been an argument between the appellant's wife and Mrs R when his mother came to Australia in 2002. He said he did not become involved in the argument but that he said to the appellant's wife that it would be best "to patch it up quickly and be friends and just move on". He denied the relationship between the families soured for a time.

Mr R was asked about renovations to the appellant's house which extended over a period of 4-5 months in 2003. He said that a room was added, but he could not say whether the renovations were extensive. It was suggested to him that there were no sleepovers during the period of the renovations and he responded:

"I would - I would think there would have been sleepovers, they were very frequent, very often. We did not record dates at every instance because they were so frequent ... it was very random, we did not set any dates for it."

Mr R disagreed that due to strained relations in 2002, coupled with the renovations in 2003, there were no sleepovers in 2002 and 2003. He also disagreed that it was only in 2004 that the relationship between the families improved and they were close once again. He said that the relationship was always good.

The appellant's counsel questioned Mr R about a sleepover on the day of the Rugby League Grand Final in 2006. Mr R said that he did not have a specific recollection of that. It was suggested to him that on that occasion, the appellant had projected the Grand Final onto the wall. Again, Mr R said he could not remember whether it was projected onto the wall. He recollected that they had watched a game, but he did not know whether it was that year or the year before. It was then suggested that the appellant only had access to a projector in 2006 and did not buy his own projector until 2007. Again, Mr R said that he did not keep track of the purchase of the projector and that it was not his business and he could not remember.

Mr R recollected there were conversations about sleeping difficulties with the appellant's second child but he did not know whether it was a significant problem. Nor did he know whether at that time the appellant's family's sleeping arrangements changed so that the appellant and his wife slept in bedroom 2 and the second child in bedroom 1.

The appellant's evidence

The appellant gave evidence at his trial. He gave evidence of meeting his wife, living in Dubai and then Abu Dhabi, where his wife was then working, and his conversion from the Hindu religion to the Catholic religion to ease the relationship with his prospective in-laws. The appellant gave evidence of his migration to Australia in May 2000 with his wife and child (Sh) and of the arrival of M's family about three months later. He gave evidence as to the purchase of their home in April 2001. The appellant said that when they purchased their home, his sister-in-law gave them an old queen sized bed which they used for a short period before they purchased a new bed for the master bedroom. The old bed was moved into bedroom 2. It seems the appellant and his wife bought a new queen size bed for this room.

The appellant also gave evidence that his mother-in-law had visited in December 2002 and that there had been an argument between his wife and M's mother. He said there was "a great deal of upset about this argument". He said that M's father had become involved and spoken to the appellant's wife and "there was a big argument about the whole thing". He said his wife had "wanted to put things ... in a respectable way". He said that the argument had an effect on the relationship between the families and that they did not socialise much at all.

The appellant said that up until that time, that is, from April 2001 when they purchased the home and December 2002 when the argument occurred, he did not believe that either M or her sister L had slept over. He said that before the argument at the end of 2002, the parties met occasionally for social events such as birthdays or anniversaries when they would have dinner.

The appellant next gave evidence of the renovations carried out on the home in 2003. He said that the renovations commenced in March and April 2003 and took some four to five months or more to complete. During part of this period, the house was missing part of its roof and was covered with tarpaulins. The family continued to live in the home during the renovations but, as far as he could remember, neither M or L stayed over during this period.

He also said that the relationship between the families was still strained in this period. In describing the nature of the relationship at this time, the appellant said that:

"Although there [were] apologies all around and as soon as the argument happened, there was always this cold war between our families. It was not cordial."

He said that the relationship between the families improved in early 2004 after M and her siblings and mother returned from a trip to India. During the time they were away, M's father had frequent meals with the appellant and his family. He said that on their return, M's mother was appreciative of what his wife had done and changed her attitude.

Sh commenced school in 2004, attending the same school as M. There was cooperation between the families in getting Sh to school. He said that during this time M and Sh became very close. The appellant was asked about Sh and M staying over at each other's house. He said that from memory, Sh stayed over at M's house in school holidays and he believed it was in April 2004 that M stayed for the first time at his house. His evidence was:

"I believe - I think from memory it was in April 2004, [M] stayed - sometimes - she might have stayed for the first time in our house."

He said that it was only during school holidays and only on a Saturday, as both he and his wife worked. He said the sleepovers were not planned, but usually occurred when the family came over to dinner. He said that Sh slept at M's house more than M slept at their house. He also said that as far as he remembered L always stayed whenever M slept over.

The appellant described the activities of the family when they visited. He said that he would serve the adults food and drink. He said that:

"[The] kids used to just muck around everywhere, especially in the living room, like bring in the toys and play around with the toys ... we used to watch DVDs, maybe some sports, and some of the programs on TV ..."

He said that in 2004 he had a DVD player that "was always in the living room". After dinner, the children would separate from the adults and go to the living room, while the adults would stay in the family room. He said that M's family used to stay late and the children would fall asleep on the lounge, with Sh usually the first to fall asleep. He said that they would then put her to bed in bedroom 2 and when the other children started to feel sleepy they would also go to bedroom 2 and go to sleep.

He said that the lock on the door handle in bedroom 2 did not work and that "we never closed our doors". He said that there was no television in bedroom 2 in 2004 and at that time he did not own a computer or a projector. He said he first had a computer in mid to late 2005, which was a laptop from his office which he used for his work. However, he said that Sh always liked to watch movies on the computer as well. He said he never had a computer in the third bedroom during the period 2004 and 2005 to 2006 and that the only computer he had was the work laptop.

The appellant was asked about the first sleepover and whether the girls slept in the same bed. He answered:

"They always slept in the same bed but I don't particularly recall the first sleep over but they always slept in the second bedroom on that bed."

The appellant was then asked about the sleeping arrangements for the children. He said:

"Q. Did you set it up in any particular way for them to sleep in it?

A. Yes. That was - I used to - that was my job to bring - basically that bed was used just for [Sh] or mostly just - nobody used to use that bed, so there was no pillows or blankets or doonas on that particular bed, so my job was to bring the pillows from the - this wardrobe and doonas and keep it on the bed. That's - that's how. I mean I used to arrange in the - the other way round, not the normal way, not lengthwise but width - width wise because there was always three girls sleeping on that bed.

Q. So you used to put the three pillows down one side of the bed?

A. That's correct. The side towards the wardrobe.

Q. And so they slept across the bed instead of head - -

A. That's correct, yes.

Q. - - to toe down the bed?

A. That is to have more room basically for them, yes.

Q. So far as the bed was positioned in the room was it against any walls?

A. Yes, it was always in the same position as that photograph. It is always against the - against the way - one wall - sorry, two walls.

...

Q. That left the one side and one end of the bed with nothing against it?

A. That's correct, yes.

Q. Was the bed right up against the wall under the window?

A. Yes.

Q. At that time did [Sh] generally sleep with - either with you in your room or on a mattress on the floor in your room?

A. That's correct. She was - she was always scared of sleeping alone.

Q. After the parents of [M] and anybody else that was with them that left the house, after they would leave - -

A. Yeah.

Q. - - what would you do?

A. What would I do?

Q. Yes, what was your job?

A. I just clean up the kitchen, wash the dishes, basically put things away and that's - that's just what happens.

...

Q. Were the girls ever looked at before you adults retired for the night? Were they ever attended to?

A. Only by [B], yes. [B] used to go and check on the - on the girls, whether they're sleeping or, like, if they're all right or some - anything.

...

Q. I think you've already told us but was it only during particular periods of the year when there were sleep overs?

A. Yes, only during school holidays, maybe once during the school holiday. That's - and it's only on a Saturday because both of us used to work full-time, no-one on the other days."

The reference to B was a reference to the appellant's wife.

The appellant next gave evidence about Sh's birthday in early July 2004. He said that she had a birthday party which M attended but he could not remember whether there was a sleepover on that night. He could not recall whether anybody watched a DVD on that occasion and again said that there was never a DVD player in bedroom 2.

The next period of time in respect of which the appellant gave evidence was 2005. At that time the appellant's wife was undergoing IVF treatment. He said that there could have been sleepovers during this time, but it was highly unlikely because of the treatment they were undergoing, which was stressful for them. Nor could he remember sleepovers in 2006, although he said there could have been "one maybe in the whole year. It could have been, I'm not sure".

The appellant then gave evidence that his uncle and aunt came to stay for a period of four to five weeks in March or April of 2006 and after they left, his mother-in-law stayed with them until the end of May or early June.

The appellant's second child, S, was born in 2006. S had sleeping difficulties and on 18 August they attended the Tresillian Hospital in Nepean. The appellant's wife, B, then had a period of residency at the Tresillian Hospital between 27 October 2006 and 1 November 2006. Acting on advice from Tresillian, the appellant and his wife altered their sleeping arrangements and moved into bedroom 2 with Sh, leaving the baby to sleep in the master bedroom. The purpose of the rearrangement was to promote independent sleeping for S and as she was used to sleeping in the master bedroom, they were advised to leave her in that room.

The appellant was then asked about sleepover arrangements in the latter part of 2006. He said that the last sleepover was on Grand Final day which he identified as being in late September or early October. He said on that day he had borrowed a projector from his office that attached to his laptop. He said he had borrowed the projector on one previous occasion, being on Sh's birthday in July that year. On that occasion, the projector had been used in bedroom 2 when a movie had been screened onto the wall. On the occasion of the Grand Final, the projector was used to screen the football match on the wall in the family room. He said that the projector had never been used in bedroom 1.

The appellant gave evidence of his activities and those of his family in December 2006. He said the house was painted in early December. Pest control work was carried out in the second week of December because the house had become infected with bird mites. He produced receipts in respect of the purchase of paint on 2 December and for the pest control work on 7 December. The appellant said that nobody stayed over whilst the pest control work was being carried out.

The next focus of the appellant's evidence was in respect of the period 22-24 December 2006 and then 25-27 December 2006.

The appellant said that on Friday 22 December, his daughter Sh had a concert in the evening from about 6:30 pm to 9:30 pm. He said that apart from his family nobody stayed over at the house on that night.

On Saturday 23 December, he said the neighbour's daughter came to play with Sh and he took some photos. He said M was not in his house at that time. They went to Mass at 6 pm. He did not recall seeing M at Mass. He said that they returned home after Mass and then, at about 8:30 pm-8:45 pm they went to his uncle's house. He said his other brother-in-law and his family were present, in addition to his uncle's family. They stayed there until 10:30 pm or 11 pm, before returning home. He said that M was not with them on that occasion.

On Sunday 24 December, the appellant said he thought they had gone shopping in the morning and in the evening had a formal dinner at M's family's house. Other family relations were also there. The appellant said that he did not have any trouble with M that night.

On 25 December, the appellant and his family went to Mass. On 26 and 27 December, the family stayed at home, except for the appellant's wife, who went to work on 27 December. In early January 2007, the appellant's and M's families attended a drive-in movie.

On 2 March 2007, the appellant purchased a DVD projector. He said that was the first projector he had owned. He produced a receipt for the purchase.

A letter was also admitted into evidence from Walt Disney Studios Home Entertainment dated 29 July 2008, which stated:

"This is to confirm that The Incredibles was released on DVD in Australia on 6 April 2005."

This contradicted M's evidence that she had watched The Incredibles on the occasion of Sh's birthday in 2004.

In cross-examination, the appellant said that M could possibly have stayed over in 2004 but never earlier than that. He said that M would only ever have slept over "maybe six to eight times in total". He said that most of the time, L was with M, but "maybe once or something like that", M had stayed over when L did not. He reiterated that it was only during school holidays that M stayed over "and could be once during the school holiday".

The appellant accepted it was possible that M slept over on Sh's birthday in July 2004, but was not sure. He was asked about sleepovers prior to that occasion:

"Q. But in any event, you say there were no sleep overs when you first moved into that house because you just moved in, is that right?

A. That's correct.

Q. There were no sleep-overs from the end of 2002 to 2003, all of 2003 because of an argument?

A. That's correct.

Q. That wouldn't have been unusual, you're not suggesting this argument stopped sleep-overs?

A. No. There was no sleep-over because [Sh] was too small to have a sleep-over.

Q. So the sleep overs - you're not saying there were no sleepovers in 2002, 2003, because of an argument?

A. No.

Q. That's got nothing to do with it.

A. It's nothing to do with it. That argument happened in December 2002. And after that in 2003 we didn't have any sleepover and before there was no concept of having sleepovers in my house.

Q. [T]here were no sleepovers before this argument you say?

A. That's correct.

Q. So that argument had nothing to do with the lack of sleepovers?

A. That's in 2003 ... that's why we didn't have any sleepovers or anything.

HIS HONOUR

Q. I'm not quite clear what you're saying. Are you saying that there were no sleepovers because of arguments or are you saying there were just no sleepovers anyway, it just wasn't something that came up?

A. I'm sorry your Honour. There was no sleepovers at all.

Q. So it wouldn't have mattered whether there were arguments between the families, there just weren't sleepovers?

A. That's correct your Honour."

He said that the sleepovers did not commence until Sh was four and a half years old. He again said that there were no sleepovers during the renovations, that there was "dirt everywhere", his "house was not in order" and he would not have any family members come and sleepover at that time. There was then the following cross-examination:

"Q. But they still did [come] around that time?

A. No I don't think so.

Q. So [M's father] was never in the house and never saw any renovations?

A. He - I don't think so.

Q. So [M's father] was never in the house and never saw any renovations?

A. He - I don't think so because he must have just come in, had a look and must have gone, that's it, on his own."

The appellant was cross-examined about the regularity of visits with M's family. He suggested they saw each other once a month or sometimes less. If there was a special occasion, it could be twice a month. He said that sometimes they did not see each other for a couple of months, "but sometimes we see [them] all the time". When challenged as to the veracity of his evidence that sometimes the families did not see each other for a couple of months, the appellant explained that his family was "too busy" with their own life, and family and children.

He agreed, however, that M and Sh were particularly close, saying, "they are one of the closest, yes". However, he modified his evidence somewhat, as the following cross-examination demonstrated:

"Q. In one of those photographs you just described to us there was a picture of [Sh], [M] and yourself, there's a birthday cake?

A. That's correct.

Q. I think you said that was [Sh's] birthday?

A. That's correct, she was seven years old in that case.

Q. Do you remember what [M] was doing in that photograph?

A. She was blowing the candles.

Q. [M] and [Sh]?

A. Yes.

Q. It was [Sh's] birthday and there we have a photograph of [M] and the two of them together are blowing out the candles?

A. Because she youngest and I mean [Sh's] youngest and next comes [M], so we always invite kids to - when we blow the candles we ask the kids to come near the birthday cake, so everybody blows the candle.

Q. So they weren't doing that together because they were particularly close?

A. I don't - I don't know, I don't know.

Q. They were doing that because part of your custom or something - -

A. Yeah.

Q. - - is to ask the children to blow out candles together?

A. That's correct, yes, who was youngest in the family they, everybody comes together and blow the candles out.

Q. If there had been another child there who was closer in age to [Sh] [M] wouldn't have been there?

A. She - of course she - [M] plus other child could have been in that I imagine.

Q. ... [M] and [Sh] were really closer weren't they?

A. Not exact - I mean, very close not particularly.

Q. Not particularly?

A. Yes."

The next section of cross-examination related to the argument between his wife and M's mother, as follows:

"Q. You say when did that happen?

A. At some time happened in - end of 2002.

Q. End of 2002?

A. That's correct.

Q. Are you sure about that?

A. I believe so, yes.

Q. You wouldn't have said earlier 2002?

A. No.

Q. That argument didn't linger on until the beginning of 2007 did it?

A. From my - from my point of view could have been there, could have been not, don't know.

Q. From the end of 2002 you are saying you don't know whether that argument was still lingering?

A. That's correct, yeah.

Q. Until the beginning of 2007?

A. That's correct. From our point of view there was - we are simple people, myself as less and my wife and we very accommodating people and - and we never considered that much but could be from other side. We could see - we could feel it sometimes, yeah.

Q. Isn't it the case that that argument was settled very quickly, that same day in fact?

A. Not - not exactly, no. It might have said sorry and all that thing, patched up, but it lingered on at least for a year.

Q. What I asked you about was the beginning of 2007, that's over four years?

A. Yeah.

Q. Are you saying it perhaps lingered until 2007?

A. Perhaps, perhaps, yes.

Q. Are you being serious ...?

A. Yes, I am.

Q. After that argument happened you say from you and I think you said there from your side you didn't take it any further. Did you do anything about it?

A. Me personally, no, nothing.

Q. You didn't harbour any ill will against [M's parents] did you?

A. No, not from my end, no.

Q. You didn't stop your children from seeking [M and L] did you?

A. No, never.

Q. In fact the children kept seeing each other just as normal?

A. Possibly but I don't recall anything specific.

...

Q. Did you refuse to allow [M] to come to your house after that argument?

A. No, we were not so close, we were not socialising much, doing that after the argument, so we - there was not much interaction between our families.

...

Q. Did [M] come to your house or not after the argument?

A. I don't recall how she's coming because there's no point because my daughter was very small, she was just three years old at that time, she wouldn't know what is - what friends, and all the sleep overs and nothing at that time.

...

Q. Are you saying that this argument meant that [M] came to your house less?

A. Possibly, yeah.

Q. You just don't know?

A. I don't - I don't recall them coming to my house more often during that time.

Q. There was certainly nothing you did to stop them coming after this argument?

A. That's correct, yeah.

Q. There's nothing [your wife] did to stop them coming?

A. Possibly ... without my knowledge, but - possibly.

...

Q. What I want to say to you is, or put to you, they didn't stop coming to your house at all?

A. Could be possible but I don't recall them coming much during 2003 at all to my house.

...

Q. In 2002, 2003 you can't really remember them being there at all?

A. No, only during - like birthdays or some - something."

The Crown next cross-examined the appellant to the effect that the two families were close. The appellant agreed that when M's family first came to Australia, they stayed with his family in their two bedroom unit. He also agreed that he and his wife had purchased their home in the suburb where M's family lived, but said that this was because they liked the house and that they hadn't moved to the same suburb "because of [them]".

The following evidence was then given:

"Q. What I want to suggest to you is from the time you've been in that house you've had regular contact with [M's family]?

A. Yes because they're family, that's why we keep in touch with them.

Q. And you're close?

A. Not exactly.

Q. You refuse to admit you're close, is that correct?

A. It's how do I put it, the grasp of it, we are close but it's not as if we are in each other's pants et cetera. What I mean is like that, it's not like we are so close that we go and hug each other every time we see - it's not like that. We are just one family and we keep in touch with the family, that's it."

The appellant was then cross-examined about the position of the bed in bedroom 2. In particular, he denied that it had ever been moved a short distance from the wall. He denied having touched M inappropriately.

The appellant was cross-examined about his activities during December 2006. This evidence is critical in the overall assessment of the evidence, of both the appellant and M. Accordingly, it is set out in full:

"Q. You'd go to mass on a Sunday?

A. That's correct.

Q. You've a specific recollection on 23 December of 2006 going to mass and not seeing [M] there?

A. That's correct.

Q. How do you remember that so clearly?

A. Because this allegation it came up - it came up to us on the end of January and during Christmas we remember everything happened during Christmas, lead up to the Christmas and after Christmas. Every day we had some function on that particular month, so I - we specifically remember going to the mass on that particular day.

Q. Where were you on Saturday 16 December 2006?

A. We could be at home, yes.

Q. You could be?

A. Yeah.

Q. But you just told us you remembered the month leading up to Christmas - where were you on Saturday 16 December 2006?

A. We could be at home on that particular night.

Q. Are you saying you were? You're saying 'I could be.' What does that mean?

A. We didn't think about what - on 16 December, but on 23rd there is a specific allegation against me. That particular night [M] put up - she suggests that she comes to our house for a sleepover, which did not happen.

Q. Am I correct in saying you don't remember what you were doing on 16 December 2006?

A. We were at home.

Q. Definitely?

A. We could be at home, yes.

Q. What about 18 December 2006? Do you remember specifically on that day?

A. I don't - I have spoken to my solicitors and I have given all the records of my day to day life as far as I remember. We went through the credit cards, we went through the phone records and everything. I have given them a list of my activities during December.

Q. What I am saying to you is as you sit here now, you don't actually know you don't actually know what you were doing every day in December 2006, do you?

A. Almost every day - no, but I don't know from my heart, but I have given a list of - through my records of the credit cards and the phone records, talking to people, and that's how I know where I was.

Q. We'll try one more. What about 9 December 2006? Where were you?

A. Can you tell me what day is that?

Q. It's a Saturday?

A. On the 9th I could be doing a painting.

Q. You could be?

A. I was doing a painting, yes.

Q. On the 9th?

A. Yes.

Q. What about 2 December 2006?

A. The 2nd, again I was doing the painting, because, in December two, three weeks I was doing, especially on weekends I was doing the paintings.

Q. Did anyone come to visit you on any of those evenings?

A. Not during the painting. My brother in law was ... (not transcribable) ... he came to help me out, yes.

Q. But nobody - I will be specific. Did [M's father] and his family come and visit you in December 2006?

A. They came near the door, they saw the painting is happening, they went away. That's all they came in December, that's it.

Q. That's the only time they came to your house, was December 2006?

A. That's correct.

Q. You remember that specifically?

A. That's correct, because I was in the back under the foyer doing the painting and the prime, and I think his daughter [L], they came to the door, and they saw the painting is happening and they stood near the door. My brother in law also was there. They spoke near the thing and they went away.

Q. Apart from that did you see them at any other time in December 2006?

A. Yes, I did.

Q. When?

A. On 24 December, and I think on one of the weekends, on a Sunday which was the 14th, I think. We went to a park. I think it was Horsley Drive Park or Parramatta Park somewhere.

Q. You think that was the 14th?

I propose to commence with the question whether the case propounded by the Crown at trial or that which followed from the evidence of the complainant confined the 2006 offences to the period from the evening of 22 December 2006 to and including the evening of 24 December 2006. The following passage from the judgment of French CJ, Gummow and Kiefel JJ in the High Court (SKA v The Queen [2011] HCA 13) explains why these dates are important -

[9] The date of the incidents the subject of counts 4 and 5 is critical because the applicant led evidence at trial which provided an alibi for the period from the evening of 22 December up to and including Christmas Eve. The applicant gave evidence that he was at a concert, in which one of his daughters was performing, on 22 December 2006, a fact confirmed by his wife. There was evidence that, on the evening of 23 December 2006, the applicant and his family visited a person recently arrived from overseas at his home and remained there until about 11.00 pm. Other evidence confirmed a large gathering, on the evening of 24 December, for dinner at the home of the complainant's family. The evidence of the first mentioned witness was unchallenged and the other witnesses were not seriously challenged about their accounts.

[10] The effect of this evidence, as the trial judge observed for the benefit of the jury, was that if the jury came to the view that the incidents could only have occurred in the period immediately before Christmas of 2006 and the evidence providing an alibi was not disproved, it was unlikely that the jury could conclude beyond reasonable doubt that the applicant was guilty of the 2006 offences.

The crucial material is, of course, the evidence of the complainant, (set out comprehensively in the draft judgment of Beazley JA), the crucial parts of which was as follows -

Video recording (10 April 2007):

Q23: So when was the last time your uncle touched you?

A : About just before Christmas, around then.

Q24: OK. Is it [question about the complainant's name]?

A: [The complainant's name].

Q25: [The complainant's name], OK. I just want to, I don't want to say it wrong. OK, I wasn't there. The last time that your uncle touched you, just before Christmas, at his house. Can you tell me everything that happened from the beginning to the end?

A: Yep.

...

Q39: All right. And so, why don't you tell me about the, you said the last time [it] happened, the last thing happened just before Christmas. Can you tell me about the last time, what happened on that ---

A: Um ---

Q40: Like at that time, what happened?

A: Well, I was having a sleepover at her house.

...

Q56: And do you remember what day that was?

A: I don't remember what day, I'm sorry.

Q57: Do you remember, that's OK. Do you remember, was it a weekday or a weekend, or something else?

A: It was, I think it was, I think it was a Friday. No, wait, it was, it was the day before Christmas Eve.

Q58: The day before Christmas Eve?

A: Yes I think so. I think that was when. Cause we were having that kind of, since our families are really close, we just go over to their house and we'd have that little family get together. And so we went there, like I got dropped off there around 3.00, 4.00 in the afternoon. And then like my, my family came at around 6'ish, 7'ish, around then. And yeah --- [23 December 2006 was a Saturday.]

...

Q64: OK. So you said your family came around 6.00 or 7.00. Who in your family came?

...

Q 69: OK. So, your family came around. What did you do when your family was around?

A: We all just, we like watched a movie and we'd talk about just random things. We'd have dinner and everything. And they came to our house on Christmas Eve.

Q70: OK.

A: Yeah.

Examination in chief (14 August 2007, my numbering):

Q 1: What I want you to do is just think about the very last time it ever happened, this is the time you told us just before Christmas Eve.

A: Yes.

...

Q 2: After that last time which was just before Christmas in 2006?

A: Yes.

Q 3: In the next few days after that did you tell anyone what had happened?

A: No I didn't.

Q 4: Why didn't you tell anyone there?

A: I still felt uncomfortable about the situation. I knew what was happening but I still couldn't really talk to anyone about it.

Q 5: You were about ten years old at this stage?

A: Yes I was - no I was eleven.

Q 6: This was just before Christmas - sorry, Christmas of 2006?

A: No, no. I would have been ten, sorry.

Cross-examination:

Q 7: ... [So] far as you were concerned, and correct me if I'm wrong, or somebody will anyhow, that so far as you were concerned that plan showed the house as it was when you used to go to it?

A: Yeah.

Q 8: And that's right up until, you say, 23 December 2006?

A: Yes, but it may have - may not have been 23 December but--

Q 9: I see--

A: --like I guessed that it may have been the day before New Year's Eve because I do remember some celebrations around then but it could have been maybe even a week before that.

Q 10: I see, so why are you changing that?

A: Well, because I've thought of it. I thought maybe - and I've watched the video - I've thought, oh well then, I think I thought that it may have been the day before New Year's Eve, but it may not have been. I thought it was around that time--

Q 11: The day before Christmas Eve?

A: Yeah, it's Christmas Eve, sorry.

TRIAL ADVOCATE: Your Honour can I just at this stage make an objection. Are we talking about when some renovations were done here. It appears that the witness is responding to something other than renovations. My friend used the date 23 December. The witness responded - it seems she's not responding to the question about renovations to a house.

...

Q 12: What I was asking you was the house the same as shown in that plan, as it was at the time of the last sexual assault on you as you allege, by your uncle?

A: Yes, it was always like that as I remember.

Q 13: So now we go to December of 2006.

HIS HONOUR

Q 14: Do you want a break?

A: No, thank you.

DAWE

Q 15: In 2006, you say that you went to [your uncle and aunt's] and you went over there on that day at about 3 or 4 o'clock in the afternoon. Do you remember saying that?

A.: Which event was this?

Q 16: This is the last time, the last occasion?

A: Yes.

Q 17: You only told the police in detail about three events, only gave any dates or times of the year about three events. Right? And this is the last time, the most recent in your memory?

A: Yeah.

Q 18: You told the police that it was "No, wait, it was the day before Christmas Eve." You told the police that?

A: Yes.

Q 19: That was a Saturday that year, so that would fit in if you were going to be sleeping over on a weekend it would fit in with the Saturday too, wouldn't it?

A: Yes, but it was the holidays, so.

Q 20: So?

A: It was the holidays, so maybe like it wouldn't have to be a Saturday or -because everyday was like a break in the holidays.

Q 21: So you say, do you, that you stayed at [your uncle and aunt's] place during school holidays on days other than the weekend?

A: Yes, because it was the holidays.

Q 22: It's clear you are saying you stayed on days other than the weekend because it was school holidays?

A: Yes.

Q 23: But you only stayed there at times when [your uncle and aunt] could be there with you, wouldn't you?

A: Yes.

Q 24: You weren't ever staying there by yourselves?

A: No.

Q 26: So anyhow, this was a Saturday and once again we get to that situation which was did you go to mass with them the Saturday or the day before Christmas Eve?

A: I don't remember that. I did say it may have not been the day before Christmas Eve.

Q 27: Yes, but you didn't say that to the police. You've only said that since you've been here today?

A: Yes, that's because--

Q 28: You've only said that since I asked you a question this morning. Don't get upset, I'm not getting cranky with you--

TRIAL ADVOCATE: Your Honour, I object just to the proposition that's been put to the witness, is it's misleading to a certain extent. When the witness is first asked about when it happened, she gave an answer, and what's been put to her is a later question when the police are asking again about dates, there are several occasions during the police interview when she's given an answer of when she thinks this was. I refer to answer 50.

HIS HONOUR: I think counsel is entitled to put questions to attempt to throw doubt. Of course you can make submissions about it, as can he, but I don't propose to stop it. If what he is doing is faulty, if it's not based on fact, then it will fall to the ground. He's put a number of questions based on assumptions. If those assumptions aren't established then the questions fall to the ground. That's obvious. When the Incredibles was released for distributed and all this sort of thing if those assumptions are correct then he's entitled to make a submission. Now I've got

to say [the complainant's name] if you're confused about anything please just let me know.

WITNESS: Yes.

HIS HONOUR: Don't rush into answering something if you're not quite sure, you don't quite understand what it is--

WITNESS: Okay.

HIS HONOUR: --he's putting to you. What Mr Dawe is doing as far as I can see is perfectly permissible.

DAWE

Q 29: So I was asking did you go to mass on Saturday before Christmas Eve and you said well it might have been on another day. Well did you go to mass with him on the Saturday before Christmas Eve the day before Christmas Eve?

A: I'm not sure. I don't remember if I did - I don't really remember those things?

Q 30: Well I suggest you didn't and so if that's correct you couldn't have got there at 3 or 4 o'clock on that Saturday afternoon?

A: Well, I may have gone to mass with him, I'm not sure. I don't remember.

Q 31: What I'm going to put to you now is that you didn't, you certainly didn't go to [your uncle and aunt's] on 23 December 2006, you definitely didn't?

A: I could have. I may not--

Q 32: But you told the police fairly certainly that you did?

A: I told the police that I wasn't sure.

Q 33: Yes but then you settled, you said you thought it was the Friday and then you said, "No it was the day before Christmas Eve"?

A: Yes but I said I thought it was the day before Christmas Eve I wasn't sure.

Q 34: But that's the only day you identified wasn't it?

A: That's the only day I thought it may have happened. It could have happened any other time.

Q 35: It could have too. It could have happened any time I suppose but it's a bit hard to answer if we don't know when you say it happened. So I suggest to you that you didn't go to [your uncle and aunt's] at all on 23 December 2006. You say you may have or you may not have is that your answer?

A: Yes.

Re-examination

Q 36: ... I'll only just be few more minutes. You were asked a question just a few minutes ago about the incident you described in December 2006, the very last time?

A: Yeah.

Q 37: The time that was just, it was some time before Christmas in December 2006?

A: Yes.

Q 38: You were also were asked about that a few times by the police during the interview?

A: Yep.

Q 39: You referred to a question and answer you gave during the interview by my learned friend. That question was, "Do you remember was it a week day a weekend or something else?"

A: Yes.

Q 40: Your answer was, "It was, I think it was a Friday, no wait it was, it was the day before Christmas Eve". The police officer then asked you the question, "The day before Christmas Eve?" And your answer is, "Yes, I think so." Remember that?

A: Yes.

Q 41: Why did you say, I think so"?

A; Because I wasn't completely sure that it was that day.

DAWE: I would ask my friend to read the rest of that answer.

TRIAL ADVOCATE

Q 42: You say, "Yes, I think so, I think that was when cause we were having that kind of, like since our families are really close we'd just go over to their house and we'd have that little family get together and so we went there, like I got dropped off there around 3:00, 4:00 in the afternoon and then like my, my family came at around sixish, sevenish, around then and yeah"?

A: Yeah.

Q 43: Now, and I think you've answered but I want to ask, but when you say "I think so", the reason you said that is what?

A 44: Is because I wasn't completely sure that that was the exact date.

Q 45: When you were first asked by the police at the very beginning of the interview with the police when they started asking of this particular incident, the police asked you, "So when was the last time that your uncle touched you?" and you answered, "Around, just before Christmas, around then." Now why did you use - I'll just put it again - you said, "About, just before Christmas, around then"?

Q 46: Why did you use the words around and about?

A: Because again like I wasn't exactly sure what date it was. I do know it was before Christmas because I remember the last time I saw them which was the night of Christmas Eve and they were just leaving just before 12.00 and I was complaining because I wanted them to stay till the thing go to - the clock go to Christmas, so I do remember the last time was before Christmas, some time within December.

There can be little doubt that, in the vast majority of cases, the most reliable account of an event is that which is given closest to the event in question. Here, that account was given to the police on 10 April 2007, something over three months from the alleged misconduct. Although it is true that the complainant commenced he specification of the date of the 2006 offence saying it was, "About just before Christmas, around then", she later went on to explain what she meant by "just before Christmas" by her answer to questions 57 and 58. Those answers mention two markers: the first is that she thought it was a Friday, the second, which was by way of correction, that it was the day before Christmas Eve. As it happened, the day before Christmas Eve was a Saturday. The phrase "I think" as to identifying the day as a Friday reflects some uncertainty only as to whether it occurred on a Friday and the complainant then positively asserted that it was (whether Friday or not) the day before Christmas Eve. The references to thinking in the subsequent answer 58, are explanations for the date expressed in the previous answer, in other words, the process of thinking that made her believe that it occurred on the day before Christmas Eve. Accordingly, I am unpersuaded by the complainant's evidence that the expression, at least so far as this passage is concerned, denoted doubt. The last specific mention (answer 69) carried on the same dating denotation. Considering this material alone, I find myself unable to accept that it was reasonably consistent with any possibility that the misconduct was alleged to have occurred, say, in the week prior to Christmas.

I now turn to the complainant's evidence, which is set out above. No qualification as to the date was introduced during examination in chief, in which the complainant responded without qualification to questions about the offences that occurred "just before Christmas" and "just before Christmas eve". In the circumstances, this was, plainly enough, an adoption of the language in the interview, a video recording of which had just been played. In the context, I find it difficult to accept that "just before" could comprehend the week before Christmas. At Q 27, the complainant agreed that she had told the police that the offences occurred on the day before Christmas Eve and had only suggested that might be a mistake in her evidence. When pressed further she said (at Q 26), "Yes but I said I thought it was the day before Christmas Eve. I wasn't sure". She went on to explain that she was not "completely sure" (Q 41 and Q 44) or "exactly sure" (Q 46) that the misconduct occurred on that day. The agreement to the leading question 36 is unpersuasive, especially given the actual language of the question.

Conclusion as to counts 4 and 5

It is, of course, important to bear in mind that the complainant was a young person giving evidence in circumstances of what must be accepted involved considerable personal embarrassment and stress. She was only ten years of age at the relevant time and twelve when she gave evidence. I have found the evaluation of her evidence a difficult task, on which my view has changed several times. In the end, however, I have - with some reluctance, having regard especially to the fact that in doing so I differ from the view of Beazley JA - come to the conclusion that the evidence does not permit the selection of any other date for the allegation of the 2006 alleged offences than 22, 23 or (only remotely possible) 24 December.

So far as the alibi evidence is concerned, the Crown did not challenge the appellant's evidence (supported by his wife), in respect of 22 December, that he attended a concert with his family in Blacktown from 6.30pm to 9.30pm. In respect of 23 December he said he was at his uncle's home from about 9pm to 11pm. This evidence was supported by his uncle and brother-in-law. As to Christmas Eve, he was at a formal dinner at the house of the complainant's family, also supported by other evidence. In substance, this evidence was not challenged by the Crown.

It is not necessary for me to deal with, in any detail, the other evidence dealing with the 2006 offences, which has been helpfully set out in the draft judgment of Beazley JA. In my respectful view, the complainant's account of what happened is, in some respects unconvincing. In particular, the failure of her elder sister, who shared her bed, to give evidence of any occasion on which she awoke to find the appellant present despite the frequency of the occasions on which he was alleged to be in the bed and the unlikelihood of the appellant undertaking the enormous risk of discovery if he had indeed not only entered the bed but interfered with appellant as alleged are problematical. Considered apart from the date question and the appellant's alibi, I would not regard the problematical features of the complainant's evidence as sufficient to raise a reasonable doubt and, hence, require acquittal. However, the former matters do leave me with a reasonable doubt, which is reinforced by the other troubling matters to which I have referred. Accordingly, I propose that the appellant be acquitted on counts four and five of the indictment.

Counts 1, 2 and 3

In respect of these counts also, Beazley JA concluded that ground 1 should be rejected. I gratefully adopt her Honour's thorough summary of the relevant evidence. For myself, I would give greater significance to the fact that the complainant's elder sister did not notice the appellant's coming into the bed and somewhat less significance to the differing evidence as to the closeness of the two families, this being very much a matter of subjective impression and the description itself rather elastic in its content. Moreover, I am inclined to regard the new evidence (as explained earlier in this judgment) of the timing of the release of "The Incredibles" as adding to the problems concerning this aspect of the complainant's evidence.

Although I have concluded the appellant must be acquitted of the 2006 charges, largely on the basis that the alibi evidence has led to a reasonable doubt about his guilt, and this has a consequent effect on my view of the complainant's reliability, and there are undoubtedly good reasons for doubting some aspects of her evidence in respect of particular matters, a careful reading of the whole of the evidence has not led me to the view that it would be dangerous for a jury to convict the appellant on counts 1, 2 and 3 of the indictment. Accordingly, although I would allow the appeals against the convictions on those counts, I would order a new trial in respect of each.

The formal orders I propose are:

1. Appeal allowed;

2. Quash the convictions in respect of all counts;

3. Order that the appellant be acquitted in respect of counts 4 and 5 of the indictment;

4. Order that the matter be remitted for a retrial in respect of counts 1, 2 and 3.

HISLOP J: I agree with the orders proposed by Adams J and with his reasons therefore.

**********

Decision last updated: 20 September 2012

[2012] NSWCCA 205

20 September 2012

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Aggravated Sexual Assault

Admissibility of Evidence

Compensatory Damages

Medium Neutral Citation:	SKA v Regina [2012] NSWCCA 205
Hearing dates:	14 December 2011
Decision date:	20 September 2012
Before:	Beazley JA at [1]; Adams J at [262]; Hislop J at [323]
Decision:	1. Appeal allowed; 2. Quash the convictions in respect of all counts; 3. Order that the appellant be acquitted in respect of counts 4 and 5 of the indictment; 4. Order that the matter be remitted for a retrial in respect of counts 1, 2 and 3.
Catchwords:	CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Challenge to jury verdicts - Whether verdicts unreasonable and not supported by evidence - Whether on whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that accused was guilty - Court undertakes independent assessment of evidence. CRIMINAL LAW - Appeal against conviction - Sexual assault, aggravated sexual assault and aggravated indecent assault - Context evidence - Correctness of directions - Risk that jury might use as propensity evidence - Separate consideration of counts - Whether directions adequate - Whether conviction dangerous - Significance of complainant's evidence as to dates - Whether new trial appropriate. EVIDENCE - Application to adduce new evidence - Principles governing the admissibility of new evidence - New evidence sought to be adduced not of such cogency as to cause the court to entertain a reasonable doubt as to appellant's guilt - Application dismissed.
Legislation Cited:	Criminal Appeal Act 1912 Criminal Appeal Rules
Cases Cited:	Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411 Chivers v R [2010] NSWCCA 134 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Douglass v The Queen [2012] HCA 34 DTS v R [2008] NSWCCA 329; 192 A Crim R 204 JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333 Jones v R [1997] HCA 56; (1997) 191 CLR 439 Kaifoto aka Teaupa v R [2006] NSWCCA 186 Longman v The Queen [1989] HCA 60; 168 CLR 79 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Morris v R [1987] HCA 50; 163 CLR 454 Murray v The Queen [2002] HCA 26; 211 CLR 193 Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v ATM [2000] NSWCCA 475 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 R v Prasad (1979) 23 SASR 161 Ratten v The Queen [1974] HCA 35; 131 CLR 510 Rees v R [2010] NSWCCA 66 RGM v R [2012] NSWCCA 89 Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 SKA v The Queen [2011] HCA 1; 243 CLR 400 Wood v R [2012] NSWCCA 21
Category:	Principal judgment
Parties:	SKA (Appellant) Regina (Respondent)
Representation:	H Dhanji SC; C Alexander (Appellant) J Girdham (Respondent) Crawford and Duncan Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2008/2784
Publication restriction:	No
Decision under appeal	Date of Decision: 2009-02-06 00:00:00 Before: Finnane DCJ File Number(s): 2008/11/0763