SM v R

[2022] NSWCCA 13

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

SM v R [2022] NSWCCA 13

Hearing dates:

18 June 2021

Decision date:

09 February 2022

Before:

McCallum JA at [1];
Rothman J at [57];
Wright J at [58].

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether failure to reach verdict on certain counts informs the reasonableness of jury’s guilty verdicts — whether evidentiary inconsistencies affected complainant’s reliability

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 6

Crimes Act 1900 (NSW), ss 66C(2), 66C(4), 578A

Cases Cited:

Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191

Libke v R (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFAv The Queen (2002) 213 CLR 606; [2002] HCA 53

PA v R [2015] NSWCCA 18

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category:

Principal judgment

Parties:

SM (Applicant)
Crown (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
M A Kumar (Crown)

Solicitors:
Nyman Gibson Miralis (Applicant)
Director of Public Prosecutions (Crown)

File Number(s):

2017/159300

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that identifies the complainant or any matter which is likely to lead to her identification is prohibited. Because they are related, identifying information concerning the applicant has been anonymized in this judgment.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

7 February 2020

Before:

Pickering SC DCJ

File Number(s):

2017/159300

Judgment

1. McCALLUM JA: The applicant was arraigned on an indictment containing seven counts of sexual offences alleged to have been committed against his stepdaughter and one count of allegedly supplying a prohibited drug. ^[1] He pleaded not guilty to all counts. He was tried before Pickering SC DCJ and a jury in early 2020. After deliberating for several days, the jury informed the judge that they had reached unanimous verdicts on four identified counts but that they had been unable to reach unanimous verdicts on the remaining counts. The judge took the four verdicts, which were verdicts of guilty to counts 1, 2, 4 and 8. His Honour then directed the jury as to the possibility of returning a majority verdict on the remaining counts. After a short adjournment, the jury informed the judge that they would not be able to reach a majority verdict on any of the remaining counts. His Honour discharged the jury at that point.

   1. Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter that identifies the complainant or any matter which is likely to lead to her identification is prohibited. Because they are related, identifying information concerning the applicant has been anonymized in this judgment.

2. The applicant appeals against his conviction on the four counts on which guilty verdicts were returned. The single ground of appeal is:

“The verdicts of guilty for counts 1, 2, 4 and 8 are unreasonable having regard to the nature and quality of the evidence (including the failure of the jury to agree on verdicts for counts 3, 5, 6 and 7).”

3. I have reached the conclusion that the appeal must be dismissed for the following reasons.

Principles to be applied

4. Although worded in slightly different terms, the applicant’s ground of appeal must be taken to invoke the ground specified in s 6 of the Criminal Appeal Act 1912 (NSW) which requires the court to allow an appeal if it is of the opinion that the verdict is unreasonable, or cannot be supported, having regard to the evidence. The principles to be applied in determining such a ground are well-known and need not be rehearsed in any detail here. While it is not uncommon in this context for parties to quote summaries drawn from decisions of this court, the authoritative decisions are those of the High Court, particularly M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFAv The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In accordance with the principles settled by those decisions, the task for this court is to make an independent assessment of the whole of the evidence, both as to its sufficiency and its quality, to determine whether any of the verdicts of guilty is unreasonable, or cannot be supported, having regard to the evidence. As explained in M v The Queen at 492, the task is not to consider “as a question of law whether there is evidence to support the verdict”; the question is one of fact based on the court’s own assessment of the evidence. Hayne J’s expression of that test in Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] is helpful: “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt” (emphasis in original). That task is undertaken bearing in mind that “the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses”: SKA at [13].

5. There is one separate point of principle that requires consideration in the present case. The applicant’s ground of appeal relies on the jury’s failure to agree on verdicts on some counts to support the conclusion that the verdicts of guilty on the other counts were unreasonable. Uninformed by authority, I would have been inclined to the view that the failure of a jury to reach a verdict on one count is irrelevant to the reasonableness of a verdict of guilty on another count. However, the applicant’s position is supported by two decisions of this court which establish that the jury's failure to reach a verdict with respect to a particular charge may, depending on the circumstances, be capable of informing the assessment of the reasonableness of any verdict of guilty reached in the same trial: PA v R [2015] NSWCCA 18 and Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191.

6. Whether it will in fact inform that task (and, if so, the manner in which it will inform the task) must ultimately be determined according to the circumstances of the particular case. That was the conclusion reached by the court in PA at [40] (Hoeben CJ at CL) and [74]-[75] (Hamill J). Hamill J reiterated that view in Daaboul at [316].

7. Bathurst CJ reached a similar conclusion in Daaboul. After a review of the authorities, his Honour said at [248]:

“Although it is not necessary to finally determine the issue in the present case, it seems to me that it is possible for the question of inconsistent verdicts to arise in circumstances where there is a conviction on one charge and a failure to reach agreement on another where the difference is incapable of any logical explanation. An instance would be where there was the same evidence as to the elements common to each charge and no dispute that the uncommon elements were made out. In such a case, a conviction on one and a failure to reach a verdict on the other could, in my view, be said to be illogical and unreasonable. However, the principles can have no application when, as in the present case, the circumstances of each charge and the evidence relating to them were different. In particular, it could not be said that a failure to reach a verdict on one charge cast doubt on the complainant’s credibility such as to render a conviction on a different charge dependent on the acceptance of her evidence as illogical and unreasonable.”

8. In the present case, the applicant accepted that the counts on which the jury could not agree were factually unrelated to the counts on which the applicant was found guilty. He accordingly accepted that no question of inconsistent verdicts arises in the present case. He submitted, however, that it does not follow that the failure of the jury to agree on those counts is irrelevant for all purposes, contending that it may still inform this court’s assessment of the complainant’s credibility when considered together with other factors in the case.

9. It is difficult to reconcile that submission with the remarks of Bathurst CJ set out above. As submitted by the Crown and accepted by the applicant, the charges were factually unrelated. There was no evidence common to the proof of separate charges. The Crown accordingly submitted that this is not a case in which the jury’s failure to agree on some counts can inform this court’s assessment of the complainant’s credibility. I agree.

10. The applicant’s contention was not developed with any specificity. It was simply put that, notwithstanding the absence of any commonality between the elements of the offences on which the jury was hung and those on which it reached a verdict, the failure to reach a verdict on some counts may still inform this court’s assessment of the complainant’s credibility. The submission is predicated on a fallacy. The law does not hold that the evidence of a witness must be accepted or rejected in its entirety. The submission invites this court both to speculate (impermissibly) as to the reason the reason the jury was hung on some counts and to extrapolate from that speculation as to its significance for other, factually unrelated counts. That is precisely the circumstance in which, as the Chief Justice explained in Daaboul, the principles concerning inconsistent verdicts can have no application.

11. In my view, no assistance can be gained from the fact that the jury could not reach a verdict on some counts. As it was common ground that the counts were factually unrelated, it is both permissible and appropriate to confine attention to the evidence in support of the verdicts on the four counts on which the applicant was convicted.

Evidence in support of the verdicts

12. The complainant was born in 1995 and was 24 years old at the time of the trial. During primary school she lived with her mother and brother in a small flat attached to a motel owned by her grandmother. Her mother was a police officer with the Child Abuse and Sexual Assault Unit at Mildura (in the State of Victoria). In about 2005, the mother entered into a relationship with the applicant, who was a former police officer. At the time the relationship commenced, he was working as a truck driver. Not long after the commencement of the relationship, the applicant moved into the motel flat, sharing a bedroom with the complainant's mother.

13. The complainant gave evidence that, when she first met the applicant, “he was all right, it was just a normal - quite pleasant.” She said after he moved in, that gradually changed: “so he became increasingly verbally aggressive towards myself and his behaviour just escalated and changed”. She said “so he became quite stand overish and would yell. And then it just escalated into other behaviours.”

14. Within a year after the commencement of the relationship between the complainant's mother and the applicant, they bought a house in Wentworth (in the State of New South Wales). That is where, on the complainant’s account, the offending began.

Count One

15. Count one alleged aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 11 or 12, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation for that count, as for all such counts, was that the complainant was under the applicant's authority. There was no contest as to that element; the complainant was the applicant's stepdaughter.

16. The Crown case included a chart showing the complainant’s age and level of high school (where appropriate) between the year of her birth in 1995 and the year of the trial (exhibit B). Her evidence in chief in support of count one was led by reference to the entry in that chart which stated that, in 2007, she turned 12 and was in year seven.

17. The complainant gave evidence of an occasion during that year, after the family moved to the house at Wentworth, when the applicant got her to sit on his knee. They were in the lounge room at the time. She said that, while he was watching television, he inserted his fingers into her vagina. She said that she jumped up because it hurt and that she said something along the lines of “what the fuck?” She went to her bedroom and then went to the toilet and noticed that there was “a little bit of blood” on her underpants. She said her vagina felt sore afterwards.

18. It was the complainant’s recollection that, later that evening, she told her mother about the blood and showed her the underpants. She said, “I didn't tell her what had led up to the blood, but she did say that it might be related to periods and things like that beginning to happen”. The complainant said that was the first time she had ever noticed any blood. In cross-examination, she confirmed that she showed her mother the blood.

19. At the trial and in the appeal, the applicant contended that there was an inconsistency between the complainant’s evidence on that issue and the evidence given by her mother such as to cast doubt on the complainant’s credibility. The mother gave evidence that, some years later, the complainant had reported an incident to her in terms consistent with the complainant's evidence in the trial (that the applicant inserted his fingers in her vagina and that there was blood on her underpants afterwards). However, the mother’s evidence was that she noticed the blood on the underpants while she was in the laundry, not that the underpants were shown to her by the complainant. In my assessment, the discrepancy is wholly immaterial. It is the kind of discrepancy that is to be expected between the accounts of honest, reliable witnesses. The advocate’s assumption that a witness who recalls such detail differently from another witness, or differently on different occasions herself, must have fabricated the central allegation of sexual assault is not one that I find persuasive, certainly not as it arises here.

20. Indeed, upon analysis, the mother’s evidence on the whole supported the complainant’s evidence in a way that in my assessment was quite compelling and explains why this is one of the counts on which the jury was satisfied that the Crown’s burden of proof was satisfied. The mother said that, on the occasion years later when the complainant first told the mother her allegations, she said (about the applicant), “he's touched me”. The mother said (this is her evidence in the trial), “she said that there was blood in her underwear at a time when she sat on his lap and he had put his finger inside her.” Separately, the mother confirmed that she recalled a time when there was in fact a pair of underpants in the laundry that had “a smear of blood on them”. She said that she had a conversation with the complainant about that which touched on the issue of menstruation; that was also the complainant’s evidence.

21. The applicant did not give evidence at the trial but he did participate in an electronically recorded interview. In that interview, he accepted that there were times when the complainant sat on his lap but he said that never happened in the absence of the complainant’s mother.

22. In the appeal, the applicant identified a number of aspects concerning count one which he submitted make the allegation highly implausible. None of those contentions causes me to have any doubt as to the complainant’s credibility or reliability as a witness.

23. First, it was submitted that it would be highly unlikely, if the event happened, that the complainant would not have made a full complaint to her mother when speaking to her soon after the incident. In support of that submission, the applicant relied upon the fact that, according to the complainant's account, this was the first sexual assault in time and that the complainant was evidently able to assert herself at that time (as evidenced by her exclamation, "What the fuck?") and in the context that she had spoken to her mother very soon after the alleged assault about the blood on her underpants. The applicant noted in that context that the mother was an experienced police officer then stationed at the Mildura Sexual Offences and Child Abuse Unit.

24. It is now well understood that victims of sexual assault, particularly children, often do not raise hue and cry or make prompt complaint in response to a sexual assault, particularly one committed by a family member or friend. It misconceives the task of this court to ask the court to disturb a verdict on such a slender basis. It is doubtful whether an appellate court is better placed than a jury to assess the plausibility of an allegation of sexual assault by reference to preconceptions as to how a 12-year-old who was sexually assaulted surreptitiously by her stepfather should be expected to behave in response to the assault.

25. Secondly, the applicant relied on the fact that the house was relatively small and that the complainant was unable to say whether or not her mother or brother were present at the time of the alleged assault. I do not think that is a factor of any particular significance. Child sexual offences are frequently committed in ways that are risky and brazen, such that it would take a great deal of courage and presence of mind for a child to speak out. In my experience, that is commonly an aspect of the manipulative nature of such offending.

Count Two

26. Count two alleged an offence of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13, contrary to s 66C(2) of the Crimes Act.

27. The evidence in support of that count was led by reference to the entry in exhibit B which stated that, in 2008, the applicant turned 13 and was in year eight. The complainant gave evidence that she had a mobile telephone at that time. She said that there was a day on which one of her alarms had gone off and the applicant had "smashed [the phone] by throwing it against a wall". She explained that he had yelled at her to turn the alarm off and then taken her phone from her and thrown it against the wall. The phone was broken and she was not able to use it after that. At some later point, while they were in the lounge room and the complainant was watching television, the applicant came into the room. She said she could not remember his exact words "but he had propositioned that I perform oral sex on him for another phone". She described him as being "quite direct and very agitated" at the time he made that request. She said that she performed oral sex on him and that he later gave her a phone.

28. A woman who had been at school with the complainant in year eight gave evidence that, after they became friends, the complainant confided in her: "at one point she disclosed that she was given cash for sexual favours from [the applicant].”

29. The friend said that the complainant was “feeling pretty sorry, stressed by all and didn't want to disclose anything to her mum at the time”. The friend advised the complainant to see a counsellor at school. She said the complainant often came to school upset and was crying “most of the time, a lot of crying”. The friend organised an appointment with the school counsellor. The complainant attended that appointment. However, after the counsellor explained her mandatory reporting obligations, the complainant did not repeat her complaint to the counsellor.

30. In the appeal, the applicant submitted that this allegation was highly implausible because it was said to have occurred when both the complainant's mother and her brother were at home. For the reasons given in respect of count one, I do not accept that submission.

31. Separately, the applicant submitted that the evidence of the complaint witness was "significantly inconsistent with the complainant's account". The supposed inconsistency was that, whereas the complainant's evidence was that she was asked for sexual favours in exchange for a new phone, her friend’s evidence was that she said he sought sexual favours in exchange for cash. I do not find that submission persuasive. The substance of the complainant's grievance as expressed to her friend was that her stepfather was seeking sexual favours in return for material reward. As with the bloody underpants, I do not think the inconsistency is such as to indicate that the complainant’s core allegation must be doubted.

26. Finally, the applicant submitted that the “apparent visit to the school counsellor” (which was in fact the subject of sworn evidence by the school counsellor) could not be of any moment as it was then a common occurrence for the complainant to attend for counselling. Leaving aside the double edge of that submission, it is not a matter that undermines the reliability of the complainant's evidence or in any way supports the ground of unreasonableness.

Count Four

33. Count four alleged an act of aggravated sexual intercourse with a child under the age of 16 years, namely between 12 and 14 years, contrary to s 66C(4) of the Crimes Act.

34. The evidence in support of that count related to the period between 1 January 2008 and 31 December 2009. The complainant's mother and the applicant owned a boat at that time called the Omen. It was a white and blue speedboat. The complainant gave evidence that at some point during the period specified, there was something wrong with the boat. It was taken to a garage to be repaired. When it was collected, the complainant and the applicant went out on the boat to test it. The evidence in chief included the following exchange:

“Q:   Now once you went out on the boat just tell us what happened on the boat and whether you can recall either [the applicant] or you speaking to each other about something?

A:   So he basically said that he wanted to perform oral sex on me, not in those words.”

35. The complainant said she said something along the lines of “what happens if I don't?”. She said she was told that she could swim home. She said the applicant took the boat up the river past Wentworth, where there were no buildings or people. She said, “I was told to jump in the river and give myself a wash” and that when she got back into the boat, the applicant performed oral sex on her.

36. A male friend of the complainant gave evidence in the trial that, after he had known her for a while, she told him that the applicant “used to make her have sex with him”. He said, “she said that he used to make her do drugs, and make her give him oral sex as well.” He was asked whether she said where that occurred. He said, “most of the time in their house, and at the time in Wentworth, and on one occasion she told me a story about on a speedboat”.

37. In the appeal, the applicant made no specific submission directed to this count beyond the observation that it relied “almost entirely” upon an acceptance of the word of the complainant. The applicant submitted that there was little to distinguish that count from “some of the others” including count three, one of the counts on which the jury was unable to agree. But the critical issue is the account itself which, for my part, I found compelling. The detail of being told she could swim home if she did not accede to the applicant’s demand and the requirement that she jump in the river to wash herself before he licked her vagina is plausible and seems unlikely to have been made up.

Count Eight

38. Count eight alleged an act of aggravated sexual intercourse with a child under the age of 16 years, namely 14 or 15 years, contrary to s 66C(4) of the Crimes Act.

39. The evidence in support of that count was led by reference to the entry in exhibit B which showed that, during the year 2010, the applicant turned 15 and was in year 10. The complainant's evidence was given by reference to a particular incident that happened during that year related to her employment at “Fisher’s” IGA supermarket (she had her name badge in her pocket after work and it stabbed her in the leg and made marks on her leg). In fact, independent evidence established that the complainant did not start working at that supermarket until the following year, which was the year during which she turned 16.

40. The complainant's evidence was that, when she got home that day, the applicant put his penis into her mouth. She said that she did not recall "the lead up to it". She said that she was in her bedroom and he came in wearing "his jocks". At some point while the applicant had his penis in the complainant's mouth, her mother came home. She said she heard the back door open and the applicant "pulled his pants up and his jocks and that up really quickly and he put his legs into the one hole and then Mum come in and got really upset". The complainant said that her mother was crying and yelled something and then went into the bathroom and was sick and that it sounded like she was throwing up. The complainant could not recall any particular conversation with her mother.

41. The complainant's mother’s evidence in the trial confirmed that there was an occasion when she came home and found the applicant in the complainant's bedroom. She had been out with her son. She said she came in through the back door and that she "just didn't feel right". She said, "I just had a gut feeling that something wasn't quite right.” She walked through the kitchen into the hallway and looked into the bedroom she shared with the applicant. He was not there. She said "and I've looked into [the complainant’s] bedroom and the curtains were closed and he was on the opposite side of her bedroom, on the opposite side of her bed. She was in the bed and he had a T-shirt on and he was standing there. I said, ‘what is going on?’.” She said that she felt sick and went and threw up in the toilet. She then confronted the applicant and he said that nothing had happened, that she was over-reacting and that she was "fucked in the head" because of the job that she did. It was the mother's recollection that the complainant was about 12 at the time of that incident.

42. The applicant gave an account of that incident in his interview. It is appropriate to set out the relevant exchange in full:

“Q63   Is there anything, any particular incidents that happened during the time that you were her stepfather that, um, may have led us to what we are doing here today?

A   Ah, one.

Q64   What was that?

A   Um, I couldn’t tell you when it was or how old she was or, I think she might have been 14 or 15.

Q65   Yep.

A   Now, I’d been away. And when I got home that morning she, she had a terrible habit, she, ‘cause she’d started shaving her legs she’d get ingrown hairs.

Q66   Yep.

A   And then she would pick and pick and pick and pick and pick at ‘em.

Q67   Yep.

A   And [the mother] and I had a look at it when I, when I first got home. And, you know, just leave it. I’ve gone to bed, woke up gone for a leak and when I’ve come, on my way back, ‘cause her bedroom was opposite ours - - -

Q68   [15:39] Yep.

A   She goes, Can you have a look at this thing on my leg again? Oh, God, yeah, right. So, I had a look at it. I said, Just leave it alone. That was it. Anyway, um, I was standing in her door talking crap and next thing [the mother] comes bursting through the door, What’s going on, what’s going on. ‘Cause I, I, I just had me jocks on.

Q69   Yep.

A   ‘Cause I was going back to bed.

Q70   Yep.

A   I said, What do mean, what’s going on? Yeah, and she, she just went hysterical because she thought I’d been doing, doing something to her.

Q71   Who do you mean by she, [the complainant] or [the mother].

A   Oh, oh, sorry, [the complainant], yeah.

Q72   [The complainant] went hysterical?

A   No, no, [the mother] went hysterical.

Q73   [The mother] went hysterical, right.

A   Yeah. Yeah. I was like, What the hell are you going on about? Yeah, I, I just didn’t get the whole scenario, it was, like, yeah.

Q74   And did she say anything further, like, you said she went hysterical, was she saying anything particular to you?

A   I can’t remember what she was saying but she just thought that, that she’s, like, what’s going, what, what’s going on. I said, There’s nothing going on, what do you mean, what’s going on?”

43. In the appeal, the applicant put a number of submissions concerning the alleged unreliability of the complainant's evidence in support of this count. The first was that, while the Crown placed reliance upon the presence of the complainant's mother, she ultimately was of the view that nothing inappropriate had taken place. The submission raises a false issue. The question is not whether, at the time of her walking in on her partner in the bedroom of her daughter, the complainant's mother was prevailed upon to accept nothing untoward had occurred. The issue is what the jury made of the complainant's evidence in the trial.

44. Secondly, the applicant relied upon an alleged inconsistency in the complainant's evidence. According to a note made by the complainant's mother of a conversation she had with the complainant, she understood the complainant to be saying this was the first incident in time whereas the complainant's evidence was that the incident she described in which she sat on the applicant's lap and he inserted his finger in her vagina was the first in time. The resolution of that alleged inconsistency (which may reflect no more than a misunderstanding on the part of the complainant's mother as to what her daughter told her) was a quintessential factual question for the jury.

45. Thirdly and, so it was submitted, most significantly, the applicant relied upon discrepancies in the evidence as to the complainant's age at the time of this incident. It may be accepted that the complainant tied the incident to a day on which she had pricked her leg with her nametag from the IGA supermarket where she worked at the time, whereas the objective evidence established that she did not commence working at that place until October 2011, by which time she was 16. Again, however, the resolution of that conflict was quintessentially a jury question. Significantly, the applicant did not tie the incident to the complainant's employment at the IGA. He gave an elaborate account of the complainant having caused damage to her leg by picking at an ingrown hair. Incidentally, it may be noted that his familiarity with the complainant's legs revealed by that evidence was a factor which may have been taken into account by the jury against him rather than in support of the alleged discrepancy. In any event, the discrepancy does not impugn the jury's reasoning. The complainant's evidence tying the incident to the injury to her leg inflicted by a badge she did not receive until a later point in time was not an incontrovertible fact. It was simply part of the evidence to be assessed by the jury.

Other points

46. In addition to those points, the applicant made a number of general submissions. Three (numbered (i), (ii) and (ix)) can be addressed together. The substance of those points was that the central issue at trial was the complainant's honesty and reliability and that there was no supporting evidence in the Crown case such as any eyewitness to any of the offences, DNA evidence, video recordings, pretext calls or text messages. The same point was made in almost exactly the same terms by defence counsel at the trial.

47. The point may be accepted but that is not an unusual feature of cases of this kind. To note the absence of independent corroborating evidence and the centrality of the reliability of the evidence of the complainant is not to say anything about the reliability of that evidence but only to identify the context in which the central issue must be assessed. The sworn evidence of a complainant in a sexual assault trial is not less reliable for being uncorroborated; that fundamental misconception was scotched decades ago. I did not understand counsel for the applicant to suggest otherwise.

48. Point (iii) is that the complainant made her allegations only some years after the alleged events and at a time when her mother and the applicant had ceased their relationship. The mother’s evidence was that, at around Christmas time in 2016, the complainant overheard the mother speaking to her own mother on the telephone about obtaining an “intervention order” (the equivalent in Victoria of an apprehended domestic violence order) against the applicant. It is appropriate to set out the mother’s evidence (as adduced in cross-examination) on this issue in full:

“Q    You said, ‘After I got off the phone’, [the complainant] said to you, ‘have you grown some balls mum’; that's what she told you?

A    Yes.

Q    She went on and said, ‘Ah, you really going to do something about him’, and you replied ‘yes I am’, is that what she said and what you said?

A    Yes.

Q    [The complainant] said to you ‘do you still want him to see the girls, or want him gone completely’, you replying ‘completely’, that's what she said, and that's what you replied?

A    Yes.

Q    She then said to you ‘well I know something that would stop him having contact’, that's what she said to you?

A    Yes.

Q    There was some other conversation and then she said, ‘That he used to touch me’?

A    Yes.

Q    I have read those words exactly, that's what she said. In your statement you say that you then went into policeman mode, correct?

A    Yep.

Q    You said this ‘I went into policeman mode and didn't ask too many details’, what's policeman mode?

A    I haven't asked any questions. I don't know the extent of what her allegations are. As much as I know is what is in my statement.”

49. The suggestion appears to be that the complainant made up false allegations of sexual assault in order to assist her mother to obtain an intervention order against the applicant. That was not put to the complainant in cross-examination at the trial, nor did trial defence counsel invite the jury to draw any such inference in his closing address. Whether the timing and circumstances of the complainant's first complaint to her mother were suggestive of a false complaint was very much a matter for the jury's assessment.

50. Further, with respect, trial defence counsel was astute to tread lightly on that issue, which had every prospect of backfiring against the accused. As noted by Rothman J during the hearing of the appeal, the exchange between the complainant and her mother did not suggest any collusion to make a false complaint but rather was expressed in the language of revelation of something the complainant had not previously disclosed to her mother.

51. Point (viii) is that the assessment of the other matters relied upon by the applicant is to be undertaken in the context that the complainant had what was described as “a very close relationship with the applicant over many years”.  Certainly, that was the view of the complainant’s mother, who gave evidence that the complainant and the applicant “got along really, really well”.  There was evidence suggesting that she had at times voluntarily joined him on long road trips (giving rise to events the subject of the counts on which the jury could not agree).  There was also evidence that, as a child, she was able to confide in the applicant in a way she could not with her mother.  The applicant also noted evidence that the complainant remained in contact with the applicant after she turned 18 and moved out of home including inviting him to her child’s first birthday party and at family gatherings for Christmas.

52. It may be accepted that the prospect that years of sexual abuse was punctuated by amicable dealings between victim and perpetrator, or even (in reverse) that years of amicable dealings were punctuated by sexual assault is difficult for an outsider to the relationship to understand.   Child sexual assault itself is difficult to understand, but there is no doubt that it happens.  How a family dynamic is affected by regular sexual abuse or indeed any form of regular abuse does not seem to me to be something that must follow a particular pattern or script.  The complex nature of the relationship between the complainant and the applicant was fully explored in the trial.  I am not persuaded that there is any aspect of the evidence on that issue that points to a reason for doubting the veracity of the complainant’s evidence concerning the sexual assaults she described.   

53. Finally, point (x) refers to the manner in which the complainant gave her evidence before the jury.  The entire submission on that point was as follows:

“[I]t was further noted and commented upon in the course of the closing address that the complainant repeatedly paused in the course of giving her evidence and/or sought a break in giving evidence, and she was often unable to recall important details.”

54. There are a number of difficulties with this submission, not least among which is its lack of detail.  To the extent that it simply rehearses a submission put to the jury by trial defence counsel, the response must be that its assessment was a matter for the jury.  To the extent that the submission is premised on unarticulated assumptions as to how witnesses behave in particular circumstances, the response must be that hesitation, requests for breaks and failure to recall detail are as consistent with trauma as they are with dishonesty.

55. I am mindful of the importance of considering not only the individual submissions put by the applicant but their combined force.  The applicant’s submissions have not caused me to entertain a doubt as to the reasonableness of the jury’s verdicts.  This is not a case in which there is reason to apprehend that an innocent man has been convicted.

Conclusion

56. Based on my assessment of the evidence, I am satisfied that it was well open to the jury to find the applicant guilty on counts 1, 2, 4 and 8. Accordingly, the orders I propose are:

1. grant leave to appeal;

2. dismiss the appeal.

57. ROTHMAN J: I agree with McCallum JA.

58. WRIGHT J: I agree with the orders proposed by McCallum JA for the reasons that her Honour has given and based upon my own assessment that, on the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of counts 1, 2, 4 and 8.

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Endnote

Decision last updated: 09 February 2022