Thomson v R

Case •

[2015] ACTCA 16

•

14 October 2015

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Thomson v The Queen; The Queen v Thomson

Citation:

[2015] ACTCA 16

Hearing Date:

3 November 2014

DecisionDate:

14 October 2015

Before:

Murrell CJ, Burns and Ross JJ

Decision:

See [71]

Category:

Principal Judgment

Catchwords:

APPEAL AND NEW TRIAL – Appeal – general principles – appeal against conviction – whether verdicts unsafe and unsatisfactory – whether evidence of complainant demonstrably unreliable – whether complainant’s memory demonstrably contaminated.

APPEAL AND NEW TRIAL – Appeal – general principles – prosecution appeal – appeal against sentence – whether sentences manifestly inadequate – where primary judge erred in relation to maximum penalty – appeal allowed in part – remitted to primary judge for re-sentence.

Legislation Cited:

Crimes Act 1900 (ACT) s 61(1)

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 40F

Supreme Court Act 1933 (ACT) s 37O(2)

Cases Cited:

CMB v Attorney-General (NSW) (2015) 317 ALR 308

Dinsdale v The Queen (2000) 202 CLR 321

Edwin v The Queen [2014] ACTCA 47

Gillard v The Queen (2013) 275 FLR 416

Klobucar v The Queen [2014] ACTCA 6

M v The Queen (1994) 181 CLR 487

Markarian v The Queen (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

R v Daetz (2003) 139 A Crim R 398

R v Duffy & Ors (2014) 297 FLR 359

R v Hillier (2007) 228 CLR 618
R v Todd [1982] 2 NSWLR 517

SKA v The Queen (2011) 243 CLR 400

Parties:

ACTCA 16 of 2014:

Sarah Jane Thomson (Appellant)

The Queen (Respondent)

ACTCA 24 of 2014:

The Queen (Appellant)

Sarah Jane Thomson (Respondent)

Representation:

Counsel

ACTCA 16 of 2014:

Mr S Gill (Appellant)

Mr J White SC (Respondent)

ACTCA 24 of 2014:

Mr J White SC (Appellant)

Mr S Gill (Respondent)

Solicitors

ACTCA 16 of 2014:

Pappas, j - attorney (Appellant)

ACT Director of Public Prosecutions (Respondent)

ACTCA 24 of 2014:

ACT Director of Public Prosecutions (Appellant)

Pappas, j - attorney (Respondent)

File Numbers:

ACTCA 16 of 2014; ACTCA 24 of 2014

Decisions under appeal: 

Court:  ACT Supreme Court

Before:  Refshauge J

Date of Decision:         28 March 2014 (conviction)

6 May 2014 (sentence)

Case Title:  R v Thomson

Citation: [2014] ACTSC 133

Court File Number:       SCC 42 of 2012

MURRELL CJ AND ROSS J:

  1. A jury found the appellant guilty of three offences that, between 1 January 2008 and 30 September 2008, she committed acts of indecency (sexual posing) in the presence of the complainant, a child under 10 years.  The primary judge sentenced the appellant to an effective term of imprisonment of three years, suspended forthwith upon the appellant entering a four year good behaviour order.

  1. The appellant appealed against the verdicts, alleging that they were unsafe and unsatisfactory.  The prosecution appealed against the sentences, asserting that they were manifestly inadequate and that the primary judge had erred in relation to the maximum available penalty.

  1. The procedural history of the matter and the evidence given at the trial are conveniently summarised in the judgment of Burns J.  His Honour has concluded that the complainant’s evidence contains significant discrepancies and inadequacies, which render all three verdicts of guilty unsafe and unsatisfactory. 

  1. We have reached a different conclusion.  For the following reasons, we consider that it was open to the jury to reach verdicts of guilty on Counts 1 and 2.

The prosecution case at the trial

  1. The prosecution case was opened and run in the following way:

(a)Count 1: In the presence of the complainant, the appellant, who was naked or semi naked, went to her bathroom and inserted a carrot into her vagina and anus.  The appellant asked the complainant to take photographs, which were to be sent to the appellant’s boyfriend.  The prosecutor summarised the incident as “in the bathroom with a carrot in the vagina, in the anus”.

(b)Count 2: The appellant, who was otherwise naked, posed wearing thigh high stockings and, at times, a scarf around her neck.  The complainant took photographs. The prosecutor encapsulated the incident as “naked on the bed, scarf and stockings”.

(c)Count 3: The appellant, who was naked, posed in a sexually explicit way on her bed using a carrot.  The complainant took photographs.  The prosecutor summarised this incident as “on the bed and using carrots”.

  1. The prosecution case depended on the credibility of the complainant.

  1. Although at one point the complainant seemed to be saying that she took photographs of the appellant posing in a sexual way on only three occasions, at another point she said that she took photographs on about five occasions, including the three occasions that were the subject of charges.

  1. The gravamen of each charge was that the appellant had posed in a sexually suggestive way in the presence of the complainant, rather than that the appellant had required the complainant to photograph her behaviour.

  1. However, in relation to each charge, it was part of the prosecution case that the complainant had photographed the appellant. Consequently, images of sexual posing that police located on the appellant’s computer were central to the way in which the trial was run.  In relation to Counts 1 and 2, the prosecution relied upon particular images as providing independent corroboration of the complainant’s account of the incidents.  The prosecution also relied upon the images as evidence supporting the credibility of the complainant.  The prosecution did not identify any particular images as having been taken during the incident the subject of Count 3.

The appeal against convictions

  1. The appellant argued that all three verdicts were unsafe and unsatisfactory because the complainant was the critical prosecution witness and her evidence was demonstrably unreliable.

  1. The appellant argued that there were significant conflicts between the accounts given by the complainant. For example, the complainant said that Count 1 was the first incident in time, but metadata contradicted the complainant’s recollection of the sequence in which she took images.  The metadata showed that the images that were relied upon in relation to Count 1 could not have been (as the complainant had said) the first group of images that she took.  The Count 1 images were taken in March 2008, but the complainant also claimed responsibility for a group of images taken in February 2008. Further, the complainant said that the incident the subject of Count 1 probably occurred in August/September 2008, rather than March 2008. The complainant changed her evidence about whether she had seen an image of the appellant inserting a carrot into herself before she herself took a photograph depicting such behaviour. Importantly, as discussed below, the complainant’s testimony varied in relation to the particular occasions when she had photographed the appellant using a carrot.

  1. The appellant argued that there were significant conflicts between the complainant’s evidence and the evidence of other witnesses. For example, according to the complainant’s mother, when she asked the complainant whether the complainant had taken photographs of the appellant with carrots inside her, the complainant said that, while she had seen a photograph of the appellant using carrots, she had not directly observed the appellant posing with a carrot. The complainant said that her friend, FL, was also involved in taking explicit photographs of the appellant, but FL denied that she had been involved.

  1. In 2008, the complainant had accessed the appellant’s computer, which contained the images upon which the prosecution relied in support of Counts 1 and 2. The appellant argued that, if the complainant had viewed the relevant images, then she would have known the content of the images and that knowledge may have contaminated her memory (and her 2010 complaints and account to police) about whether she had witnessed the behaviour personally or had merely viewed images of the behaviour.

  1. In support of the contention that the complainant’s memory had been contaminated, the appellant also relied upon the fact that, from 2012 to 2013, there was a marked “improvement” in the complainant’s memory concerning the images that she herself had taken. In 2012, she was first shown the images taken from the appellant’s computer. In 2013, she was shown the images for a second time. In 2013, she “recalled” that she had taken many more of the images in question. The appellant argued that, by 2013, the complainant’s memory about the images that she had taken was demonstrably contaminated.  Further, the variable accounts show that, in general, the complainant’s memory was unreliable.

  1. For the purposes of the following consideration, we have assumed that the complainant’s 2012 memory about which images she took was more reliable than her 2013 memory, and have referred to her 2012 account.

Unsafe and unsatisfactory verdicts

  1. Section 37O (2) (a) (i) and (iii) of the Supreme Court Act 1933 (ACT) requires the court to allow an appeal against conviction if the verdict “is unreasonable, or cannot be supported, having regard to the evidence” or “on any other ground there was a miscarriage of justice”.

  1. The test of what constitutes an unreasonable jury verdict or a verdict that reflects a miscarriage of justice because it is unsafe and unsatisfactory was stated in M v The Queen (1994) 181 CLR 487 (M) and considered in R v Hillier (2007) 228 CLR 618 (Hillier).  Recently, the test was applied by this Court in Klobucar v The Queen [2014] ACTCA 6 at [21]–[22]. The test is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt about the guilt of the accused. Another way of putting the test is whether, after reviewing all the evidence, the appellate court has a reasonable doubt about the guilt of the accused.

  1. In applying the test (however it is expressed), the appellate court must remember that the jury is the body entrusted with the primary responsibility for determining guilt, and that the jury has the advantage of seeing and hearing the witnesses.  The jury’s advantage may be capable of resolving a doubt experienced by the appellate court.  On the other hand, the record itself may contain such discrepancies and display such inadequacies as to compel a conclusion that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: M at 494; Hillier at [20].

  1. SKA v The Queen (2011) 243 CLR 400 illustrates the need for an appellate court to examine the record itself when deciding whether a verdict may be unreasonable. In that case, the complainant had given evidence that the relevant incident occurred in December 2006, but in April 2007 she had told police that the incident occurred around Christmas Eve 2006. The trial judge ruled that the jury must approach the incident on the basis that it occurred on 22, 23 or 24 December 2006. Although the appellant had an uncontested alibi for those dates, the jury found him guilty. At [14] and [24], French CJ, Gummow and Kiefel JJ reaffirmed that an appellate court must not merely ask whether, as a matter of law, there is evidence to support the verdicts, but must also make an independent assessment of the evidence, both as to its sufficiency and its quality, weighing the evidence for the purpose of determining whether a verdict is unreasonable.

  1. On the other hand, Gillard v The Queen (2013) 275 FLR 416 is an example of a case in which it was decided that the jury’s assessment of the complainant’s credibility was not unreasonable. The appellant had been convicted on some counts alleging historical sexual offences, and acquitted on others. The complainant’s evidence about the dates on which some of the offences had occurred was uncertain. The complainant said that the offences began in 1992/1993 in a flat. However, there was evidence that the appellant had not occupied that flat until 1995. Based on the discrepancy in dates, the appellant argued that the verdicts of guilty were unsafe and unsatisfactory. At [46], the Court noted that the alleged events had occurred 15 years before the trial, when the complainant was only 14 years old. The Court reasoned:

[47]That a witness cannot give the date, or gives an incorrect date, for an event does not necessarily make the evidence of the happening of that event unreliable, especially if the event is one that the witness is likely to remember because it is significant, traumatic or otherwise memorable. What is remembered differs from person to person as noted by WAN Wells, Evidence and Advocacy (Butterworths, 1988), p 127.

[48]In our view, the fact that ... [the complainant’s] memory about the dates of the various incidents she described was shown to have been faulty does not, given her youth and the lapse of time, affect the credibility or reliability of her evidence about the incidents themselves. ...

  1. In this case, the complainant was eight (or possibly nine) years old at the time of the events in question.  She provided her first full account at least two years after the events (when she spoke to police in August 2010), and she did not give evidence in court until five years after the events (in August 2013). Her evidence about times and sequencing must be considered in that context.

Count 1

  1. When she was interviewed by police on 9 August 2010, the complainant said that she first photographed the appellant in about August/September 2008. The complainant took photographs of the appellant’s breasts in the bedroom and they then went to the bathroom. The appellant wanted the complainant to photograph her with a carrot in her anus and vagina, but the complainant did not want to do so. The complainant said that, after the appellant used the carrot, she wanted the complainant to photograph her breasts. Earlier in the interview, the complainant appeared to say that she did photograph the appellant’s buttocks and genitalia in the bathroom. The incident ended when the complainant pretended that her mother was calling for her to return home.

  1. In December 2012, the complainant was shown images taken from the appellant’s computer. She said that she took images 73, 74 and 75 (which were taken from 6:53 pm on 18 March 2008) and 88, 89, 90 (which were taken from 6:59 pm on 18 March 2008), the content of which is consistent with the bathroom incident that comprises Count 1.

  1. Although the photographs taken on 18 March 2008 are consistent with Count 1, there are timing and sequencing discrepancies.  Contrary to the complainant’s evidence that the Count 1 incident was the first photography incident, in December 2012, the complainant recalled taking a group of images that, according to the metadata, was taken on 20 February 2008. The police located no relevant images taken as late as August/September 2008 (the timing originally provided by the complainant). The complainant must have been mistaken about the timing and sequencing of any photographs that she took in relation to Count 1.

  1. The March 2008 images for which the complainant claimed responsibility in December 2012 were, generally, towards the beginning of a longer sequence of images taken between 6:53 pm and 7:03 pm on 18 March 2008. As to the later images in the sequence, the complainant did not remember whether she had taken the images. However, when she was shown the same images in August 2013, the complainant “recalled” taking about eight of the images about which she had been uncertain in December 2012.

  1. The camera that was identified as the source of the images had a self-timer with a time delay of 12 seconds. The time delay between five of the images taken between 6:53 pm and 7:03 pm on 18 March 2008 was less than 12 seconds. While the time delay does not establish that the complainant was responsible for the images, it is consistent with the complainant’s version of events because it does establish that the appellant was not responsible for taking the images by using the self-timer on her camera and a third party must have taken them.

  1. The complainant’s evidence changed about the number of occasions that involved the use of a carrot. However, the complainant consistently maintained the core allegation in relation to Count 1; that there was a bathroom incident involving the appellant placing a carrot in her vagina and anus.  The complainant’s first complaint (made to HF in early July 2010) included a statement that she had taken pictures of the appellant “when [the appellant]... went to shove a carrot into her vagina while she was naked, and while she was just naked most of the time like on the bed and in the bathroom and stuff”. At a more general level, there was significant circumstantial evidence from FL about occasions when the complainant had appeared at the appellant’s front door with a camera. FL said that, at such times, the appellant sometimes emerged wearing a dressing gown or a towel.

  1. There was nothing to prevent defence counsel drawing the jury’s attention to the many inconsistencies and shortcomings in the complainant’s evidence concerning Count 1.  On the appeal, it was not suggested that defence counsel had failed to do so. Nor was there any suggestion that the primary judge had erred in relation to his summing up of the defence case.

  1. As noted at [8], the prosecution case did not depend upon establishing that the complainant took any of the tendered photographs.  The prosecution case was that the appellant had posed in a sexually explicit manner in front of the complainant on three occasions.  The photographs were said to corroborate the complainant’s evidence that the appellant had engaged in the conduct that was the subject of Counts 1 and 2.

  1. Having considered the complainant’s evidence in the context of all the evidence (including the evidence of complaint to HF and the images taken on 18 March 2008), it was open to the jury to accept the complainant’s core allegation; the striking and distinctive allegation that the appellant had asked the complainant to photograph her while she was naked in the bathroom with a carrot inserted into her vagina and anus. The jury’s role as primary decision-maker must be acknowledged.  In our view, the jury’s advantage in observing the witnesses is capable of resolving any doubt about the reliability of the complainant’s evidence on Count 1.

Count 2

  1. The complainant gave evidence that, a couple of days or weeks after the Count 1 incident (at another point, she said that it was or two or three days later, on a Wednesday or Thursday), the appellant placed stockings around her mouth and face like ropes, and she later wrapped the stockings between and around her legs. She also wrapped a doona around herself. The complainant took photographs.  Some of the photographs were taken on the diagonal. In evidence, the complainant said that she was confused when she said that the appellant had stockings around her neck (in effect, that she had been confused when she described an appearance of bondage).

  1. In support of this charge, the prosecution relied upon images located on the appellant’s computer, which had been taken on 20 February 2008. In December 2012, the complainant recalled taking images 53, 54 and 56 (taken at 7:56 pm and 8:32 pm on 20 February 2008), and possibly or probably taking other images in the same sequence (which ran from 7:49 pm to 8:35 pm). In August 2013, the complainant “remembered” taking a number of images that she was previously uncertain about.

  1. It is apparent from images 54 and 56 that they were taken in the appellant’s bedroom. In those images, the appellant is naked, apart from a distinctive scarf that is worn around her neck and a distinctive necklace. Some of the images in the sequence show the appellant wearing sheer, thigh high stockings. A number of photographs in the sequence were taken on the diagonal, including photographs that (in December 2012) the complainant said that she may have taken.  The images taken on 20 February 2008 are capable of supporting the complainant’s version of events that did not involve bondage.

  1. The images taken on 20 February 2008 do not show the appellant using a carrot.  When she was cross-examined in August 2013, the complainant appeared to say that a carrot had been used on each of the three photography occasions. In re-examination, she at first said that a carrot had been used in two of the three incidents, incidents 1 and 2. Later in re-examination, she said that she thought that a carrot had been used on the first and third occasions, but could not be sure.

  1. There was a delay of at least 12 seconds between each of the February 2008 images. Consequently, while the content of the photographs was consistent with the complainant’s account of the Count 2 incident, the timing did not establish that they must have been taken by a person other than the appellant; the timing was consistent with them having been taken by the appellant herself.

  1. The complainant’s account of the Count 2 incident varied both in relation to whether a carrot was used and whether the appellant adopted an appearance of bondage. Further, if the images recorded in March 2008 related to Count 1 and those recorded in February 2008 related to Count 2 then, contrary to the complainant’s evidence, Count 2 was the first episode in time. It did not occur in August/September 2008, but much earlier in 2008.

  1. Prima facie, issues of credit are for the jury to determine.  In our view, it was open to the jury to accept the complainant’s evidence that she was confused when she described an appearance of bondage and was correct in her ultimate position that no carrot was used in association with Count 2, and to find that the complainant was mistaken about the timing and sequencing of Count 2.  After considering all the evidence, including the matters that arguably undermined the complainant’s credit, it was open to the jury to accept the critical aspects of the complainant’s evidence about Count 2 beyond reasonable doubt (that she was asked to photograph the appellant when the appellant was naked on her bed wearing a scarf and stockings).

Count 3

  1. We consider that the verdict on Count 3 is unreasonable.

  1. From the outset, the complainant gave a vague account of the incident giving rise to Count 3. On 9 August 2010, she told police that she was “pretty sure” that the incident had occurred in the context that the appellant was in a rush to leave on holidays. She said that she had taken five or 10 photographs in the appellant’s bedroom, which “probably” showed the appellant lying on her bed “with clothes half on or not, like with boots or something”.  Later in the interview, the complainant first indicated that the incident involved a carrot; she said “[t]hat was when she got the carrot and shoved it up her vagina and the ice as well and that’s when she got that incense and water stuff mixed together and rubbed it on her body to go make herself seem shiny”.  Still later in the interview, the complainant said that the carrot and ice were used during the first or second incident, she couldn’t really remember.

  1. At the trial, Count 3 was opened as an incident “on the bed and using carrots”.

  1. When the complainant gave evidence, she confirmed that there were two incidents involving carrots, including the first incident in the bathroom.  However, her evidence changed several times on the issue of whether the second carrot incident was part of Count 2 or Count 3.

  1. Given the complainant’s admitted uncertainty about whether a carrot was used on the third occasion and the lack of any independent evidence on this matter (such as images), in our view it was not open to a reasonable jury to find that Count 3 was established beyond reasonable doubt. At no stage was the complainant certain that there was a second carrot incident during which she photographed the appellant while the appellant was on her bed, using a carrot.

  1. The finding that the verdict on Count 3 is unsafe and unsatisfactory does not, of itself, cast any doubt on the other verdicts. In relation to Count 3, the complainant herself admitted that she was uncertain about the critical aspects of the incident.

Appeal on sentence

  1. The prosecution appealed against the sentences imposed by the primary judge.

  1. In relation to each of the three counts, the primary judge imposed a sentence of two years’ imprisonment. Each sentence was accumulated on the previous sentence by a period of six months, creating an effective sentence of three years’ imprisonment. His Honour suspended the sentences forthwith for a period of four years, upon the appellant signing an undertaking to comply with good behaviour obligations, and accepting the supervision of ACT Corrective Services for up to two years.

  1. The grounds of appeal against sentence were:

(a)The primary judge proceeded on the basis that the maximum available penalty was seven years’ imprisonment, but it was 12 years’ imprisonment.

(b)In deciding to impose a suspended sentence, the primary judge elided the tasks of determining whether a sentence of imprisonment was warranted and determining the manner in which the sentence should be served.

(c)The sentences were manifestly inadequate having regard to the objective seriousness of the offences and the appellant’s subjective circumstances, including her lack of remorse.

(d)The primary judge took into account an irrelevant consideration, being the appellant’s embarrassment caused by the jury receiving sensitive evidence.

  1. There was no complaint about the manner in which the primary judge analysed the objective seriousness of the offences or dealt with the appellant’s subjective circumstances.  Both matters received detailed and careful consideration.  Nor was there any complaint that the primary judge failed to consider a relevant sentencing purpose.

Specific error: maximum available penalty

  1. This ground of appeal is made out.

  1. The primary judge made a specific error when he determined the sentences by reference to a maximum available penalty of seven years’ imprisonment, when the maximum available penalty was 12 years’ imprisonment.

  1. The maximum available penalty is a parameter that is critical to the sentencing process: Markarian v The Queen (2005) 228 CLR 357 at [31]. In Edwin v The Queen [2014] ACTCA 47 at [19], the Court of Appeal held that an error as to the maximum penalty may amount to a material error that justifies appellate intervention.

  1. As the primary judge noted, the maximum legislated penalty is a mark of the seriousness with which the offences are to be regarded.

  1. There is a significant difference between a maximum available penalty of 12 years’ imprisonment and one of seven years’ imprisonment. Consequently, it is very likely that the error in relation to the maximum available penalty had a significant effect on the sentences that were imposed.

Did the primary judge elide the tasks of determining nature of sentence and manner of service?

  1. The asserted error is not made out.

  1. Having considered the relevant objective and subjective features, the primary judge concluded that a sentence of imprisonment was inevitable.

  1. The primary judge then noted that it was “not inevitable” that the sentence would be served by full-time imprisonment. His Honour referred to the prosecution submission that the objective seriousness of the offences required a sentence of full-time imprisonment, and the competing defence submission that, having regard to the appellant’s subjective circumstances, the case called for an exercise of mercy such that any term of imprisonment should be wholly suspended. Having, in effect, identified the tension between objective and subjective considerations, his Honour observed that there were no comparable cases and noted that the general pattern of sentencing for offences against s 61(1) of the Crimes Act 1900 (ACT) could “only be a very rough guide”.

  1. The prosecution submitted that there are two discrete steps to be undertaken in imposing a suspended sentence: first, the decision that a sentence of imprisonment is the only appropriate sentence; and second, the decision that it is appropriate to suspend the sentence.  The prosecution submitted that, in the course of the latter exercise, it was incumbent upon a sentencing judge to consider both objective and subjective circumstances.  In this regard, the prosecution relied on the remarks of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at [79] and [85] (Dinsdale).

  1. However, the point that Kirby J was making in the relevant passages was that the question of suspension can only arise once the necessity of imprisonment is established; a suspended sentence is not a halfway house between a good behaviour order and a sentence of full-time imprisonment.

  1. On a proper analysis of the sentencing remarks, it is apparent that the primary judge followed the correct procedure.  First, his Honour noted that a sentence of imprisonment was the only appropriate sentence.  Second, his Honour noted the tension between the objective considerations (which, as the prosecutor submitted, tended to support a sentence of full-time imprisonment) and the subjective considerations (which, as defence counsel submitted, tended to support an alternative approach).  There was no need to elaborate on the objective or subjective considerations.  They had been comprehensively discussed earlier in the decision.

  1. There is nothing in the primary judge’s remarks on sentence to suggest that his Honour took the “soft option” of suspending the sentence because his Honour was “not quite certain what to do”, the danger to which Kirby J referred in Dinsdale at [79].

Did the primary judge err in considering the appellant’s embarrassment?

  1. The primary judge noted the submission of defence counsel that it was particularly distressing to the appellant that, because the images had been tendered in the course of the prosecution, complete strangers had viewed intimate parts of her body.

  1. The primary judge also noted the delay in prosecution of two and a half years since execution of the search warrant on the appellant’s home in September 2001.

  1. The prosecution submitted that both the appellant’s embarrassment and the delay in prosecution were irrelevant considerations.

  1. A sentencing judge may attach weight to extra-curial punishment: R v Daetz (2003) 139 A Crim R 398 at [62]. However, it may be doubted that embarrassment concerning material tendered at a trial can constitute relevant extra-curial punishment where it is necessary for the prosecution to tender explicit images to establish its case. Most prosecutions cause some degree of embarrassment to an accused.

  1. What is important is that, in this case, the primary judge merely noted the submission of defence counsel about the appellant’s embarrassment.  It is not clear that his Honour took her embarrassment into account (at least to any significant extent) when deciding to suspend the sentences.

  1. In referring to the delay in prosecution of two and a half years from execution of the search warrant (when the allegation of offending first came to the attention of the appellant), the sentencing judge may have been suggesting that the delay was stressful for the appellant. Again, it is not clear that any such consideration played a significant role in his Honour’s decision to suspend the sentences.

  1. However, to the extent that considerations arising from the delay may have impacted upon his Honour’s decision, they were relevant considerations. It is well established that delay in prosecution may inform sentencing in several ways; it may be fair to afford weight to the progress of the offender’s rehabilitation, to consider that the offender has been left in a state of uncertain suspense, and to adopt a considerable measure of understanding and flexibility when sentencing for a stale crime: see R v Todd [1982] 2 NSWLR 517 at 519 – 520, which has been endorsed by the High Court in Mill v The Queen(1988) 166 CLR 59 at 64 – 66 and applied recently by the ACT Court of Appeal in R v Duffy & Ors (2014) 297 FLR 359 at [51] (Duffy).

Manifest inadequacy

  1. The prosecution submitted that the sentences were manifestly inadequate because they were completely suspended; a suspended sentence is inherently lenient as compared to a sentence of full-time imprisonment.

  1. As was stated recently by French CJ and Gageler J in CMB v Attorney-General (NSW) (2015) 317 ALR 308 at [35], a prosecution appeal against sentence should be a rarity brought for the purpose of laying down principle. In Duffy, this Court discussed the general principles applying to prosecution appeals against sentence, remarking at [54] that there is a narrow class of case in which it is appropriate for the prosecution to appeal against the inadequacy of a sentence.

  1. Whether a sentence is manifestly inadequate is critically informed by the maximum available penalty. As the primary judge imposed sentences by having regard to the wrong maximum penalty, there is little point in addressing the ground of appeal that alleges manifest inadequacy.

  1. In relation to Counts 1 and 2, the proceeding should be remitted to the primary judge.  His Honour was the trial judge and was required to make findings based on the whole of the evidence before the jury in accordance with the jury verdicts.

Orders

  1. The orders that we propose are:

(a)In relation to Count 3, the appeal is allowed, the verdict is set aside and a verdict of not guilty is to be entered.

(b)In relation to Counts 1 and 2:

(i)The appeal against conviction is dismissed.

(ii)The appeal against sentence is allowed.

(iii)The sentences imposed by the primary judge are set aside and the proceedings are remitted to the primary judge for further hearing and decision in accordance with these reasons.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Ross.

Associate:

Date:

Burns J:

Procedural history

  1. Following a trial by jury, the appellant was found guilty on 28 March 2014 of three offences contrary to s 61 (1) of the Crimes Act1900 (ACT) of committing an act of indecency in the presence of a young person under 10 years of age between 1 January 2008 and 30 September 2008. On 5 May 2014, the primary judge convicted the appellant and imposed a total effective sentence of three years’ imprisonment, which he suspended forthwith upon the appellant signing an undertaking to comply with a Good Behaviour Order for a period of four years.

  1. By a Notice of Appeal dated 14 April 2014, the appellant has appealed from the findings of guilt on the basis that the verdicts are unreasonable and cannot be supported having regard to the evidence.

  1. By a Notice of Appeal dated 23 May 2014, the Crown has appealed against the sentences imposed by the primary judge on the basis that they are manifestly inadequate.

  1. For the reasons which follow, I am satisfied that the verdicts are unsafe or unsatisfactory (or, as the appellant expressed it, unreasonable) and should be set aside and verdicts of not guilty substituted.  It follows that the Crown appeal should be dismissed.

The alleged offences

  1. The complainant was the daughter of the appellant’s next-door neighbour and was eight or nine years old at the time of the alleged events the subject of these charges. She would, from time to time, visit the appellant, either by herself or with a friend, FL, to play with the appellant’s son, N. It was the Crown case that, on the three occasions the subject of the charges, the appellant imposed upon the complainant to take photographs of the appellant while she was naked and posing in a sexually explicit manner, including while she was inserting a carrot into her vagina or her anus. The Crown tendered as Exhibit A a series of photographs of the appellant, naked and posing sexually, which had been located on her computer. The Crown asserted that the complainant took a number of these photographs. The Crown case was that the appellant’s actions in posing sexually in front of the complainant, and inserting the carrot into her anus and vagina in front of the complainant, were indecent acts.

  1. It was accepted by the appellant at trial that the alleged conduct would be an indecent act if it were performed in the presence of the complainant. It was the defence case that the complainant did not take the photographs in question, nor was she present when they were taken, and that the appellant had not engaged in any acts of sexually explicit posing in the presence of the complainant.

  1. The assertion that the complainant was present at, and the photographer for, the commission of the alleged acts of indecency was wholly reliant upon the testimony of the complainant. The particulars of the counts on the indictment, as revealed by the prosecutor’s opening to the jury, were:

(a)Count 1: An allegation that the appellant, having been naked or semi-naked in her bedroom, went to the bathroom in her premises and inserted a carrot into her vagina and into her anus in the presence of the complainant.

(b)Count 2: An allegation that the appellant was naked in her bedroom and posed in front of the complainant in an explicit way wearing thigh-high stockings and, at times, a scarf around her neck.

(c)Count 3: An allegation that the appellant, whilst naked in her bedroom, posed in a sexually explicit way while on her bed in the presence of the complainant. It was further alleged that the appellant had also engaged in sexual behaviour using a carrot on this occasion.

The evidence at trial

The evidence of UQ

  1. At about the time of these events in 2008, the appellant was in a relationship with a man, UQ, who was residing in Melbourne. The evidence established that the appellant shared explicit photographs of herself online with UQ in the context of an ongoing sexual relationship between them.  This was not disputed by the appellant. UQ was not shown any of the photographs in Exhibit A, so there was no evidence that the photographs sent to UQ are the same as those in the Exhibit, or that those sent to UQ were taken at or about the same time as those in the Exhibit.

The evidence of BC

  1. BC is the mother of the complainant. She testified that, in 2008, she became friends with the appellant, who was her next-door neighbour. Her daughter, the complainant, played together with the appellant’s son, N.

  1. In or around July 2010, the complainant spoke to BC about these events and told her that the appellant had made her take photos of the appellant while she was naked. She said that the complainant told her “that she had seen a photograph of a carrot inserted into an orifice”. The complainant told BC that this (presumably, the taking of photographs) had occurred “from the age of seven to the age of about nine”. When asked whether the complainant told her anything about the photos she took, BC said, “she said that she had taken some photos of [the appellant] in the bath, naked, and that’s all I can recall”.

  1. In cross examination, BC was taken to the statement she made to police on 19 August 2010, which was about one month after the complainant spoke to her about these matters. She agreed that she told the police that the complainant had told her that “[the appellant] used to make me and [FL] take photos of her naked”. She agreed that she also told the police that the complainant had said “When I used to go over to [the appellant’s] place to play with [N], [the appellant] would ask me and [FL] to take naked photos of her”.

  1. It emerged from cross-examination that BC was aware of the relationship between the appellant and UQ, and had been told by the appellant that she had sent photographs of herself to UQ, including photographs with “a carrot inserted inside her”. Because of this knowledge, when the complainant told BC that the appellant had made or asked her to take photos of her naked, BC asked the complainant whether the appellant was inserting anything inside her when she asked the complainant to take the photographs, and the complainant replied that “she was only naked and posing”.

  1. BC testified that FL was a friend of the complainant who lived in the same housing complex as the complainant and the appellant in 2008. She and the complainant would often play at each other’s houses and at the appellant’s house.

  1. It was suggested to BC that the complainant had looked at the “adult photos” on the appellant’s computer without her permission and that BC had “grounded” the complainant for doing this, to which BC responded that she could not recall that happening, but it may have happened.

  1. From this evidence, the following clearly emerges:

(a)BC said that the complainant had given her two versions of how she came to take the photographs. The first was that the appellant made her take them, and the second was that the appellant asked her to take them;

(b)on at least two occasions in the course of the complaint, the complainant told BC that FL was also involved in taking photos of the appellant;

(c)the complainant denied taking any photographs of the appellant while she was inserting a carrot into herself;

(d)the complainant told her she had seen a photograph of a carrot inserted into an orifice; and

(e)the complainant said she had taken photographs of the appellant in the bath.

The evidence of FL

  1. FL participated in a video recorded interview with police on 26 July 2011. In 2008, she resided in the same housing complex as the appellant and the complainant, but by July 2011 she was, apparently, no longer residing in the Australian Capital Territory. The recording of her interview became her evidence in chief at the trial: see s 40F Evidence (Miscellaneous Provisions) Act1991 (ACT). She told police that, on some occasions when she went to the complainant’s house to play with her, she was told that the complainant was at the appellant’s house. She said that she would go to the appellant’s house and knock on the door, and maybe five or ten minutes later the complainant would come to the door “holding, like, a camera or something”. She said that the complainant would say that she could not come out to play as “I have to do something”. She said that the appellant would then come out, “in, like, a dressing gown or a towel, or something” and say that she was just having a shower. She said that sometimes the complainant would say that she could not play because she was doing something for the appellant, that she was taking pictures so that she could put them on Facebook or send them to her boyfriend.

  1. FL said that, on occasions when the appellant was not home, the complainant would sneak into the appellant’s house to watch videos and to look at pictures on the appellant’s laptop computer. The complainant told her that she and the appellant had watched R rated movies in which “there was, like, sex and people were naked and stuff like that”. On other occasions when FL wanted to play with the complainant, the complainant would come to the appellant’s door with a camera and “she’d have the lens facing her and there would be a picture on there of, like, [the appellant] half dressed or something like that or, like, in a bath or whatever.” She described the camera as being a small camera, and said that, on occasion, the complainant was holding a phone.

  1. FL testified that, on occasions when she was at the appellant’s house, she saw the appellant’s mobile phone on a bench and saw photographs of the appellant on the phone with a caption, “This is me”. She described these photographs as depicting the appellant in a bra and underwear, or just depicting her face. She said that these pictures did not appear to have been sent and the phone was “just sitting there on the bench like she’d forgotten about it.” She was also able to recall herself and the complainant viewing pictures of the appellant in a bath with flower petals around her on the appellant’s computer when they were allowed to use it to play games. None of these pictures revealed the appellant naked, and FL did not believe that the appellant knew that she had seen these photos.

  1. When asked whether the complainant had ever told her about the photos she was taking at the appellant’s home, FL said:

Every so often she might say, “Oh, I was just taking a photo of [the appellant], like, just from the shoulders up”, sort of thing to put on the profile picture for something. I don’t know what it was, but it was for some sort of profile picture. And then, like, they’re the only ones that she really said, like, profile pictures or a picture of her in, like, nice clothes or in a dress or whatever. Like, that’s all she would ever really say, but I never even saw any of ‘em… Like, she would say, “Oh, I was playing with N, I was helping him clean up his room and I was taking some pictures of [the appellant] and N together”, or whatever else.

  1. FL said that, on occasions when the appellant was not home, the complainant would go into her house without permission to watch videos and to look at pictures on her laptop. This evidence was confirmed in cross-examination when FL said that the complainant had told her that she was accessing the appellant’s laptop computer when she entered the appellant’s house while she was not home. She was able to recall that the complainant got into trouble, either from her mother or from the appellant or both, for doing this. She recalled that the complainant was “grounded” on a couple of occasions as punishment for looking at the photographs on the appellant’s computer.

  1. FL directly denied the proposition that the appellant had ever asked her to take pictures of her. She denied having taken pictures of the appellant. In cross-examination, she specifically denied taking photographs of the appellant in her bath surrounded by flower petals, or taking any photographs of the appellant while she was naked. She said that the complainant told her about taking pictures of the appellant once or twice a week for a period of about six months, or perhaps a bit longer.

  1. In re-examination, FL was asked about the photographs that she saw on the camera held by the complainant at the door of the appellant’s house. She said that, on one occasion, there was a picture of the appellant in the bath, and on another occasion there was a picture of the appellant “half dressed in bra and underwear”. There were other occasions on which she did not get a good look at the photograph.

The evidence of HF

  1. HF was the daughter of BC’s fiancé, who came to live with her father, the complainant and BC in the first week of July 2010. She participated in a taped record of interview with police on 28 November 2012, at which time she was 14 years old. The record of this interview became her evidence in chief at the appellant’s trial. She said that the complainant told her that the appellant used her and FL to take photographs of her. She said that the complainant told her that the appellant “used to get her to take photographs of the appellant naked in the bath tub with rose petals on her, and she’d use carrots and things like that.” She also said the complainant told her that she had taken pictures of the appellant “when [the appellant] went to shove a carrot into her vagina while she was naked and while she was just naked most of the time like on the bed and in the bathroom and stuff”. HF told the police that the complainant seemed a bit upset and a little bit ashamed when she told her these things. The complainant also told her that she had seen these photographs on the appellant’s computer. HF said that, about one month later, she told her father what the complainant had told her.

The evidence of Detective Senior Constable Lisa Alexander

  1. Detective Senior Constable Alexander was the officer in charge of investigating these charges. On 10 September 2012, she executed a search warrant at the appellant’s residence and seized a laptop computer from which 105 images were later downloaded. These images were the photographs tendered as Exhibit A in the trial. A box for an Olympus FE-220 Digital compact camera was also located and seized, but the camera was not located. Metadata retrieved from the 105 images downloaded from the laptop computer established that the images had been taken using an Olympus FE-220 Digital camera.

  1. A recording of conversations between police and the appellant which took place during the execution of the search warrant was tendered by the Crown during the evidence of this witness.  The appellant told police that the small silver digital camera referred to in the search warrant (presumably the Olympus FE-220 camera) had been lost some time ago, and no such camera was located during the search.  During the search the following exchanges occurred:

Q73           Okay.  The images that we’re looking for, as I said to you before, are images                  of you taken by [the complainant] - - -

A73           Mm-hmm.

Q74           From next door.  Are they on that laptop?

A74           Um, there’s images of myself, yes.

Q75           Taken by [the complainant]?

A75           Personally, I don’t know.  It’s been a long time.

Q76           Okay.  And whereabouts on the computer are the images stored?

A76           They’re on, I’m pretty sure, on Adobe, I’m pretty sure, if they’re there, they   would be there.

Q77           Okay.

A77           I’m pretty sure... (indistinct)...for a long time.  I’m pretty sure... (indistinct)...

Q78           Can you describe the photos for me?

A78           It’s been a long time but I’m pretty sure there were a few in the bathtub with                    flowers – flower petals... (indistinct)... um, all I remember is those basically in               the bathtub with flower petals surrounding me underwater bubbles.  

Q79           How many images were there?

A79           Um, I don’t know.  About five or six - - -

Q80           Okay.  And what were you wearing - - -

A80           To my memory.  Um, I wasn’t wearing anything.

Q81           Was (sic) there any other photos that [the complainant] took of you?

A81           Apart from that, I’m not sure – in all honesty.

Q82You’re not sure? Would all the photos that [the complainant] took of you be stored on that laptop?

A82           Most likely, yes.

Q102Just in relation to the images that [the complainant] took of you, I just want to ask you what you can recall about those images.  Can you remember [the complainant] taking photos of you?

A102          I remember – because, I mean, I was messed up back then emotionally I            was a mess - - -

Q103          Yep.

A103          Um, but I remember rose petals in the bath.  I’ll just be honest.  I’ll just say                    what I remember.

Q104          Absolutely.

A104          I remember her going, “Yes, that’ll be so pretty” and doing – I remember   doing it, you know.  And I really don’t remember anything past there – the             rose petals, because I had a specific thing.  I just wanted something pretty           and, you know, like, she loved my company, but that’s only because life over                 there was hell.  She’d come over crying and – I’m going off the subject,   sorry.  Um, yeah, so it was – in my mind I remember the rose petals in the   bathtub, you know, completely covered, and there was no way I was going               to expose myself, because that wasn’t – that was not part of me, so that was                 it.  That’s all I remember, but, yeah.       

Q105          So you’ve mentioned those rose petal photos - - -

A105          Yep.

Q106          What were they done for?  Was there a purpose for them?

A106          In the hope that one day if I meet someone, you know, um, that I might be   able to look back on, you know, my life as more calm and just a bit of art   work, if I meet someone one day, um, that I might be able to show them that,                    you know, hey, I went through this difficult period and here’s some pretty   photos of me floating in the bath with rose petals and, you know, lavender           and doing – just looking after myself, yeah.  I think that’s why I did it, you   know, just to move on and, yeah, yeah.  Something peaceful.

Q107So can you recall any other photos being taken of you by [the complainant]?

A107          I took photos of myself, um - - -

Q108          Would have that been done in [the complainant’s] presence?

A108          No, I would not have done that, absolutely not.  The ones I did that’s in the   bathtub with the rose petals completely covering me, yeah, I – she was   there, and she loved that.  That was in her presence.  And she thought that             was pretty.  But definitely not.

Q122Yep.  Tell me everything you can remember about the time [the complainant] took photos of you in the bathtub?  Like, how did it come about?  Tell me how it happened and what sort of happened?

A122          I don’t remember, mm, meaning you know, I genuinely probably just loved           taking photos back then, and I always love taking photos - - -

Q123          Mm.

A123And, um, I noticed that the kid was always, you know – you know, if I’d be – she’d go – or I’d say, “Oh, I’ve got to go and have a bath, so can you guys go out and play,” or whatever.  And that was – you know, and she’d be like “Oh, do you want me to help you with this?” And I’d be, “No...  Out”.  So she had this thing.  I thought well, you know, at the time when I wanted to take the photos, I thought “I wonder if she would like to do it, but I’m not exposing myself” for the bathtub, the rose petals and stuff like that.

Q124          Mm.    

A124          So I thought mainly she probably wanted to just be in my presence and   probably help me do – because she didn’t really have a sister.  She doesn’t                 have any other siblings.            

Q125          Mm.

A125          So I thought, well, you know, I’ll be a kind of sister to her, but not in a – not                    in that way, definitely not.  And, yeah, I think it was – she wanted to help so,                   but yet not in that sick way, no.  But she wanted to help.  And I thought, well,                  she might enjoy doing this, you know, photographically maybe, you know,              artistically.  But yet at the same time I enjoy taking photos and – like, yeah, it                 had been a while since I had actually done fun things even with myself, so –   so, um, yeah.

Q126So you recall at which point [the complainant] came in to take the photos with you?

A126          Um, I let her know I was going to do them.  So I got undressed first with the                   door closed - - -

Q127          Yes.

A127          And then I made sure the bathtub was completely full and bubbles, and I   sprinkled the rose petals on.

Q128          Yep.    

A128          And then I just went “I’m ready” sort of thing, yep.  And so she came in and,                   yeah.

Q129          Okay.  Was there anyone else her at the time, do you remember?

A129          No.

  1. The appellant also told police that her husband, C, also took “more graphic” photographs of her, and that she would take photographs of herself using the “timer” on the camera.

The evidence of David Ringrose

  1. This witness was employed by the AFP in its forensics and data centre as an examiner in the Digital Forensics Team. He testified that he examined 106 image files containing photographs downloaded from the appellant’s computer. One of these images was a duplicate, which explains why Exhibit A only contained 105 images.  From metadata obtained from the image files, he was able to say that each of the photographs was taken on an Olympus FE-220 camera. The metadata included a creation date and time based upon the camera’s internal clock. He was unable to say whether that clock was accurately set at the time the photographs were taken, although he could say that photograph 105 appeared to have been taken during daylight hours, whereas the metadata suggested it had been taken at 2:22 am. He was able to use the metadata to identify photographs that were apparently taken on the same date and at about the same time, and to determine the time elapsed between photographs. By reference to a manual for an Olympus FE-220 camera, he was able to testify that this model camera had a “self-timer function” which allows for a time delay between the pressing of the shutter button and the photograph being taken. From the manual, Mr Ringrose concluded that a minimum time between photographs when using the self-timer function was 12 seconds. He was also able to say that the self-timer function was automatically cancelled after each photograph, so that the camera did not allow for multiple photographs to be taken on the self-timer function without resetting the self-timer function for each photograph.

The evidence of the complainant

  1. On 9 August 2010, the complainant participated in a recorded interview with police. This recording became her evidence in chief at the appellant’s trial. At the time of the interview, she was 11 years old. She told police that she had taken photographs of the appellant on about five occasions, but subsequently described only three such occasions. She said that FL had also taken photographs of the appellant, in particular a photograph of the appellant in the bath surrounded by rose petals. I will set out what the complainant told the police about each of these three occasions.

The first occasion

  1. The complainant initially told police that the first time she took photographs of the appellant was in August or September 2008. She was pretty sure that it was on a weekend when she went to the appellant’s house to play with N. She said that the appellant was cooking lunch and then was on her computer. She asked the appellant about photographs on her computer, but the appellant wouldn’t tell her about them, “so my friend, [FL], came over, we were playing in [the appellant’s] house too and [FL] told me that she went up to the street to get some roses and throw the petals in the bath tub with [the appellant] in them and take some photos and the photos that [the appellant] has taken of herself”. The complainant told police that, as FL had told her about the photographs, the appellant said that she would show the complainant the photographs and would let the complainant take photographs of her if she wanted. The complainant told police that she did not want to be rude to the appellant, so she agreed to take photographs of her.

  1. When asked by police to describe the photographs that she took, the complainant initially said “they were mainly about her private parts and everything”. She went on to say:

I think it’s like an incense thing and water or something mixed together and she smeared it all over herself to make it look – make herself look shiny and I said, “Why not put water on yourself?” And she said, “Because it will dry easily.” So that’s why – I said, “Why not just get a cloth and keep wetting yourself?” “And she said, “No, I’ll use this instead.” And then she made me take photos of her upper private bit and her lower private bits.

  1. The complainant expanded upon this by saying that by the term “upper private bit” she meant the appellant’s breasts, and by the term “lower private bits” she meant the appellant’s “front bottom”, which I take to mean her pubic area.

  1. Later in the interview, the complainant was asked where she took the photographs on the first occasion. The complainant said that she took about three or four photographs on the appellant’s bed, and then they went to the bathroom. When asked to describe the photographs taken on the appellant’s bed, she said:

The photos on her bed, they were mainly with half clothes on or a doona wrapped around her, like her body half and then the other half she wanted me to take – she’d make me zoom the camera onto her breasts and everything. And take photos of those whilst, like having the blanket wrapped around her waist, yeah.

  1. When asked what she meant by “her breasts and everything”, the complainant said:

Oh, not everything, but yeah, just her breasts, she made me take photos of those on her bed and then I think she put a coat on and she wanted me to take a photo of that – when she had her coat on.

  1. The complainant said that, after taking those photographs in the bedroom, they went to the bathroom and the appellant “got a blanket or her robe and went back out – she went to the fridge in the kitchen and she got a carrot and she – she went and shoved it up her butt and she wanted me to take photos of that.” She said that the appellant inserted the carrot into her vagina, but she did not want to take photographs of that so the appellant “took them herself”. The complainant said that the appellant then went and got ice and rubbed it on her breasts “and made them like stick out and wanted me to take photos of those”.

  1. At this point in the interview, police again asked the complainant whether she could remember on what day of the week this first incident occurred. Earlier in the interview she said it was a weekend, but at this point she said that she thought it was a Monday or Tuesday afternoon.

  1. Later still in the interview, police returned to this first incident and confirmed the complainant’s earlier statement that FL had been with her at the appellant’s house at the commencement of the incident. She said that FL knew about the photographs on the appellant’s computer. When asked by the police what FL said about those photos, the complainant said:

Well, she told me that she’s tried to take the photos of the carrot shoved up her vagina but they didn’t work out too well.

The second occasion

  1. The complainant initially told police that the second occasion on which she took photographs of the appellant was “a couple of weeks” after the first occasion. She said that she had been playing with N and the appellant asked her to take some more photographs. She described these photographs as follows:

And so I did and then she wanted like – yeah, she made me take different ones of her though, like she’d get a pair of stockings and just wrap them around her arms and her mouth and that to make her look like she’s being hung or something and make me take photos of her while she is posed like that naked too. Yeah, and she told me to take it because normally you can take a photo, landscape or portrait but I took one diagonal, yeah, and then she said, “Oh, if you want you can go home.”

  1. Later in the interview, the police took the complainant back to this second occasion and sought further details. At this point, the complainant said that the second occasion occurred about two days after the first occasion, saying that it happened on a Wednesday or Thursday. She described the photographs that she took at that time:

And that – all the clothing when she had her stockings wrapped around her mouth and everything, to look like she’s been roped and they were mainly the photographs on the second time. And that’s practically all that had happened through that couple of days, that day, because I went over there about five-ish... In a couple of photos she put stockings up between her legs and through and wrapped them around and she wanted me to take a photo of that stocking image and yeah, that was – they were mainly all the ones that I took. I took them on different angles and everything, yep… I think for that half of the day or the last minute, she wrapped the doona around herself and made me take photos of that too.

The third occasion

  1. Early in her interview, the complainant appeared to state that the third occasion occurred about two weeks after the second. She said that, on this occasion, she went to the appellant’s house and the appellant was in a rush to get ready to leave on holidays, so she only took about five or ten photographs. She described these photographs as “probably the ones like her laying on her bed with half her clothes on her, with clothes half on or not, like with boots or something.”

  1. Later in her interview, she gave a very different description of this third occasion:

That was when she got the carrot and shoved it up her vagina and the ice as well and that’s when she got that incense and water stuff mixed together and rubbed it on her body to go make herself seem shiny.

  1. The obvious difference between the complainant’s first description of this third occasion and her second description is that her first description made no reference to the appellant inserting a carrot into her vagina. This apparent anomaly did not escape the interviewing police, but the way in which they dealt with it was inappropriate. Immediately after the complainant gave the description set out in the previous paragraph, the following exchange occurred:

Q75 Okay, you said before that the carrot was on the first time, was it on the third time as well?

A75 Yeah.

  1. This question was clearly a leading question and was inappropriate, particularly when interviewing a child complainant. It was quite inappropriate for the questioning officer to point out an apparent inconsistency in the version of events given by the complainant in the interview and effectively suggest a means of reconciling that inconsistency. If any clarification of the description of events by the complainant was required, it should have been essayed in a non-leading manner. For example, the complainant could have been asked on how many occasions she had taken photographs of the appellant while she was inserting carrots into her vagina.

  1. Still later in the interview, the complainant said that the occasion on which she had taken photographs of the appellant with the carrots and the ice was “The first – yes, I think or the second time, I can’t really remember.”

  1. The complainant told the police that the appellant “got all these disgusting ideas” for these photographs from pornographic videos she hired. When initially asked how she knew that this is where the appellant obtained these ideas, the complainant said “from the cover of some of them”. When later asked to describe the covers of these pornographic videos, she said she could only recall one cover in which four girls were wearing fishnet stockings and were half naked. She then said that the appellant had told her that she had got her ideas for the photographs from the videos.

  1. There were, as I have pointed out, a number of internal inconsistencies in the complainant’s versions of these three occasions in this interview. Some of those, such as the inconsistencies in the complainant’s description of the days of the week on which these events occurred, may not be of great significance by themselves.  Others may be considered more significant, such as her change in the description of the third incident during the course of the interview.  If, as she finally suggested, the appellant had posed in the presence of the complainant and inserted a carrot into her vagina or anus, it may be expected that the use of the carrot would be the detail most likely to be foremost in the complainant’s recollection, but she does not mention it in her first description of this incident, referring instead to much more banal conduct by the appellant.

  1. There are, however, other curious features of the evidence pertaining to the complainant’s descriptions of these events which are important to note. In describing the second occasion on which she took photographs of the appellant, the complainant said that the appellant used a pair of stockings to wrap around her arms and her mouth to make it look like she was being “hung”. Photographs 45, 50, 51, 55, 58, 59 and 66 all show the appellant wearing stockings on her legs, but none of them show her with the stockings wrapped around her arms or mouth so as to make it look like she was being hanged. The complainant also said that, on this first occasion, she took photographs of the appellant’s breasts when she was wearing a coat. There are no photographs produced by the prosecution which fit this description. She went on to say that the appellant obtained a robe from her bedroom before the photographs were taken of her inserting a carrot into her vagina. Whilst there are a number of photographs of the appellant wearing what appears to be a robe in Exhibit A, the metadata reveals that these were taken on a different date to the photographs in which the appellant is seen with the carrot. According to the metadata obtained from the appellant’s computer, the date the appellant was observed to be wearing a robe was 14 March 2008, and that on which she was photographed with the carrot was 18 March 2008.

  1. Similarly, when initially describing the third occasion on which she took photographs of the appellant, the complainant suggested that the appellant was wearing boots. None of the photographs found on the appellant’s computer show the appellant wearing boots.  The fact that there were no photographs located on the appellant’s computer which correspond with the description of photographs the complainant says she took does not, of itself, establish that the evidence given by the complainant was unreliable. It is possible that some photographs may have been deleted by the appellant, either from her camera or from her computer. It is possible that some photographs taken by the complainant may not have been uploaded to the appellant’s computer. It is, nevertheless, relevant to observe that no photographs were located matching the description of a number of photographs the complainant says she took.

The complainant’s identification of the photographs

  1. On 19 December 2012, the complainant attended the office of the ACT Director of Public Prosecutions and participated in a conference with the Crown prosecutor in preparation for giving pre-trial evidence (the briefing conference). The complainant was taken to each of the 105 photographs downloaded from the appellant’s computer and asked whether she could identify the photographs as ones that she had taken. In accordance with her ethical obligations, the Crown prosecutor took notes of the complainant’s responses and provided those to the appellant’s legal representatives. Subsequently, on 30 August 2013, the complainant gave pre-trial evidence in which the Crown prosecutor again took her through the individual photographs and asked whether she could identify any of the photographs as being ones she had taken. I set out below in Table 1 the responses given by the complainant during the briefing conference and during her pre-trial evidence.

Table 1

JPG Chronological number Photo No. Date/Time Taken Time since previous photo Witness Disclosure,
Wed 19 Dec 2012 		Witness comment: Evidence in Chief, 30 August 2013
Date Photo Taken:
9 Jan 2008
P1090051 1 14 09/01/2008,
2:02:43pm 		I’ve never seen that ever

I don’t remember seeing it

DATE Photo Taken:
13 Jan 2008
P1130075 2 1 13/01/2008, 11:50:22pm I’ve never seen that before Yes, I don’t remember that at all
Date photos Taken:
14 Jan 2008
P1140082 3 2 14/01/2008, 9:02:35pm [FL] took that, she told me, I wasn’t there. I didn’t take it. I’ve seen that on the computer but haven’t taken it. I saw it when [the appellant] was going through all the ones saying “you can have a look.” I don’t remember seeing that
P1140083 4

3

 14/01/2008, 9:04:45pm Start group As above I remember seeing that one. I saw it on the computer
P1140084 5 4 14/01/2008, 9:05:36pm 51s As above Yes, I remember seeing it on the computer
P1140085 6 5 14/01/2008, 9:06:00pm 24s As above Same
P1140086 7 6 14/01/2008, 9:07:38pm 98s As above I don’t remember seeing it
P1140087 8 7 14/01/2008,
9:08:19pm 		41s As above I don’t remember seeing it
P1140088 9 8 14/01/2008,
9:09:12pm 		53s As above I remember seeing it on the computer
P1140089 10 9 14/01/2008,
9:10:06pm 		54s I haven’t seen it before I don’t remember seeing it
P1140090 11 10 14/01/2008,
9:12:46pm 		160s As per answers   3 – 9 I remember seeing it
(on computer)
P1140091 12 11 14/01/2008,
9:14:03pm 		77s As per answers   3 – 9

I’m not sure if I have – like, I’m fuzzy on this. I think I have seen it.
P1140092 13 12 14/01/2008,
9:17:11pm 		128s I haven’t seen it and didn’t take it I remember seeing it on her computer
P1140093 14 13 14/01/2008,
9:18:08pm 		57s I haven’t seen that I don’t remember seeing it
Date Photos Taken:
15 Feb 2008
P2150026 15 15 15/02/2008,
5:52:30 		I’ve never seen that ever I don’t remember seeing it
P2150027 16 16 15/02/2008,
5:54:14pm 		Group Start I haven’t seen that I don’t remember seeing it
P2150028
2 		17 17 15/02/2008,
5:54:40pm 		26s No, I haven’t seen that I remember seeing it on my computer
P2150029
2 		18 19 15/02/2008,
5:55:16pm 		36s I haven’t seen that I don’t remember seeing it
P2150030
2 		19 22 15/02/2008,
5:56:12pm 		56s No, (I didn’t take that) I don’t remember seeing it
P2150028 20 18 15/02/2008,
9:09:10pm 		Group start

Mine weren’t as close in. I guess they were the ones she took at the time. I’ve probably seen that on the computer but have no clear memory

 I don’t remember seeing it
P2150029
3 		21 20 15/02/2008,
9:09:31pm 		21s I haven’t seen that I don’t remember seeing it
P2150029
3 		22 21 15/02/2008,
9:09:31pm 		duplicate No (I didn’t take that) Same
P2150030
3 		23 23 15/02/2008,
9:09:42pm 		11s

I have seen that on the computer before I took any photos. Only a day or so before I took them

 No, I don’t remember seeing it
P2150030
3 		24 24 15/02/2008,
9:09:42pm 		duplicate As above Same

Date Photos Taken:
17 Feb 2008
P2170035 25 25 17/02/2008,
2:30:00pm 		Group start I haven’t seen that one I think I might have seen it on her computer
P21700936 26 26 17/02/2008,
2:30:37pm 		37s I haven’t seen that one I don’t remember seeing it

P2170038

 27 28 17/02/2008,
2:31:23pm 		46s As above I haven’t seen it
P2170039 28 30 17/02/2008,
2:31:58pm 		35s As above Don’t remember seeing it
P2170040 29 32 17/02/2008,
2:32:43pm 		45s I haven’t seen it I don’t remember seeing it
P2170041 30 34 17/02/2008,
2:34:10pm 		I haven’t seen it I don’t remember seeing it
P2170038
2 		31 27 17/02/2008,
2:56:32pm 		Group start I didn’t take that. Haven’t seen it I’m not sure
P2170039
2 		32 29 17/02/2008,
2:56:46pm 		14s As above Not sure
P2170040
2 		33 31 17/02/2008,
2:57:38pm 		52s I haven’t seen it, I’m positive I didn’t take it I’m not sure
P2170041
2 		34 33 17/02/2008,
2:58:07pm 		29s I haven’t seen it I’m not sure
P2170042 35 35 17/02/2008,
2:58:42pm 		35s I haven’t seen it I don’t remember seeing it

Date Photo Taken: 18 Feb 2008
P2180017 36 36 18/02/2008,
9:41:24pm

Possibly, my memory is a bit foggy on that one. I didn’t know my friend [FL] was taking nude photos of her.  I only thought it was the ones in the bath.

 I remember taking it

Date Photos Taken:
20 Feb 2008
P2200012 37 37 20/02/2008,
12:28:20pm 		I haven’t seen it I don’t remember it
P2200018 38 40 20/02/2008,
7:13:11pm 		I didn’t take it. Haven’t seen it I remember taking it
P2200019 39 43 20/02/2008,
7:14:16pm 		I’m sure I didn’t take it I remember seeing it but I’m not sure if I took it
P2200020 40 46 20/02/2008,
7:14:27pm 		11s I didn’t take that I don’t think I’ve seen it. I don’t remember taking it
P2200021 41 49 20/02/2008,
7:14:53pm 		26s I haven’t seen it I remember taking it
P2200018
2

42

 38

20/02/2008,
7:49:45pm

 Group start I think I could have taken it, possibly the third or second time, I’ve seen her with her back arched before I remember taking it
P2200019
2 		43 41 20/02/2008,
7:50:33pm 		48s I don’t think I took that I remember taking it
P2200020
2 		44 44 20/02/2008,
7:50:57pm 		24s I didn’t take it Same answer
P2200021
2 		45 47 20/02/2008,
7:51:33pm 		36s I haven’t seen it, didn’t take it Not sure if I took it
P2200023 46 52 20/02/2008,
7:53:06pm 		93s I don’t remember that one I don’t remember taking it
P2200024 47 54 20/02/2008,
7:56:36pm 		210s I remember taking it, the scarf around her neck, the same time as the stockings, 2nd or 3rd time I remember taking it
P2200025 48 56 20/02/2008,
7:57:45pm 		69s I remember taking it Not sure if I took it
P2200018
3 		49 39 20/02/2008,
8:27:22pm 		Group start I think I took that. There’s two different types of stockings I remember taking it
P2200019
3 		50 42 20/02/2008,
8:27:56pm 		34s I possibly took that I remember taking it
P2200020
3 		51 45 20/02/2008,
8:28:39pm 		43s I could have taken it I remember taking it
P2200021
3 		52 48 20/02/2008,
8:29:03pm 		24s Possibly yes I remember taking it
P2200022 53 50 20/02/2008,
8:29:47pm 		44s I’ve seen it and have possibly taken it I remember taking it
P2200023
2 		54 51 20/02/2008,
8:31:57pm 		130s I’ve probably taken it I’m not sure if I took it
P2200024
2 		55 53 20/02/2008,
8:32:26pm 		29s I remember taking it, 2nd or 3rd time I remember taking it
P2200025
2 		56 55 20/02/2008,
8:32:57pm 		31s I probably took it I remember taking it
P2200026 57 57 20/02/2008,
8:34:34pm 		97s I don’t remember taking it I don’t remember taking it
P2200027 58 58 20/02/2008,
8:34:50pm 		16s

I remember seeing it on the computer but am not so sure about taking it

 I remember seeing it but I’m not sure if I took it
P2200028 59 59 20/02/2008,
8:35:20pm 		30s I didn’t take it Haven’t taken it
P2200029 60 60 20/02/2008,
8:35:32pm 		12s As above Don’t remember taking it
Date Photos Taken:
14 March 2008
P3140048 61 61 14/03/2008,
4:34:49pm 		Group start I didn’t take it. I remember taking it
P3140049 62 62 14/03/2008,
4:35:40pm 		51s I didn’t take it. I remember taking it.
P3140050 63 63 14/03/2008,
4:36:02pm 		22s I don’t remember taking it, I don’t think I took it Don’t remember taking it.
Not sure if I saw 63 (on computer)
P3140051 64 64 14/03/2008,
4:36:35pm 		33s I don’t think I took it Don’t remember taking it.
I remember seeing 64 (on computer)
P3140052 65 65 14/03/2008,
4:37:10pm 		35s As Above I could have possibly taken it, I’m not sure
I’m pretty sure that I did see on the computer but can’t be 100%
P3140053 66 66 14/03/2008,
4:38:43pm 		93s

I didn’t take it and don’t remember seeing it

 I don’t remember taking it
P3140055 67 67 14/03/2008,
4:40:41pm 		118s I haven’t seen it I don’t remember taking it
Date Photos Taken: 15 March 2008
P3150046
2 		68 68 15/03/2008
5:00:23pm 		Group start I haven’t seen it I don’t remember taking it
P3150047 69 70 15/03/2008,
5:00:41pm 		18s

I probably saw that on the computer
I think I saw that on the computer, I haven’t taken it

 I don’t remember taking it
I saw it on her computer
P3150048 70 71 15/03/2008,
5:00:53pm 		12s I saw it, haven’t taken it I think I saw it on her computer but I didn’t take it
P3150049 71 72 15/03/2008,
5:01:04pm 		11s I haven’t seen it I don’t remember seeing it or taking it
P3150047 72 69 15/03/2008,
5:11:22pm 		618s I think I saw that on the computer I don’t remember taking it
Date Photos Taken:
18 March 2008
P3180055 73 73 18/03/2008,
6:53:51pm 		Group start I did take that I remember seeing it, but not sure about taking it
P3180056 74 74 18/03/2008,
6:54:16pm 		25s I did take that I remember seeing it
I’m not sure (about taking it)
P3180057 75 75 18/03/2008,
6:54:57pm 		41s I did take that I remember taking it
P3180058 76 76 18/03/2008,
6:55:22pm 		25s I don’t remember seeing it but I probably did take it because it is in the bathroom on the same day I remember taking it
P3180059 77 77 18/03/2008,
6:56:30pm 		68s

I really can’t remember that one because I can’t remember her eating a carrot

 I remember taking it
P3180060 78 78 18/03/2008
6:56:44pm 		14s As above I remember taking it
P3180061 79 79 18/03/2008,
6:56:52pm 		8s As above Same answer
P3180062 80 80 18/03/2008,
6:57:00pm 		8s As above Same answer
P3180063 81 81 18/03/2008,
6:57:07pm 		7s As above Same answer
P3180064 82 82 18/03/2008,
6:57:17pm 		10s As above Same answer
P3180065 83 83 18/03/2008,
6:57:40pm 		23s I don’t remember Don’t remember taking it
P3180066 84 84 18/03/2008,
6:58:03pm 		23s I don’t remember seeing it or taking it I remember seeing it but not so sure about taking it
P3180067 85 85 18/03/2008,
6:58:27pm 		24s I don’t remember Can’t remember taking it.
P3180068 86 86 18/03/2008,
6:58:43pm 		16s I don’t remember

Don’t remember taking it.

[I remember seeing it, I’m just not sure whether I was the one that did take it, but I can’t remember taking it, or if I did see it on the computer] – This was the answer to a question about both photos 85 and 86
P3180069 87 87 18/03/2008,
6:58:59pm 		16s

I don’t remember. With the pictures I remember taking I was near the sink, I think I sat on the edge of the bath at one stage

 Same answer
P3180070 88 88 18/03/2008,
6:59:18pm 		19s I remember taking that I remember taking it
P3180071 89 89 18/03/2008,
6:59:30pm 		12s I’ve seen it, I’m pretty sure I took it as well I remember taking it
P3180072 90 90 18/03/2008,
6:59:41pm 		11s I’ve seen her in that position when I was in the bathroom, there’s a high likelihood I took it, probably yes Same answer
P3180073 91 91 18/03/2008,
7:00:08pm 		27s

I don’t remember. At the end she went off with the camera, I followed her out. She scrolled down quickly to make sure they were all there but we didn’t upload them together

 I don’t remember taking it or seeing it
P3180074 92 92 18/03/2008,
7:01:08pm 		60

I’ve seen that, I’m not so sure I took it, possibly, maybe

 I remember taking it
P3180075 93 93 18/03/2008,
7:01:33pm 		25 I possibly took that, I remember her doing that in the bathroom, I can’t remember what day Same answer
P3180076 94 94 18/03/2008,
7:01:49pm 		16s Same as 93, I remember her in that pose Same answer
P3180077 95 95 18/03/2008,
7:02:01pm 		12s

I don’t remember being in the bathtub, I would have to have been in the bathtub by the looks of it, I don’t remember taking it, I think I’ve seen it, if I have taken it I’ve seen it there, otherwise I remember the pose. She’d make sure the photos with the stockings on the bed looked okay

 Same answer
P3180078 96 96 18/03/2008,
7:02:55pm 		54s I don’t remember that one Not sure if I have seen it. I probably would have taken it though
P3180079 97 97 18/03/2008,
7:03:11pm 		76s I don’t remember Same answer
Date Photos Taken:
26 March 2008
P3260056 98 98 26/03/2008,
10:04:27pm 		Group start

I think she took it, I’ve never seen it

 I don’t remember seeing it or taking it
P3260057 99 99 26/03/2008,
10:05:46pm 		79s As above Same answer
P3260058 100 100 26/03/2008,
10:06:48pm 		62s As above Same answer
P3260059 101 101 26/03/2008,
10:07:48pm 		60s That’s the one she took, she showed it, I saw it on her computer I remember seeing it, but not taking it
P3260060 102 102 26/03/2008.
10:08:42pm 		54s I don’t remember seeing it I remember seeing it but not taking it
Date Photos Taken:
28  July 2008
P7280206 103 103 28/07/2008,
2:19:05am 		That’s a self take of me. I was bored mucking around I didn’t take it but I remember seeing it
It’s me
P7280209 104 104 28/07/2008,
2:22:33am 		As above Yes, same answer
Doesn’t know who took it but thinks it could have been her
P7280210 105 105 28/07/2008,
2:22:58am 		As above Same answer

  1. For convenience, when referring to these photographs in the following discussion, I will refer to the photograph by the number in the third column from the left, headed “Photo No.”.  This provides the number of the paragraph as it is found in the book of photographs, Exhibit A.

Unsafe or unsatisfactory verdicts – the legal test

  1. Our system of criminal justice provides for a trial of a person accused of criminal offending.  Trials for alleged serious criminal offending will ordinarily be before a jury, although in some cases the accused may elect to be tried by judge alone.  Where the trial is conducted with a jury, the jury is the tribunal of fact; where the trial is by judge alone, the judge is the tribunal of fact.  In either case, a factual finding that the accused person is guilty of the offences with which he or she was charged is not to be lightly overturned on appeal.  There are, nevertheless, clearly defined powers possessed by courts of criminal appeal to set aside verdicts of guilty where the appeal court is convinced that the verdicts are unreasonable or cannot be supported having regard to the evidence.

  1. The authority most frequently cited concerning the approach to be taken by a court of criminal appeal where a verdict is said to be unreasonable (or, more frequently, unsafe or unsatisfactory) is M v The Queen (1994) 181 CLR 487. The majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) expressed the correct approach at 493:

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.  But in answering that question the court must not disregard or discount either the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

(Citations omitted)

  1. Later, at 494, they continued:

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.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. 

(Citations omitted)

  1. In Klobucar v R [2014] ACTCA 6, this Court, after quoting the above passages from M v The Queen, said at [22]:

That passage from M v The Queen was endorsed in Hillier (a circumstantial evidence case) by Gummow, Hayne and Crennan JJ.  In WA v The Queen [2011] ACTCA 4, which was not a circumstantial evidence case but one concerned with the credibility of the complainant, this Court noted the importance of the passage in M v The Queen; it both spells out what an appellate court should look for when evidence is said to lack credibility, and it reinforces the need to consider the whole of the evidence when considering whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(Citations omitted)

Consideration

The photographs

  1. It is clear from the metadata obtained from the photographs that groups of photographs were taken close together in time.  The fifth column from the left in Table 1 shows the commencement of such groups by the term “Group start”.  This column then sets out the time elapsed since the previous photograph.

  1. A perusal of the responses given by the complainant concerning whether she did or did not take each photograph in Exhibit A reveals apparent discrepancies.  Some of those discrepancies may be thought to be of little consequence, and a product of the complainant’s fading memory.  For example, on some occasions at the briefing conference, the complainant said that she had seen some photographs previously but did not take them, whereas, in her evidence at trial, she testified that she did not remember seeing those photographs previously.

  1. Of far greater concern, however, are instances where the complainant claimed to remember at trial taking photographs that she told the Crown prosecutor at the briefing conference she had not taken.  Improvement in the complainant’s memory five and a half years after the event, and eight months after the briefing conference, is inherently unlikely.  Table 2 below sets out those instances where the complainant’s recollection has materially altered from the briefing conference to the trial.

Table 2

Photo No. as shown in

(Exhibit A)

 Briefing Conference Trial
36 Possibly, my memory is a bit foggy on that one.  I didn’t know my friend [FL] was taking nude photos of her.  I only thought it was the ones in the bath. I remember taking it.
40 I didn’t take it.  Haven’t seen it. I remember taking it.
49 I haven’t seen it. I remember taking it.
38 I think I could have taken it, possibly the second or third time, I’ve seen her with her back arched before. I remember taking it.
41 I don’t think I took that. I remember taking it.
39 I think I took that.  There’s two different types of stockings. I remember taking it.
42 I possibly took that. I remember taking it.
45 I could have taken it. I remember taking it.
48 Possibly yes. I remember taking it.
50 I’ve seen it and have possibly taken it. I remember taking it.
55 I probably took it. I remember taking it.
61 I didn’t take it. I remember taking it.
62 I didn’t take it. I remember taking it.
65 I don’t think I took it. I could have possibly taken it, I’m not sure.
77 I really can’t remember that one because I can’t remember her eating a carrot. I remember taking it.
78 (Same as 77) I remember taking it.
79 (Same as 77) I remember taking it.
80 (Same as 77) I remember taking it.
81 (Same as 77) I remember taking it.
82 (Same as 77) I remember taking it.
89 I’ve see it, I’m pretty sure I took it as well. I remember taking it.
90 I’ve seen her in that position when I was in the bathroom, there’s a high likelihood I took it, probably yes. I remember taking it.
92 I’ve seen that, I’m not so sure I took it, possibly, maybe. I remember taking it.
93 I possibly took that.  I remember her doing that in the bathroom.  I can’t remember what day. I remember taking it.
94 (Same as 93) I remember taking it.
95 I don’t remember being in the bathtub, I would have to have been in the bathtub by the looks of it.  I don’t remember taking it, I think I’ve seen it, if I have taken it I’ve seen it there, otherwise I remember the pose.  She’d make sure the photos with the stockings on the bed looked okay. I remember taking it.
96 I don’t remember that one. Not sure if I have seen it.  I probably would have taken it though.
97 I don’t remember. (Same as for 96)

  1. As I understand it, the first time that the complainant was shown the photographs was at the briefing conference.  Between seeing the photographs on 19 December 2012 and giving evidence on 30 August 2013, it appears that she had convinced herself that she had taken a large number of the photographs which previously she denied taking or was unsure whether she had taken.  The inference is that it was viewing the photographs at the briefing conference that led to her professing a memory of taking the photographs at trial.  This is an important fact, because the evidence shows that the complainant sought out and viewed the photographs on the appellant’s computer in 2008, and also had access to and use of the appellant’s camera at that time.  It leads to a possible inference that, after viewing those photographs, the complainant has, over the years, convinced herself that she took them when she didn’t.

  1. The Crown case was that the sequencing of the photographs as revealed by the metadata supported the proposition that the complainant took some of these photographs.  As I have already noted, the evidence of Mr Ringrose was that the self-timer function on the Olympus FE-220 camera used to take the photographs had to be set manually for each photograph, and required a minimum 12 second delay between photographs.  The Crown relied upon the evidence of the metadata relating to a number of the photographs the complainant said that she had taken herself, which revealed that they were taken less than 12 seconds apart, to support the Crown case that the appellant had not, and indeed could not have, taken the photographs using the self-timer function.  Certainly, that evidence supports the proposition that a person other than the appellant may have taken those photographs and, to the extent that the complainant said she was that other person, the evidence is consistent with her account. 

  1. A number of observations may be made about the evidence of the sequencing of the photographs as revealed by the metadata.  First, it shows a photograph with a date and time stamp 9:09:42 pm on 15 February 2008 (photograph 23) was taken only 11 seconds after the prior photograph (photograph 21).  On the evidence adduced by the Crown, this photograph cannot have been taken using the self-timer function, leading to the conclusion that either the appellant took it herself, or another person took it. At the briefing conference, the complainant said that she had seen that photograph on the appellant’s computer “a day or so” before she took any photographs, so that, if the photograph was taken by someone other than the appellant, it could not have been the complainant.

  1. Similarly, a photograph with a date and time stamp of 7:14:27 pm on 20 February 2008 (photograph 46) is shown as having been taken 11 seconds after the previous photograph (photograph 43).  The photograph suggests that it could not have been taken by the appellant herself, as it depicts the appellant. The complainant denied having taken that photograph at the briefing conference.

  1. A photograph with a date and time stamp of 15 March 2008 at 5:01:04 pm (photograph 72) was taken 11 seconds after the previous photograph (photograph 71). The composition of the photograph again suggests that it could not have been taken by the appellant herself.  The complainant denied having taken the photograph at the briefing conference and gave evidence at trial that she could not remember having seen or taken it.

  1. Photographs 79, 80, 81 and 82, all with a date stamp of 18 March 2008, were each taken within 12 seconds of the previous photograph. At the briefing conference, the complainant said that she could not remember taking those photographs. She gave a cogent reason for not being able to remember those photographs, being that she could not recall the appellant eating a carrot, as is depicted in the photographs.

  1. I refer to these photographs, which the complainant says or has said in the past she did not take, because they support the proposition that someone other than the complainant was taking explicit photographs of the appellant at about the same time as the complainant said she was.  This is consistent with the statement made by the appellant to police during the execution of the search warrant that her then husband took a number of these explicit photographs.

  1. In addition, parts of the complainant’s evidence concerning these photographs become improbable when the sequencing of the photographs is considered.  The first photograph positively identified by the complainant at the briefing conference as taken by her is photograph 54, which has a date and time stamp of 20 February 2008 at 7:56:36 pm.  Thereafter follows a sequence of photographs numbered 56, 39, 42, 45, 48, 50, 51, 53 and 55 extending from 7:54:45 pm until 8:32:26 pm the same day.  At 8:35:20 pm and 8:35:32 pm respectively, photographs 59 and 60 were taken within approximately two minutes of photograph 55, but the complainant was positive she had not taken photographs 59 and 60.  It seems most unlikely that the complainant would have taken the photographs up to 8:32:26 pm, but the appellant (by the self-timer function) or some third party took photographs 59 and 60 at 8:35 pm.

  1. The same problem arises with photographs 77 to 82, all of which have a date stamp of 18 March 2008, if the complainant’s responses to those photographs at the briefing conference are taken to be her recollection at the time. It seems improbable that the appellant took photographs 73 to 76 between 6:53:51 pm and 6:55:22 pm, whilst a third party then took photographs 77 to 82 between 6:56:30 pm and 6:57:17 pm (noting that photographs 78 to 82 were taken in a time frame too short to have been taken by the self-timer function), before the appellant then took photograph 88 at 6:59:18 pm, in accordance with her responses given at the briefing conference.

  1. The Crown case did not, of course, depend upon it establishing that the complainant took any of the photographs in Exhibit A.  The essence of the Crown case was an allegation that the appellant posed in a sexually explicit manner in front of the complainant on three occasions.  The photographs were adduced by the Crown as evidence supporting or corroborating the complainant’s evidence that the appellant had engaged in this conduct.  It is indisputable, however, that the photographs assumed great significance at the trial, and that the complainant’s credibility concerning the allegation that the appellant had posed in an explicit manner in her presence was inextricably linked with her credibility concerning the taking of the photographs. In saying that she remembered taking a photograph, the complainant was saying that she remembered the appellant posing in her presence in the manner depicted in the photograph.

The Crown’s ‘corroborating’ evidence

  1. In its written submissions on appeal, the Crown referred to the evidence which it said corroborated the evidence of the complainant.  I will now consider that evidence.  First, the Crown asserted that the allegation by the complainant that she had taken a number of these photographs was not “challenged” by the appellant in cross-examination.  This is not accurate.  At the conclusion of the complainant’s cross-examination it was suggested to the complainant that she had seen “these pictures” (clearly a reference to the photographs in Exhibit A) on the appellant’s computer and that she was now saying that she took them.  The appellant’s case was very clearly that the complainant had only taken those photographs in Exhibit A which show the appellant in the bath and surrounded by flower petals.  Not only were these photographs not the basis of any charge against the appellant, the appellant told police during the execution of the search warrant that they had been taken in circumstances that ensured the appellant did not expose herself to the complainant.

  1. Secondly, the Crown submitted there were admissions made by the appellant during the execution of the search warrant that there were photographs taken by the complainant on the appellant’s computer.  This submission ignores the fact that the appellant only admitted that the photographs of her in the bath surrounded by flower petals were taken by the complainant, and those photographs do not form the basis of any charge.

  1. The third circumstance referred to by the Crown as supporting the complainant’s evidence was the “dissembling answers” by the appellant when asked by police whether the complainant had taken photographs of her other than the photographs of her in the bath surrounded by flower petals.  The question put to the appellant was not limited to sexually graphic photographs.  The evidence of FL was that the complainant told her she took numerous photographs of the appellant wearing clothes and just showing her face.  It would be hardly surprising if, after so many years, the appellant was not certain whether any non-graphic photographs taken by the complainant were to be found on her computer.  In any event, the appellant made it clear in conversations with the police that she rejected the proposition that the complainant had taken sexually explicit photographs of her.

  1. The next piece of evidence referred to by the Crown as supporting the complainant’s evidence was the evidence of FL seeing the complainant at the door to the appellant’s house holding a camera and/or a mobile phone with an image of the appellant “half-dressed” on it, and the appellant then coming to the door in a dressing gown.  The evidence of FL about this incident or incidents was left in an unsatisfactory state.  It was never made clear whether FL was describing one incident or a number of incidents.  If it was more than one incident, it was never made clear what happened during each incident.  It is by no means clear that the evidence of FL on this issue could be seen to support the evidence of the complainant on the central issue of whether the appellant posed in sexually explicit poses in front of the complainant on the occasions specified in the charges.  It is not clear that the evidence of FL is inconsistent with the version of events given to police by the appellant during the execution of the search warrant.

  1. The Crown also submitted that the location by police of the 105 photographs depicting the appellant in sexually explicit poses on her computer corroborated the complainant’s evidence.  It must be accepted that these photographs are capable of supporting the evidence of the complainant, but, in the circumstances of the present case, their presence on the appellant’s computer can be given little weight.  This was not a case where the complainant could not or did not know of the existence of these photographs on the appellant’s computer when she made her complaints to the police and others, with there being cogent evidence that the complainant had accessed the “adult” photographs on the appellant’s computer without her knowledge or permission in 2008. The fact that the complainant later described the appellant engaging in sexual posing similar (in some ways) to that revealed in the photographs located on the appellant’s computer is equally consistent with the complainant being aware of the sexual poses adopted by the appellant in these photographs by reason of having viewed them on the appellant’s computer in 2008, as opposed to having been present when the appellant adopted the poses.

  1. The Crown next points to “evidence that 17 of the photographs consistently identified by the complainant” as taken by her were all taken “on one of two days”, in circumstances where she did not have access to the metadata in making that identification.  This submission lacks substance when the pattern of the complainant’s responses to these photographs is analysed.  I have set out below in Table 3 the number of photographs positively and unequivocally identified by the complainant as having been taken by her by reference to the creation dates of the photographs as revealed by the metadata, at both the briefing conference and at trial.

Table 3

Date Briefing Conference Trial
9.1.08 0 0
13.1.08 0 0
14.1.08 0 0
15.1.08 0 0
17.2.08 0 0
18.2.08 0 1
20.2.08 3 11
14.3.08 0 2
15.3.08 0 0
18.3.08 4 15
26.3.08 0 0

  1. Table 3 reveals that, at the briefing conference, the complainant only positively identified seven photographs as having been taken by her, spread over two days within approximately one month.  At trial, she identified 29 photographs spread over four days within that same month as having been taken by her.  On those two days where the complainant identified the largest number of photographs as taken by her, both at the briefing conference and at trial, being 20 February and 18 March 2008, there is little consistency in the complainant’s responses.  Only one photograph taken on each of these two days has a consistent response at both the briefing conference and at trial.

  1. The Crown then submitted that the evidence that 13 of the photographs of the appellant posing explicitly could not have been taken using the self-timer on the Olympus FE-220 camera supported the complainant’s evidence.  As I have said above, this supports the proposition that those photographs were either taken by the appellant herself without using the self-timer function, or by someone other than the appellant.  The poses adopted by the appellant in a number of these photographs are such as to suggest that she could not have taken them herself without using the self-timer function, which suggests the involvement of another person.  This provides some support for the Crown case, but it must be seen against the background of evidence suggesting that someone other than the complainant took a number of the explicit photographs also located on the appellant’s computer.

  1. Another matter the Crown suggested corroborated the evidence of the complainant was the evidence of UQ that he received explicit photographs of the appellant.  In my opinion, this does not materially support the Crown case that the appellant posed sexually in the presence of the complainant.  There was never any dispute that the complainant adopted the poses shown in the photographs, or that photographs were taken and sent to UQ.  The receipt of these photographs by UQ says nothing about who took the photographs, when they were taken or who was present when they were taken.  It was a curious feature of the evidence of UQ that he was not shown the photographs in Exhibit A and asked whether those photographs, or any of them, were the photographs he received.

  1. Finally, the Crown submits that the evidence of the appellant’s complaints to FL, HF and BC corroborate her evidence.  In fact, FL did not give evidence of a complaint by the complainant consistent with the allegations the complainant later made to HF and BC.  The significance of the evidence of FL was that she refuted the proposition that she had taken naked photographs of the appellant, or that she was present when they were taken.  The complainant alleged that FL was not just a complaint witness, but a witness to conduct by the appellant of the type alleged in the charges.  It was a matter of considerable importance that FL utterly rejected those suggestions.  The complaints reported by HF and BC display a degree of consistency with the evidence given by the complainant, but it must be remembered that these complaints were made about four years after the alleged events, and in circumstances strongly suggesting that the complainant had viewed the explicit photography on the appellant’s computer or camera in 2008.

Conclusion

  1. I am satisfied that the verdicts were unsafe or unsatisfactory.  In coming to that conclusion, I have not disregarded or discounted the advantage enjoyed by the jury of having seen and heard the witnesses, but I am satisfied that the jury’s advantage in having seen and heard the witnesses cannot resolve the doubts I have about the guilt of the appellant.  Those doubts are based upon the content of the evidence itself.  As I have already observed, the trial was conducted in such a way that the credibility of the complainant concerning the alleged events that form the basis of the charges and her alleged involvement in taking the photographs found on the appellant’s computer were inextricably linked. The Crown relied heavily on the photographs as supporting the credibility of the complainant. This was not a case where one could simply excise the complainant’s evidence concerning the taking of the photographs and determine the appeal on the basis of the remaining evidence. The evidence of the complainant displayed discrepancies and inadequacies which lead me to conclude that there is a significant possibility that the appellant is innocent. Most disturbing, to my mind, was the tendency demonstrated by the complainant to convince herself, based on her exposure to the photographs at the briefing conference, of her involvement in events in which she had previously disavowed any involvement.

Proposed orders

  1. I would order that the verdicts of guilty with respect to the three counts should be set aside, and verdicts of not guilty substituted.

  1. The Crown appeal against sentence would be dismissed.

I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date:

Most Recent Citation
Cases Citing This Decision

4

R v UG [2018] ACTCA 64
R v Toumo'ua [2017] ACTCA 9
The Queen v Thomson (No 3) [2015] ACTSC 379
Cases Cited

12

Statutory Material Cited

3

Klobucar v The Queen [2014] ACTCA 6
M v the Queen [1994] HCA 63
R v Hillier [2007] HCA 13