WH v The Queen

[2011] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:	WH v R [2011] NSWDC 112
Decision date:	04 April 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.
Catchwords:	CRIMINAL LAW - conviction appeal - indecent assault of a person under 16 - no basis for rejecting appellant's testimony
Legislation Cited:	Crimes Act 1900 s 61M(2)
Category:	Principal judgment
Parties:	WH Regina
Representation:	Mr I.H. McClintock SC for WH Mr P.J. Stanley for the Director of Public Prosecutions
File Number(s):	2010/21041
Publication restriction:	Statutory non-publication of complainant's identity It is an offence to publish the name, or any information that identifies a complainant in certain sexual offence cases.

Judgment

1. A little girl and her family went on holiday to stay with her aunt and uncle and their family. The holiday was in Ulladulla. It coincided with New Year's Eve. A couple who were friends of the uncle and aunt were also staying there. When the little girl's parents and her uncle and aunt were out for about half an hour after midnight the little girl says that Mr WH - who with his wife and children were the friends of the uncle and aunt and were staying in the house - sexually assaulted her.

2. WH was charged by the police with indecent assault of a person under sixteen. That is a crime against s 61M(2) of the Crimes Act 1900 and carries a maximum of two years imprisonment.

3. WH denied that he had sexually assaulted the little girl and was tried on this charge before her Honour Magistrate Fleming last year. On 5 August 2010 her Honour gave a judgment finding WH guilty and convicting him of that crime.

4. WH has appealed to the District Court against that conviction. When a person appeals to the District Court in a case like this, the District Court judge hears the case afresh. He or she reads the evidence which was before the magistrate and the exhibits, and makes up his or her own mind after submissions from the prosecution and the defence as to whether or not they are satisfied beyond reasonable doubt of the guilt of the person who has appealed. Hence, the matter is like a fresh trial before me on the papers which were before the magistrate.

5. So the question for me is this: on that material am I satisfied beyond reasonable doubt that WH is guilty of indecently assaulting the little girl?

6. The little girl gave an interview to the police. It was recorded. That interview was played and a transcript of that interview was tendered before me and became exhibit B. Also, WH had been interviewed by the police. That was also recorded. There was also a transcript of that and it became exhibit C. It was agreed that I did not need to see either original recording.

7. Both the little girl and WH gave evidence. The little girl's evidence-in-chief was in the form of the recording and she was cross-examined. There were other witnesses for the prosecution such as her parents and uncle and aunt and the police. There were other witnesses called in the defence such as WH's wife and his daughter.

8. The little girl's evidence was quite explicit and detailed. She said that they had had an enjoyable New Year's Eve. They had been to see some local fireworks at Ulladulla. They had all come back to her uncle and aunt's place where they danced and listened to music. At midnight they all watched the fireworks over the Sydney Harbour Bridge on television.

9. Then her parents and uncle and aunt went down the road to visit some friends and have a drink for them. The little girl and her brother went to bed. They went to bed on some mattresses in the lounge room. The television was on and WH was sitting in the lounge room watching the television. His wife and daughter were elsewhere in the house.

10. The little girl said that while she was on the mattress WH came and sat down to make sure she was asleep and then he pulled the blanket off her and put his fingers in between her legs by putting his hands down her pants. She said that every time he heard a noise he went away. He did it twice all together. She said he got two fingers and he was trying to put them in between her legs and he kept moving them. She could only feel two fingers. She said he kept opening her pants to get his hands in. If he could not get his hands in he would move her legs more. Then he could get his hands into her pants and she said he was touching her private part on the outside. She understood that the private part was her vagina.

11. As soon as her parents returned WH stopped. When her parents returned her father described his daughter grabbing him by the shirt and saying that she had to tell him something. He said that WH was sitting in the lounge at that time. He was busy and said, " Not now ". He thanked WH for looking after the children. He walked through to the kitchen but his little girl was, as he said, " still hanging onto the back of my shirt as I walked through the kitchen to the back to the patio outside, through a sliding door, she was still holding onto my shirt ". After that progress through the house and out to the back the little girl had the opportunity to say to her father, "[ WH] has touched my private parts ". She went on to say that "[ WH] had put his hand on my leg and touched my private parts, with his fingers ".

12. The little girl was described by a number of people as being happy and carefree and enjoying the evening before her parents and uncle and aunt went down the road. Her father said that after they got home she appeared to be scared, concerned, worried, crying and reserved; she was no longer bubbly. The little girl complained to her mother, she complained to her aunt and there was a confrontation within the home between the little girl's father and WH. Sensibly, all agreed that the police should be called. The police came and the little girl repeated her complaint to the police.

13. A few days later she gave her formal interview to the police which was recorded. As soon as the little girl had complained to the police early on New Year's Day WH was arrested. His interview occurred not long after 4.30 that morning. He told the police that the little girl had stirred in her sleep and asked where her mother was. WH said that he did not quite hear her so he got up and went and asked her what she had said. He told her that her mother was still down the road and that she would be back shortly. She then laid down and went back to sleep. He went on to say to the police that the little girl's " blanket had fallen off. So at that point her legs, legs were up, knees were bent, so I just pulled her legs down and put the blanket over her and settled her back off to sleep, put her back off to sleep. Any contact I made with her while putting the blanket over her was in no way an attempt to sexually assault her ." He denied that there was any inappropriate contact between him and the little girl.

14. In evidence before the learned magistrate both the little girl and WH were, as I have said, cross-examined. Both maintained their respective accounts. The little girl persisted in saying that WH had interfered with her sexually, and WH persisted in saying that nothing untoward had happened. In my opinion neither was effectively shaken in cross-examination.

15. There were various exhibits tendered before the learned magistrate including a diagram of the house and a diagram by the little girl and information about DNA testing which showed nothing incriminating.

16. I return to the question which I have to decide which is whether or not I am satisfied beyond reasonable doubt on this evidence which I have just briefly summarised that WH is guilty of the crime that he has been charged with.

17. Mr I. H. McClintock SC appeared for WH before me and Mr P.J. Stanley appeared for the respondent Director of Public Prosecutions.

18. Mr McClintock emphasised that it was a word against word case and that I would not be satisfied beyond reasonable doubt of his client's guilt. He took me to one question and answer in the little girl's interview with the police which appeared at question 237 where she was asked " Why were you upset?". Her answer was, " Because nobody should touch from your head to your toes." Mr McClintock argued that that answer pointed to an understanding by the little girl from her appropriate early teaching about being interfered with that she should not be interfered with at all from her head to her toes. Based upon that, Mr McClintock developed an argument that when WH was adjusting the blanket and pushed her knees down, the little girl interpreted that as inappropriate touching. She became upset and then the complaint developed over it being recounted to various people in the house, and then to the police. What was in her mind an inappropriate touching became quite an explicit account of a sexual assault. She was, Mr McClintock pointed out, being constantly interrogated by her parents and relatives and the police. Mr McClintock also pointed out that there was no corroboration.

19. Mr McClintock took me through the various accounts which the little girl had given one after the other to various people on that morning and then in her formal interview. He highlighted what he said were inconsistencies and variations between those accounts, and argued that they illustrated that there was a problem with the little girl's veracity and reliability. He took me to his client's evidence and argued that his client was in no way damaged in a way that I might be able to reject his evidence. His client's account was consistent on the night up to and including the evidence before the learned magistrate.

20. Mr McClintock reminded me that if there was a reasonable possibility that his client's account must be true, then I must acquit his client. Such a direction, of course, I give to myself as I give to juries and is correct in law.

21. The question arises in an appeal such as this as to whether in making determinations about the credibility of the witnesses the magistrate may have enjoyed an advantage which I do not have of seeing the witnesses in person. It appears that the only passage in which her Honour makes some observation about WH's evidence is at p 119 of the judgment where her Honour said as follows-

"It was put to me that the defendant was forthright in his evidence, an impressive witness, made an immediate denial, repeated that denial to police, repeated that denial in any electronic interview and repeated that denial in court today. It is true that he repeated that denial but in my view his evidence did lack clarity and was not consistent with other evidence on particularly important points and I will return to that."

22. Her Honour's observations about the evidence lacking clarity and consistency with other evidence do not appear to me to be observations which depend upon the demeanour of the then defendant before her. I think that Mr McClintock is right to observe that there is nothing that I can find in her Honour's judgment which would assist me to conclude, based upon the advantage which her Honour had, that I should reject his client's evidence.

23. Mr McClintock went on to argue that the behaviour of the little girl immediately after her parents came home and the obvious change in her disposition would or could be entirely referrable to her perception of being touched inappropriately, even though such a touch was innocent and far from being against the law; for example, the adjustment of the blanket and the pushing down of her legs. He repeated that the little girl's evidence was inconsistent in detail, and that the complaint must be seen in the context of her being sensitive to being touched upon any part of her body, and that she was alone with a stranger, although she had met WH when she was a baby, and missing her parents. There was room, Mr McClintock argued, for a possible misinterpretation of what WH was trying to do.

24. Mr McClintock made it clear, correctly of course, that he is not obliged to make out a positive case, but his arguments about what probably happened would assist me in reaching my conclusions.

25. Mr Stanley relied upon the little girl's change in attitude and disposition. He reminded me of the evidence that she was upset and crying. He also pointed out that her evidence was clear and that she gave a very detailed account of the sexual assault involving the alleged offender's hands and fingers, and the way that he touched her. He argued that if she was sensitised to being touched anywhere then, he asked rhetorically, why would she not complain about having her legs pushed down.

26. Mr Stanley reminded me that there were immediate complaints to the girl's parents and aunt and to the police. So far as the argued discrepancies in the accounts given by her in these complaints, he argued that there were minor discrepancies but her account was overall consistent. The overall consistency focused on the allegation that she had been inappropriately touched on the outside of her vagina by WH putting his hand down her pants.

27. Mr Stanley argued that the cross-examination of WH about whether or not his wife was present, or visited the room where he was sitting watching television, and an inconsistency between his evidence in court and what he told the police, affected his credibility. He argued that WH was trying to belatedly say his wife came into the room so that he could limit the opportunity that might otherwise have been available for committing the offence. Mr Stanley pointed out that the little girl's evidence as contained in the account to the police was clear and concise and detailed.

28. When I asked Mr Stanley what grounds I had to reject WH's account, he pointed to the argued inconsistency on the question of his wife being in the room, the demeanour of the little girl and the early complaint.

29. In my opinion much of what Mr Stanley has to say has substance and I agree with him. I am particularly taken by the change in demeanour of the little girl. Especially striking is the account of her grabbing her father's shirt and not letting go until they got outside and she was able to tell him what had happened. Her complaints in my opinion are consistent; they are consistent in the fundamental assertion that she was interfered with sexually. There is in my opinion a clear difference between having her legs pushed down and having a man put his hands between her legs in order to put his hand on her vagina. I should add, which I have not yet, that the little girl was aged about eight at the time. The complaints were immediate and, as I said, in my opinion consistent. The detail was explicit.

30. However, weighed against this is of course WH's account. WH's account was also not shaken. He told the police both at the house and at the police station in the interview, and he told the learned magistrate that he had not done it. I do not accept that any inconsistency between what he said about his wife being in the room between his interview and in court has any impact on his credibility. When I read his evidence it appeared to me to be consistent. I did not see it, as the learned magistrate did, as lacking clarity. There were of course inconsistencies between his account and the little girl's, but there were not in my opinion any significant inconsistencies with other evidence which might impact on his credibility.

31. I return to Mr McClintock's opening argument. This is a word against word account. The little girl gave evidence of sexual assault upon her in explicit detail both to the police and in court. WH gave an account to the police and sworn evidence in court that nothing inappropriate had happened. I can see or have been taken to nothing which would enable me to reject WH's account. Even if there was only a reasonable possibility that WH's account was true, then I would be obliged to acquit him.

32. I am therefore not satisfied beyond reasonable doubt that the charge has been proved.

33. Accordingly, under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.

**********

Decision last updated: 29 August 2011