White v The Queen

[2019] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	White v R [2019] NSWCCA 168
Hearing dates:	12 July 2019
Decision date:	02 August 2019
Before:	Leeming JA at [1]; R A Hulme J at [2]; Davies J at [145]
Decision:	1. Leave to appeal against conviction granted. 2. Appeal against conviction dismissed.
Catchwords:	CRIME – appeals – appeal against conviction – jury verdict of guilty for offence of sexual intercourse with a child, and acquittal for three similar counts – whether conviction is unreasonable – whether it was not open to jury to be satisfied beyond reasonable doubt of guilt of applicant – review of evidence at trial – complainant aged 5-6 at time of alleged offending and aged 7 at trial – inconsistencies between contemporaneous police interview and cross-examination of complainant – young age and nature of child’s memory relevant to jury’s assessment of evidence – well open on evidence for jury to be satisfied beyond reasonable doubt of guilt – whether jury should have had a doubt about guilt because of acquittal on other counts – logical reasons for jury to have had reasonable doubt about other counts – appeal dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 66A(1), 61M(2) Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Procedure Act 1986 (NSW), ss 150, 306S Evidence Act 1995 (NSW), s 13
Cases Cited:	AZ v R [2018] NSWCCA 294 Crickitt v R [2018] NSWCCA 240 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Roos v R [2019] NSWCCA 67 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category:	Principal judgment
Parties:	White (Applicant) Regina (Respondent)
Representation:	Counsel: Ms K Stares (Applicant) Mr F Veltro (Crown)   Solicitors: Johnston Legal (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2017/63360
Decision under appeal	Court or tribunal: District Court Date of Decision: 23 August 2018 Before: O’Brien DCJ File Number(s): 2017/63360

HEADNOTE

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

Following a jury trial, Mr White (a pseudonym for the applicant) was convicted of an offence of sexual intercourse with a child under the age of 10 years (Count 1), but was acquitted of three similar counts (Counts 2 to 4). The mothers of the complainant and applicant were old friends, and the applicant was a regular visitor at the complainant’s house. Count 1 was an allegation that the applicant (a juvenile at the time) had touched the complainant (aged between 5 and 6 years) underneath her underpants and digitally penetrated her vagina. Counts 2 to 4 involved similar conduct. The alleged offences occurred in the complainant’s bedroom (Count 1), her mother’s bedroom (Count 2), and the lounge room (Counts 3 and 4).

A few weeks after the period in which the alleged offending occurred, the complainant told her mother that the applicant had been touching her "fanny". The complaint was reported to police, the complainant was interviewed nine days later, and the applicant was charged soon after. The trial took place 15 months after the complaint was reported, when the complainant was aged seven.

The applicant applied for leave to appeal against his conviction. The ground of appeal was in the following terms:

“The verdict of guilty on count 1 was unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 2, 3 and 4.”

The Court held, granting leave to appeal but dismissing the appeal:

Whether the verdict of guilty on Count 1 was unreasonable and cannot be supported having regard to the evidence

The principles in relation to unreasonable verdicts are well-known. [1] (Leeming JA); [101] (R A Hulme J); [145] (Davies J).

Crickitt v R [2018] NSWCCA 240 at [12], per Bathurst CJ, R A Hulme and Davies JJ, referred to.

The advantages of a jury in a criminal trial in seeing and hearing witnesses compared with an appeal court which reviews the evidence solely on the basis of words on the printed pages of the transcript must be acknowledged. [1] (Leeming JA); [102] (R A Hulme J); [145] (Davies J).

Where the principal witness is a child, the jury is to be taken to have acknowledged certain practical matters, which an appeal court must also bear in mind. [1] (Leeming JA); [105]-[106] (R A Hulme J); [145] (Davies J).

AZ v R [2018] NSWCCA 294 at [161] and [167]-[168], per Walton and Wilson JJ, referred to.

Although the correctness of the trial judge’s jury directions does not provide an answer to the questions posed by the ground of appeal, it does dispel the possibility that an unreasonable verdict was reached as a result of the jury misapprehending their task. [1] (Leeming JA); [119] (R A Hulme J); [145] (Davies J).

The child’s age, the manner of cross-examination, the nature of a child’s memory, the passage of time, and the consistencies and inconsistencies between the child’s evidence given to police and later at trial were matters relevant to the jury’s assessment of the complainant’s evidence. [1] (Leeming JA); [120]-[126] (R A Hulme J); [145] (Davies J).

Whether the verdict of guilty on Count 1 was unreasonable on the basis of inconsistent verdicts of not guilty on counts 2, 3, and 4

Where the basis of the asserted unreasonable verdict ground is inconsistency with other verdicts, the principles were usefully summarised in Roos v R [2019] NSWCCA 67. [1] (Leeming JA); [104] (R A Hulme J); [145] (Davies J).

Roos v R [2019] NSWCCA 67 at [42]-[45], per Gleeson JA, referred to.

The evidence in the trial provided a "rational explanation for the acquittals other than doubt about the complainant's credibility", such as the evidence that the applicant may not have had the opportunity to committed Counts 2 to 4 on the particular occasions identified in the evidence. [1] (Leeming JA); [130]-[137], [140]-[141] (R A Hulme J); [145] (Davies J).

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J), applied.

The verdicts are a reflection of the jury taking a cautious approach to the discharge of a heavy responsibility, rather than a want of confidence in the evidence of the complainant. [1] (Leeming JA); [141] (R A Hulme J); [145] (Davies J).

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ), applied.

On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence in Count 1. [1] (Leeming JA); [142] (R A Hulme J); [145] (Davies J).

M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ), applied.

Judgment

1. LEEMING JA: I agree with R A Hulme J.

2. R A HULME J: The applicant seeks leave to appeal against his conviction for an offence of having sexual intercourse with a child under the age of 10.

3. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the identification of the child. That prohibition extends to the applicant; he is presently aged 18 but was a juvenile at the time of the offence. Hence, he is referred to by the pseudonym "White" in the title for this judgment.

4. The applicant was sentenced to imprisonment for 20 months, with execution of the sentence being suspended upon him entering into a bond to be of good behaviour. No appeal is sought in relation to the sentence.

5. The indictment contained four counts. Counts 1 and 2 alleged offences of sexual intercourse with a child under the age of 10 years, an offence which is contrary to s 66A(1) of the Crimes Act 1900 (NSW). Count 3 alleged an attempt to commit such an offence and Count 4, which was in the alternative to Count 3, alleged an offence of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act. The applicant pleaded not guilty to each count.

6. The jury returned verdicts of guilty to Count 1 and not guilty to Counts 2 to 4.

7. Leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is sought on the following ground:

“The verdict of guilty on count 1 was unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 2, 3 and 4.”

Overview of the Crown case

8. At the time of the offending, the complainant lived with her parents and her 14-year-old half-brother. The offences were alleged to have occurred at their home on three separate occasions between 1 December 2016 and 1 February 2017 when the complainant was aged 5 or 6. (Her birthday was in mid-December.)

9. The applicant was aged 15 at the relevant time. His parents were separated and he lived at various times with each of them. His mother and the complainant's mother had been close friends since they were at school. He, his mother, and his younger brother were often visitors to the complainant's home.

10. Both the complainant's family and the applicant's family, including both his mother and father, lived in a regional area not far from Sydney.

11. The offence in Count 1 for which the applicant was found guilty was alleged to have occurred in the complainant's bedroom. It was alleged that the applicant touched her underneath her underpants and digitally penetrated her vagina.

12. Counts 2 and 3-4 involved allegations of similar conduct having occurred in the complainant's parents' bedroom and in the lounge room respectively.

13. The allegations came to light on 13 February 2017 when the complainant told her mother that the applicant had been touching her "fanny". Police were informed that evening. The complainant was interviewed on 22 February 2017. The applicant was charged on 28 February 2017.

The trial

14. The trial commenced on 21 May 2018. The complainant's evidence, including a replaying of the 35 minute recording of the interview on 22 February 2017 as her evidence-in-chief, occupied all of the second day of the trial. The Crown subsequently called her mother, her mother's sister, a youth support worker at a school the applicant attended, and the police officer in charge of the case. The defence case comprised evidence of the applicant and his father. Addresses by counsel occupied the balance of the fourth day and the judge summed up to the jury on the morning of the fifth day. The jury returned its verdicts on the afternoon of the sixth day.

The evidence

15. It is necessary to review the evidence in some detail. That is because the applicant needs to persuade the Court that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant in respect of the offence in Count 1 or that the jury should have had a doubt about his guilt because of the jury's failure to be satisfied beyond reasonable doubt of his guilt in respect of the offences in Counts 2 to 4. The credibility and reliability of the complainant's evidence is an important aspect to consider. So too is whether there is any logical explanation for the acquittals aside from the jury doubting her credibility and/or reliability.

16. The applicant was referred to throughout the evidence of the various witnesses by his first name. When it is necessary to quote from the evidence a pseudonym first name "Tom" is used.

The complainant's evidence

17. Prior to the commencement of the complainant's evidence, the trial judge addressed the issue of whether she was competent to give sworn or unsworn evidence pursuant to s 13 of the Evidence Act 1995 (NSW). She was aged 7 at the time of the trial and his Honour had the assistance of a report prepared by an accredited Witness Intermediary. He determined that she could give unsworn evidence. The Witness Intermediary's report included advice that the complainant should be permitted to take breaks at least every 20 minutes to enable her to focus her attention and concentrate on the evidence. The judge adopted this approach and told the jury in his opening remarks that he would be doing so because of the complainant's age. [1]

    1. Tcpt, 23 May 2018, p 45(40).

18. Defence counsel also adopted a recommendation of the Witness Intermediary of aiding the complainant's focus by techniques such as using visual aids and asking her to colour-in diagrams showing relevant objects.

19. It is of significance that the jury had for comparison the recording of the complainant's account made on 22 February 2017 along with the evidence given in the course of cross-examination some 15 months later.

Count 1 – complainant's bedroom

20. As to the offence in Count 1, the complainant said in her recorded interview that the applicant took her from the lounge room to her bedroom where he touched her with his fingers. She was wearing certain clothes (Minnie Mouse top, silver pants and underpants). She said he touched her under the underpants. She thought she said, "Stop it". At the interviewing officer's request, she demonstrated what the applicant was doing with his fingers. [2] She was asked, "Did it go inside or was it just on the outside" and she replied, "It was inside". She said, "I didn't want that to happen"; "it feels weird"; and "I don't like it". She said the applicant told her to keep it a secret. She said, however, that she "told it to my mummy … after the six nights". [3]

    2. The Crown Prosecutor described this in his closing address (Tcpt, 25 May 2018, p 293(15)): "she moved her finger, bent at the knuckle, and she was doing the backward and forward movement".

    3. MFI D, Q251-295.

21. The complainant said that the incident in her bedroom occurred in the morning, at about 8 o'clock. [4]

    4. MFI D, Q329.

22. She said that it occurred "on my bed"; when she had her "normal bed"; before she got a bunk bed. (There was evidence in the trial that her bed was replaced with a bunk bed on 5 February 2017.) [5]

Count 2 – parents' bedroom

5. MFI D, Q 236-249.

23. As to the offence in Count 2, the complainant said that it occurred in her parents' room. She was there with her father watching a movie, "Aladdin". Her father left the room and while he was absent the applicant came in. It was at night time. The applicant "touched me on the fanny and I really didn't want, I really didn't like it". She said, "he just did that inside it and it was so yuck". The applicant walked out and her father returned to the room. [6]

Counts 3 and 4 – lounge room

6. MFI D, Q 304-321.

24. The incident upon which Counts 3 and 4 were based occurred in the lounge room. It was an occasion when the applicant and his mother had a "sleep over". She was alone with the applicant in the lounge room when "he just touched me". She said he touched her "floss" (a reference to her vagina), but she could not remember what he did when he touched her. Again, he said to "keep a secret". [7]

General matters

7. MFI D, Q334-359.

25. Towards the end of the interview, the complainant was asked "how long ago it all was" and she replied, "It was 6 years ago". She said that she "told it to Mummy"; that the applicant "touched me in the private parts". [8]

    8. MFI D, Q368; 372-3.

Cross-examination of the complainant – Count 1

26. In relation to Count 1, she said in her interview that the touching occurred on the bed in her bedroom. The applicant had led her to her bedroom. In cross-examination, she was asked whereabouts in her bedroom she was touched. She replied that she was playing with her toys and the applicant came in and he touched her on the private part. With reference to a photograph of her bedroom, she said, "you see that dollhouse … I was playing with that". She said, "I was standing up 'cause I was trying to decorate the dollhouse". She said, "He just told me, 'Come', and then he just, he just led me into the bathroom … and then he just touched me". [9]

    9. Tcpt, 22 May 2019, p 86.

27. Counsel for the applicant asked, "He didn't touch you in the bedroom, he touched you in the bathroom?" She replied:

"Wait, sorry, I didn't mean to say that. I meant – there, there used to be a corner and used to be a door. I think it used to be my – I can't remember." [10]

10. Tcpt, 22 May 2019, p 86(42)-(43).

28. Counsel then suggested stopping at that point for a break. Upon resumption, counsel reminded her, "I was just asking you about your bedroom just before we had a break … I'm going to ask you some more questions about that. The complainant replied, "I can't focus before because I was a little bit hungry". [11]

    11. Tcpt, 22 May 2019, p 89(30).

29. The cross-examination about the touching in her bedroom continued:

“Q. You told me before that you were playing with your doll's house?

A. Yeah and I, I can't remember. It's been so long ago.

Q. You can't remember playing with your doll's house?

A. I remember playing with my dollhouse and then [Tom] came in there, that's all I can remember.

Q. Sorry, I didn't catch that. Can you say that again?

A. I only remember playing with my dollhouse and then [Tom], [Tom] came in, [Tom].

…

Q. You said to me before that, "[Tom] said come and he led me to the bathroom"?

A. I think that happened. I don't remember. I think. I think it happened. I was too - I was like, I was like five when that happened. I think it was five or six.

Q. You said that he led you, "to the bathroom and there used to be a door there?"

A. I, I think that used to be a door right back there like a little room where I put all my clothes and that he just touched me there, touched me in the private parts.

Q. Did he touch you in the room where you put your clothes or did he touch you in the bathroom or somewhere else?

A. I think he touched me, he touched me in the - I can't remember. I don't remember. I've been - I think there used to be a room there. I think, I think it was on the bed. I think it was on the bed. It was on the bed. I just can't remember.

…

Q. When you told me that, "[Tom] said, 'Come', and led me to the bathroom", did that actually happen?

A. I can't remember. It been like when I was five and then when mum, that when mum like when mum like find that cop I mean like talk, went to that, to the cop I was seven I mean, I mean six. This is making me very uncomfortable.” [12]

(From what she said after this, it seems that the chair she was sitting on was the source of her discomfort.)

12. Tcpt, 22 May 2019, pp 89(35)-91(25).

30. Counsel for the applicant later returned to the subject of where in her bedroom the touching occurred, and whether it was the bathroom or the bedroom:

“Q. When something happened in your room you said that you were standing at the doll’s house playing?

A. Yes.

Q. Did it happen - I’m just trying to make sure I’m clear, did it happen in your bedroom or did it happen somewhere else in the house?

A. It was in my bedroom.

Q. You said before to me that [Tom] said, “Come”, and he led you to the bathroom?

A. I have made a mistake there, I couldn’t remember. I made a mistake there, I meant - I meant like - I meant like he led me to the corner of my room. That meant - he said my bathroom.

Q. He led you to the corner of your room, okay?

A. Yes. [13]

13. Tcpt, 22 May 2019, pp 123 (36)-124(1).

…

Q. Can I ask you this, were you standing up or sitting down when you were touched?

A. Standing up. [14]

…

Q. When you were speaking to the policeman on that video when you were a TV star a little bit earlier today--

A. Yeah.

Q. --yes, you were telling him about what happened in your bedroom?

A. Yeah.

Q. You told him that you were on the bed, not on the floor, do you remember telling the policeman that you were on the bed and not on the floor?

A. No.” [15]

14. Tcpt, 22 May 2019, p 126(25)-(27).

15. Tcpt, 22 May 2019, p 127(39)-(48).

31. As to the clothing the complainant was wearing at the time of the incident in her bedroom, she said in her interview that she was wearing a Minnie Mouse top, silver pants and underpants. During the cross-examination she was given a piece of paper with various clothing items hand drawn upon it. She was invited to colour in items as she answered questions. During this process she said that she had been wearing "undies", "a singlet" and, "I think I was wearing a dress". [16]

    16. Tcpt, 22 May 2019, p 123.

31. She was shown a floor plan of the house. [17] She was asked questions about the location of her bedroom. It was shown on the floor plan as being between "Mummy's Room" and the "Bathroom". It appears from the transcript that she was conveying that this was correct for the location of her bedroom at the current time but at the time of the events in question her bedroom was where the bathroom now is and vice versa. She coloured in the words "My Room" with red pencil. She said, "You see the red mark, what marks … That is the room I have now". Counsel continued:

    17. Ex J.

“Q. The red mark that you've drawn and crossed out the letters, is that where your bedroom is now?

A. Yep.

Q. Back then - back when you were touched in your bedroom, where was your bedroom then? The same spot, or somewhere else?

A. Somewhere else.

Q. Can you--

A. Next to the bathroom, right here. Do you see right here, the mark - next.

Q. It's where it says, "Bathroom", on this map?

A. Mm-hmm.

STARES: That's as clear as mud, I'm sorry, your Honour.

Q. Let's just leave that to the side for one minute.

A. Okay.” [18]

18. Tcpt, 22 May 2019, p 141(1)-(19).

33. The complainant's mother gave evidence that the floor plan was correct and that there had been no swapping around of a bedroom and bathroom. [19]

    19. Tcpt, 23 May 2019, p 199(20).

Cross-examination of the complainant – Count 2

34. Counsel drew the complainant's attention to the fact that she wished to ask about the incident that occurred in "mummy's room" (the parents' bedroom). The complainant was asked to put the photograph of that room in front of her and she did. Counsel proceeded:

“Q. When it happened in mummy's room, whereabouts in mummy's room were you when it happened?

A. In bed. And he told me to stand up. I stand up..(not transcribable)..and then he touched me. That, all I can remember and watching Aladdin, Aladdin.” [20]

20. Tcpt, 22 May 2019, p 95(33)-(36).

35. The complainant was then provided with two sheets of paper; one with a diagram representing the sun with the caption, "Day", and the other with a diagram representing the moon and some stars with the caption, "Night". [21] The complainant was asked whether it was day time or night time when the incident in "mummy's room" occurred and she said:

"It was dark. I think it was like 8 o'clock. I can't remember what time is it. Is that, is that – I can't remember." [22]

21. Ex D.

22. Tcpt, 22 May 2019, p 97(11)-(12).

36. She was asked "who was at home when you were watching Aladdin on that night?" Her evidence (over several answers) was that there were her parents, the applicant, the applicant's brother, and her brother. There was also a person she described as an aunt but her description suggests that this was a reference to the applicant's mother. [23]

    23. At tcpt, 22 May 2019, p 98(1)-(5), she said the "aunt" was "my mum's BFF". In her police interview (at MFI D, Q203-205), she described the applicant's mother as an aunt, saying she was not her mother's real sister but rather her "BFF" or "Best Friends Forever".

37. The complainant said that the adults were out in the back garden; her parents were having a smoke. [24]

    24. Tcpt, 22 May 2019, p 101(43)-(44).

38. The complainant was shown another sheet of paper with clothing items drawn on it. With reference to it she was asked what she was wearing on the occasion in "mummy's room". She was wearing "undies", a singlet, "pyjama shorts" and "pyjama T-shirt". [25]

    25. Tcpt, 22 May 2019, pp 102-103.

39. She gave the following evidence about the incident itself:

“Q. Was [Tom] standing up or sitting down or something else?

A. He was, he - well he stand up and told me to come to him. I came to him and he just touched me. And when he heard dad coming, he ran away.

Q. Your dad came in and he ran away?

A. Yeah, he ran away when, when he heard someone coming to, to the bedroom, he ran away like he didn't touch me.

Q. He didn't touch you or he did touch you?

A. He did touch me, me.

Q. Just so that I've got this right, you stood up?

A. Yeah, he told me to stood (as said) up.

Q. And come to him?

A. Yep, I came to him.

Q. Did you get off the bed to come to him--

A. Yeah.

Q. --or did you stay in the bed?

A. I think I came. I, yeah, I came to him.

Q. Did you stay on the bed or did you move off the bed?

A. I moved off the bed.

Q. Whereabouts was [Tom]?

A. He was in the corner of the room.” [26]

26. Tcpt, 22 May 2019, pp 105(33)-106(11).

40. There following an extended exchange in which counsel tried to have the complainant explain where in the photograph of "mummy's room" the applicant was positioned, during which she said various things like, "It's not on the picture but there is … like a little corner back there … little bit further than the bed" and "you can't really see it but it's there", she eventually made a marking on the photograph which became Exhibit F. The colour copy of that exhibit provided to this Court indicates that the complainant marked immediately to the side of an edge of the bed. [27]

    27. Tcpt, 22 May 2019, pp 106(15)-108(40).

41. After describing how the applicant touched her, she was asked what happened next. She said "then he heard footsteps, so he ran". She said she got the blame from her father who thought she had climbed out of bed and tried to go and eat a snack, "but I wasn't". [28]

    28. Tcpt, 22 May 2019, p 110(10)-(16).

Cross-examination of the complainant – Counts 3 and 4

42. The cross-examination about the incident constituting Counts 3 and 4 commenced at about 3.00pm. That is known because the transcript records the judge saying he could hear a school bell, "it must be 3 o'clock" and the complainant saying that her friends would be going home now. [29]

    29. Tcpt, 22 May 2019, p 129(21)-(25).

43. The complainant said she could not remember who was home. She could not remember if she had had her dinner. With the use of another sheet of paper with clothing items drawn upon it, she said she was wearing undies, a singlet and a nightie (Exhibit I). [30]

    30. Tcpt, 22 May 2019, p 130(12)-(47).

44. The complainant recalled that she was watching a movie. She added, I think I was watching a cartoon show like … (not transcribable) … or something". [31]

    31. Tcpt, 22 May 2019, p 131(40)-(41).

45. Her mother was in the kitchen but when the applicant came in her mother had to go to the bathroom. She was asked for detail about that and gave the following evidence:

“Q. She went to the bathroom and she came back to the kitchen, did she?

A. And then when she when he heard mum was coming he took - and we had a door, like a door in the lounge room. He'd go the lower stairs up to, like the place there's a blue seat. Everyone can see that door but when you go through it, I can't say it properly.

Q. That's all right. I'm just going to go back to my question for a minute. Did your mum go to the bathroom and then come back to the kitchen?

A. No, she had - when she had to do it, she went to the bedroom to put some clothes - she remembered her, her wedding ring was on there, so she had to go and get that.

Q. Your mum had to go and get her wedding ring from the bedroom?

A. Yeah.

Q. How do you know she was going to get her wedding ring from the bedroom?

A. Because, because I heard her footsteps going to - so I just - because, because I saw her going to - I saw her going to the lounge room but she didn't notice me there. Okay, I can't remember. I don't remember one bit. I knew - I know she was going to her bedroom, okay?

Q. You could hear her--

A. I, I, I heard her going up, because we have like - so something, could be up a hallway and they make different noises, like the floor is different noises than our hallway for some reason.

Q. You heard your mum going up the hallway, did you?

A. Yep.” [32]

32. Tcpt, 22 May 2019, p 133(1)-(29).

Cross-examination of the complainant - generally

46. The complainant could not recall where in the house she had told her mother what the applicant had been doing: "I think it was in the kitchen or in, in mum's room, I can't, can't remember. It [sic] been too long ago." [33]

    33. Tcpt, 22 May 2019, p 93(1)-(2).

47. As to the timing of the complaint in relation to the incident in Count 2, she was asked a rather awkward question and gave the following response:

“Q. After this happened with [Tom] in your mum's bedroom and before you told your mum in the kitchen was there some days and nights in between?

A. I think there was one night and two days.” [34]

34. Tcpt, 22 May 2019, p 114(37)-(39).

48. The complainant gave a reason for telling her mother:

“Q. You're going to think this is a bit of a weird question, but just try and listen to me for a minute, okay? When you told your mum about [Tom] touching you was there any reason why you did that?

A. Because, because later on it started to hurt.

Q. Had you gone to the toilet and it started to hurt or something else?

A. Yeah, yeah that.

Q. Remember right at the start when I started asking you some questions I was saying to you does sometimes your private get itchy and things like that?

A. I, I - yeah I remember that. I've just forgotten--

Q. No, that's okay.

A. --to tell you.

Q. When you were talking to your mum in the kitchen, were you telling her about being touched by [Tom] because your privates had been itchy?

A. Yeah.” [35]

35. Tcpt, 22 May 2019, p 117(3)-(20).

49. The complainant was asked about the number of times she was touched by the applicant in each location in the house. She said, "I think it might be one time or two times" in her parents' bedroom. She was reminded that in the police interview she had said one time in that room and she replied, "yeah, one time". She was asked about how many times she was touched in her own bedroom and she replied, "One time. They had one time each, I think". She was then asked if it was one time in the lounge room and she said, "Actually I think it was two times in the lounge room and one of – sorry, one time in the lounge room, mummy's room, one, one time and my, my bedroom one time." [36]

    36. Tcpt, 22 May 2019, pp 93-94.

50. The evidence continued:

“Q. Mummy's room, one time, is that right?

A. Yeah.

Q. Your bedroom, one time?

A. Yeah.

Q. You started to tell us about that just before?

A. The lounge room took like, took like three times.

Q. The lounge room was like three times?

A. Yeah. Very early in the morning.

Q. We're going to go through each of them in just a minute. But when you were talking to the policeman, you said it happened one time in the lounge room?

A. Can we - I don't remember that. Yeah, one time. I can't remember. Been so long - time ago.

Q. Are you just not sure?

A. I'm not sure. I can't remember. It's been so long ago. It's not - and I can't remember thinking - I can't remember him saying that. I watched the video. It just - I'm a little bit, I'm a little bit, I'm a little bit addicted or something. That's stuck in my brain.

Q. Let's try this, which one happened first? Was it mummy's room--

A. Mum's room.

Q. --the lounge room or your bedroom?

A. My mum's room.

Q. In your mum's room?

A. I think.

Q. Does that mean you're not sure?

A. I'm not sure.

Q. What about the second time? Which room was that in?

A. My bedroom.

Q. In your bedroom? Are you sure about that or not sure?

A. Let me think about that. Let me think. Definitely this room.

Q. In your bedroom?

A. Yep.

Q. The last time, which room was that in?

A. The lounge room.

Q. There were three times all up, is that right?

A. Pardon me?

Q. Was there three times that you were touched on the private?

A. Yep, each one, yep.

Q. One in each room?

A. Yep.

Q. The first time was in mummy's room, the second time in your room and the third time in the lounge room?

A. Okay.

Q. Is that right or is that wrong or you're not sure?

A. It's right.” [37]

37. Tcpt, 22 May 2019, pp 94 (12)-95(24).

51. The complainant agreed that the applicant did not always visit when his mother and brother visited. She said "every Monday night he doesn't come" but when asked if she was sure of that, she said, "I'm sure about that, I think. I can't – I think I'm sure". [38]

    38. Tcpt, 22 May 2019, p 142.

52. The Crown emphasised in closing address (and in this Court) the evidence that immediately followed:

“Q. Did you like [Tom] when he came to visit you?

A. Yeah, but the thing I don't like when he comes to visit me when he touches my private parts.

Q. Did he touch your private part every time he came to visit, or only sometimes?

A. Only sometimes when no one's looking.” [39]

39. Tcpt, 22 May 2019, p 142(44)-(50).

The complainant's mother's evidence

53. The complainant's mother gave evidence that she lived with her husband, her son (aged 16 at the time of the trial), and the complainant (aged 7 at the time of the trial). The complainant and her son each had their own bedroom. [40]

    40. Tcpt, 23 May 2019, pp 151; 155(16)-(2).

54. She said she had known the applicant's mother since high school and they had remained good friends. The applicant's mother and her two sons would visit and the boys would stay overnight. The applicant would only stay the one night but his brother would sometimes stay for several nights. She said that in the period leading up to December 2016, there was a period of two or three months when the applicant did not come to the house at all. Asked when that was, she said it would have been at the end of 2015 to the start of 2016. When they stayed overnight, the applicant and his brother would sleep in her son's bedroom. Their mother slept in the lounge room when she stayed over. [41]

    41. Tcpt, 23 May 2019, pp 152-154; 166-167.

55. On the evening of 13 February 2017, her daughter was in the shower when she said she had "a sore fanny". She had a look and saw "it was quite red". She asked her daughter if she had been touching it, but she said she had not. She asked if anyone else had touched it and she said, "No", and then said, "But I have a secret with [Tom] but you're going to get cranky with me". She reassured her daughter that she would not get cranky with her. The complainant then said, "[Tom] has been touching my fanny". She asked "how many times" and the complainant replied, "Lots of times". [42]

    42. Tcpt, 23 May 2019, pp 157-159.

56. The mother again reassured her daughter that she was a good girl for telling her and that she was brave. She then went to the kitchen where her sister was crying. The kitchen was very close to the bathroom and her sister had heard what the complainant had said. [43]

    43. Tcpt, 23 May 2019, pp 159-160.

57. The Crown Prosecutor told the jury that it was not part of the Crown case that the redness observed by the complainant's mother had anything to do with what the applicant was alleged to have done. He said it "could have been caused by anything". Its significance was that it caused the mother to question the complainant, which resulted in her disclosure of what the applicant had been doing. [44]

    44. Tcpt, 24 May 2019, pp 288-289.

58. In the events that followed, the complainant's mother spoke to the applicant's mother over the telephone about what the complainant had said. The police were contacted and two detectives attended. She told them that the applicant had last been at the house about three weeks previously when he, his mother, and his brother had come to stay the night because of a "domestic disturbance" at their grandparents' house where they lived. The officer in charge of the case subsequently gave evidence that police had received a report in relation to such an incident on 23 January 2017. [45]

    45. Tcpt, 23 May 2019, pp 160-163; 242.

59. The complainant's mother said that there was another time when the applicant and her brother had stayed overnight. It was on 6 December 2016 and she recalled the occasion because the applicant's mother had attended a social function in Sydney. When she collected the boys the next morning, she gave the complainant some large balloons from the function. The complainant's mother took a photograph of the complainant with the balloons and sent it to her sister. The photograph bore the date, "Wed, 2016/12/07" (Ex 4). [46]

    46. Tcpt, 23 May 2019, pp 163-164.

60. The complainant's mother also gave evidence that her daughter would spend time in her parents' bedroom. She would sometimes watch a movie there before going to bed. [47]

    47. Tcpt, 23 May 2019, pp 165.

61. The complainant's mother was asked about the occasions when the applicant and his brother would come to the home. She described the applicant's brother and her son as "very close" and said that they would play computer games together in her son's room. The applicant would spend time with her and his mother and also with the complainant. She said the complainant was always very excited to see the applicant and he gave her a lot of attention. They would play in the lounge room or in her son's bedroom. They would also lay on the lounge and watch television. [48]

    48. Tcpt, 23 May 2019, pp 165.

62. The complainant's mother was asked whether prior arrangement was made whenever the applicant's mother and her sons would visit. She said, "No, sometimes [the applicant's mother] would just show up. We’ve been friends for 28 years so, you know, phone call wasn’t necessary." The applicant would not come as often as his younger brother. [49]

    49. Tcpt, 23 May 2019, pp 166(30)-(31).

63. Evidence was given of an occasion when the applicant was with the complainant in her parents' bedroom. Her mother walked by and noticed the complainant under the covers watching a movie and the applicant lying on top of the bed next to her with his arm on top of the blanket. She remonstrated with him for being in the bed with dirty sneakers on. Later in her evidence she described them as each lying on their right side with the applicant having his arm over the complainant, towards her head. It looked like they were both watching television. [50]

    50. Tcpt, 23 May 2019, pp 166; 172-173.

64. Relevant to the issue of the complainant's confusing evidence during cross-examination about whether the Count 1 incident occurred in her bedroom or in the bathroom, and her suggestion of the rooms having been swapped around (see above at [26]-[30]; [32]), her mother gave evidence of there having been a walk-in wardrobe in the complainant’s bedroom. She described it as having "two big double doors"; "you could pretty much take a nice pace into it"; and there was "like a little bit of a wooden step up". All of that had been removed and a "feature wall" created. [51]

    51. Tcpt, 23 May 2019, pp 155(43)-156(14).

65. There were issues in the trial about whether the applicant was living with his father in the period covered by the indictment, 1 December 2016 to 1 February 2017, and whether he had stayed overnight at the complainant's home at all in that period.

66. In cross-examination, the complainant's mother said that on the New Year's Eve during that period, she and her husband picked the applicant up from his father's house so that he could spend time with them at her sister's house. She thought his living with his father was "quite on and off", but was sure he was with his father on that occasion. It was suggested to her that he did not come back to live with his mother until January or February, but she could not recall. She agreed that he was more irregular in visiting her house when his mother and brother visited in the period of about March to October 2016. [52]

    52. Tcpt, 23 May 2019, pp 181-183.

67. It became clear during the complainant's mother's evidence, on the Crown’s case, that there were only two occasions where the applicant stayed overnight in the period covered by the indictment: 6 December (the night his mother attended a function in Sydney) and 23 January (the night of the domestic disturbance at the applicant's grandparents' home). [53]

    53. Tcpt, 23 May 2019, pp 186; 192.

68. The complainant's mother said that on the morning of 7 December, the applicant and his brother got ready for school at her house and their mother picked them up and took them to school. She said their mother had dropped them off between 4.30pm to 5.30pm the previous day and collected them the next morning at about 8.00am. She disagreed with a proposition that it was the father who attended in the morning and that he had only collected the applicant's brother; the applicant not having stayed the night at all. She insisted that their mother had taken both boys to school. She was shown a document from the applicant's school that recorded him as being "sick" on 7 December (it later became Exhibit N) but she stood by her evidence. [54]

    54. Tcpt, 23 May 2019, pp 193-196.

53. In the absence of the jury, the Crown Prosecutor complained about the accused not having given notice of an alibi as required by s 150 of the Criminal Procedure Act 1986 (NSW). Counsel for the applicant explained to the judge that his case was that he was living with his father and resumed living with his mother sometime in January. It had not been denied that he had visited the complainant's home in January, but it was denied that he stayed overnight on 6 December or in January. She noted that one of the incidents (Count 1) was alleged to have occurred at 8 o'clock in the morning. In relation to 6 December, she submitted that it was not the complainant's evidence that an incident occurred on that particular night; and the complainant had said that the applicant's mother was present in the house at the time it occurred "so it can't have been 6 December, on her version". Counsel did not clarify which of the three incidents she was referring to as "it"; but it seems likely she was referring to alleged sexual misconduct in general. [55]

    55. Tcpt, 23 May 2019, pp 204-206.

Other evidence in the Crown case

70. The complainant's aunt gave evidence of overhearing the complaint made to the complainant’s mother on 13 February 2017. The aunt's account of what the complainant said was generally consistent with the account her sister had given in evidence. She was cross-examined about some peripheral aspects, but there was no dispute that the complainant had said that the applicant had touched her vagina, and that this had occurred "a few times". [56]

    56. Tcpt, 23 May 2019, pp 231-232; 234-235.

71. A youth support worker at a school (for the sake of privacy, School 3) gave evidence of meeting the applicant in "early February 2007 (sic)" when he came with his mother for enrolment. She also gave evidence of speaking with him on 27 February 2017. She said he was upset and he told her it was because, "My family has accused me of something that I didn't do". He told the witness that he had spoken to his mother and she believed him. The witness advised him that it would be best to go to the police and let them find out the truth. [57]

    57. Tcpt, 23 May 2019, pp 236-238.

72. The police officer in charge of the case was aware that the detectives who first spoke with the complainant's mother on the night of 13 February 2017 were told by her that the applicant had been her house about two or three weeks previously after a domestic incident. Police records indicated that such an incident had been reported to police on 23 January 2017. She also said that no physical examination of the complainant was carried out because of the time that had elapsed and also because of the intrusiveness it would entail. [58]

    58. Tcpt, 23 May 2019, pp 242; 246.

73. In cross-examination, she said that delay was also the reason no forensic examination of clothing items was pursued. An application form evidencing the applicant's enrolment in a particular school (for the sake of privacy, School 2) on 25 October 2016 was tendered through the officer (Exhibit O). The officer agreed that the applicant was charged by police on 28 February 2017. He also agreed that he had no criminal record. [59]

The defence case

59. Tcpt, 23 May 2019, pp 247-251.

The applicant's evidence

74. The applicant said that his parents separated when he was aged eight. In 2016 and 2017, he was living "on and off with mum and dad, but mainly dad's". When he lived with his mother, he attended School 1. He was also attending that school when he lived with his father, but at the end of October 2016 he changed to School 2 (i.e. 25 October 2016 – see Exhibit O). At the start of 2017, he went to School 3. He had moved to his mother's home two weeks beforehand. [60]

    60. Tcpt, 24 May 2019, pp 262-264.

75. The applicant was asked whether, when he was living with his mother and attending School 1, he went and stayed at the complainant's home. He replied, "Very rarely. Maybe once or twice that year" (i.e. 2016). As to whether he had stayed many times before then, he said, "Over the years, yes". [61]

    61. Tcpt, 24 May 2019, pp 265(7); (19).

76. When at the complainant's home he would play computer games with her older brother. He also played with the complainant; she would make him brush her doll's hair, for example. He watched television with her. [62]

    62. Tcpt, 24 May 2019, p 266.

77. There was an occasion when he was with her in her parents' bedroom. His mother and the complainant's father were upstairs, using marijuana. The complainant was trying to go upstairs but he was trying to keep her away from there. She kept attempting to go upstairs so he took her to her parents' bedroom where he put her under the blankets and made her watch a movie. He sat on the edge of the bed, making sure she did not run back upstairs. The complainant's mother came in and had "a little go" at him because his shoes were dirty. They were on the bed. He was holding his phone. He denied lying down and putting his arm over the complainant. He denied ever putting his hand down her pants and touching her vagina. [63]

    63. Tcpt, 24 May 2019, pp 266-269.

78. The applicant said his father's birthday was on 7 December. On either 6 or 7 December, his family went out "for a party or something" but the applicant stayed at home because he was sick. He had a rash which was "pretty painful". He had been at school that day but his father had picked him up. [64]

    64. Tcpt, 24 May 2019, pp 269(47)-270(8).

79. I interpolate that the records from School 2 had entries for both 6 and 7 December 2016 of "sick" and in a column in which there were entries "late", "early", "timed" and "whole", the entries for each of those dates was "whole". In a "Comment" column, for 6 December there was, "Sick with a rash" and for 7 December there was simply, "Sick". (Exhibit N).

80. The applicant said that he did not recall seeing the complainant's mother at her house in January 2017. [65]

    65. Tcpt, 24 May 2019, p 270.

81. In cross-examination, the Crown Prosecutor asked whether he was saying that he never went to the complainant's home in 2016 and he replied, "I don't recall going [there] at all". (His evidence-in-chief was that he went there "maybe once or twice that year".) He also said that he did not remember anything about going there in January 2017. He did not remember the police attending the home where he was living with his mother and her parents on 23 January 2017. He was asked if he went and stayed at the complainant's home that night and said that he did not remember, adding "I highly doubt it". [66]

    66. Tcpt, 24 May 2019, pp 271(38)-272(14).

82. On New Year's Eve, 31 December 2016, he was picked up by the complainant's parents and taken to the complainant's aunt's house. He did not stay at the complainant's home that night. [67]

    67. Tcpt, 24 May 2019, pp 272-273.

83. The applicant agreed that he had "a pretty good relationship" with the complainant. He said, "She was like a little sister to be honest". [68]

    68. Tcpt, 24 May 2019, p 273.

84. He agreed that there were occasions he was with the complainant by himself, but "rarely". He denied touching her in the manner in which it had been alleged and demonstrated by the complainant. He agreed that he and the complainant had secrets, but "maybe about lollies and chocolate, but not about this stuff". [69]

    69. Tcpt, 24 May 2019, pp 274(33)-275(44).

85. The applicant gave the following evidence as to his recollection of being at the complainant's home:

“Q. Between 1 December and 1 February, there were occasions when you

were at [the complainant's mother's] house?

A. No.

Q. Never?

A. Well, the dates she’s mentioned, I was not there.

Q. Never?

A. Never.

Q. Not even on 23 January 2017?

A. No.

Q. Is that no now, or, “I cannot remember”?

A. I, I can’t recall being there. There’s no evidence of me being there either.” [70]

70. Tcpt, 24 May 2019, p 276(3)-(47).

86. The applicant agreed that his brother and mother went and stayed at the complainant's home on "a lot of occasions". He conceded there were occasions when he stayed there, but "very rarely, though". He again said that he did not recall being there between 1 December and 1 February, but when it was put to him that his lack of memory was because, "you just don't want to admit it", he replied, "I was not there at that time. I don't – never did this". [71]

    71. Tcpt, 24 May 2019, p 277(33)-(36).

The applicant's father's evidence

87. The applicant's father confirmed that he was separated from the applicant's mother and that the applicant (and his brother) lived variously with their mother or himself. Initially the applicant was attending School 1 but in the last term of 2016 he was enrolled in School 2 (25 October 2016 – Exhibit O). [72]

    72. Tcpt, 24 May 2019, p 279.

88. He confirmed that his birthday was on 7 December. In 2016, they celebrated by going out for dinner. They usually went out for birthdays "before or after [or] on the day". In 2016, the applicant did not come because he had a rash and stayed at home. His father said he had to pick him up from school; he had the day of the birthday and two subsequent days off school. [73]

    73. Tcpt, 24 May 2019, pp 280-281.

89. On New Year's Eve, one of his sons was with him – he could not recall which – and their mother came and picked whoever it was up. He could not recall where they were going. [74]

    74. Tcpt, 24 May 2019, pp 281-282.

90. He recalled that the applicant went back to live with his mother; and in relation to when school started back, he said it was "probably a week before or something". (In cross-examination, he agreed with "about a week or so".) There was discussion about the applicant wanting to go back to School 1 because it was in the same suburb as where his mother lived with her parents. He only found out later that the applicant had enrolled at School 3 instead. [75]

    75. Tcpt, 24 May 2019, pp 282; 284.

Summing up

91. There was no complaint about any aspect of the trial judge's summing up to the jury. It was in conventional terms in relation to its legal content.

92. The judge gave the standard direction that the jury could accept part of the evidence of a witness while rejecting another part. Rejection of some part did not require rejection of the balance of what the witness said. [76]

    76. Summing up, 25 May 2018, p 3.

93. Of course, his Honour directed the jury as to the accused being presumed innocent and of the requirement of proof to the standard of beyond reasonable doubt before any verdict of guilty could be returned. [77]

    77. Summing up, 25 May 2018, p 5-6.

94. His Honour mentioned a number of times that the jury were entitled to deliver differing verdicts for the various counts in the indictment; for example: "There is no requirement that your verdicts be the same for all counts and it is open for you to find the young person guilty of some charges and not guilty of others". He directed that "the evidence in respect of each of the charges must be considered separately". [78]

    78. Summing up, 25 May 2018, pp 67-7; 9.

95. The judge specifically gave what is often termed a "Markuleski direction" (derived from R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290). His Honour directed the jury: [79]

"I have now made clear to you on a number of occasions that you must consider the evidence in respect of each charge separately. It follows from that, that if you have a reasonable doubt as to the truthfulness and accuracy of one of the Crown witnesses in respect of one count, then you can use that reasonable doubt to determine whether you have a reasonable doubt in respect of the other counts that you are considering."

79. Summing up, 25 May 2018, p 14.

96. It would have been obvious to the jury that this related specifically to the complainant. Counsel for the applicant raised no complaint, then or now, as to the adequacy of this direction.

97. The jury asked a question after they had retired to deliberate:

"Can we clarify that we don't have to match particular counts with particular dates, that we are considering the whole timeframe between 1 December 2016 and 1 February 2017."

98. After discussing the question with counsel in the jury's absence, his Honour responded to the jury by saying: [80]

"The answer to that question is that you do not have to match particular counts with particular dates and that you are considering the whole of the timeframe. That having been said, two dates emerged in the evidence and you will consider the evidence in relation to those two dates in considering whether or not the Crown have been able to prove their case beyond reasonable doubt."

80. Summing up, 25 May 2018, p 37.

99. The question above was received about an hour after the jury had retired to deliberate on the Friday. Deliberations were resumed the following Monday when the judge received the following question: [81]

"Is count 1 specifically related to [the complainant's] bedroom? Is count 2 specifically related to her parents' bedroom? Is count 3 specifically related to the lounge room?"

81. Summing up, 28 May 2018, p 3.

100. With the agreement of counsel, the judge replied in the affirmative to each question. [82]

     82. Summing up, 28 May 2018, p 3.

Principles

101. The principles to be applied in respect of a ground of appeal asserting that a verdict of guilty is unreasonable are well known. I set out a number of propositions emerging from well-known authorities in Crickitt v R [2018] NSWCCA 240 at [12]. Those relevant to the present case are:

1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. [83]

2) It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. [84]

3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. [85]

4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the appellant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. [86]

5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. [87]

83. Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].

84. SKA v The Queen at [13].

85. SKA v The Queen at [13]; M v The Queen at 494.

86. Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing).

87. M v The Queen at 492; SKA v The Queen at [14].

102. The importance of the role of a jury in a criminal trial must be acknowledged as this Court reviews the evidence solely on the basis of words on the printed pages of the transcript. The advantage of the jury in seeing and hearing the manner in which the witnesses were questioned and responded is one that is almost entirely denied to the members of this Court. Occasional comments and observations made by the judge and counsel that appear in the transcript provide only limited insight.

103. The High Court has emphasised the fundamental role of a jury in resolving disputed questions of fact in a criminal trial and of determining whether guilt has been proved beyond reasonable doubt. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, it said (at [65]-[66]):

"It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court 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’.” (Footnotes omitted)

104. Where the basis of the asserted unreasonableness is inconsistency with other verdicts, a recent summary of the principles was usefully provided by Gleeson JA in Roos v R [2019] NSWCCA 67 (at [42]-[45]):

"The legal test to be applied to the appellant’s contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant:

'… must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'

Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of ‘not guilty’ does not necessarily imply any ‘want of confidence’ in the complainant but ‘may simply reflect the cautious approach to the discharge of a heavy responsibility’: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]:

'In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.'

There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]:

'In determining whether convictions are unreasonable ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least on that basis.'

Simpson J continued at [130]:

'Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.'

See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing)."

105. In the present case, the principal witness for the prosecution was a child, aged seven at the time of the trial and aged five or six at the time of the events in question. There are some practical matters that the jury might be expected to have acknowledged and that this Court must also bear in mind. Observations recently made by Walton and Wilson JJ in AZ v R [2018] NSWCCA 294 are pertinent.

106. In AZ v R, the trial concerned offences against a seven-year-old boy which were alleged to have occurred between 1 January 2014 and 2 March 2015. Disclosure occurred on 2 March 2015 and the boy was interviewed by police on 12 March 2015. The recording of that interview comprised the child's evidence-in-chief for five of the charges. A further interview six months later became his evidence for six more charges. There were a further two interviews in the fortnight before the trial in February 2017. The issues on appeal related to inconsistencies in the complainant's accounts, including concessions in cross-examination that some of the alleged acts of the appellant did not in fact occur. The appeal was dismissed by a majority. In relation to the complainant's evidence, Walton and Wilson JJ made the following general observations (at [161], [167]-[168]):

"Unlike adults, the memories and thus the evidence of young children may be expected to deteriorate with the passage of even a relatively short period of time, a matter that a jury, taking into account its members’ experience of life and understanding of people, would be entitled to have regard to.

…

The fact that there is a contradiction or concession by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness. Such concessions do not necessarily dictate that a jury must have held a reasonable doubt; much less should they dictate that an appellate court must overturn the verdicts returned by the jury.

The question turns on a careful examination of the whole of the evidence placed before the tribunal of fact, to determine whether it was open to the jury to be satisfied of an appellant’s guilt beyond reasonable doubt, bearing in mind the jury’s advantage of having sat in the jury box, and observed the proceedings as they took place."

Submissions

107. The applicant submitted that the acquittals for Counts 2 to 4 cannot be reconciled with the verdict of guilty on Count 1, particularly having regard to the inherent weaknesses and substantial inconsistencies in the evidence relating to Count 1. Further, the evidence in relation to Count 1 was the least compelling, having regard to the major inconsistencies in the evidence of the complainant in comparison with the evidence led with respect to the other Counts. [88]

     88. Applicant’s written submissions (AWS), pars 17-18.

108. The applicant highlighted a number of asserted inconsistencies between what the complainant said in her police interview and what she said in her evidence in court. Submissions also referred to evidence given by the complainant's mother, the applicant, and the applicant's brother that were suggested to support the proposition that there was reasonable doubt about the applicant's guilt. [89]

     89. AWS, pars 22-49.

109. Inconsistencies in the evidence relating to Count 1, were said to include: [90]

●   What the complainant was wearing.

●   Whether the incident took place in the bedroom or the bathroom.

●   Whether she had been in the lounge room or bedroom when the incident began.

●   Where in the bedroom it occurred.

●   Where her room was located in the house.

●   Whether it happened on the bed or in the corner of the room.

90. AWS, par 71; tcpt, 12 July 2019, p 5(4)-(6).

110. The applicant also referred to aspects of the evidence relating to Counts 2 to 4, presumably in support of the proposition that the evidence relating to Count 1 was no better in terms of quality and reliability. [91]

     91. AWS, par 50-64.

111. It was submitted that in relation to the other Counts, there was evidence of opportunity and corroboration for the applicant and the complainant having been alone together (in the parents' bedroom and the lounge room), but no evidence aside from that given by the complainant about them ever being in the complainant's bedroom. Reference was made to the complainant's mother having seen the complainant and the applicant in the parents' bedroom together and the applicant having given evidence of such an occasion (although differing in some details). The complainant's mother also gave evidence of occasions when the complainant and the applicant were alone together in the lounge room. [92]

     92. AWS, pars 67; 69-70.

112. It was submitted that the evidence for the other Counts was relatively consistent, in contrast with the evidence for Count 1. The evidence for Count 1 was the weakest in terms of consistency and corroboration. [93]

     93. AWS, pars 68; 73.

113. The Crown submitted that the jury's verdict of guilty on Count 1 was not unreasonable and that there were a number of reasons why it was not irreconcilable with the acquittals on the other counts. [94]

     94. Crown’s written submissions (CWS), par 8.

114. It was submitted that there was more detail given in evidence in relation to the incident in the complainant's bedroom that constituted Count 1 than there was in relation to the two other incidents.

115. The Crown (correctly) referred to there being a live issue at the trial about whether the applicant had stayed overnight at any time during the period covered by the indictment. Counts 2 to 4 were concerned with events that were alleged to have occurred during the evening, but an important distinguishing feature for Count 1 was that it concerned an event at around 8 o'clock in the morning. [95]

     95. CWS, pars 85; 87.

116. Contrary to the applicant's contention, the Crown submitted that there was evidence supporting that of the complainant as to the applicant having been in her bedroom with her. The Crown referred to the evidence of the applicant himself that the complainant had involved him in brushing the hair of her doll and there was evidence that her doll’s house was in her bedroom. [96]

     96. CWS, par 92.

117. The Crown acknowledged that there were inconsistencies between what the complainant had said in her police interview and what she said in her evidence. However, the Crown pointed to the fact that the interview occurred soon after the events in question, while the trial occurred over 15 months later. That was submitted to be a significant period of time for a child so young. The Crown also argued that the complainant remained consistent throughout about the core features of her account; that she had been sexually penetrated and that it was the applicant who had done so. She was supported in this respect by the evidence of her complaint to her mother. [97]

     97. CWS, pars 95-96; tcpt, 12 July 2019, p 15(14)-(27).

Consideration

118. A starting point for consideration of the ground of appeal is to acknowledge the directions given by the trial judge to the jury. There can have been no doubt amongst the jurors that it was entirely up to them whether to accept or reject evidence as they chose fit, including accepting parts of what a witness said while rejecting other parts. Furthermore, the jury were repeatedly directed that they must consider each count separately and that they could deliver different verdicts if they thought fit. Underlying all of this was the clear instruction that no verdict of guilty could be returned unless the jury were unanimously satisfied of guilt beyond reasonable doubt.

119. Having regard to these directions, there is no basis to consider that the jury may have approached its task capriciously or recklessly. There is also no room to consider the possibility of some compromise being involved in the jury's decision-making. The applicant has not suggested otherwise. This is no answer to the questions posed by the ground of appeal. It does, however, tend to dispel any possibility that an unreasonable verdict was returned as a result of the jury misapprehending their task.

120. The experience of the complainant giving evidence is something of which the jury would have been well aware. This Court is left to glean what it can from the transcript.

121. The transcript shows that she commenced her evidence on the day she was called at 9.48am. The following table is a chronology of her evidence, indicating the frequency that breaks were taken and the comments that were made concerning her attentiveness. The judge indicated that he intended to take 5 minute breaks at 20 minute intervals so it may be assumed that the breaks designated as "short" were of about that duration.

Transcript	Time	Event
62	9.48am	Evidence-in-chief commenced (replay of recording of interview)
70	10.17am	Break (short)
71	Replaying of recorded interview resumed and completed
72	Break (short)
76	Cross-examination commenced - introductory and general
86	- count 1
87	Morning tea	Break (20 minutes)
89	~11.45am	- count 1 continued Counsel said that before the break she was asking about the complainant's bedroom and she was going to ask more about that. The complainant replied, "I can't focus before because I was a little bit hungry."
93	- count 2 (including at T94-95, general order of incidents)
98	Counsel observed, "I think we're a bit distracted now … Perhaps that might be an appropriate time." Break (short)
101	- count 2 continued
112	Lunch	Break (lunch)
114	- complaint to mother
118	- count 1
120	Break (short) Judge observed, "Perhaps afternoons aren't the best … she's a little bit distracted I think. A bit more distracted this afternoon than she was this morning." Counsel agreed.
122	- count 1 continued
128	Judge asked if "we might go a little bit longer". Prosecutor agreed but suggested monitoring "because she appears to be yawning and whatnot so she may be getting tired".
129	- count 3 School bell heard ringing. Judge said, "It must be 3 o'clock".
135	Break (15 minutes) Prosecutor observed, "She appears to be getting a little bit more fidgety and certainly going off track and it just seems to be a little bit hard to keep her on track … Which makes it difficult for everybody." Judge determined to allow 15 minutes and then "try and squeeze another 15 or 20 minutes out". Counsel hopes to finish in that time.
138	- count 1
142	- general
143	Complainant: "What time is it? I'm tired."
144	Conclusion	No re-examination.

122. It is clearly the case that there were inconsistencies between the complainant's description in her police interview and her cross-examination at trial as to the various circumstances attending the commission of the offence in Count 1. The applicant cited a number of them in both written and oral submissions (see above at [109]).

123. Most of the inconsistencies related to the location of the incident, what the complainant was doing beforehand, and what she was wearing. The jury were entitled to have regard to the delay between the event and the complainant's questioning at trial. It was well open to the jury to consider that the applicant's touching and penetration of her genitalia would be the one thing the complainant would recall well and be consistent about (which she was). Surrounding detail would not be something that a very young child would necessarily retain as part of her memory. For example, it would be understandable that her recollection at the time of her interview was that the applicant took her from the lounge room to her bedroom, but 15 months later that detail might well have been lost from her recollection. It would not have been surprising that the clothing she was wearing – which had no bearing upon what happened – would not have been of any significance to her. Whereabouts in the bedroom it occurred was more directly related to the alleged offending, but whether it would have been of such particular significance that it should have been recalled with precision by a young child was a matter for the jury to weigh.

124. The jury were entitled to have regard to the relative clarity with which the complainant's account of this incident was given in the more contemporaneous police interview: see above at [20]. They were entitled to have regard to aspects of the account which may have rung true for a young girl describing such an event. For example, she said, "he tried to touch there and it was, it, and I didn't want that to happen". She said, "it feels weird". When asked "how did he touch" she replied, "Um, with his fingers and I don't really want that. I really don't like it." She volunteered, "And I said, I, and I, after he said, 'You keep a secret'. And I, and I lied to him. I told him to my mum." [98]

     98. MFI D, Q & A 256; 260-261.

125. The passage in the cross-examination that the Crown suggested was significant might also have resonated with the jury as indicative of a true and reliable recollection of a little girl: [99]

“Q. Did you like [Tom] when he came to visit you?

A. Yeah, but the thing I don't like when he comes to visit me when he touches my private parts.

Q. Did he touch your private part every time he came to visit, or only sometimes?

A. Only sometimes when no one's looking.”

99. Tcpt, 22 May 2018, p 142(44)-(50).

126. Counsel for the applicant placed emphasis upon the complainant's assertion at one point that the incident occurred in the bathroom. She addressed the jury in relation to this (and the judge reminded the jury of this argument in his summing up). The evidence on this subject is included in the earlier review of cross-examination in relation to Count 1 (above at [26]ff). In my view, it would have been open to the jury to regard it as a product of mistake or confusion. The bathroom aspect, and the question of where within the bedroom the incident occurred, may well have been regarded as having been influenced in part by the complainant's failure to recall the manner in which the furnishing and layout of her bedroom had changed: see the evidence of her mother summarised above (at [64]).

127. The applicant contended that the evidence supporting Count 1 was no stronger than that supporting the acquittal counts and so that cannot be an explanation that reconciles the differential verdicts. A particular point that the applicant sought to make was that the acquittal counts were supported by evidence from other sources, whereas there was no such support for Count 1. The complainant's mother had seen the applicant with her daughter in the parent's bedroom. She had also seen them together in the lounge room. The applicant himself acknowledged that he had been alone with the complainant in the lounge room.

128. There was no positive evidence from other sources that the complainant and the applicant had not been alone together in her bedroom. If they spent time together, which was common ground, there was no reason for them not to be there. It may well have been that if the applicant brushed the complainant's doll's hair, this might have occurred in her bedroom where her doll's house was; but the jury need not have been satisfied that this was a necessary inference to draw.

129. In any event, evidence from someone other than the complainant of the applicant having been with her in a particular room on some other occasion [100] neither supported, not detracted from, the complainant's evidence that he was present in such a room when one of the alleged incidents occurred. It was not the case that the applicant was forbidden from being in any of those rooms, or that anyone would have thought it was unusual for him to be there with the complainant.

     100. The applicant's counsel clearly explained in her closing address that the occasion when the applicant was seen in the parents' bedroom was not the occasion when the incident in Count 2 was alleged to have occurred: tcpt, 24 May 2018, pp 305-306.

130. There was a particular issue that may have affected the jury's confidence in being satisfied beyond reasonable doubt in relation to Count 2, despite accepting that the incident occurred in the circumstances described by the complainant. Her account included that her father was present in the bedroom before and after the applicant was there. Her father was not called to give evidence. [101] The applicant's counsel addressed the jury about police not having obtained statements from "people that were also in the house at the relevant period of time". [102] She nominated some, "such as" the applicant's mother, his brother, and the complainant's brother. The jury could have thought that this was a non-exhaustive list and that the complainant's father was also in this category. The trial judge (at counsel's request) directed the jury that they should not speculate about what these persons may have said if they had given evidence, but that the jury could take this into account in determining whether the Crown had discharged its onus of proving guilt beyond reasonable doubt. [103]

     101. The father was going to be called as a witness by the Crown but an incident occurred (the details of which are presently irrelevant) which led to a decision that he not be called. It was agreed between the Crown Prosecutor and the applicant's counsel that nothing would be said to the jury about this: tcpt, 24 May 2018, pp 259.

     102. Tcpt, 24 May 2019, p 311.

     103. Summing up, 25 May 2019, p 27.

131. A particular feature that distinguished Count 1 from the incidents in Counts 2 to 4 was the question of when they occurred. Counsel for the applicant acknowledged in this Court that the incidents alleged in relation to Counts 2 to 4 were said to have occurred during the evening, while the incident alleged in relation to Count 1 was said to have occurred in the morning. [104]

     104. Tcpt, 12 July 2019, p 17(50).

132. It was clearly the applicant's case that he did not visit the complainant's home in December. Although this was not raised in counsel's closing address to the jury, some significance was placed in this Court upon the complainant's evidence that the event in Count 1 occurred "before Christmas". In short, it was submitted that the event could not have happened if it occurred before Christmas. Counsel submitted that, "whilst the applicant certainly did not run a positive case that he didn't visit the home in January 2017, the Crown case is the evidence from the complainant was that this had actually occurred prior to Christmas". [105] She described Christmas as "a pretty big event for a child, like a birthday … it's a good marker as well as a birthday". [106]

     105. Tcpt, 12 July 2019, p 2(10).

     106. Tcpt, 12 July 2019, p 18(8).

133. However, it was not the Crown case that Count 1 occurred before Christmas. The Crown did not at all embrace the complainant's evidence as confining the time when it occurred. It is curious that for such an unreliable witness, on the applicant's case, the complainant's recollection in relation to Count 1 having occurred "before Christmas" is relied upon as being precisely correct. The context in which she gave that evidence was available for the jury to consider. It was given in cross-examination after lunch, shortly before the first short break was taken in the afternoon. The preceding answers the complainant gave may have been regarded by the jury as significant: [107]

     107. Tcpt, 22 May 2018, p 119(4)-(33).

“Q. Did you go to school that day?

A. It was a Sunday.

Q. So this--

A. I mean, today's the - I can't remember - yeah, it was on school holiday, it was on school holiday, it was Thursday.

Q. Why do you think it was a holiday, a school holiday?

A. Because, because it was near like Christmas or something.

Q. School holidays near Christmas?

A. Yeah, yeah.

Q. Why do you think it was a Thursday?

A. I just, I think it's a Thursday because I just, I think, I just think so. I don't, I don't - because I know it's Thursday, because, because I remember it was Thursday.

Q. Is there something special that happens on Thursdays?

A. No. I mean at school we have something special, we have to go to the library.

Q. But you just remember it was Thursday?

A. Yeah.

Q. Is that something you're sure about or are you not sure about?

A. I'm sure about.

Q. Was it before Christmas or after Christmas?

A. Before."

134. Immediately after the short break that followed this passage of evidence, the complainant was asked if the event occurred before or after her birthday (about a week before Christmas). She said she could not remember. [108] This suggests that the complainant's birthday was not a "good marker" like Christmas as the applicant's counsel submitted.

     108. Tcpt, 22 May 2018, p 122(21)-(23).

135. The reference in the above extract to Sunday, then Thursday, and then being "sure about" Thursday, does not inspire confidence about what day of the week the event occurred on. There was nothing about Thursday that explained why that day of the week would be recalled after such a lengthy passage of time. The reference to it being on a school holiday, because it was near "like Christmas or something" also does not necessarily inspire confidence. It would have been open to the jury to regard "before Christmas" as more of a guess than a reliable actual memory.

136. The applicant did not positively assert that he did not visit the complainant's home in January. His evidence was that he could not recall (see above at [81]-[86]). It was the defence case that there was no overnight stay in either month, but the defence case did not deny that the applicant was otherwise at the complainant's home during January: see above at [69]).

137. In response to the jury's question about whether they needed to "match particular counts with particular dates", the judge directed that they did not but that "two dates emerged in the evidence and you will consider the evidence in relation to those two dates in considering whether or not the Crown have been able to prove their case beyond reasonable doubt". Counts 2 to 4 were alleged to have occurred on occasions when the applicant stayed overnight and it emerged that the only occasions on which he may have done so were on the two dates to which the judge had alluded, 6 December 2016 and 23 January 2017. There was a positive defence case that potentially raised doubt about whether he did. But there was no positive defence case as to the applicant otherwise being at the complainant's home whereby the offence in Court 1 may have occurred. In other words, there was no contradiction in the defence case as to the applicant having had the opportunity to have committed this offence.

138. It would have been well open to the jury to accept the account given by the complainant at a far more contemporaneous time, that is, in her police interview of 22 February 2017, and to have given little or no regard to the inconsistencies and contradictions that emerged in her evidence 15 months later in the course of her cross-examination at trial.

139. The complainant's account in her police interview was clear and consistent; that the applicant touched her genitalia underneath her underwear on a number of occasions, including on three occasions that she particularised. That account was completely consistent with the account she gave to her mother on 13 February 2017. The evidence given by her mother, and by her mother's sister, about the terms of the complaint was also consistent. There was no real reason why the jury could not have accepted it. The complaint did not include any nomination of any particular occasion; but it was evidence which supported the general assertion of multiple sexual assaults by the applicant upon the complainant.

Conclusion

140. It was well open to the jury to be satisfied that the applicant sexually assaulted the complainant in the manner she described. It was open to the jury to accept that this occurred on multiple occasions. However, while accepting the veracity and reliability of the complainant in this respect, it was understandable for the jury to hesitate in being satisfied to the criminal standard in relation to Counts 2 to 4. This is most particularly because of the evidence suggesting that there may have not been opportunity for the applicant to have offended on the two particular occasions identified. However, in the absence of such contradictory evidence in relation to Count 1, it was well open to the jury to be satisfied beyond reasonable doubt that this incident did in fact occur as the complainant had described.

141. There is a "rational explanation for the acquittals other than doubt about the complainant's credibility": TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J). The verdicts are a reflection of the jury taking a cautious approach to the discharge of a heavy responsibility, rather than a want of confidence in the evidence of the complainant: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ).

142. I am satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence in Count 1: M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63.

143. The issues raised by the applicant are not without merit. They required a thorough examination of the evidence and the issues in the trial. Leave to appeal should be granted.

Order

144. I propose the following orders:

1.   Leave to appeal against conviction granted.

2.   Appeal against conviction dismissed.

145. DAVIES J: Having examined the evidence in the case, I agree with R A Hulme J for the reasons he gives.

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Endnotes

Decision last updated: 02 August 2019