WXY v Tasmania
[2012] TASCCA 13
•23 November 2012
[2012] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: WXY v Tasmania [2012] TASCCA 13
PARTIES: WXY
v
TASMANIA, STATE OF
FILE NO/S: 350/2012
DELIVERED ON: 23 November 2012
DELIVERED AT: Hobart
HEARING DATE: 21 November 2012
JUDGMENT OF: Evans, Tennent and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Test to be applied.
SKA v R (2011) 243 CLR 400, [2011] HCA 13, followed.
Aust Dig Criminal Law [3473]
REPRESENTATION:
Counsel:
Appellant: A J Hall
Respondent: J P Ransom
Solicitors:
Appellant: Grant Tucker, Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 13
Number of paragraphs: 38
Serial No 13/2012
File No 350/2012
WXY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
TENNENT J
WOOD J
23 November 2012
Order of the Court
Appeal dismissed.
Serial No 13/2012
File No 350/2012
WXY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
TENNENT J
WOOD J
23 November 2012
The appellant appeals against his conviction on one count of rape and one count of indecent assault.
The sole ground of appeal is that the convictions are unsafe and unsatisfactory in all the circumstances of the case. The Criminal Code Act 1924, s402(1), provides:
"402 Determination of appeals
(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
For relevant purposes, the applicable terms of s402(1) are the same as those contained in the Criminal Appeal Act 1912 (NSW), s6(1), which is the provision referred to in a passage from the decision in SKA v R (2011) 243 CLR 400, [2011] HCA 13 to which we will refer.
The ground of appeal against conviction in SKA was that the verdicts were perverse and not supported by the evidence. As noted by Simpson J in SKA v R [2009] NSWCCA 186, par[94], in New South Wales this ground is more commonly pleaded as being that the verdict is unreasonable and cannot be supported and was formerly pleaded as being that the verdict was unsafe and unsatisfactory. In result, the differences between the way the ground of appeal in SKA was expressed and the way the ground in this case is expressed are of no consequence when considering the following passage from the High Court's decision in SKA on the approach that should be taken to such an appeal.
At pars[11] – [14] in that decision French CJ, Gummow and Keifel JJ said:
"The task of the Court of Criminal Appeal
[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R by Mason CJ, Deane, Dawson and Toohey JJ:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence"'.
[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'".
In October 2009, the appellant was the partner of the complainant's grandmother. He was 51 years of age and the complainant was five years of age. The complainant was then attending kindergarten two days a week. Her mother's evidence is that prior to this time she had had no discussion with the complainant about the "birds and bees" or about "the mechanics of oral sex"
Between 11 and 15 October 2009, whilst the complainant's mother and her husband were in Surfers Paradise on what was described in the evidence as a late honeymoon, the complainant and her younger sister, then aged three, stayed with the complainant's grandmother and the appellant.
The charges on which the appellant was convicted are that during this stay, that is, between 11 October 2009 and 15 October 2009:
· he unlawfully and indecently assaulted the complainant by placing his hand under her clothing and underpants (indecent assault), and
· had oral sexual intercourse with the complainant without her consent (rape).
In these reasons we will refer to the complainant's mother and her husband as "the parents", and the husband as "the father", although the evidence did not indicate whether he was the natural father of the complainant and her sister. We will refer to the complainant's grandmother as "nan", as that is how the complainant referred to her. We will refer to nan and the appellant together as the grandparents, although the appellant is not the natural grandfather of the complainant. We will refer to the appellant as such, although in the evidence he was almost invariably identified by his Christian name or a variation of it.
At about 8.30pm on 15 October 2009, the complainant's parents called at the grandparents' home to collect the complainant and her sister. Presents were distributed, the adults had coffee and all seemed normal. When the parents and children left the grandparents' home the complainant asked the appellant to carry her to the car, which he did. He also buckled her into her car seat. They left the grandparents' residence at about 10pm and arrived at their own home just before midnight. The children slept during the journey home.
The following morning the complainant was in the company of her mother. During the morning she said nothing to her mother about the matters to which we will refer that she spoke of later that day. Shortly after lunch the mother left her children with the father while she visited a friend. When the mother returned she noticed that the complainant appeared to have had a bleeding nose. The complainant is prone to nosebleeds. The mother asked the complainant whether her nose had bled and whether she had had a nose bleed while at her nan's. The complainant said that her nose had bled while at her nan's and went on to talk about her stay at her nan's. She volunteered that the appellant had put "his hand … on her front bottom and that he pulled his body out of his pants and put it in her mouth and that she said it felt and tasted disgusting". The evidence is that the complainant described a man's penis as his body. The complainant then talked to her mother about other things that had happened whilst at her nan's and her mother did not, at that time, question the complainant further about the abuse she had spoken of.
The mother phoned the grandmother and told her what the complainant had said. After speaking to the appellant the grandmother rang back and told the mother that the appellant strongly denied the allegations. The mother said the appellant could be heard ranting in the background during this phone call.
The mother decided to phone Child Protection, but before doing so, she spoke to the complainant again. The complainant told her mother that when sitting on the appellant's office desk he licked her bum. The complainant said the desk was cold and she had put bum germs on it, he had taken her trousers and pants off and had licked her and had pushed the back of her head down and told her to drink the milk from the cow. She told her mother that this occurred when her nan was in the kitchen. The mother's evidence is that when the complainant made her complaints the only question she asked her was where her nan had been at the time. The mother said she did not ask the complainant for factual information at all.
Following this further discussion with the complainant the mother spoke to Child Protection and arrangements were made for a police officer to come to their home. The following morning First Class Constable Melissa Keygan visited them. When Constable Keygan arrived the mother asked that they refrain from saying anything as her daughters were present. Their conversation was "very minimal". The evidence of the mother and Constable Keygan is that Constable Keygan did not speak to the complainant about the allegations at the home. It was then arranged for the mother and the complainant to go to the police station after lunch, which they did. At the police station, whilst the complainant was occupying herself with snacks and magazines in the same room as her mother, the mother told Constable Keygan what the complainant had told her. A written statement of the mother was prepared and signed by her. She estimates they were at the police station for about an hour.
Two days later, on 19 October, the complainant was interviewed on her own at the police station by First Class Constable Michelle Combes. Ten days later the mother took to the police station a bag containing the clothing the complainant had with her when she stayed with her grandparents and on this day Constable Combes again interviewed the complainant on her own. An audio visual recording was made of both interviews.
Constable Melissa Keygan gave evidence that when she attended the mother's residence on 17 October 2009 she was told that the complainant had made some disclosures of a sexual assault. She and the mother spoke in the lounge room and the children were not initially present. Towards the end of their conversation, just prior to leaving, Constable Keygan was introduced to the complainant. They had a brief conversation and Constable Keygan did not ask the complainant any questions about the allegations, however the complainant volunteered to her that it was not her fault and it was the appellant's fault. Constable Keygan did not take a statement from the mother at the house but did so later that day at the police station. She took the statement in narrative form but would have asked a question whenever she needed clarification. The statement was typed by her as the mother spoke. She could not recall where the complainant was when she took the statement, but was confident that she had come to the station with her mother. She could not recall whether the complainant was in the room when she interviewed the mother but agreed that in her own statutory declaration for the purposes of the trial, she said that whilst taking the mother's statement the complainant had made a disclosure to her. So, clearly the complainant was present.
When Constable Combes gave evidence she said that on the basis of her training and experience she would not have interviewed the mother while the complainant was in the same room and that this was the case regardless of whether the complainant had been a child or an adult. She said that this course was followed in order to obtain an untainted version of the evidence from each witness.
Constable Combes gave evidence that she interviewed the complainant alone at the police station on 19 October 2009 and again on 29 October 2009. At the time of the first interview Constable Combes had with her the statutory declaration that the mother had provided to Constable Keygan, and some notes taken by Constable Keygan. Constable Combes has been trained in interviewing children. In our view she conducted both interviews in a very competent manner.
When interviewed on 19 October 2009, the complainant initially answered a number of questions on matters that did not bear on the allegations. Before the interview Constable Combes had told the complainant that she wanted to have a talk but did not tell her what she wanted to talk about. When, during the interview, Constable Combes sought the complainant's confirmation that it was okay with her that they record the interview, the complainant volunteered, "[the appellant] did something wrong" and the following ensued:
"MC Oh okay. What did he do?
COMPLAINANT Well he I was sitting on his knees.
MC Yep
COMPLAINANT Then then he tell me to lean back he telled me to then
MC: Yep.
COMPLAINANT Then he pulled my trousers
MC: Okay.
COMPLAINANT Then with this hand he licked his hand and he put his hand on my bottom.
MC: Right.
COMPLAINANT That was gross.
MC Sorry what was that last bit.
COMPLAINANT It was gross, it was yuck.
MC Gross okay.
COMPLAINANT Then.
MC: Yep.
COMPLAINANT Then he undone the zips on his trousers.
MC Right.
COMPLAINANT Then he pulled his body out then pulled the back of my head down, then telling me to suck it and that was gross.
MC Okay. Okay you have anything else. Okay. I'm going to ask you a couple of questions about what you've just told me there cause it's pretty important that we talk about that.
COMPLAINANT I talked about that at home to Mummy.
MC Did you.
COMPLAINANT And I was sad.
MC Okay. Before um before I ask you some questions about that is it okay that we're talking at the moment with your mum downstairs. Yep. Okay and if you um want to take a break at all while we're talking today. How can you let me know that?
COMPLAINANT Um I don't know.
MC Can you say can I please have a break or can I please go to the toilet or anything you need to do is that alright. …"
The complainant then answered questions about various other matters including the difference between a lie and the truth. After Constable Combes had given the complainant diagrams of a young girl and a slightly older boy, the following ensued.
"MC … Now on here I just want to go through with you um to see what you call body parts because lots of different people have different names for different parts of their body. So see this here.
COMPLAINANT They must be talking in a language.
MC Sorry.
COMPLAINANT Cause in Australia they talk in a language.
MC Yeah. So this here, what do you call this part of a girl's body.
COMPLAINANT Hands
MC Yep. And what do you use your hand for.
COMPLAINANT To touch stuff and spoons and eat.
MC Yep. That's important isn't it? And ah who touches you on your hand.
COMPLAINANT My sister.
MC Yep what does she do when she touches on your hand?
COMPLAINANT Um she walks around with me.
MC Yeah and is that okay. Yeah. Alright what about this here, what's that part of a girls body.
COMPLAINANT Eyes.
MC Yep and what do you use your eyes for.
COMPLAINANT To see.
MC Yeah.
COMPLAINANT If you're blind you need glasses like you.
MC Yeah that's right. And who touches you on your eyes.
COMPLAINANT Nobody.
MC Nobody and is that okay. It's not okay. Do you want someone to touch your eyes?
COMPLAINANT No.
MC No. Alright what about this here what do you call that part of a girl.
COMPLAINANT Belly button.
MC Yep. And what do you use your belly button for.
COMPLAINANT When you were born.
MC Yes. And who touches you on your belly button.
COMPLAINANT Nobody.
MC Nobody and is that okay.
COMPLAINANT No.
MC It's not. Do you want someone to touch you on your belly button? No. Alright what about this part of a girl's body here what's that bit called.
COMPLAINANT Bottom.
MC Bottom. And what do you use your bottom for.
COMPLAINANT To do wee and poos.
MC Yep. Oops. And what about, and who touches you on your bottom.
COMPLAINANT Mm. Only [the appellant] and I don't, nobody else.
MC Okay. And what about if I flip her over what about this part of a girl's body what's that part called.
COMPLAINANT The back bottom.
MC The back bottom. And what do you use your back bottom for.
COMPLAINANT Do poos at the back.
MC Okay.
COMPLAINANT And wee come out the front.
MC Okay so back on this one, when, when we're talking about this area here and you said bottom.
COMPLAINANT Yeah.
MC So what, what do you use this bottom for?
COMPLAINANT This bit.
MC Yeah.
COMPLAINANT The wee.
MC The wee's okay. And that part what's that bit for.
COMPLAINANT This bit.
MC Yeah, ah this bit here that we circled, you said back bottom.
COMPLAINANT That goes from there under to this bit.
MC Yeah.
COMPLAINANT That way and the back.
MC So if wees come out of this bottom.
COMPLAINANT Yep.
MC What comes out of this bottom?
COMPLAINANT Poo.
MC Okay and who touches you on your back bottom.
COMPLAINANT Only [the appellant].
MC Only [the appellant]. Okay.
COMPLAINANT And I hate it.
MC Okay. Now on another picture, I've also got a picture of a boy.
COMPLAINANT A boy.
MC This boy's a bit older than that picture.
COMPLAINANT Yeah.
MC And again there's the front and the back. You can see here's the front of the boy and this is the back of the boy now when you spoke before about.
COMPLAINANT [The appellant.]
MC He um put his.
COMPLAINANT Hand in my bottom.
MC Yep. So can you circle on here what you mean by his hand?
COMPLAINANT He circled it there and then put it in my bum.
MC Okay.
COMPLAINANT He went there and then put it in my bum.
MC Okay. So when you say put it in your bum is that, that bum or that bum. Okay. And when you said that he, he did something with his body.
COMPLAINANT He, he undone his zip like that and then he telled me to suck on it.
MC Right he told you to suck on it.
COMPLAINANT Yes I'll never do that again.
MC Okay. No that's not very nice is it?
COMPLAINANT I said so to mummy and [the appellant].
MC Yep can you take this pen again and just circle on here um where the person, the males body is that you're refer that you're talking about. Okay. And what does a, what does a boy use his body for.
COMPLAINANT The wee
MC Okay have you seen anyone else's body? Okay.
COMPLAINANT Either my Dad's.
MC No. Alright.
COMPLAINANT Only done my Dad's (inaudible)
MC Yep. Okay so going back to when we're talking about you sitting on his knees um being [the appellant]
COMPLAINANT Yeah.
MC And he told you to lean back.
COMPLAINANT No forwards.
MC Lean forwards did he.
COMPLAINANT Then he went like this. [She demonstrated having her head pushed down]
MC Okay. Whereabouts in the house did this happen.
COMPLAINANT In [the appellant's] office".
As to what was going on elsewhere in the home when this occurred in the appellant's office the complainant said that her sister, who she named, and nanny were cooking Easy Mac pasta. She said that she had seen that the appellant was on his computer checking the weather and she had seen some pictures come up that included a picture of a bottom (apparently a woman's vagina) that he had removed. She then answered questions on a number of matters including her and the appellant's clothing and the appellant's work.
A further significant portion of the interview is as follows:
"MC … Okay you said before um when we started talking and you were telling me about it, you said he put your head down, what did he do with, with that.
COMPLAINANT With his body
MC No with your head what did he do with your head.
COMPLAINANT Put my head down and tell me to suck on it.
MC Okay. So when, when you do this whose hand
COMPLAINANT He did it
MC Yeah so is that his hand that did that. Okay and what did he do when he pushed you down like that where did you head end up.
COMPLAINANT I don't know.
MC Don't know. So what happened then?
COMPLAINANT Ah can't remember.
MC That's alright if I, I've just got a couple more questions for you when um when we're talking about [the appellant's] body and he had it outside
COMPLAINANT Here.
MC his fly when he said to suck on it has that, has his body touched you anywhere.
COMPLAINANT Yeah.
MC On your body.
COMPLAINANT Yeah.
MC Where did it touch you?
COMPLAINANT On my face.
MC On your face. Whereabouts on your face did his body touch you.
COMPLAINANT Um in my mouth.
MC Yeah. Anywhere else. Okay can you circle on there on this picture of the girl whereabouts?
COMPLAINANT Where.
MC Whereabouts your mouth is. Okay. Thankyou and when you say touched you on your mouth did it touch you on the outside of your mouth or the inside of your mouth or something else. Okay.
COMPLAINANT On my teeth.
MC On your teeth. And what did that feel like.
COMPLAINANT Gross.
MC Yep. And what did you do then.
COMPLAINANT Pulled me head off.
MC Yeah and then what happened. Did he do it again or did he stop or did he do something else.
COMPLAINANT Stopped."
The complainant was then provided with a small structure and used it to demonstrate that she understood the difference between inside and outside.
When interviewed on 29 October 2009, the complainant was provided with a bag containing the clothes she had taken to her nan's at the time of the stay. She was given an opportunity to identify the clothes she was wearing at the time of the alleged abuse. Her answers were confusing and contradictory and were contrary to the answer she had given about those clothes in her first interview. However, at the outset of the interview she demonstrated that she was observant by asking why Constable Combes was not wearing glasses when she had worn glasses during the first interview.
When the complainant gave evidence on the trial of the appellant on 22 March 2012, she was cross-examined by counsel for the appellant. She initially gave answers to a number of questions that indicated that she was alert and understood what was going on. In response to leading questions she agreed that "Mel", Constable Melissa Keygan, came to her home to talk about the appellant and that her mother was next to her when her mother and she talked to Mel about the appellant. To the extent that this evidence does not accord with that of her mother or Constable Keygan we pay little regard to it. However, it serves as a reminder of her vulnerability to leading questions. In response to leading questions she recalled her mother going to the police station to talk about the appellant, that she went with her mother, and that she sat in the same room as her mother while her mother talked about the appellant. This evidence accords with that of her mother and we will return to it.
She volunteered or could remember information such as being at her nan's when her parents had gone on their honeymoon to Surfers Paradise, that she got and still gets blood noses, that it was at their Burnie home that she told her mother about what the appellant had done, that she only told her mother not her father and that she had also told the police officers.
There were many questions about matters as to which her answers were that she could not remember. They included:
· whether her interview with Constable Combes was recorded on video;
· the number of sleeps that her parents were away for on their honeymoon;
· whether she told her mother anything about the appellant on the night that her parents returned from their honeymoon; and
· when she told her mother about the appellant's conduct;
The following portion of the transcript of her cross-examination is informative.
"How many times did you stay at Nanny and [the appellant's] house?.....I can't remember.
Do you remember whether it had an office?.....Yes.
And whose office was that?.....[The appellant's].
[The appellant's]?.....Yes.
Did you used to go into the office?.....Yes.
Do you remember what sort of door it had?.....A sliding door.
A sliding door. Do you remember what it was made out of?.....Wood.
Do you remember that he always kept the door open?.....Yes.
Right, he did, in fact, keep it open all the time didn't he?.....Yes.
Do you remember a time when Nan was cooking some Easy Mac?.....No.
You don't. Do you know what Easy Mac is?.....Yes.
What is it?.....It's pasta.
Right and you like it don't you. Do you still eat it all the time?.....Yep.
Do you remember when you stayed at Nanny's and [the appellant's] house who looked after you?.....Nanny and [the appellant].
Do you remember that your Nan would look after you the most?.....Yes.
And was she always checking on you?.....Yes.
And you stayed close to Nan?.....Yes.
Do you remember what you talked to the police about?.....No.
Do you remember whether [the appellant] has ever done anything horrible to you?.....Yes.
You do remember?.....Yes.
Do you remember what it was?.....Yes.
Can you tell us? Do you remember or you don't want to say?.....I don't want to say.
Do you remember where it happened?.....Yes.
Where was that?.....In his office.
Okay. Do you remember when it happened?.....No.
Did it happen while your mum and dad were on their honeymoon?.....Yes.
And it happened in his office did it?.....Yes.
Just one time?.....A few times.
And you don't want to tell us what happened? Are you able to say whether he touched you?.....Yes.
Will you tell me how he touched you?.....I can't remember.
Right. Do you remember what you were wearing when he touched you?.....No.
You don't remember anything about what you were wearing?.....No.
I have to say to you […] that – I'm going to say to you that it's not true that he touched you?.....It is true.
It is true?.....Yes.
I want to say to you that he never touched you in the office at his house?.....He did.
Do you want to tell me anything else about what you say happened? When you say he touched you where was nan?.....Out in the lounge playing the laptop.
In the lounge playing the lap top?.....Yep.
Where was [your sister] do you remember?.....(Inaudible).
Right, do you remember when I've asked you about this before, that you said Nan was cooking Easy Mac at the time?.....Yeah.
So was she cooking Easy Mac or on the laptop, which one?.....Both.
Pardon?.....Both.
Okay, so she had her lap top on and she was going between the Easy Mac and the laptop was she?.....Yes.
Was she coming in and out of the office as well?.....Mm.
Was she checking on you all the time?.....Only when I was in my bedroom."
Following this exchange she agreed that on a previous occasion counsel had asked her: "And when you go into the office, does nan keep an eye on you?", and that she had replied, "Yep she always comes up and checks on us".
The following includes further pertinent portions of the transcript of her cross-examination:
"Do you remember when you say [the appellant] touched you, what did he touch you with?.....I can't remember.
…
Can you remember anything else about what happened when [the appellant] touched you?.....No.
Is it that you can't remember or that you don't want to tell me?.....No I don't want to.
…
Can you tell me whether he touched you with anything else?…..I don't remember.
So you remember he touched you with his hand but you can't remember anything else?…..No.
Will you tell me where he touched you with his hand?…..On my bottom.
…
Well, I want to say to you that [the appellant] never touched you on your front bottom?…..He did."
The grandmother gave evidence that when the complainant and her sister stayed with her and the appellant while their parents were on their honeymoon, she had been their primary carer. She said that when the appellant was in his office and she was in the kitchen it would probably have only required her to take about eight to ten steps in order to see into the office. She said that there was no specific rule that the children were not to go into the appellant's office, and that during the stay she had seen the complainant sitting on the appellant's knee as he was typing at his computer. She said that during the stay the complainant had mentioned to her that she had seen something rude on the appellant's computer. The grandmother said she had discussed this with the appellant who had explained it on the basis that when he had opened whatever it was that the complainant saw he had not realised that she was standing behind him. The clear thrust of the grandmother's evidence is that she did not see anything untoward between the appellant and the complainant and that the complainant did not mention the alleged abuse to her. However, some of the grandmother's evidence provides support for the complainant's evidence of the setting in which the abuse occurred.
The appellant elected not to go into the witness box and give evidence. He had however, been interviewed by police on 8 December 2009, and the audio visual record of that interview was put into evidence. We have viewed it. In the course of it he emphatically denies sexually abusing the complainant.
Some of what the appellant says in his interview supports peripheral aspects of the complainant's evidence. Instances are that:
· during the stay the complainant was in his office when he was at his computer on a number of occasions.
· on one or more of these occasions she saw a pornographic movie or pictures on his computer;
· she sat on his knee whilst he was in his office a couple of times, and on one night she was in his office for about 15 minutes; and
· he checked the weather on his computer in his office.
In the interview, the appellant said a number of contradictory and inconsistent things about the complainant seeing him viewing pornographic movies or pictures on the computer in his office. On one occasion he said this would have occurred about three times on separate nights, whilst at an earlier stage in the interview he had said that the first time that this happened was the last time it occurred. This aspect of his interview impacted most adversely on our assessment of his credibility.
Whilst the complainant's evidence unquestionably contains a number of inconsistencies and contradictions about peripheral matters, this does not cause us to doubt her evidence on the core allegations. They are the sort of inconsistencies and contradictions that we would expect to find in the evidence of a five year old child who, over an extended period of time, has been called on to recall and talk about or give evidence about the same matters on several different occasions.
Nothing arising from the evidence provides us with any reason to suspect that the evidence of the mother or the complainant is concocted. They had no animosity towards the appellant and had no reason to make false allegations against him. It is unquestionably undesirable that the complainant was in the vicinity when her mother spoke to Constable Keygan at their home, and was in the room when her mother was interviewed at the police station. Undesirable as this was, it does not affect our assessment of the credibility of the evidence of the complainant or her mother. It is to be remembered that insofar as the complainant may have overheard what her mother said, her mother was endeavouring to repeat what she had been told by the complainant. This does not have the same potential for contamination as it does when a witness to an event describes it in the presence of another witness who is called upon to describe the same event.
We have no doubt about the appellant's guilt. With regard to the credibility and reliability of the complainant's evidence we note that her complaint to her mother was reasonably prompt and it was spontaneous. Her mother's evidence of what the complainant said by way of complaint was highly persuasive. We have, of course, viewed both of the complainant's police interviews. During the course of her first interview she returned to or was brought back to aspects of her allegations at a number of different stages with other topics interspersed, which provided a useful opportunity to assess her reliability. Her account was convincing in its consistency and spontaneity. At one point she corrected her interviewer on a significant detail of the appellant's conduct. Her demonstrations of the appellant's conduct and her response in pulling away from him were indicative of a vivid recall of events. As to her core allegations against the appellant, our clear impression from not only the type of things she described but also her demonstrations, is that she was in part re-living what actually occurred, and nothing said by her suggests to us that she was parroting something that she had been told or overheard. Her complaints to her mother and her evidence bear none of the hallmarks of that which a five year old might have fabricated or imagined. We have no doubt about her evidence of the conduct that is the basis for the appellant' convictions and have no hesitation in dismissing his denial of the conduct.
The appeal is dismissed.
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