JRJ v R

HOEBEN CJ at CL: JRJ (the applicant) seeks leave to appeal from his conviction on Count 2 of the indictment dated 1 June 2016:

The applicant was convicted by majority verdict following a trial before Flannery SC DCJ and a jury in the NSW District Court, commencing 1 June 2016 and concluding 9 June 2016.

The applicant was arraigned on two counts, pursuant to s 66A(2) of the Crimes Act 1900 (NSW), both relating to the complainant, CD, born August 2006.

Count 1 was pleaded to have occurred between May and December 2014. Count 2 was pleaded to have occurred within a more narrow range of dates in late January 2015.

The jury convicted the applicant on Count 2 but acquitted him on Count 1.

The applicant was sentenced to a term of imprisonment of 6 years with a non-parole period of 4 years to date from 30 March 2015. The non-parole period will expire on 29 March 2019 and the balance of the term of imprisonment will expire on 29 March 2021.

The applicant relies upon a single ground of appeal:

The applicant married the complainant’s mother (TG) in 1997 and they lived together until 2005 when they separated. TG commenced a new relationship and the complainant was born in August 2006. Her younger sister, A, was born in 2011. In 2013 the applicant, TG and the two children began living in an apartment in Gordon Street, Bankstown. This was due to financial reasons. The relationship between the applicant and TG was a platonic one.

The Crown alleged that when the complainant was about 7 or 8 years old, the applicant was looking after her and her sister while their mother was visiting her parents. The complainant said that she was sitting on the lounge watching television after school and the applicant sat next to her. The complainant recalled watching two television shows, "Angelina Ballerina" and then "Rastamouse", on the ABC.

The applicant was said to have pulled her underpants down, rubbed the outside of her vagina and then inserted two fingers into her vagina and moved them in a circular motion. In a recorded interview the complainant said that the applicant used words similar to "You like it?" and the complainant said "No, stop it". These facts were said to establish Count 1.

In relation to Count 2, the complainant gave evidence that on Thursday, 22 January 2015 she was at home with her sister A and was again being cared for by the applicant. Their mother was spending time with their grandfather (the mother’s father), who was ill. The complainant alleged that she was sitting on the lounge in the apartment the applicant was seated next to her, with A asleep in their bedroom. The complainant gave evidence that she was playing a bible related game on her iPad, and that the applicant put his hand up her skirt, rubbed the outside of her vagina and then inserted a finger into her vagina. The applicant was alleged to have said "You like that don't you?". The complainant said no and asked the applicant to stop, which he did. The complainant's mother remained with her father overnight.

The complainant said that she recorded the assault, or at least what the applicant was saying during the assault, on her iPad but that she later deleted the recording.

The next morning when her mother returned home, the complainant told her what had occurred the previous night. The complainant's mother took her shopping, during which time the complainant was said to have made a full complaint.

There was an issue at trial as to whether the complainant had sought to retract the allegation against the applicant, saying that it was not true.

The applicant gave evidence in his case and denied the allegations.

The complainant gave unsworn evidence. Her evidence-in-chief was led by way of a pre-recorded audio-visual interview, the transcript of which was marked for identification 2. The audio-visual disc of the interview was marked for identification 3. The complainant’s cross-examination, although audio-visually shown to the jury, was only sound recorded. In this appeal, counsel for the applicant asked that the Court view the audio-visual disc of the complainant’s evidence-in-chief and listen to the audio disc of her cross-examination. The Court has done this.

The complainant was aged 8 when she participated in the audio-visual recording and 9 when she gave evidence.

The audio-visual evidence of the complainant’s evidence-in-chief was recorded on 10 February 2015. The person conducting the interview was named Jenny. At the beginning of the interview, the complainant gave evidence of playing an imaginary game of Monopoly with her pretend friend, Zoey, and with Zoey’s older sister, Claire. The complainant also spoke about her Aboriginal family and her “deep, deep family” which comprised the complainant, A, their mother and a deceased sister.

When asked what she liked about the applicant, JRJ, the complainant said “Nothing” and when pressed as to why, said “Um, he touched a part of my body which I don’t like to say the name” (A.201). The complainant said that this assault (which was Count 2) happened a couple of weeks before the interview.

The complainant said that she was sitting on the lounge playing with her “beautiful tablet”, her sister was sleeping and her mother was not there. She showed the tablet to the applicant and he sat down next to her and “just started to touch me and rub me while I was showing him what was on my tablet." The complainant said the applicant was rubbing her “rude bit”, which she referred to as her "giny". The complainant said “Stop touching me J, please” and went into the bedroom where her sister was sleeping. She then moved some furniture into her room, moved her sleeping sister, prepared some imaginary food and went to sleep next to her sister.

The complainant said that at the time of the assault she was playing a bible themed game or application on her tablet iPad and that she had called the applicant to see the game. She said that he made a coffee in the kitchen and then sat down next to her.

The complainant said the applicant was rubbing her between the legs, in circles, and that he started to touch her “cause my rude part stays open anyway because I was um, a bit fevered in there ... Fevered, like, very sick there." (A.324). She said that the applicant was rubbing “deep inside” (A.341). The complainant said that he had taken her underwear off and that she had struggled to pull them back up. The complainant said that the applicant used two fingers to penetrate her and that it lasted for a couple of minutes (A.361). The complainant demonstrated a circular motion that the applicant was using when touching her genitals.

The complainant’s evidence on this issue was:

The complainant said she felt “Annoyed, frustrated and upset” because “I thought he was, like, nice, and he wouldn't do it.” (A.376-377)

The following was then said:

The complainant was questioned as to whether she still had her tablet and she replied “I left it at my nan’s and pop’s and it rained and I broke it yesterday” but that it was still at home and that it might be able to be repaired. She said that the application she was using “Just records what your doing on the tablet” (A.481), that it was recording while the applicant was assaulting her and that she knew because she checked it (A.485).

The evidence was:

The complainant said that the application only recorded voices not images or video and that she deleted the recording before her mother came home. The complainant said that when her mother arrived home the next day, she told her that the applicant had touched her. They then went shopping during which time her mother asked her questions about what happened. The complainant said that she told her mother's friend, Connie, what had happened, as well as another person named “Renelle”.

The complainant was asked whether anything like that had happened before and she said that it had “last year, heaps, months ago, heaps but I don't know how many months” (A.650). The complainant said that the applicant did the same thing as she had just described, but that she had forgotten to tell her mother (A.652). The complainant then gave evidence that supported Count 1.

The complainant said that the applicant had “rubbed her [vagina] in circles” and that she had been sitting on the lounge when this occurred. It was a school night, her mother and her sister were at her grandparents’ house. The complainant said the applicant had just made some coffee and when she went to the lounge to watch TV, he sat next to her and put his hands between her legs and rubbed her genitals and said “Do you want to do it again?” She said that he rubbed her “in circles, but this time it was goin' bigger and bigger circles” inside her “giny”. The complainant said that the applicant used two fingers, she said “Stop it” and the applicant said “Fine”. She remembered that around the time of the assault she was watching a television show called "Angelina Ballerina", which was followed by a show called "Rastamouse". They were on the same channel.

The complainant said that after the assault she felt “paranoid” (A.797) because the applicant was an adult and he knew what was wrong and not wrong. The complainant then said that the applicant had tried to assault her on a third occasion. The complainant said that on this occasion, she was standing next to her sister, the applicant approached her and she said “No, don’t touch to him when he was going to do it for the third time …” (A.832). She said that this occurred a few days after the assault in Count 2. The complainant said that her mother was sleeping at the time and that she was standing next to her sister when the applicant approached her. She said that the applicant pulled her shorts down, but she said “No” and he stopped. She said that her sister did not notice.

In cross-examination, the complainant denied using the iPad for accessing the internet and said that she did not recall having an email address and that she did not send emails to other people using the iPad. The complainant said the bible-related application had been on the iPad for about two weeks before the second assault and that the iPad could be used to take photos and videos.

The complainant said that she was using the iPad, but not the bible-related application when the applicant touched her on the second occasion. The complainant agreed that after the first occasion when an assault occurred, she had spent time with her mother, father and grandparents alone and had not made a complaint.

The complainant agreed that between the first occasion and the second occasion when assaults took place, there were times when she was left alone with the applicant and that she made no complaint about those occasions.

In relation to Count 2, the complainant said that she could not remember on what side the applicant was sitting when the assault occurred and that she knew the applicant was touching her because she could feel it (T.74.3).

The complainant was cross-examined about using her tablet during the assault in Count 2:

The complainant was cross-examined about the questions and answers in her audio-visual interview at [25] hereof where she said that she only started to feel what the applicant was doing to her when he started to talk about it. When asked what she meant by these statements the complainant said:

The complainant was asked whether she had ever retracted the allegation against the applicant by telling her mother it was not true.

When questioned about her allegation that the applicant tried to touch her when she was standing next to her sister i.e. the third incident, the complainant could not recall whether this occurred before or after the second incident (T.82.42). When further questions were asked as to whether the applicant had actually touched her on this third occasion, the following evidence was given:

The complainant was cross-examined about her imaginary friends. She gave evidence that they were sometimes with her when she played with the iPad.

The complainant admitted that she knew how to delete things from her iPad, and that sometimes her mother used the iPad.

Ms Connie Daniel, a good friend of the complainant’s mother, gave evidence. Because of the illness of the complainant’s grandfather, she was going to care for CD and A on the weekend. There was a change to that arrangement when she received a telephone call from the complainant's mother on the Friday. In that call, the complainant’s mother told her something about CD. As a result of what she told her, Ms Daniel offered to take both of the girls straight away. Ms Daniel gave evidence that in due course, the girls were picked up by her former partner and taken to her house.

While CD was staying with Ms Daniel, the two of them went for a walk to the local service station. Ms Daniels’ evidence as to what occurred was:

Ms Daniel said that CD and A stayed the night but she could not remember whether it was the Thursday or Friday night. There were no other conversations on that topic between her and CD.

Ms Daniel denied that CD and A were brought to her house by the applicant and the complainant’s mother on Friday, 23 January 2015. Ms Daniel denied that it was later that afternoon that she received a telephone call from the complainant’s mother when she said that something had happened between CD and the applicant the night before. Ms Daniel was definite that she received the phone call from the complainant’s mother before her former partner went to pick the girls up. She did agree that the girls stayed overnight and probably went home to their mother and the applicant on 24 January, the Saturday.

Detective Paul was the officer in charge of the investigation. He was able to establish that at no time did the TV programs “Angelina Ballerina” and “Rastamouse” run consecutively. He agreed that following the complainant’s interview, he did not take her to a medical practitioner. This was because several weeks had passed since the allegation and he believed there was little likelihood of injury. He agreed that a medical examination would have revealed an injury to the complainant’s hymen if one had occurred.

Detective Paul took possession of the complainant's iPad and a memory storage card, which was marked as Exhibit C. Detective Paul submitted the iPad to the State Electronic Evidence Branch (SEEB) for analysis. The memory storage card was found to be blank, and the iPad was found to have an application called “Bible for Kids”, purchased on 20 January 2015.

The analysis by SEEB could not locate any recordings on the iPad and Detective Paul gave the following evidence:

Detective Paul agreed that the analysis disclosed some draft emails, the first two of which were from an email address of "chloe382200@gmail.com” and addressed to someone called Mandy Jia Han Nguyen. Detective Paul assumed this person was a child but could not locate her. Detective Paul agreed that the iPad appeared to have been used for searching for things on the internet.

Detective Paul gave evidence that the applicant had no criminal record for sexual assault offences. Detective Paul agreed that he had taken a file note of a conversation with the complainant's mother in the following form:

The complainant’s mother, TG, gave evidence of sharing the unit in Gordon Street, Bankstown with the applicant. Her father was ill in January 2015 and died on 26 January 2016.

She commenced sharing the unit with the applicant in 2013 for financial reasons. Their relationship was non-sexual.

TG said that the complainant’s iPad did not have access to the internet but instead she would take the complainant and the iPad to the local library to download games. TG had her own computer and mainly used that, although she may have used the complainant's iPad to check emails.

In examination-in-chief TG said that on the afternoon of Thursday, 22 January 2015 she and her two daughters went to her parents house to see her father. She then took the children home to the unit and left them there, while she returned to her parent's house. Her father was taken to hospital that evening and she travelled to hospital with him. She stayed at the hospital overnight, contacting the applicant to tell him that she would not be coming home.

TG returned to the unit the next morning, some time before lunchtime. She was in the bathroom getting ready to go back to hospital when the complainant made the complaint to her. The evidence of TG was:

TG said that she telephoned her friend Connie and arranged for the two girls to be taken to Connie by Connie’s former partner a day earlier than had been planned. TG accompanied the girls to Connie’s place, but only stayed there a short time. TG then returned to the hospital. This was on the Friday.

TG said that when she returned to the Bankstown unit, she did not confront the applicant with what had happened. Her evidence was:

TG said that there was no further discussion with the complainant about what had happened. Her evidence was:

In cross-examination TG agreed, contrary to her evidence-in-chief that on 22 January she and the two girls and the applicant had walked to her parents’ house and it was only then that she learned that her father was ill. She agreed that she stayed at her parents’ house and the applicant walked the two girls home. It was then that she went to the hospital and stayed the night.

In cross-examination TG had a recollection of a Residential Tenancy Tribunal hearing, which was attended by the applicant and as a result of which the family was to be evicted from the Bankstown unit. She could not clearly remember whether that occurred on the Friday. TG agreed that on Friday, 23 January the two girls were being looked after by Connie Daniels and that Connie’s partner brought the girls back to the Bankstown unit some time in the afternoon of Friday.

It was put to TG that it was after the girls had been brought to the Bankstown unit on the Friday afternoon that the complainant made a complaint about what the applicant had done. TG agreed that she had taken the complainant shopping and during the shopping trip, she rang Connie who arranged for the girls to be picked up when TG spent another night (being Friday night) at the hospital.

TG agreed that the complainant had clashed with the applicant in the past and that he was the disciplinarian, even though he never smacked the children. TG agreed that before the complainant spoke to her on 23 January 2015 she had not raised any complaint about the applicant’s conduct.

TG agreed that after the complainant’s recorded interview, she had a conversation with Detective Paul. Her evidence was:

TG said that she was concerned about the complainant playing with older girls in the flats and that until CD started playing with these older girls, she was “pretty naïve to everything”. These older girls were aged 11.

TG was asked about the complainant’s imaginary friends. She said:

The applicant gave evidence. In relation to Count 1, his evidence was:

He described his relationship with the complainant as follows:

The applicant’s evidence about what happened on the Thursday night was that he had cooked dinner for CD and A. His evidence was:

The applicant said that he went to the Rental Tribunal Board at Liverpool on the Friday morning. The Tribunal terminated the Gordon Street, Bankstown lease. The applicant’s evidence was:

When the second incident was put to the applicant, he said:

Flannery SC DCJ gave a number of warnings to the jury in her summing up. Her Honour gave a Murray warning in accordance with R v Murray (1987) 11 NSWLR 12, a direction in terms of delay in making complaint, a direction in terms of complaint, a limited good character direction and a Markuleski direction in accordance with R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. The applicant makes no complaint concerning the summing up.

I should say something at this stage about my observations of the audio-visual disc (MFI 3) on which the complainant’s evidence-in-chief was recorded.

When the complainant was first asked to describe what the applicant had done, she made a sweeping gesture with her arm and hand ending in the region of her vagina. This gesture was never thereafter repeated. The gesture was made when the complainant was answering the question between Q.300 and Q.301, which was wrongly labelled as Q.308. In all subsequent demonstrations, the complainant simply moved her hand to the vagina area and placed it there. The troubling feature of the demonstration is that it was a particularly adult gesture, suggesting a level of aggression in the person making the gesture.

There was a certain theatrical element in the way in which the complainant demonstrated what had happened when asked to explain parts of her narrative. I have already referred to one such example. Another striking example was at Q. and A. 385 and 386 of the recorded interview. After giving a description of the incident in Count 2, the following exchange took place:

The applicant submitted that the nature of the complainant’s evidence raised a reasonable doubt as to his guilt for the reasons set out in his written submissions. The applicant submitted that there was no single deficiency in the complainant’s evidence which would lead this Court to intervene. Rather, it was the combination of all of the matters relied upon by him, that should cause this Court to have a reasonable doubt as to the reliability of the complainant’s evidence.

In support of that submission, the applicant drew the Court’s attention to the following matters:

The applicant submitted that taken together those six issues undermined the complainant’s credibility to such an extent as should have caused the jury to have a reasonable doubt about her evidence of the second count and should cause this Court to also have such a doubt. The applicant submitted that this was so in circumstances where the jury had a reasonable doubt as to the offending in Count 1 and the jury were directed to use such a doubt when considering the complainant’s credibility in relation to Count 2.

The applicant submitted that his evidence as to what occurred was simple, his denials clear and he was not shaken on cross-examination. The applicant submitted that his denials and his previous good character in terms of lack of sexual offending should have been taken into account by the jury and should be taken into account by this Court.

The Crown submitted that the delay in complaint concerning the first and third incidents, was not of particular significance. The Crown submitted that a delay in complaint by children about these kinds of offences is common and can have many explanations. Just because a child of eight might know that touching the genitals was wrong, did not of itself ensure that he or she would report what occurred. Much depended upon the family dynamic, particularly where the perpetrator was in loco parentis. The Crown submitted that the Court could take notice of other reasons why the complainant might not have made a complaint without specific evidence from her on that issue, e.g. self-blame, fear of not being believed, acknowledgment of the power imbalance between her and the applicant, guilt, shame, embarrassment, worry about getting somebody into trouble and the potential consequences for the family unit accompanying disclosure, might all operate collectively or individually to inhibit the making of a complaint.

The Crown submitted that the incident in Count 1 occurred a considerable time before the second incident when the complainant was much younger. The Crown submitted that the complainant’s very young age was of itself a possible explanation for the failure to disclose this incident contemporaneously. The Crown relied on the complainant’s evidence that when she went to school on the day following the incident in Count 1, she cried about what had happened and covered up the reason for her distress by saying that a “rock went in my eye” (Q. and A. 676-679).

The Crown noted that the third incident involved an attempt by the applicant to pull down CD’s shorts and underpants. When told by the complainant to stop, the applicant did so. The complainant’s mother was asleep in her bedroom. The Crown submitted that it was readily understandable why CD did not immediately disclose the third incident. This was because CD believed that she had successfully prevented anything from happening. She might also have been reluctant to tell her mother of the third incident because her mother had become upset and started to cry when told about the incident in Count 2 (Q. and A. 590-591, 599).

The Crown submitted that the complainant might have been reluctant to say anything about the third incident because of what her mother had told her when she complained about the second incident, i.e. that police and doctors would become involved.

The Crown submitted that the applicant’s submission that the failure of CD to complain to Ms Daniel when she was with her on the Friday impacted upon her credit, depended on an acceptance of the applicant’s evidence as to the sequence of events on that day. The Crown submitted that there was a real contest on that point. TG had only a vague recollection of the events of that day and Ms Daniel denied the applicant’s version of events. The Crown submitted that the applicant’s submission depended upon an acceptance of a contested issue of fact.

The Crown submitted that the important issue was not so much the sequence of events on the Friday but whether in fact a complaint was made by CD to Ms Daniel. Clearly it was and Ms Daniel was not cross-examined to suggest the contrary. The Crown submitted that the fact of that complaint being made so close to the occurrence of the incident supported, rather than derogated from, an acceptance of the complainant as a reliable witness.

The Crown submitted that the fact that the applicant had cared for CD on other occasions, yet no complaint was made with respect to any incident of sexual abuse, was not of particular importance. The Crown submitted that while sexual abuse was opportunistic, there is no expectation that such abuse would or must occur on each and every time that an opportunity arose. The Crown submitted that the fact CD gave evidence of only one sexual assault incident before that in Count 2 supported, rather than damaged her credit. Had she been vindictive towards the applicant, it was open to her to complain of a number of such occasions. This she did not do.

The Crown submitted that the applicant’s submission as to the unbelievability of CD’s complaint because it involved the vigorous insertion of at least two fingers into her vagina was based on an assumption which had not been made out. The assumption was that there had been substantial digital penetration of the complainant’s vagina by the applicant. The Crown submitted that the evidence did not support that assumption.

The Crown submitted that what it had to prove and did prove was that digital penetration of the external genitalia of CD took place, in this case the labia majora. The Crown submitted that although CD used the word “giny” to describe her genitalia, it could not be presumed that she was using that with any anatomical precision. On the contrary, on other occasions the complainant referred to it as her “rude part” and “small intestine”. The Crown submitted that CD’s descriptions and demonstrations in the recorded interview were consistent with penetration of the labia majora.

The Crown submitted that CD’s evidence that she did not notice or did not feel what was happening until the applicant spoke to her was consistent with some of the difficulties that CD encountered with words which she used, e.g. she used the word “paranoid” when what she meant was “frustrated or upset”. The Crown submitted that this answer could be understood in the context of CD not reacting to the sexual abuse until the applicant spoke to her.

The Crown submitted that the complainant’s initial evidence of the use of the iPad and later that it was really part of a dream was explained by her evidence under cross-examination that during the recorded interview she “got confused a bit” (T.75.5).

The Crown submitted that any confusion that CD may have experienced was readily understandable given the length of the recorded interview and the very difficult subject matter that CD was being asked to discuss. The Crown submitted that this aspect of her evidence was the most embarrassing part and it may have been simply overwhelming for her, given CD’s age at the time.

The Crown submitted that in such circumstances, the complainant may well have used a dissociative technique in order to distance herself both from what had happened to her and from the detail involved in discussing it with a stranger. The Crown submitted that in those circumstances, more than a year later when giving evidence, with greater maturity and the distance of time, CD had no hesitation in distinguishing which part of the evidence in the recorded statement was a dream and which part was reality. The Crown noted that extensive submissions were made on this topic by defence counsel in the course of his closing address so that the jury were well aware of the issue.

The Crown challenged the applicant’s submission that the complainant’s description of what she did after the incident in Count 2 was unbelievable. The Crown submitted that the description of the applicant crying was typical of the manipulative behaviour of sexual abusers in trying to invoke the sympathy of the victim to prevent her saying anything about what had happened. The fact that she moved her younger sister in the way she described to the bunk bed was also reasonable conduct on her part. The Crown submitted that there was nothing inherently unbelievable in what the complainant said she had done.

The Crown submitted that there was no clear evidence that the complainant had retracted what she told her mother when she first complained to her. When that proposition was put to the complainant in cross-examination she denied it and insisted that her allegation was true. The Crown submitted that it was not clear from the evidence what TG meant when she used the word “retraction”. When she was asked what were the words used by the complainant, her response did not amount to a retraction as such, but rather an unwillingness on the part of the complainant to see doctors and the police.

The Crown submitted that even if the complainant had retracted her complaint, i.e. told her mother that what she said was not true, she did so in circumstances where she was confronted with the prospect of police and medical intervention. For a child aged eight, the prospect of such unwelcome involvement may well have caused her to withdraw what she had said.

The Crown submitted that there was a powerful and persuasive body of evidence, which allowed the jury to be satisfied beyond reasonable doubt of all of the elements of Count 2 in the indictment. This included not only CD’s account, but the early complaint by CD in respect of Count 2, both to her mother and to Ms Daniel. The Crown submitted that CD had complained to her mother as soon as she could after her mother returned from the hospital.

The Crown submitted that the evidence of CD was both credible and reliable and that she gave a cogent and detailed account of a sexual assault (being digital penetration of her “giny”) performed upon her by the applicant. The Crown submitted that the suggestion that the complainant was unreliable and gave inconsistent evidence with respect to a number of topics was well ventilated before the jury and was the significant issue in the case.

In CR v R [2017] NSWCCA 29 this Court summarised the principles that apply when considering whether a verdict is unreasonable. Hoeben CJ at CL (with whom Schmidt and Wilson JJ agreed) said:

The jury may well have taken into account the lack of a timely complaint as part of the reason for finding the applicant not guilty of Count 1. There were, however, other good reasons. The fact that the circumstances were almost identical to those in Count 2, including the question said to be posed by the applicant “Do you want to do it again?”. The complainant’s explanation for not making a complaint that she “forgot to tell her mother” was not persuasive, particularly when the incident was said to be sufficiently distressing to cause her to cry at school and explain her tears by telling her school friends that she had been hit in the eye by a rock. There was also the evidence of watching the TV programs “Angelina Ballerina” and “Rastamouse” in relation to which the complainant must have been mistaken. Accordingly, her failure to complain in relation to Count 1 may not have been of particular significance. What was of more significance was the reasonable doubt which the jury clearly had as to whether this incident occurred.

Different considerations apply in relation to the delay in complaint about the third incident. I find the Crown’s submission on this issue to be persuasive. The complainant’s mother had become upset and reacted emotionally when CD had complained to her about the matters giving rise to Count 2. One could well understand why the complainant might have been reluctant to complain again about the third incident, particularly when a sexual assault did not take place.

The importance of the third incident is not so much the failure by CD to make a timely complaint, but rather her evidence of what is said to have occurred. It follows from the above that the failure to make a timely complaint in relation to the first and third incidents are not matters which I regard as particularly persuasive in the applicant’s case.

I have reached a similar conclusion in relation to the asserted failure of CD to complain to Ms Daniel on the Friday. As the Crown has pointed out, there was a real factual issue as to the sequence of events on the Friday. Ms Daniel was definite as to what she said happened, as was the applicant. On my reading of the evidence of TG, she had little clear recollection of the sequence of events on the Friday (which was understandable given the emotional involvement caused by the serious illness of her father and the complaint by CD). That probably accounts for why she was prepared to agree in cross-examination to a different sequence of events to that which she had asserted in her evidence-in-chief.

The important matter from the Crown’s point of view was that the complainant did at some point on the Friday complain to Ms Daniel about the matters in Count 2. That she was prepared to do so despite being told by her mother that she had to see doctors and the police is an important factor in support of the Crown case.

It is not clear on the evidence whether the complainant retracted her complaint. It is clear from Detective Paul’s note and from her evidence that TG said on a number of occasions that CD had retracted her complaint. What is not clear is what TG meant when she used the word “retraction”. In that regard, there are two competing and apparently irreconcilable pieces of evidence. That evidence is extracted at [55] and [63] hereof:

It follows that I am not sure whether the complainant did retract the complaint in terms or whether she made it clear that she did not want to become involved with the police and doctors and that was taken by TG to be a retraction. To the extent that the issue remains unresolved, however, it does not assist in the resolution of this appeal.

In the recorded interview, the complainant said that within days of the second incident her mother was sleeping in one of the rooms and she was standing next to her sister. The applicant is said to have approached her and pulled her shorts down. She said “no” and he stopped. She said that her sister did not notice. That narrative is surprising. It is difficult to see how her sister would not have noticed the applicant pulling down CD’s shorts. It would also have been an extraordinarily foolhardy thing for the applicant to do given the proximity of CD’s mother and of her sister.

When the complainant was cross-examined in relation to the third incident she was unable to remember whether it had occurred before or after Count 2. Her evidence as to whether the applicant had actually touched her was also confusing (at [39] hereof). Initially, CD said that the applicant did not touch her. Then she said he did not actually “touch very far”. Her final answer is even more delphic, i.e. “He didn’t actually touch it but he put his finger through it and did that thing, the swirly” (T.84.15). There is also the evidence of her mother that following the complaint, although she had not confronted the applicant, she made sure that the two girls were not left alone with him. That is difficult to reconcile with CD’s evidence that her mother was asleep in another room. It follows that I am left with a doubt as to whether the third incident ever occurred in the way described by the complainant.

I accept that the jury’s verdict of acquittal of the applicant in respect of Count 1 does not mean that the jury necessarily disbelieved the complainant. It goes no further than establishing that the jury had a reasonable doubt that the offence occurred. That, however, does not end the matter.

As was made clear in R v Markuleski, that reasonable doubt could be used by the jury when assessing the complainant’s evidence in relation to Count 2. As earlier indicated, there were a number of strong indicators apart from the delayed complaint which placed doubt on whether the incident in count 1 ever occurred. In addition, there is the evidence in the recorded interview at Q.377 that at the time when the incident in Count 2 occurred, the complainant was upset “’cause I thought he was like nice and he wouldn’t do it”. That is an odd thing to say if previously the applicant had sexually assaulted her in an identical way.

Because of the acquittal in respect of Count 1, there was no evidence of previous sexual assaults until the incident in Count 2. That makes the occurrence of the incident in Count 2 somewhat surprising. There was no evidence of any grooming or sexual interest by the applicant before then. On the contrary, there was evidence of ill-feeling between the applicant and the complainant. To accept beyond reasonable doubt that the incident in Count 2 occurred, one has to accept that this was the first occasion of any such incident and that it occurred without warning. This is despite the fact that the opportunity to engage in such conduct had arisen on many occasions in the past but had not been availed of by the applicant.

I have concluded that the nature of the circumstances and evidence relied upon to establish Count 1 places doubt on the occurrence of Count 2.

In the recorded interview, the complainant said on a number of occasions that the applicant had used two fingers to penetrate her vagina and demonstrated what he had done, in particular the circular movement of the fingers by placing one hand on the other. She also said that the penetration was “deep”. That would seem to be consistent with the somewhat odd assertion “cause my rude part stays open anyway because I was um, a bit fevered in there... Fevered, like, very sick there" (A.324). CD’s evidence was that the penetration lasted for “a couple of minutes” (A.365).

That evidence is difficult to reconcile with the complainant’s evidence that although the penetration took place over a couple of minutes, she did not feel it at first and then she knew what was happening because “I have a camera on my phone so it sees me” (see [23] hereof). A little later in the recorded interview the complainant said that she did not start to feel what was happening until he said “You like that don’t you” (see [25] hereof).

It follows that I do not accept the Crown’s explanation of this evidence to the effect that there was relatively slight penetration which did not proceed beyond the labia majora. There is no evidence to that effect. All the evidence is to the contrary. It follows that I find it unbelievable that the complainant as an eight year old would not have felt the level of penetration which she described as soon as it occurred and that her evidence to the contrary is not only surprising but incredible.

A further major difficulty with accepting the complainant’s evidence of the matters giving rise to Count 2 is what she said about the use of her iPad. In her recorded interview, the complainant said that she did not become aware of the digital penetration until she saw what was happening on her tablet. That and her reference to a camera suggest strongly that her initial assertion was that the iPad was in some way photographing or videoing the digital penetration. In subsequent answers that changed to the iPad making an audio record of what was happening. That in itself is strange because the only evidence of any sound is the concluding remark said to have been made by the applicant “You like that don’t you”. Accordingly, it is difficult to understand what, if anything, was being acoustically recorded by the iPad.

The complainant went on to say in the recorded interview that she immediately deleted what had been recorded on the iPad because her sister would use her iPad.

Without wishing to be harsh, a perusal of the complainant’s questions and answers from Q.365 when she first introduced the iPad, which is confirmed when one views the computer disk of the interview, leaves an impression of the complainant initially saying that she video recorded what was happening, realised that this could be easily checked and adjusted her answers to explain why, if the iPad were checked, nothing would be found because it had been deleted. That is consistent with the questions and answers at [27] hereof. Of course, when SEEB checked the iPad, nothing was found on it either visually or aurally such as was described by the complainant.

If that were the only evidence on the subject, it would of itself create a considerable doubt in my mind as to the reliability of the complainant’s evidence concerning Count 2. This is because the part played by the iPad in the scenario described by the complainant is fundamental. The complainant said initially that she did not become aware of the penetration until she saw something on the iPad. That then changed to being made aware because of what the applicant said, which was in turn recorded on the iPad. The use of the iPad was an integral part of the complainant’s narrative about the offending in Count 2.

The events giving rise to Count 2 are further placed in doubt when one has regard to the cross-examination of the complainant at trial. CD initially denied that she had recorded anything on the iPad at the time of the assault in Count 2 (T.53.1-7). The cross-examiner returned to that topic at T.74.31 (see [36] hereof). It was on this occasion that the complainant said that when she spoke about using the iPad in the recorded interview, that must have been a dream but what she said about the assault was not.

The troubling feature of that evidence is the same issue to which I have already referred, i.e. the importance of the iPad in the narrative concerning Count 2 in the recorded interview. Once it is accepted that the iPad played no part in the narrative concerning Count 2 other than allowing the complainant to watch the Bible app, considerable doubt must arise concerning the entire narrative. This is particularly so when regard is had to the “dream” explanation in a child with imaginary friends and a very active imagination.

It also needs to be kept in mind that the “dream” component of the Count 2 narrative covers quite a lot of activity, i.e. activating the iPad so that it recorded something, viewing the iPad screen and checking what had been recorded and then deleting what had been recorded. Nothing was said to Jenny in the recorded interview about any of those matters being part of a dream sequence. They were asserted as actual events.

It was in the cross-examination at trial that the complainant adhered to what she had said in the recorded interview about not feeling the penetration until the applicant spoke to her. The repetition of that evidence in cross-examination remains troubling, given the complainant’s age and the graphic demonstrations which she gave on a number of occasions in the recorded statement of what the applicant was said to have been doing with his fingers.

In relation to the evidence concerning the iPad, and the lack of awareness of the penetration until spoken to, I reject the Crown’s submission that these can be explained by the complainant being in a dissociative state. That submission was not put to the jury. Moreover, it is something which this Court cannot take into account without there being expert evidence to that effect. Without such evidence, the submission is based on nothing more than speculation.

It follows that in my independent assessment of the sufficiency and quality of the evidence in this matter I have a reasonable doubt as to whether the offending in Count 2 occurred. That is a doubt which the jury should have had. Accordingly, I am not satisfied that it was open to the jury to find beyond reasonable doubt that the applicant committed the offence alleged in Count 2.

In reaching that conclusion, I am mindful of the fact that the jury is the body entrusted with the primary responsibility of determining guilt and that in this case the jury has had the benefit of seeing the complainant give evidence under cross-examination. Despite that important consideration, I do not see how it was open to the jury to have found beyond reasonable doubt that the applicant was guilty of the offending in Count 2. This is because the use of the iPad and the lack of awareness of the penetration were such fundamental parts of the complainant’s description of Count 2 that when those elements are removed, reasonable doubt must exist as to whether the offending in Count 2 actually occurred.

The orders which I propose are:

FULLERTON J: I have had the advantage of reading in draft the judgment of Hoeben CJ at CL. I have considered his Honour’s reasons for concluding that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence charged as the second count on the indictment and note Garling J’s agreement that the jury’s verdict on that count should be quashed and a verdict of acquittal entered.

After undertaking my own assessment of the sufficiency and cogency of the complainant’s evidence when viewed in the context of all of the evidence at trial, including the evidence of the applicant, I have concluded it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt and that the application for leave to appeal should be dismissed.

I gratefully adopt Hoeben CJ at CL’s comprehensive summary of the evidence and the issues to which the evidence gave rise in the conduct of the trial. While I am also in agreement with much of his Honour’s analysis of the evidence of the complainant and with his Honour’s consideration of many of the issues raised by her evidence, I have come to a different view as to those aspects of her evidence which his Honour considered undermined her credibility to such an extent that it was not open for the jury to accept her as a truthful and reliable witness. It will be necessary therefore for me to review those aspects of her evidence and express my reasons for coming to a different conclusion.

The principles that apply when the Court is asked to find that a jury’s verdict is unreasonable, such that it would be dangerous to allow it to stand, are well settled. As the High Court has emphasised most recently in The Queen v Baden-Clay [2016] HCA 35 in the passage extracted by his Honour at [97], setting aside a jury verdict on the grounds that it is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) (the equivalent of s 668E(1) of the Criminal Code 1899 (Qld)) is a serious step, not be taken without regard to the advantage the jury had of hearing and seeing the witnesses called at trial. Their Honours also emphasised that in undertaking its assessment of the reasonableness of the jury’s verdict (that is, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of an accused) the appeal court should afford to the jury a breadth of approach to their sworn or affirmed roles as the judges of the facts to ensure against the risk of trial by an appeal court being a substitute for trial by jury.

For the purposes of the appeal, the Court was invited by the applicant’s counsel to view particular segments of the audiovisual record of the complainant’s interview with an investigating official on 10 February 2015. In accordance with Division 3 of the Criminal Procedure Act 1986 (NSW), the interview was received at trial as the complainant’s evidence in chief. At that time the child was aged 8 years and 6 months. The Court was also invited to listen to particular segments of the audio recording of the child’s cross-examination at trial conducted via closed circuit television. By the time of the trial in June 2016 the child was aged 9 years and 10 months. The complainant was not present when the video recording of the interview was played to the jury but, as was clear from the cross-examination, she had viewed it some weeks prior to the trial, I assume as part of the Crown’s preparation for trial.

The applicant’s counsel placed particular reliance upon a discrete number of questions and answers in the complainant’s evidence as exemplifying her unreliability as a witness, that issue being central to the applicant’s case on appeal that the jury verdict should be overturned. In determining, for my part, whether that challenge was made good, it was essential to consider those questions and answers to which counsel referred the Court in the context of the lengthy and carefully structured interview by the investigating official which extended over some hours and the more than two hour cross-examination in its entirety. I have done both.

By agreeing to view and listen to the video and sound recordings of the complainant’s evidence, the Court accepted that this was a case where access to both recordings, in addition to the transcript, might assist in the Court’s assessment of the complainant’s credibility. However, it remains fundamental to the jurisdiction exercised under s 6(1) of the Criminal Appeal Act that the adoption of that approach must not be permitted to displace the advantage the jury had of both seeing and hearing the complainant being cross-examined, in particular how she presented to the jury when she was asked about some of the answers she had given when she was interviewed 16 months earlier.

The need to ensure against this Court substituting its views for that of the jury has particular currency where, as here, the jury were directed by the trial judge that they could not convict the applicant on either count on the indictment unless they were satisfied beyond reasonable doubt of the complainant’s reliability. The jury were also firmly directed that they needed to be satisfied that she had given truthful evidence when she said she was sexually assaulted by the applicant, first between May and December 2014 (the particulars of the first count) and then on a specific date in January 2015 (the particulars of the second count). Finally, the jury were directed that they “should examine [the complainant’s] evidence very carefully” in order to satisfy themselves that they could safely act upon that evidence “to the very high standard required in a criminal trial”.

Importantly, her Honour also directed the jury that it was open to them to use the evidence of complaint both as a source of evidence independent of the child’s evidence that the assault the subject of the second count occurred and as evidence of the truth of the allegation the child made that she was sexually assaulted by the applicant the night before she complained. As her Honour made clear, the converse is not the case. That is, the delay in the child complaining about the incident the subject of the first count (until she was interviewed in February 2015) did not mean that the allegation was false, although that delay may impact on the jury’s assessment of the reliability of the child’s evidence as far as that allegation is concerned.

Her Honour’s directions on complaint merit being set out in full:

In my view, on the question with which this Court is concerned, namely whether the jury’s verdict on Count 2 can safely stand, the significance of the trial judge’s direction concerning the complaint evidence cannot be overstated. That is so for two reasons. The first because it provides a rational basis for the jury to have discriminated between the evidence going to the adequacy of proof of Counts 1 and 2 and to have returned a verdict of not guilty on one count but guilty on the other. Given the absence of immediate complaint of the assault said to have occurred some time between May and December 2014 the subject of the first count, it was open to the jury to have had a reasonable doubt as to whether that incident occurred in the circumstances the child described, while the immediacy of complaint and the terms in which it was made left them in no doubt that the assault the subject of the second count (and on a definite date in January 2015) did occur.

There is, however, a second source of significance attaching to the evidence of complaint for the purposes of the appeal. In accordance with this Court’s obligation when determining whether the verdict can safely stand to assess all the evidence at trial for its sufficiency and cogency, the immediacy of the complaint about the second assault, the content of the complaint and its repetition, in largely identical terms, to two adults is, in my view, evidence worthy of considerable weight. It provides powerful supporting evidence not only that the assault occurred the night before complaint was made but that the child was truthful in her evidence when detailing the fundamental features of the assault.

Unlike Hoeben CJ at CL at [98], I do not regard the complainant’s explanation for the delay in her complaint about the first count as “unpersuasive” or that the jury should have regarded it that way. The jury were directed that there are many reasons why a child complainant might not immediately complain when sexually assaulted, despite the opportunity to do so, without drawing to the conclusion that there was no immediate complaint because the assault did not take place. I accept the Crown’s submissions on the hearing of the appeal, where a range of matters that might have explained why there was no immediate complaint were suggested, as an adequate rejoinder to the applicant’s submission that her failure to immediately complin revealed a deficit in her credibility generally.

I should also add that I share some of his Honour’s concerns expressed in [105]-[106] about the reliability of the complainant’s evidence about the third incident of sexual touching (an incident volunteered by the complainant in the interview with the investigating official) both as to when it occurred relative to the second count and what the touching involved. However, since it would appear the evidence was only led by the Crown as context evidence, I do not see it as having any necessary bearing on whether it was open to the jury to be satisfied beyond reasonable doubt that the sexual assault the subject of the second count occurred referable to the evidence bearing directly on that question and it does not cause me to doubt the sufficiency or cogency of her evidence concerning that sexual assault.

I have viewed the complainant’s description of the sexual assault the subject of the second count to the investigating official in February 2015 a number of times. I have also listened to her describe the assault again under cross-examination. After taking into account the complainant’s childlike demonstration and description to the investigating official of the applicant’s manual manipulation of her “rude part” as he moved his two forefingers in small circular motions inside what she identified as the (“rude”) part from where she did “wee” (after the applicant, according to her, “opened her up”), coupled with her obvious innocence of any sexual connotation to what the applicant was doing to her or his asking her whether “she liked it”, and the absence of any evidence that she had been exposed to sexual activity of any kind, I am left in no doubt that she was describing something that actually happened to her.

Additionally, given her age when interviewed, and the fact that no question was asked of her by the investigating official as to what she meant by “deep inside” her “giney” in the context of the relatively complex anatomical structure of the genitalia of a female child, and no question asked by cross-examining counsel as to whether the applicant’s fingers penetrated into her introitus as distinct from “deep inside” her labia majora (incidentally the case the Crown advanced at trial), assuming she knew by that age something more about her genitalia, as to which there was no evidence, I do not consider that she is necessarily describing a deep penetration of her vagina by moving adult fingers that lasted for “a couple of minutes” she said in the interview or “five to ten minutes” as she said in cross-examination. That being my view, I am unable to agree with his Honour’s conclusion at [113] that her evidence concerning the mechanism of the sexual assault the subject of Count 2 was either surprising or incredible or that a jury should have so regarded it.

I have also come to a different view to his Honour’s about the significance of what the complainant said about the use of the iPad when she was interviewed in February 2015 and what she said about it when cross-examined in June 2016. Whilst in no way suggesting the evidence did not have the capacity to impact adverse on her credibility, unlike his Honour’s analysis of the evidence at [117] and [119], I do not see it as fundamental to her description of the scenario in which the sexual assault occurred. For my part, again after having viewed the video recording of the interview in its entirety, the way the complainant grafts the claim to have recorded the assault onto her iPad in relating her account of the assault leaves me with the impression that it was likely to be the result of an impulse to add verisimilitude from a child who was prone to an active imagination, rather than a calculated ruse that she immediately realised could be contradicted and so retracted it. I regarded her explanation in cross-examination that her use of the iPad was “a dream” but the fact of her experience of feeling the assault was not, as capable of demonstrating her appreciation, as an older child, of an insightful difference between imagination and reality, a matter she referred to on a number of occasions under cross-examination.

In addition, the way she gave this evidence left me with no adverse impression. To my mind, the contrary is the case. This feature of the evidence of the complainant was unsurprisingly the subject of close attention by both counsel at trial and, for that reason alone, in my view quintessentially a question for the jury in their assessment of her credibility.

Finally, I do not regard what his Honour referred to in [109] as evidence of conflict or ill feeling between the child and the applicant as carrying any weight on the question whether the child might have been motivated to give deliberately false evidence. Her mother’s description of the applicant and the complainant as “clashing a lot” and the applicant’s description of their relationship as “up and down” because the child wanted her own way and saw her younger sister getting her way more than she did, seems to me to be nothing more than an incident of family life in a household where he was living and where the applicant had some quasi parental authority over the children which he exercised with their mother’s approval.

In all the circumstances, I am driven to the conclusion that notwithstanding the challenge at trial to the complainant’s credibility, including the challenge to her honesty in her account of the sexual assault charged as the second count, and notwithstanding some features of the child’s account at age 8 that might raise concerns about her capacity for confabulation when recounting the circumstances contextual to the assault, it was open to the jury to be satisfied, and beyond reasonable doubt, that when she described the nature of the assault to the investigating official (including the detail of the time and place in which it occurred) she was telling the truth. Additionally, after noting that those aspects of the complainant’s evidence relied upon by the applicant on the appeal as undermining her credibility on the second count (summarised by Hoeben CJ at CL at [76](i)-(vi) and [77]) were all raised at trial for the jury’s consideration in the closing addresses of counsel and referred to by the trial judge in the summing up, I am unable to see how their verdict of guilty on the second count was not a conclusion open to them.

I should also record that I also respectfully differ with Hoeben CJ at CL’s approach at [107]-[110] to the application of R v Markuleski. I do not regard that case as having any application to the approach this Court should take to this appeal. Not only did the trial judge did not give a Markuleski direction (as to which there was no complaint on the appeal) but trial counsel did not seek one, this was doubtless in recognition of the difference in the weight of the evidence the Crown relied upon in proof of its case on Count 2 (because of the evidence of complaint and her Honour’s directions as to how the jury might use that evidence), and a desire not to draw attention to it.

As I have already sought to emphasise, the trial judge directed the jury that in order for them to return verdicts of guilty on either or both counts they would need to be satisfied beyond reasonable doubt that the child was both “an honest and accurate witness”. Although, it might have been open to counsel to seek a direction that a doubt as to the complainant’s reliability on Count 1 might affect the jury’s consideration of her reliability on the other count (without it necessarily having that effect) where it was not submitted on the appeal that there is any inconsistency between verdicts (the vice that the Markuleski direction is directed to guard against), I do not regard the doubt the jury had in respect of the applicant’s guilt on Count 1 as having any bearing on the question of the sufficiency and cogency of the evidence on Count 2.

In addition, and with every respect to his Honour, I am also unable to agree with his analysis at [109] that the acquittal on Count 1 meant there was no evidence of previous sexual assaults until the incident the subject of the second count, even less that this Court is obliged to proceed on the basis that the incident the subject of the second count was the first occasion the applicant had sexually assaulted the complainant (despite the opportunity he had to do so), or that it occurred without warning. Although in considering whether the verdict on the second count can stand, the Court must not take into account the conduct relied upon by the Crown in proof of the first count as in any way supporting the verdict of the jury, it does not follow that this Court is obliged to consider the question whether it was open to the jury to be satisfied of his guilt on the second count as if there were no other complaint of sexual assault. As his Honour observed correctly at [107], the acquittal on Count 1 does not mean the jury necessarily disbelieved the complainant as distinct from them having a reasonable doubt as to his guilt on that count.

The orders that I would propose are as follows:

GARLING J: I agree with the orders proposed by the Chief Judge and with his reasons. In my view, it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant of the offence for which he was convicted.

I wish to add some remarks about the Crown’s submissions in this Court to which the Chief Judge refers at [90]-[92] above.

Nearly 40 years ago, when dealing with a question of evidence before a civil jury, Barwick CJ said:

The submissions made by the Crown were not matters which could legitimately be based on the “fertile imagination” of counsel. Each of the matters, namely whether in the observance of specific evidence at the trial confusion of the complainant could be explained by enhancement and the complainant being “overwhelmed” (see [90] above); that the complainant may well have used a “dissociative technique” during the interview (see [91] above); and that a description of the applicant’s behaviour as being typical of the manipulative behaviour of sexual abusers (see [92]) above), all required expert evidence, because they are not “within the common knowledge of the ordinary man”.

And as the judgments of the majority in HG v The Queen [1995] HCA 2; (1999) 197 CLR 414 show, expert evidence in criminal trials must only be admitted where there is a proven and sound basis for concluding that the subject matter of the evidence is a field of specialised knowledge, and that the witness is a person suitably qualified to give such evidence. Matters of form are also in need of attention: see Gleeson CJ at [38]-[39]; Hayne J at [140].

The submissions made to this Court were not supported by any evidence at trial. So far as can be ascertained, they were not put to the jury at the trial. Such submissions as were put to this Court were nothing more than speculation based on counsel’s “fertile imagination”. They ought not to have been made.