SSN v R

1. [1]

   McCLELLAN CJ at CL: The applicant was charged with three counts, being:

2. [2]

   The applicant was convicted on each count. He filed his application for leave to appeal a few days out of time. However, no objection is advanced to him being granted leave to appeal, which I would grant.

3. [3]

   The complainant was born on 1 May 1995. He lived at a house on the [location] Aboriginal Mission with his parents. He was first interviewed by police in February 2010 when he said he had been molested by the applicant at PJ's house. PJ is the applicant's niece. The house in question was the house of her mother, EN. EN is the applicant's sister. The house was also occupied by TJ, another daughter of EN, and EN's grandchildren. In the interests of clarity, the house will be referred to as "EN's" house throughout this judgment. He said that the applicant would ask him to go under the house and would touch his "rude part" and make him touch the applicant's "rude part" and make him "suck [the applicant] off." He said that by "rude part" he meant "cock" and by "touch" he meant "wank" or "frick".

4. [4]

   The complainant said that he was 5 years old at the time the applicant first touched him and 8 years old when the applicant first made him suck his penis. He said that the applicant stopped this conduct when the complainant was 9 years old because "[he] wouldn't go back up there again 'cause [he] realised what [the applicant] was doing". The complainant said that the applicant would tell him that he had lollies and chocolate in order to get him to go under the house but the applicant never produced any of these sweets. The complainant said he did not tell anyone because he was too scared and because the applicant had told him not to. He also told his parents of the alleged events shortly after the police interview.

5. [5]

   The complainant said similar events happened a couple of times a week after school when he went around to EN's house to talk to his friends. The complainant said everyone else would be inside at the time. He said that he would get under the house through a metal door. He said that the passageway did not have much head space and he had to lean over. He said he and the applicant would go to the same spot under the house every time.

6. [6]

   The evidence was that the complainant first told his father of these events during an argument they were having. Although it was suggested to the complainant that he had made up the story to attract attention, he denied this. In more recent years, the complainant has been treated for mental health problems associated with alcohol abuse and he has slashed his wrists.

7. [7]

   Evidence was given by IS, the cousin of the complainant. Her evidence was admitted as tendency evidence. She also lived on the [location] Mission. She said that in 2000 or 2001 the applicant and his partner came to stay with IS's family for a period of time. She said that the applicant "used to try and flash himself all the time" by pulling out his penis in the hallway near the kitchen. She said this happened nearly every day. She said that she was once asleep with her sister when the applicant came into the room with his penis exposed. On another occasion IS said she was sitting on the lounge when the applicant sat next to her, put his hand between her legs and massaged her in the area of her vagina. IS also gave evidence of a conversation with the complainant when he had told her of the applicant's conduct in pulling his pants down and touching him underneath a house. She denied saying these things because she did not like the applicant.

8. [8]

   CLS, the sister of IS, also gave evidence. Her evidence was admitted as tendency evidence. She said that in around 2001 the applicant came to stay with her family. CLS said that one day the applicant was in the hallway and flashed his penis at her and her sister. She gave evidence of conversations with the complainant in which he reported that the applicant used to take him underneath EN's house and "made [the complainant] do things with, like, his dick" and that [the applicant] used to make the complainant suck his penis. The complainant told CLS that he was scared to tell his father because his father would "go after" the applicant.

9. [9]

   AN is the complainant's older sister. She also gave evidence that the complainant had told her "that [the applicant] made me fuck his dick. "AN said that the complainant was sober when she had this conversation with him.

10. [10]

    The complainant's father gave evidence. He said that during the weekend of 23-24 January 2010 he and the complainant were having an argument during which the complainant said "did you - little did you know that I was assaulted, sexually assaulted ... from when I was five until I was nine ... up at PJ 's house." The complainant told his father that the applicant was responsible for the assaults. About a week after the argument the complainant and his father went to report the matter to the complainant's school principal. After the argument with his father the complainant also told his mother that the applicant had abused him from the age of five until the age of nine.

11. [11]

    The principal of the school also gave evidence. She confirmed the complainant's account to her of the alleged offending conduct of the applicant.

12. [12]

    Other witnesses gave evidence of the complainant visiting EN's house. However, some of the witnesses were unclear as to whether they had seen the complainant there at the same time as the applicant.

13. [13]

    Evidence was given by Constable Morrison. He described the area under EN's house. He said that through the metal doorway under the house there was a small room that had some old furniture and other things in it. There were brick walls on both sides and a partial one to the front left, behind which the area opened up. The height of that room ranged from 1.2 m to 1.4 m. In the open area the floor sloped upwards and the height became reduced. Constable Morrison said that there was another, smaller room off the open area.

14. [14]

    At the relevant time the applicant lived in Quirindi. Although he did not live in [location], he had a number of relatives there. The applicant gave evidence that he would go to [location] on "Aboriginal Days" and had been there on other occasions.

15. [15]

    The applicant said that he knew the complainant from visiting his sister, EN. He said that he once saw the complainant with his father at EN's house. The applicant denied ever touching the complainant's penis or having the complainant's penis in his mouth. The applicant said that he had never been under EN's house. He denied offering the complainant lollies and chocolate to go under the house.

16. [16]

    The applicant denied that he had ever flashed his penis to IS or CLS. He denied rubbing IS between the legs. The applicant said that he was never alone in the house with the girls as DA, the applicant's partner was always in the house.

17. [17]

    Between 2003 and 2008 the applicant was enrolled in a Commonwealth Development Employment Program. He mainly worked in Quirindi but said that on occasions he would go by TAFE bus to the [location] cemetery to perform maintenance work on the grounds. The bus would pick him up at around 8 or 9 am. During his lunch hours he would go to EN's house for lunch and to paint on the water tank out the back, or do some painting at the preschool near the shop. The applicant would then go back to the cemetery and the bus would pick him up from there and he would get home around 4 or 5 pm. The applicant said that he had never played with children in the back yard. He said that he did play out the front of the house with his nieces.

18. [18]

    The applicant gave evidence that he had a bad memory from an accident as a child. He said that as a result he would get migraines and only remembered approximately 10 percent of things that had happened to him.

19. [19]

    TJ is the applicant's niece. She lived with her mother, EN, and her son at the house where the assaults were alleged to have occurred. She said that the applicant only rarely visited. She said that children would come after school and play handball or cricket out the front of the house and she would supervise them but she did not recall seeing the complainant there. TJ said that she would supervise her son from the lounge room if he was in the back yard and, although she could not see the door to underneath the house from there, if she saw someone go in that direction "I'd go down them steps and they had to be where they can be seen".

20. [20]

    She said that she did recall the complainant coming to her home but she said that he would always be with his parents. She said that from time to time the complainant would come to play with the other children. TJ said that the complainant might have "been there a couple of times" but not regularly as he was a lot younger than TJ's son and that it was mainly children of her son's age who played at the house.

21. [21]

    DA, the applicant's partner, gave evidence that when she was pregnant in 2001 she and the applicant went to EN's house for Christmas tea. DA said that she and the applicant stayed a couple of days and then, in 2002, they stayed with IS and CLS's family for eight to ten days. DA said that when they stayed there she was always home when IS and CLS arrived home from school and the applicant would be watching television at that time of the day. She said the applicant never left her cousin's house without her.

22. [22]

    DA said that the applicant worked in Walhollow when he did an agricultural course but he would get home by 3.30 pm at the latest. She gave evidence that the complainant had come over to their place in Quirindi about four times to play Xbox with her boys when his parents went grocery shopping.

23. [23]

    The applicant's seeks leave to raise three grounds of appeal:

Ground 1

1. [24]

   After the jury had been empanelled a voir dire was conducted in relation to the Crown's application to admit tendency evidence pursuant to s 97 of the Evidence Act 1995. The notice under s 97 identified the relevant tendencies as:

2. [25]

   The Crown made submissions at the trial consistent with the tendency notice. In his opening address the Crown Prosecutor said:

3. [26]

   In his closing address, the Crown Prosecutor said:

4. [27]

   Section 97 of the Evidence Act provides:

5. [28]

   Section 101 (2) further limits the admission of tendency evidence against an accused by stating:

6. [29]

   Tendency evidence in sexual assault cases has provided difficulties for trial judges. They have been discussed, inter alia, in Gardiner v R [2006] NSWCCA 190, (2006) 162 A Crim R 233; R v Fletcher [2005] NSWCCA 338, (2005) 156 A Crim R 308; HML v The Queen [2008] HCA 16, (2008) 235 CLR 334; BBH v The Queen [2012] HCA 9, (2012) 86 ALJR 357.

7. [30]

   The tendency notice (set out at [24]) identified the asserted tendency in a generalised manner and without discriminating between boys and girls. Although the identified acts were said to involve young children, they did not extend to all of the sexual acts which the complainant had alleged that the applicant had committed on him.

8. [31]

   I have previously provided a general account of the evidence advanced as tendency evidence. The applicant provided a more detailed summary which I am satisfied is accurate and which I adopt.

9. [32]

   The evidence of IS:

10. [33]

    The evidence of CLS:

11. [34]

    In Gardiner, Simpson J at [125] set out the steps required of a judge when considering whether to admit evidence tendered as tendency evidence. Her Honour said:

12. [35]

    In Fletcher, Simpson J again had occasion to discuss the process involved when considering the admission of tendency evidence. Her Honour said at [33]:

13. [36]

    As Simpson J emphasised, the probative value of the evidence needs to be assessed having regard to the fact or facts in issue in the trial the probability of which is said to be affected by the evidence under consideration: Fletcher at [34]. The trial judge must then determine whether the proffered evidence has significant probative value. The evidence must be "important" or of "consequence": R v Lockyer (1996) 89 A Cri m R 457 at 459 (Hunt CJ at CL). The tendency is a tendency to act in a particular way: R v Ford [2009] NSWCCA 306, (2009) 201 A Grim R 451 at [38].

14. [37]

    If the trial judge assesses the evidence as having significant probative value, he or she must give consideration to the weight of any prejudicial effect arising from the evidence. The prejudicial effect is the danger of the improper use of the evidence: HML v The Queen at [12]. In O'Keefe v R [2009] NSWCCA 121 Howie J said at [60]:

15. [38]

    lt is apparent that the more generalised the tendency' revealed by the proffered evidence, the less its probative value and the more significant its prejudicial effect.

16. [39]

    When assessing the probative value of evidence the Court must be mindful of the possibility of concoction. However, the risk that the evidence has been concocted must be more than speculative: BP v R [201 0] NSWCCA 303 at [11 0].

17. [40]

    In the present case the trial judge's reasons for admitting the proffered tendency evidence were brief. I have set them out in full below:

18. [41]

    His Honour did say at the time he delivered these reasons that he was conscious that his reasons were brief and "if it becomes necessary I'll give full reasons later." No further reasons for the decision were given.

19. [42]

    The applicant was critical of his Honour's reasons and submitted that they failed to address critical issues. In particular, it was submitted that the trial judge did not make any assessment of whether the tendency evidence could rationally affect the facts in issue and questioned whether it could affect the issues as to whether the applicant had performed fellatio on the complainant.

20. [43]

    It was further submitted that the trial judge failed to make any assessment of whether the tendency evidence had significant probative value. In support of this submission it was submitted that the trial judge failed to make an assessment of the "number of claims of tendency evidence", the specific or general nature of the evidence, whether it demonstrated a pattern or modus operandi, or the number of occasions of the particular conduct or what were the similarities or differences. It was submitted that there was no assessment of whether the Crown's submission that "the evidence pattern as described by the complainant displays a similar pattern" to that described by the tendency witnesses.

21. [44]

    The applicant further submitted to this Court that there was nothing in the complainant's evidence from which it could be said that the conduct started with the applicant exposing himself and progressing to touching. Furthermore, it was submitted that it could not be said that the pattern of events described by the complainant displayed a similar pattern to that described by the tendency witnesses. Accordingly, it was submitted that the trial judge failed to undertake the balancing act required by s 1 01 (2) of the Evidence Act.

22. [45]

    lt was submitted that if the trial judge had conducted the appropriate assessment it would have been apparent that:

23. [46]

    The following comparative table was provided:

24. [47]

    In response the Crown emphasised that if there were apparent deficiencies in his Honour's expressed reasons they were as a consequence of the judgment being given ex tempore, for which appropriate allowance should be made. Although it was accepted that his Honour spoke in general terms including identifying "the events complained of by the young person" it was submitted that this reference was sufficient to confirm that his Honour appropriately identified the task he was required to perform. The respondent referred the Court to the analysis of these issues in BP v Rat [106]-[120):

25. [48]

    Notwithstanding the allowance which must be made for the fact that his Honour was giving ex tempore reasons, I am satisfied that this ground of appeal must succeed. Although his Honour referred to the "evidence that is sought to be adduced" and identified the relevant questions to be "whether the accused has or had a tendency to act in a particular way or had a particular state of mind", his Honour nowhere indicates his understanding of that evidence and the particular aspects of it which he was considering. Furthermore, he nowhere identifies the tendency to which he has directed his mind.

26. [49]

    In the circumstances of this case these matters required careful identification and consideration. The tendency evidence was confined to acts of sexualised exhibitionism toward young girls and an occasion when the applicant allegedly assaulted one of them. The character of these acts, beyond a generalised notion of sexual interest in young children, was not probative of the acts alleged against the applicant involving masturbation and fellatio with the young male complainant, such acts being alleged to have occurred repeatedly over years and in a secluded location under EN's house.

27. [50]

    As against the marginal probative value of the evidence, its prejudicial effect was quite obviously high. If accepted by the jury, it would inevitably have painted the applicant in an unfavourable light with the clear suggestion that he was prepared to engage in an inappropriate and offensive sexualised behaviour towards young children. Although of minimal probative value, the prejudicial effect was significant.

28. [51]

    In the present case, the relationship between the complainant and the tendency witnesses raised a possibility that they may have concocted their stories. Although the trial judge considered this issue, he resolved it by concluding that he was not satisfied that there was "any real chance that the evidence of those witnesses had been concocted". This suggests that his Honour assumed an onus on the defence to persuade his Honour that the evidence, at the least, may have been concocted. This was not correct.

29. [52]

    This issue was considered by Hodgson JA in BP at [11 0] where his Honour said "the onus is on the Crown to negate the 'real chance' of concoction: see also R v OGO (No 2) [2000] NSWCCA 404, (2000) 50 NSWLR 433 at 74; R v F (2002] NSWCCA 125, (2002) 129 A Crim R 126 at [48].

30. [53]

    To my mind, the reasons that his Honour gave provide an inadequate foundation for the admission of the evidence. Having regard to the facts in issue at the trial, in my opinion the evidence should have been rejected. However, I do not express any concluded view about the admissibility of the tendency evidence at any future trial. lt will be a matter for consideration by the trial judge who will no doubt bear these reasons in mind.

Ground 2

1. [54]

   Apart from difficulties in relation to tendency evidence, the Crown adduced evidence at the trial from the complainant in which he alleged many other occasions of abuse by the applicant. The receipt of the evidence was objected to by defence counsel but admitted by the trial judge.

2. [55]

   In his opening address to the jury the Crown Prosecutor said:

3. [56]

   During the course of his summing-up the trail judge said:

4. [57]

   On the resumption his Honour said:

5. [58]

   This ground of appeal is not concerned with the admission of the "context" evidence but is confined to a complaint about the directions of the trial judge.

6. [59]

   The directions which the trial judge gave to the jury suffer from a number of difficulties. A jury is confined in the use which it may make of evidence of other sexual acts admitted as "context evidence." lt may be used to explain the background to a particular act which is the subject of a charge. More commonly, it will be relevant to explain a lack of complaint by a young person. However, there is always a significant risk that the evidence may be misused. This risk was recognised by this Court in R v Baldwin [2004] NSWCCA 21 where Bell J at [59]-[61] said:

7. [60]

   In JDK v R [2009} NSWCCA 76, (2009) 194 A Crim R 33 I emphasised the significance of the portion of the model direction on this issue provided by the Criminal Trial Bench Book which suggests that a trial judge should indicate to the jury:

8. [61]

   I said on that occasion that this was an important direction. This remains the case.

9. [62]

   In the present case the trial judge did not give the jury a direction which confined the use which it could make of the "context evidence." There was no direction that it could not be used as tendency evidence. The jury were not told they could not substitute the evidence of other sexual activity for the specific activity which is the subject of the charge in the indictment. They were not told they could not reason that because the applicant may have done something wrong to the complainant on some other occasion that he must have done so on the occasion that is the subject of any of the charges.

10. [63]

    In the circumstances of this case the failure to incorporate these directions has, in my opinion, led to a miscarriage of justice.

11. [64]

    The necessity for a warning in relation to the use which could be made of context evidence was made more significant by the fact that his Honour gave the jury directions in relation to tendency evidence immediately following the directions in relation to context evidence. Furthermore, his Honour effectively combined the two areas in his summing-up, commencing by a reference to the fact that there were two areas of evidence that "in a way sought overlap a bit". There was a real possibility in approaching the matter in this way that the jury would have misused the context evidence as tendency evidence.

12. [65]

    The directions that the trial judge was required to give should have identified for the jury that they were required to be satisfied of the count on the indictment and not substitute context evidence for evidence of the charged offence. The jury should have been informed that, although evidence of other acts was admitted it, could be not used as a substitute for the evidence of the acts actually charged.

13. [66]

    In my opinion, Ground 2 must be upheld together with Ground 1. An order that there be a new trial should be made.

Ground 3

1. [67]

   A verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence: section 6(1) of the Criminal Appeal Act 1912. Recently, in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]- [14], the High Court set out the test to be applied when considering an appeal on the basis that a verdict was unreasonable:

2. [68]

   The applicant submitted that there was a combination of factors which supported the conclusion that the verdicts were unsafe. They were identified in the following terms:

3. [69]

   The evidence of the complainant about the circumstances and consistency of abuse:

4. [70]

   lt was submitted that the combination of these matters raise some fundamental difficulties with the complainant's evidence, to the extent that the jury should have had a reasonable doubt about the counts on the indictment. The applicant emphasised that the complainant's evidence, apart from the tendency evidence, received very little support from the other evidence. lt was accepted that there was some limited support about the fact that children used to gather at the house at EN's house, although it was suggested that that fact in itself militates against the abuse having occurred.

5. [71]

   lt was submitted that the complainant's evidence does little to support the complainant's version of the events, notwithstanding the Crown's submission that on eight occasions he gave a consistent account. The accounts were exceptionally generic, and came years after the alleged offences.

6. [72]

   I have reviewed the entirety of the transcript of the trial. The submission that the evidence was of events which allegedly happened some years ago is, of course, correct. However, it is not unusual in these circumstances for the evidence to take on a generic character, particularly where the events were allegedly repetitious and when the complainant was a young child. The counts pleaded against the applicant were carefully identified by the prosecution as having occurred within a time frame of one year. They allegedly first occurred when the complainant was five years of age. Count 3 was also alleged to have occurred within a time frame of one year. This count was of particular significance, for it was alleged to be the first occasion on which the complainant was required to perform fellatio on the applicant.

7. [73]

   In the course of his evidence the complainant was reminded of the fact that he had said that the applicant kept touching him and was asked "can you tell me when was the first time this occurred." His answer was "when I was five." He gave evidence that the touching was to his penis.

8. [74]

   Shortly thereafter he said that the applicant used to "wank me" he also referred to it as "fricking." He said that the applicant did it to him and "he'll make me do it for him". He also said that the applicant "made me suck his dick".

9. [75]

   The complainant said that he first was made to "frick him off' when he was five, being "the first time he started it." He said that the first time the applicant made him perform fellatio was when he was eight years of age, at which time the applicant would also "make [the complainant] frick him".

10. [76]

    This evidence provides the foundation for each of the counts. The act of indecency in count 1 was requiring the complainant to touch the applicant's penis, the assault in count 2 was constituted by the applicant touching the complainant's penis. The third count was constituted by an act of fellatio.

11. [77]

    All of this evidence was capable of being accepted. The complainant's evidence reveals that he was an immature and not particularly articulate individual by the time he gave his evidence. However, he was firm in maintaining under cross-examination that the relevant events occurred within the identified time frame. At no stage did he concede that his recollection was faulty or proffer any answer which would suggest that his evidence was not capable of being accepted. The jury had the benefit of seeing him give evidence and also seeing the applicant give evidence. The fact that the evidence was at times given in a generic fashion does not diminish its force having regard to the nature of the charges.

12. [78]

    As the applicant emphasised during the course of his cross-examination, the complainant was asked whether he knew what to be circumcised means. He responded saying "the foreskin on your cock's like cut off'. He was then asked whether the applicant is circumcised, to which he responded "I don't know". When the questioner said "All right", the complainant said "that's disgusting". The latter response is difficult to interpret. It may have been a reference to being asked the question about the applicant's penis or perhaps a reference to the acts which he alleged the applicant had required him to participate in.

13. [79]

    Given that the complainant indicated that he was aware of the nature of circumcision and his allegation that the various sexual acts occurred many times over a lengthy period it may be expected that he would have been aware whether the applicant had been circumcised. However, it is relevant that he was being asked these questions some years after the events occurred, by which time he was aware of the nature of circumcision. It would be unlikely that he would have been aware of it at the time that the offences allegedly occurred.

14. [80]

    This issue was not explored beyond the exchange to which I have already referred. The jury were aware of this evidence and it did not cause them to have a relevant doubt as to the veracity of the complainant's evidence in respect of particular counts.

15. [81]

    The evidence makes plain that the complainant had learning difficulties and struggled with his schooling. It is also apparent that he was bullied. Although described by his father as "a very quiet mannered child", it would seem likely that his intellectual capacity and personality made him a potential target for a person seeking sexual involvement with a young child.

16. [82]

    The overall impression from the evidence is that at the relevant time after school a number of kids played at EN's house without much adult supervision. It was in this context that the complainant said that he had been told by the other children to go under the house with the applicant. It was part of a sequence of responses in which the complainant made plain that the other children tended to "bully" him.

17. [83]

    With respect to the "lollies and chocolates" evidence the jury would, in my opinion be entitled to put this to one side. Although he said that this was the means by which he was enticed by the applicant he freely admitted that no lollies or chocolates were ever provided. This portion of his evidence reads with a compelling frankness and no doubt as an older person the complainant is embarrassed at admitting that he had been enticed there by the applicant.

18. [84]

    With respect to the submission concerning lack of complaint, it is a notorious fact that young children do not complain of sexual assault until significantly later in their lives. The complainant proffered the reason for his reticence being that he was concerned that his father may impose extreme violence on the applicant if he was aware of the circumstances. The jury were given careful instructions in relation to this aspect of the matter and, in my opinion, there is no reason to doubt the complainant's credit because of his failure to complain at the time that the events occurred.

19. [85]

    With respect to the location where the complainant said the relevant events occurred, the evidentiary sequence was that the complainant marked with an "x" the brick wall behind which he said it was possible to access the area in which there was a door where he would go through to get to the area where the assaults occurred. Constable Morrison said that one of the photographs (photograph 8 in exhibit 3) showed the area behind the brick wall marked by the complainant. On the relevant photograph an opening can be seen which, when considered with the diagram prepared of the area, appears to lead to another area depicted in photograph 9. The photographs were taken with the benefit of artificial lighting which was not present when the alleged assaults occurred.

20. [86]

    Although Constable Morrison gave evidence that the area under the house was a single area it is apparent from the photographs that as one fi rst goes under the house a wall extends out from the exterior wall of the building under the premises that would give the appearance of separating the spaces underneath the house. Once a person is under the house there are pillars which support the floor joists and which of themselves could in dim lighting give the appearance of providing door openings. lt is a common human experience that when a child is asked to recollect the physical surroundings he or she encountered at a young age it is almost inevitable that the appreciation of the physical arrangements will be different from the reality. lt is common experience to perceive areas to be larger and objects also of quite a different size to what they are in fact. This is the inevitable consequence of the small stature of a child compared with their actual physical surroundings.

21. [87]

    The complainant was shown a series of photographs underneath the house which appear to provide a continuous view through the foundation pillars from the outside. His evidence was that the sexual assaults occurred behind a wall underneath the house which blocked the view from the outside. lt is conceivable that the complainant would have perceived this to be a separate space or room when he was a young child. I do not believe his evidence in this respect impacts upon his credibility or reliability.

22. [88]

    The applicant submitted that there was a lack of support for the complainant's evidence which should have led the jury to refuse to accept his complaints. However there was abundant evidence of the usual routine of the children and their frequent gatherings at EN's house after school had finished. There was also significant evidence from various witnesses that the applicant was present at the premises and lived there at times. The applicant rejected this evidence and said that he had never lived at the premises and rarely went there. There was evidence from his sister and niece to the effect that he never lived at the premises and rarely visited them and then only at lunchtimes but never in the afternoon when the children were around playing. Given the substantial body of evidence to the contrary, in my opinion the jury were quite entitled to reject this evidence. The evidence supporting the applicant's position may well have been viewed by the jury as fabricated.

23. [89]

    I have reviewed the entirety of the evidence and given particular consideration to the submissions that the applicant has made. Even if after reviewing the evidence I had a doubt as to whether the charges had been proved beyond reasonable doubt, the jury had the benefit of seeing the complainant, other witnesses and the applicant give evidence. Any doubt which I may have had would for this reason be capable of resolution. This ground of appeal should be dismissed.

Orders

1. [90]

   I would make the following orders:

2. [91]

   HIDDEN J: I agree with McClellan CJ at CL.

3. [92]

   HISLOP J: I agree with McClellan CJ at CL.