Tikomaimaleya v R

1. [1]

   SIMPSON JA: On 23 February 2015 the appellant was arraigned in the District Court on an indictment that alleged one count of sexual intercourse with a child under the age of 10 years, and, in the alternative, a count of aggravated indecent assault on a child under the age of 16 years, committed between 1 June 2013 and 19 December 2013. He entered pleas of not guilty to each count, a jury was empanelled, and a trial proceeded. On 27 February 2015 the jury returned a verdict of guilty on the principal count, and accordingly did not deliver a verdict on the alternative count.

2. [2]

   Sexual intercourse with a child under the age of 10 years is an offence against s 66A of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 25 years. (Section 66A has since been amended, prescribing a maximum penalty of life imprisonment: see Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 1.) By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), a standard non-parole period of 15 years is specified. On 18 June 2015 the appellant was sentenced to imprisonment for 9 years, commencing on 24 March 2015, with a non-parole period of 6 years, which will expire on 23 March 2021.

3. [3]

   The appellant appeals against the conviction. He has not sought leave to appeal against the sentence imposed.

The Crown case

1. [4]

   The Crown case may be outlined as follows.

2. [5]

   The appellant is the husband of Mary Nair, who conducted a family day care centre in her home in a Sydney suburb. The complainant, who was born in September 2008 and turned 5 years of age in September 2013, attended the day care centre on Tuesdays and Wednesdays, with two other children. The appellant worked and was in the habit of returning home during the afternoon. (When interviewed, the appellant said that he normally arrived home at just after 3.00pm, or 3.15pm.)

3. [6]

   On a day specified in the indictment as “between 1 June 2013 and 19 December 2013” (that is when she was 4 or 5 years old) the complainant fell asleep on a lounge while watching television. The appellant sat next to her and inserted his finger into her vagina. The complainant told him not to do it.

4. [7]

   On 18 December, which was the last day of her attendance at the day care centre, the complainant told her father, and then her mother, what had happened. The circumstances in which this happened will be set out under Ground 3 below. The complainant’s parents notified the day care centre, which in turn, notified police.

5. [8]

   On 23 December 2013 the complainant, in the presence of her mother, took part in an interview which was conducted by Ms Justine Rusk, of the Joint Investigation Response Team (a joint initiative of Family and Community Services, NSW Police and NSW Health). The interview was video recorded. It will be necessary to refer to the interview in some detail below.

6. [9]

   The following day the appellant attended the local police station where he, too, took part in a recorded interview. He denied the allegations.

The trial

1. [10]

   The trial commenced on 23 February 2015. The complainant was then not quite 6½ years of age. Before proceeding further with an account of the trial, it is necessary to make reference to some relevant statutory provisions.

2. [11]

   Chapter 6, Pt 6 (ss 306M-306ZP) of the Criminal Procedure Act 1986 (NSW) contains detailed provisions concerning the manner in which evidence may be given by “vulnerable persons” (a term which is defined to include children). For present purposes, it is only necessary to note that the provisions of Pt 6 permitted the complainant’s evidence in chief in the trial by playing to the jury the video recording of the interview with Ms Rusk. However, by s 306U(3) it was necessary that the complainant be available for cross-examination and re-examination, either in the courtroom, or by closed circuit television from a remote location, under arrangements specified in Div 4 of Pt 6 of Ch 6.

3. [12]

   The effect of s 306V(1) is that the answers given by the complainant to Ms Rusk’s questions in the interview were admissible as evidence of the facts asserted by her.

4. [13]

   The necessity for the complainant to be available for cross-examination and re-examination meant that consideration had to be given to the manner in which she was to give oral evidence. Section 21(1) of the Evidence Act 1995 (NSW) provides that, before giving evidence, a witness in a proceeding must either take an oath or make an affirmation in a prescribed (or similar) form. By Sch 1 of the Evidence Act, the form of the oath or affirmation is a promise, in familiar form, “to tell the truth the whole truth and nothing but the truth”. However, by sub-s (2) of s 21, an exception is made in relation to a person who gives unsworn evidence under s 13.

5. [14]

   Section 12(a) of the Evidence Act provides that, except as otherwise provided, every person is competent to give evidence. Section 13 makes provision for a relevant exception. I set out s 13 in full:

6. [15]

   The position may be summarised as follows:

7. [16]

   It will be seen that the Evidence Act draws a distinction between evidence that is “sworn” (which includes given on affirmation) and evidence that is unsworn. That distinction is at the heart of the first ground of appeal and will be considered below.

8. [17]

   In a discussion that took place before the jury was empanelled, defence counsel mentioned that the issue of competence would arise, and, in particular, the question of whether the complainant’s evidence would be sworn or unsworn.

9. [18]

   The transcript then records the Crown prosecutor as saying:

10. [19]

    I return now to an account of the course of the trial. The complainant was 6 years and 5 months old at the time of the trial. After the jury had been empanelled, the trial commenced with the trial judge making some conventional opening remarks to the jury; the Crown prosecutor then opened the Crown case, and defence counsel outlined the defence case. It was intended that the complainant would be the first witness, and that she would give her evidence in chief in the manner provided by the provisions set out above – that is, by playing to the jury the recording of the interview conducted by Ms Rusk. The complainant was in a location equipped with CCTV facilities, and available for cross-examination in accordance with s 306U(3) of the Criminal Procedure Act. Present in the location with her was a court officer. The transcript records that the trial judge asked the court officer to “swear or affirm” the complainant. The officer asked the complainant if she understood, to which she replied “No”. Nevertheless, the transcript then records that the complainant was “affirmed”.

11. [20]

    The Crown prosecutor asked the complainant a number of questions, apparently designed to establish her capacity to give evidence. These included asking the complainant her age, to which she accurately replied “Six”, and whether she knew what her birthday was (to which she replied in the negative). She was then asked if she remembered talking to Ms Rusk. She said that she did. She said that she had, in the previous week, watched the video recording of the interview. She was then asked if she remembered what she told Ms Rusk. She said that she did. The following two questions and answers should be set out:

12. [21]

    All of this took place in the presence of the jury.

13. [22]

    Before the issue of competence proceeded any further, and before any determination as to competence was made, at the suggestion of the Crown prosecutor, and without dissent from defence counsel, the video recording was played to the jury.

14. [23]

    There followed, in the absence of the jury, discussion concerning the complainant’s competence, as expressed by defence counsel, “to give sworn evidence”. At no stage was any reservation expressed about the complainant’s competence (within the meaning of s 13(1)) to give evidence. The only question was whether her evidence would be sworn or unsworn.

15. [24]

    The Crown prosecutor suggested that the trial judge ask the complainant questions in order to assess her competency, and added that, if he were not satisfied that she was competent to give sworn evidence, it would be necessary that he give the complainant “directions” in accordance with s 13(5).

16. [25]

    The trial judge complied, and asked the complainant a number of questions. These included questions about her school and the subjects she was taught. He asked questions designed to elicit whether she understood the difference between truth and falsehood. He then asked the complainant about the occasion on which she had been affirmed, at the commencement of the trial. The transcript records the following:

17. [26]

    The complainant then, in answer to further questions, said that the answers she had given on that day were the truth and that, if she were to tell lies, [to her parents] she might get into trouble. She agreed that, when asked further questions in the trial, she would give truthful answers.

18. [27]

    There appeared at that time to be an assumption in the court that the complainant’s evidence would be unsworn. That emerges from something said by defence counsel:

19. [28]

    The Crown prosecutor then reminded the trial judge that the complainant could only give unsworn evidence once she had been given all of the instructions required by s 13(5). His Honour noted that, prior to that taking place, there was a “preliminary question”, of competence to be determined. Nevertheless, in response to the Crown prosecutor’s request, he went on to say:

20. [29]

    His Honour then said:

21. [30]

    Defence counsel reinforced his position that there was no issue about the complainant’s competence to give evidence. He said:

22. [31]

    The trial judge determined that the complainant was competent to give sworn evidence. He gave reasons in a judgment prepared overnight.

23. [32]

    The transcript records that, in the presence of the jury, the complainant was “recalled and re-affirmed”. (Although there is a superficial discrepancy between the decision that the complainant was competent to give sworn evidence, and the transcript record that she was “reaffirmed”, it is clear that all that means is that she was permitted to give evidence in the manner envisaged by s 21(1), and not the manner provided by s 13(5).)

24. [33]

    The Crown prosecutor asked some additional questions by way of examination-in-chief and the complainant was cross-examined.

25. [34]

    Evidence was then given in the Crown case by both of the complainant’s parents, by a police officer, and by a co-ordinator of the day care centre.

26. [35]

    The appellant did not give evidence. Evidence in the defence case was given by his wife (Ms Nair, the operator of the day care centre) and by a longstanding friend of the appellant, Michael Maran.

27. [36]

    After counsel addressed and the trial judge summed up (about which no complaint is made), the jury returned a verdict of guilty.

The grounds of appeal

1. [37]

   Three grounds of appeal were pleaded. They are:

2. [38]

   Senior counsel who appeared for the appellant chose, in written submissions, to argue Grounds 1 and 2 together. The issues raised and the arguments in support, however, are quite distinct and the one needs to be disentangled from the other.

3. [39]

   By Ground 1 error on the part of the trial judge was asserted in the conclusion that the complainant was competent to give sworn evidence.

4. [40]

   In considering this ground it is necessary to emphasise that the question is not whether the complainant lacked competence to give evidence (that she was so competent was accepted by defence counsel) but whether she was competent to give her evidence under oath or affirmation. The test to be applied in that determination is stated in s 13(3) as whether she had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence.

5. [41]

   The trial judge stated the question correctly. He said, in his brief reasons:

6. [42]

   He then referred to the questioning of the complainant, and said:

7. [43]

   It is not easy on the written submissions filed on behalf of the appellant (which were only briefly elaborated upon in oral argument) to discern any basis on which error is asserted. A bald submission was made:

8. [44]

   Paragraph [22] of the decision of the High Court in The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 was cited as support for (at least the second part) of this proposition. It is plainly an erroneous proposition. In [22] of GW the High Court was reciting the findings and conclusions of the Court of Appeal of the Australian Capital Territory, which it went on to reject.

9. [45]

   No factual or legal basis was advanced for the proposition that the complainant was not competent to give sworn evidence. The submission did no more than state a conclusion contrary to that which the trial judge had reached, for which he gave reasons. No attempt was made to identify any error in the reasoning process or the conclusion.

10. [46]

    The assessment of the complainant’s competency to give sworn evidence was one the trial judge was entitled, and, indeed, required, to make. By s 13(8), for this purpose, the court may inform itself as it thinks fit. The trial judge did this by questioning the complainant and drawing conclusions about her capacity to understand her obligation to tell the truth. No error has been identified. Ground 1 must, in my opinion, fail.

11. [47]

    It is necessary, however, to add this. On the hearing, senior counsel was pressed by the Bench to identify what consequence, causative or potentially causative of a miscarriage of justice, flowed from what was said to be the erroneous conclusion, none having been identified in the written submissions. Senior counsel’s response was that it would have been obligatory for the trial judge to direct the jury that there is a distinction between sworn and unsworn evidence, and that, in effect, unsworn evidence is of a lesser character or value.

12. [48]

    That proposition is directly contrary to the conclusion of the High Court in GW. After considering a contrary conclusion of the ACT Court of Appeal, the High Court said:

13. [49]

    The result is that, even if the complainant were not competent to give sworn evidence, the directions to the jury would have been no different from those that were in fact given. Ground 1 was founded upon a misconception. As indicated above, Ground 1 must be rejected.

14. [50]

    Ground 2 equally was founded upon a misconception.

15. [51]

    It was submitted that the complainant had not been asked, in her oral evidence, to verify or confirm the answers she had given in the interview with Ms Rusk, and that this was fatal, since there was thus no evidence of the facts concerning the appellant’s conduct.

16. [52]

    Reliance was placed on s 61(1) of the Evidence Act, which provides as follows:

17. [53]

    The reliance on s 61 was misplaced. Section 61 appears in Ch 3 Pt 3.2 of the Evidence Act. Chapter 3 deals with the admissibility of evidence. Part 3.2 is concerned with hearsay evidence. By s 59 (“the hearsay rule”), hearsay evidence is not admissible to prove the truth of a hearsay representation. However, succeeding sections provide for a number of exceptions to the hearsay rule. The effect of s 61(1) is to exclude from the various exceptions contained in Pt 3.2 evidence of a representation made by a person who was not, as provided by s 13(1), competent to give evidence, at the time the representation was made, about a fact, whether by reason of incapacity to understand a question about the fact, or incapacity to give an intelligible answer to a question about the fact, and the relevant incapacity cannot be overcome.

18. [54]

    The complainant’s answers given to Ms Rusk in the interview were, within s 59, previous representations, evidence of which is (prima facie) made inadmissible by the hearsay rule. Evidence of those representations was not made admissible by any of the exceptions in Pt 3.2 of the Evidence Act; it was made admissible by the specific provisions of s 306V(1) of the Criminal Procedure Act. It was never suggested that anything in Pt 3.2 permitted the representations made by the complainant to Ms Rusk to prove the existence of the facts asserted. Section 61 is irrelevant.

19. [55]

    In any event, the argument involving s 61 depended upon an untested and unproven assumption, that assumption being that, at the time of the interview with Ms Rusk, the complainant was not competent to give evidence about a (relevant) fact, by reason either of incapacity to understand a question about the fact, or incapacity to give an intelligible answer to a question about the fact.

20. [56]

    It was never part of the appellant’s case, as advanced at trial, that, at the time of the interview with Ms Rusk, the complainant lacked either of the required capacities. Had the question been raised, the trial judge would have been obliged to make a finding about the complainant’s capacity at the time of the interview. That could most readily have been done by observing the recording of the interview itself, but it could also, in accordance with s 13(8), have been done by the trial judge obtaining information from other sources. Since no issue was raised about the complainant’s capacity or competence at the time of the interview, the trial judge was not asked to make, and did not make, any determination as to her competence at that time.

21. [57]

    In my opinion Ground 2 must fail.

22. [58]

    Senior counsel for the appellant acknowledged that, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), leave is required for this ground to be argued. In my opinion it is an appropriate case for leave to be granted.

23. [59]

    The test to be applied where a verdict of guilty is said to be unreasonable or not supported by the evidence is well-known, and has been stated on a number of occasions; the most commonly cited is the passage from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, in the following terms (at pp 493-495):

24. [60]

    The written submissions filed on behalf of the appellant purported to identify “some of the matters [that] should have caused a properly instructed jury to experience doubt on both counts on the indictment”. What followed in the submissions was singularly uninformative. It included, for example, “Unreliability of complainant’s evidence (see summary of complainant’s evidence above)”. This did not identify any aspect of the complainant’s evidence said to be unreliable. Reference was also made to “internal inconsistency of complainant’s evidence regarding digital penetration (see summary of complainant’s evidence above)”. This was followed by:

25. [61]

    The submissions did not direct attention to any other internal inconsistencies with respect to digital penetration. A further assertion was that there was “inconsistency in complaint evidence” and inconsistency about the timeframe. Again, little expansion on these bald assertions was made.

26. [62]

    Although the Crown made reference to s 7(2) of the Criminal Appeal Act, which permits substitution of a verdict of guilty of “some other offence” (including a lesser offence), no attempt was made on behalf of the appellant to suggest that this Court ought (should the primary appeal fail) to substitute a verdict of guilty of the alternative offence on the indictment for the verdict of guilty on the principal offence.

27. [63]

    The substantive difference between the two offences was the element of digital penetration.

28. [64]

    Notwithstanding the sparsity of detail in the submissions, in fairness to the appellant it is necessary to examine closely the evidence in order to identify (in the language of the High Court in M) any discrepancies or inadequacies and to determine whether the evidence is tainted or otherwise lacks probative force. It is necessary to do this in some detail (see SKA).

29. [65]

    I will deal with these matters chronologically.

30. [66]

    The first person to whom the complainant reported the events was her father (to whom it will be convenient to refer as “G”). This she did on the last day of her attendance at the day care centre, 18 December 2013.

31. [67]

    G’s evidence was that, on the complainant’s return from the day care centre, he and the complainant took their dog for a walk and played in the park for a time. On the way home, the complainant said:

32. [68]

    G’s evidence went on:

33. [69]

    He said that he then took the complainant home and told K that she had to “hear this”. K’s took the complainant to the bathroom for a bath and continued to ask questions. G entered the bathroom. K asked:

34. [70]

    K gave evidence to similar effect. She confirmed that the disclosure by the complainant took place on 18 December, and that G had told her “you’ve got to hear this”. Her evidence was that the complainant told her:

35. [71]

    She said the complainant was upset, began crying, and said that she hated Lemo. She took the complainant to the bath to relax her and asked again where the appellant had touched her, and that the complainant said:

36. [72]

    The complainant told K that she had kicked the appellant away. She said that the incident had occurred in the sitting room of the day care centre.

37. [73]

    Neither of these witnesses was cross-examined.

38. [74]

    I have watched the video recording of the interview. A transcript, as to the accuracy of which no issue was taken, was available to the jury to assist their understanding. I considered it appropriate, in this case to watch the video; contrary to the position I took in SKA v R; R v SKA [2009] NSWCCA 186. In this case, there could be no imbalance, as the appellant had not given evidence.

39. [75]

    Both the video recording and the transcript indicate that, at the commencement of the interview, the complainant was extremely reticent. The transcript records numerous questions to which there was “no audible reply”. That is confirmed on the video. However, as time went on, the complainant became more forthcoming.

40. [76]

    Ms Rusk asked a number of questions, apparently designed to relax the complainant and gain her confidence. During the course of the interview Ms Rusk showed the complainant outline representations of a female body, and asked the complainant to name various body parts. One of these was the vagina, which the complainant said was used “to pee”. The questioning continued. I now propose to extract all those questions and answers that deal with the allegation made against the appellant:

41. [77]

    Also in evidence was another account given by the complainant, on 13 November 2014 to her mother, which her mother tape recorded. The transcript of that conversation (made by the police officer in charge of the investigation) was admitted without objection. No ground of appeal complains of the admission of this document. It is relevantly in the following terms:

42. [78]

    Although further questions were asked of the complainant in examination-in-chief in the trial, and she was cross-examined, there was no further elaboration or explication of the conduct said to have constituted the offence.

43. [79]

    I have set out, at somewhat tedious length, the various answers given by the complainant to questions concerning the conduct of the appellant. There are, undoubtedly, inconsistencies and discrepancies. The inconsistencies and discrepancies do not relate to her assertion of an incident of sexual impropriety on the part of the appellant. They relate to the assertion that that incident extended to penetration – and therefore the critical distinction between the two counts on the indictment. The question which must be examined is whether the evidence was capable of satisfying a jury that digital penetration occurred.

44. [80]

    A number of circumstances in the evidence persuade me that it was. The complainant’s first account, to G, was that the “massage” was “on the inside”. It is true that G did not state explicitly that his question was directed to the outside or the inside of the complainant’s vagina. But that was clarified when the complainant told K that the appellant had touched her “either side of my vagina and a little bit inside”.

45. [81]

    The second aspect of the complainant’s evidence that powerfully supports the allegation of penetration is her evidence, in the interview with Ms Rusk, that “I felt it and it really hurted”. It is true that this was immediately followed by an answer that the appellant was touching her “outside” her “private part”, but this does not explain why touching outside the vagina would hurt the complainant. Later the complainant said that the appellant was “actually hurting the inside”, and “he put his whole finger in”.

46. [82]

    A third aspect is the complainant’s evidence that, after she kicked the appellant, she held her legs together tightly.

47. [83]

    The evidence of penetration substantially outweighs the contrary evidence of the absence of penetration. Bearing in mind that only a small degree of penetration is necessary to establish the principal offence, I am satisfied that it was open to the jury, having seen the complainant’s recorded interview, and having seen her oral evidence (which did not advance this issue) to accept that there had been the requisite degree of penetration. Further, I am satisfied the evidence established beyond a reasonable doubt that penetration occurred.

48. [84]

    I should add that, in coming to this conclusion, I have attributed no weight to the recorded conversation with K, which became Exhibit 8. There are, in my opinion, difficulties with this recorded conversation which was, as I have indicated above, admitted without objection. The evidence discloses very little of the circumstances in which the conversation took place, or what had preceded it.

49. [85]

    A further point sought to be made on behalf of the appellant concerned inconsistencies with respect to the “timeframe” in which the incident was said to have taken place. Two matters were raised. The first was that, in the interview, the complainant said that “on the third day after, he wanted to do it again” and that that was when she told G. Taken literally, it was submitted, that must mean that the offence the subject of the indictment was committed on either 15 or 16 December, which were days on which the complainant did not attend the day care centre.

50. [86]

    While I accept that due weight must be given to this anomaly, it is not, in my opinion, sufficient to overcome the other evidence. Given her age, little can be attributed to the complainant’s mention of “the third day after”. What is important is her account of the events she asserted took place.

51. [87]

    The second aspect concerning the “timeframe” related to the screening of an African television programme.

52. [88]

    The complainant said that the incident occurred when she was in the sitting room, alone with the appellant, watching television and falling asleep. She said that, prior to falling asleep, she had been watching “an animal show”, and later, in an unresponsive answer, she said:

53. [89]

    Presumably as a consequence of this answer, Detective Paul investigated broadcasting on the ABC of any “African show” during the relevant time. It emerged that on 17 December 2013 a programme called “Shamwari: A Wild Life” was televised from 2.32pm and ran for 26 minutes. From this, it was argued, no credence could be placed in the complainant’s answers, because the appellant did not arrive home until a time after that programme would have concluded.

54. [90]

    That places rather too much weight on the complainant’s answer. It was given in a context when Ms Rusk was attempting to ascertain the length of time over which the complainant said the appellant was behaving inappropriately. She was asking questions about other children’s programmes in order to give the complainant a frame of reference for estimating the time. The reference to an “African show” was something the complainant injected into those questions, and it is not apparent from that evidence that the complainant intended to convey she was watching the “African show” as the incident occurred, nor that the African show was on the ABC. In any event, the appellant told police that he had watched an African show with the children.

55. [91]

    In cross-examination Detective Paul agreed that he had not made inquiries of any other television channels. He was unable to explain why he had so limited his investigation. But it was put forcefully to him that the complainant had never said that the programme she had watched was on the ABC.

56. [92]

    The complainant also said that, while the incident was occurring, Ms Nair was putting the other children to sleep. Ms Nair gave evidence that the children sleep in the morning, and not in the afternoon, and this was confirmed by “sleep records” maintained by the day care centre. Ms Nair also said that she and the other children, together with the complainant and the appellant, watched an African programme at the end of term.

57. [93]

    In cross-examination Ms Nair was taken to entries in the “sleep records” which recorded children sleeping in the afternoon on occasion. She accepted she had been incorrect in her earlier evidence that the children only slept in the morning. She further accepted that she would let the children into the living room, despite this being in breach of the applicable childcare regulations.

58. [94]

    The appellant submitted that as he did not arrive home from work until approximately 3.30pm, the complainant’s evidence that the offence had taken place while Ms Nair was putting the other children to sleep should not be accepted.

59. [95]

    Without making any finding as to the credibility of Ms Nair as a witness, I do not accept that her evidence gives rise to a reasonable doubt as urged by the appellant. While her concessions in cross-examination were appropriate, they also demonstrate that the submission for the appellant is over-stated. Indeed, the “sleep records” indicate children sleeping throughout the afternoon, and as late as 3.30pm, on several occasions. I am satisfied it was open to the jury to prefer the evidence of the complainant in this regard.

60. [96]

    The appellant also relied on Ms Nair’s evidence that she never left the complainant alone with the appellant. Ms Nair did not retreat from this proposition in cross-examination, despite the Crown suggesting that Ms Nair breached other childcare regulations and possibly breached one in leaving children alone with the appellant, a person who was not registered as a carer.

61. [97]

    Further, the appellant relied on evidence of good character. Mr Maran gave evidence that he knew the appellant and his family very well. He described the appellant as “a loving person” and well-respected. He also gave evidence that the offences with which he was charged “[went] against all expected norms that he’s renowned for. It is totally against the grain. It is not him.”.

62. [98]

    This is a case in which the jury’s advantage in seeing and hearing the witnesses is of some significance. The evidence does not give rise to a reasonable doubt. I am satisfied that it was open to the jury to reach the verdict that it did. Having made my own assessment of the evidence, I am satisfied that the appellant was rightly convicted.

63. [99]

    Accordingly, I would grant leave for this ground of appeal but dismiss the appeal.

64. [100]

    The orders I propose are:

65. [101]

    HARRISON J: I agree with Simpson JA that Grounds 1 and 2 must fail.

66. [102]

    In considering Ground 3, I have reviewed the transcript of the trial. Unlike her Honour, I have not reviewed the video recording of the interview with the complainant. However, based upon my review of the trial transcript, including the transcript of the recorded interview with the complainant, I am satisfied that the evidence does not give rise to a reasonable doubt. I am also satisfied that it was open to the jury to reach the verdict that it did. Having made my own assessment of the evidence, I am satisfied that the appellant was rightly convicted.

67. [103]

    I agree therefore with the orders proposed by Simpson JA.

68. [104]

    DAVIES J: I have read the judgment of Simpson JA. I agree with her Honour’s reasons in relation to Grounds 1 and 2.

69. [105]

    In relation to Ground 3, I am satisfied from my own reading of the evidence that it was open to the jury to be satisfied of the guilt of the applicant. I have not viewed the DVD of the complainant’s interview with Ms Rusk but I have read the transcript of that interview. For the reasons given by Simpson JA I do not have a reasonable doubt about the jury’s verdict.