TWM v R

1. [1]

   FULLERTON J: The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal his convictions after a jury returned verdicts of guilty on 7 of 10 counts alleging a range of sexual offences between 2004 and 2010 committed against KR, a child aged between 4 years and 10 years at the time of the offending.

2. [2]

   On 15 December 2016 the applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years.

3. [3]

   The appeal was heard on 16 March 2018. The Court reserved its decision on that day. In late May 2018 the Court was advised that the applicant died of natural causes on 13 May 2018.

4. [4]

   The indictment presented at the applicant’s trial in September 2016 contained the following counts and attracted the following verdicts:

   1. (1)

      Between 9 September 2004 and 8 September 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The applicant was found not guilty.

   2. (2)

      Between 9 September 2004 and 8 September 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty.

   3. (3)

      Between 9 September 2004 and 8 September 2005, inciting an act of indecency by the complainant then aged under 10 years, contrary to s 61O(2) of the Crimes Act. The applicant was found guilty.

   4. (4)

      Between 1 October 2005 and 31 October 2005, inciting an act of indecency by the complainant then aged under 10 years, contrary to s 61O(2) of the Crimes Act. The applicant was found guilty.

   5. (5)

      Between 1 October 2005 and 31 October 2005, aggravated indecent assault with the complainant then aged under 16 years, contrary to s 61M of the Crimes Act. The applicant was found guilty.

   6. (6)

      Between 1 October 2005 and 31 October 2005, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found not guilty.

   7. (7)

      Between 28 June 2010 and 31 October 2010, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty.

   8. (8)

      Between 28 June 2010 and 31 October 2010, sexual intercourse with the complainant then aged under 10 years, contrary to s 66A of the Crimes Act. The applicant was found guilty.

   9. (9)

      Between 28 June 2010 and 31 October 2010, aggravated indecent assault against the complainant, contrary to s 61M(1) of the Crimes Act. The applicant was found guilty.

   10. (10)

       Between 28 June 2010 and 31 October 2010, aggravated indecent assault against the complainant, contrary to s 61M(1) of the Crimes Act. The applicant was found not guilty.

5. [5]

   At the hearing of the appeal the applicant contended that the verdicts on Counts 2 – 5, and 7 – 9, were unreasonable and unable to be rationally supported having regard to the jury’s verdicts of not guilty on Counts 1, 6 and 10.

The evidence

1. [6]

   The conduct comprehended by all ten counts occurred between September 2004 and 31 October 2010 at the complainant’s home and at her grandmother’s home. The complainant is the applicant’s niece by marriage.

2. [7]

   The complainant’s evidence in chief was adduced in the form of two interviews conducted by a joint investigation response team (JIRT) on 22 November 2011 (the 2011 interview) and 26 November 2013 (the 2013 interview). The complainant was aged 11 at the time of the 2011 interview and aged 13 at the time of the 2013 interview. She was aged 16 at the time of the trial.

3. [8]

   The applicant gave evidence at trial in which he denied sexually misconducting himself with the complainant.

4. [9]

   The 2011 interview was conducted after the complainant disclosed to her parents that the applicant put his hands down her pants before touching her vagina. That disclosure was made on 30 October 2011 following a visit by the applicant with the complainant and her family for the last of what had hitherto been a series of family occasions over a number of years. The only conduct complained of in the 2011 interview was ultimately the subject of Count 1 on the indictment; namely, conduct which the complainant described as having occurred some years earlier, and as to which the jury returned a verdict of not guilty. She did not complain, at that time, of an incident which she later described as having occurred that very day. That conduct ultimately became the subject of Count 10 on the indictment; a count which also attracted a verdict of not guilty. The delay in complaining of the conduct the subject of Count 10 (it was the subject of detailed complaint in the 2013 interview) and the conduct the subject of the balance of the counts on the indictment, was said by the applicant, both at trial and on the appeal, to be seriously undermining of the complainant’s credibility such as to raise a reasonable doubt as to the applicant’s guilt in respect of all counts on the indictment.

5. [10]

   It was in that connection that particular emphasis was placed upon what the complainant said in her 2011 interview when asked the following questions:

6. [11]

   Later in the same interview when asked whether “anything like [the applicant] putting his hand down … your pants … happened before?”, the complainant responded:

7. [12]

   The applicant was neither arrested nor charged following the 2011 interview. The complainant participated in a further interview with police after making a further disclosure to her father in 2013. That disclosure was precipitated by the complainant experiencing bullying at school, and her school counsellor’s encouragement to, in the complainant’s words, “tell ... the other parts of the story”. That encouragement was offered after the complainant asked her school counsellor whether a further disclosure would “make a difference”. The complainant’s further disclosure to her father occurred over a period of approximately one week.

8. [13]

   In the complainant’s 2013 interview, in addition to the isolated conduct she complained of in the 2011 interview, she described four additional incidents of sexual misconduct involving the applicant. In that interview she maintained her account that the incident she described in her 2011 interview had occurred, but told police that it was the first occasion on which the applicant assaulted her. The four additional incidents were the conduct the subject of Counts 2 and 3, Counts 4, 5 and 6, Counts 7, 8 and 9, and Count 10 on the indictment.

9. [14]

   The applicant’s claim that his conviction was unreasonable and unable to be supported having regard to the evidence obliges this Court to consider the complainant’s evidence in support of each count on the indictment, both for its sufficiency in accordance with settled principles where a jury’s verdict is under challenge on this basis and to examine whether the verdicts of the jury can be rationally reconciled.

10. [15]

    In Merrick v R [2017] NSWCCA 264 at [78]-[79], the Court restated the obligation on the Court when considering an appeal under s 5(1) of the Criminal Appeal Act to do so referable to the settled principles laid down by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, summarised by a majority of the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

11. [16]

    The test to be applied is settled and frequently restated. The starting point is the decision of the High Court in M v The Queen where, at [493], the Court said:

12. [17]

    As Simpson AJA observed most recently in Stanford v R [2018] NSWCCA 249 (at [52]-[55]):

13. [18]

    Earlier, in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] Simpson J (as her Honour then was) said (McClellan CJ at CL and Latham J agreeing), “the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals”.

14. [19]

    In MC v R [2017] NSWCCA 274 Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) said:

15. [20]

    In the 2011 interview the complainant said the conduct the subject of the first count on the indictment occurred “a couple of years ago” when she was “about six or seven”. She said that she was at her grandmother’s home for a “family get-together” and was playing with her cousins in a bedroom upstairs. When her cousins left the room the complainant remained behind and was sitting on the bed when the applicant entered the room. The complainant alleged that the applicant began “tickling [her] tummy” and then put his hands down her pants and inside her underpants. She said the applicant touched her vagina causing her to “freeze”. He then removed his hand and said “something like that he liked that smell”. The complainant said that she ran to the bathroom, locked the door and washed her face. She said that she remained in the bathroom for about three minutes before going downstairs after which she stayed close to her parents.

16. [21]

    In the 2013 interview, the complainant referred again to this incident which she said happened when she was “probably only four”. In describing the incident in that interview she said she was close to the doorway of the bedroom when the applicant approached and led her into the bedroom, after which he closed the door behind them and instructed her to sit down. She said she could not remember whether she sat on the bed or on a chair. She said the applicant then knelt between her legs, placed his hand over her mouth, lifted her skirt to her stomach and “started rubbing … in between” her vagina. She said he then smelt his fingers and told her ”he liked it or he liked the smell or something like that”, after which he stood up and the complainant left the room.

17. [22]

    There were other inconsistencies between the complainant’s account of the “first bedroom incident” in the 2011 and 2013 interviews, some of which are apparent from the summary above. There are other inconsistencies to which the applicant referred which also warrant noting.

    1. (1)

       The complainant’s age – In the 2011 interview the complainant said she was six, while in the 2013 interview she said she was “probably only four”. In cross-examination (she was then aged 15 - 16, her birthday having coincided with her cross-examination) she said “[i]n all honesty I can’t tell you because the age, of, the date where everything happened is very confusing and I’m really unsure”.

    2. (2)

       Where the complainant was when the applicant approached her – In the 2011 interview the complainant said that she was sitting on the bed, while in the 2013 interview she said she was “in the doorway” and was led into the bedroom by the applicant.

    3. (3)

       Whether the applicant said anything to the complainant during the incident – In the 2011 interview she said, “No [he didn’t say anything], he just, like, I can’t really remember…”. In the 2013 interview she said “He told me that this was our secret”.

    4. (4)

       The nature of the indecent act – In the 2011 interview the complainant said the applicant “just touched [my vagina] and then it came back out”. In the 2013 interview she said “he just kept like rubbing his fingers up and down [my vagina]”. In cross-examination the complainant accepted there were differences between the two accounts and agreed that the account given in the first interview “was a lie”. No explanation was given as to why the complainant lied. Her concession that she lied was elicited in the following exchange:

    5. (5)

       The manner in which the applicant put his hand into the complainant’s underpants – In the 2011 interview the complainant alleged that the applicant put his hands down into her underpants. In the 2013 interview she alleged that he moved her underpants to the side.

    6. (6)

       The clothing the complainant and applicant were wearing – In the 2011 interview the complainant said that she could not remember what she or the applicant was wearing. In the 2013 interview she stated that she was wearing a pink skirt and a singlet and the applicant was wearing a dark coloured polo shirt.

    7. (7)

       In the 2013 interview the complainant alleged, for the first time, that the applicant placed his hand over her mouth.

    8. (8)

       The complainant made no reference to playing with Lego in the 2011 interview, but in the 2013 interview said of her cousins, with whom she was playing before they went downstairs, “I think we were playing with Lego or something”.

    9. (9)

       The applicant made no reference to have been tickled in the 2013 interview.

18. [23]

    It was the complainant’s evidence at the applicant’s trial that the 2013 account was the more accurate account of the incident charged as the subject of the first count on the indictment.

19. [24]

    The only account given of the first bathroom incident was in the 2013 interview. The complainant dated the incident referable to her cousin’s fifth birthday, upon which she concluded she “might have been 4” at the time.

20. [25]

    The complainant was at her grandparents’ house in Baulkham Hills. She went to the bathroom upstairs and upon opening the door, saw the applicant washing his hands. She apologised for having walked into the bathroom to which he responded “No. It’s ok”. She said the applicant then approached her, told her to sit on the toilet, opened her legs, pulled her underwear down to her feet and began to rub her vagina “the same way he did the first time” (the conduct the subject of Count 2).

21. [26]

    The complainant alleged that after the applicant rubbed her vagina he took her hand, placed it on his groin over his pants and asked the complainant whether she wanted to “play with his penis or to suck his penis” (the conduct the subject of Count 3). The complainant said nothing in response to the applicant’s proposition.

22. [27]

    The only account of the second bathroom incident was in the complainant’s 2013 interview. The complainant alleged the incident occurred at her grandparents’ home in the same bathroom as the first bathroom incident. She said she “might have turned 5” when the incident occurred, it having happened “eleven months … before [her] 6th birthday”.

23. [28]

    The complainant alleged that she was washing her hands in the bathroom when the applicant walked in. As he entered, he closed the door behind him and “nudged” the complainant (later the complainant indicated he did this by “forcing” or “pushing” her down by her shoulders) to sit on the toilet seat, which he had lowered. The complainant recalled the applicant was wearing a dark coloured shirt with “thin stripes that went around” and that “buttoned up at the collar”.

24. [29]

    After the complainant was seated on the toilet seat the applicant, who was then standing in front of her, asked whether she wanted to “touch his penis and … whether [she] wanted to suck it” (the conduct the subject of Count 4). She did not say anything in response, following which the applicant positioned himself on his knees between the complainant’s legs, moved her legs into the air so she was leaning back against the toilet cistern and removed her underwear.

25. [30]

    The complainant alleged that the applicant then began to rub two fingers up and down against her vagina for a period of about two minutes (the conduct the subject of Count 5), following which he inserted his right index finger into her vagina “just past his fingernail” while using his left hand to cover her mouth (the conduct the subject of Count 6). The complainant alleged that as the applicant inserted his finger into her vagina she made a sound, but did not “think it was loud enough to be a scream”. She assessed the extent to which the applicant inserted his finger into her vagina by reference to him removing his finger from her vagina and putting “the end of his finger in his mouth”. The complainant alleged that throughout her assault the applicant said “this [is] our secret”.

26. [31]

    After the applicant placed his index finger into his mouth, the complainant put her underwear back on and left the bathroom.

27. [32]

    The second bedroom incident – Guilty verdicts on Counts 7, 8 and 9

28. [33]

    The only account of this incident was in the 2013 interview. She nominated the incident as having occurred between 28 June 2010 and 31 July 2010, referable to the birth of one of the applicant’s children and the applicant having returned to Australia from Hong Kong for the celebration.

29. [34]

    The complainant had been in the bathroom adjoining her parent’s bedroom which was accessible via her parents’ bedroom and the laundry. The complainant entered the bathroom from the laundry, and on leaving observed that a lamp was on in her parents’ bedroom. She entered her parents’ bedroom and found the applicant putting his newborn child to sleep on the bed. The complainant recalled that the newborn was surrounded by pillows to prevent her from rolling off the bed. The complainant recalled that the door to the bedroom was closed.

30. [35]

    The applicant told the complainant, “in a soft voice”, to sit on the bed. The complainant lay on her side, positioning herself so that she could see the newborn. The complainant recalled wearing white leggings and a singlet, and that the applicant was wearing jeans.

31. [36]

    The complainant alleged that the applicant moved closer to her and moved her so that she was lying on her back with her feet off the end of the bed. He then pulled down her leggings and began to rub two fingers from his right hand back and forth “inside of [her] vagina … about 10 times” (the conduct the subject of Count 7). She said that the applicant told her to “be quiet” and repeatedly “shushed” her. The complainant alleged that she and the applicant were “lying diagonally” and that he used his right hand to rub her vagina while leaning back, supporting himself with his left arm resting on his left elbow.

32. [37]

    After rubbing her vagina ten times, the complainant alleges that the applicant “stuck his pointer finger up my vagina, but this time [unlike during the second bathroom incident] it was the whole of his finger” (the conduct the subject of Count 8). She described this conduct as having continued “for about a minute and a half”, during which time she began to cry and breathe heavily. She described the incident as follows:

33. [38]

    The complainant said the applicant then removed his hand and put his finger in his mouth. She then pulled up her underwear and tights. She said the applicant then asked her “whether [she] wanted to suck his penis or if [she] wanted to touch his penis”, as to which she said, and repeated during the course of conduct that followed, “[n]o, I don’t want to, I’ll get in trouble”. The applicant then directed the complainant to sit up as he unbuckled his belt and lowered his pants permitting him to remove his penis from his pants. He then took the applicant’s right arm by her wrist and placed her hand over his penis, forcing her to rub his penis. This continued for three to five minutes during which time the complainant described the applicant as having made “moaning” noises (the conduct the subject of Count 9). She said she then “yanked” her hand away from the applicant. She said that the applicant said “this is our secret. Don’t tell anyone” and that “[he] never threatened me but I felt threatened by it”. The complainant then left the bedroom and washed her face in the bathroom after which she went downstairs into the kitchen where her parents were washing the dishes.

34. [39]

    The only account given of this incident was in the 2013 interview. The complainant said that the date of the occurrence of the conduct the subject of Count 10 was the last occasion on which she saw the applicant. The complainant believed that she was ten years old when it occurred. She recalled that the applicant had recently returned from Hong Kong with his partner and children and was at her home.

35. [40]

    The complainant alleged that she was playing on the Nintendo Wii with her sister and cousin in the “good lounge room”. She said they left the room and the applicant entered. He engaged the complainant in conversation and positioned her so she was seated on his left knee. He then began to tickle her, starting at her neck, moving down towards her waist before tickling “the top of [her] vagina”, which she described as the “triangle part” of her vagina.

36. [41]

    The complainant then got up and walked into the kitchen. Sometime later, the applicant and his family left the home, after which the complainant complained to her mother, and later her father, of the applicant’s conduct the subject of Count 1 on the indictment (the first bedroom incident).

The delay in making the complaints

1. [42]

   Before the first complaint of sexual misconduct on 30 October 2011 (albeit, at that time, limited to the conduct the subject of the first bedroom incident the subject of Count 1), the complainant had not disclosed the applicant’s repeated sexual misconduct over a period of years. In her evidence at trial she described her feelings towards the applicant at that time as “confused”. She said:

2. [43]

   When asked during the 2013 interview why, in her 2011 interview, she had only disclosed one instance of the applicant’s sexual misconduct, despite it being her evidence that it was the first of a repeated sequence of sexual misconduct, she said:

3. [44]

   When asked during the 2013 interview why she had decided to disclose the other incidents at that time and for the first time she said:

4. [45]

   As to what had prompted her to make the further delayed disclosure, she said:

The not guilty verdict on Count 1

1. [46]

   The applicant submitted that his acquittal on Counts 1, 6 and 10 are significant for what they reveal about the challenge to the complainant’s credibility generally, particularly given that the conduct the subject of the first count was the only occasion in respect of which the jury had available to it a previous version against which the complainant’s honesty, accuracy and reliability could be assessed. The applicant submitted that the competing versions of the events the subject of the first count were replete with material inconsistencies (as to which see [22] above) which ought to have so seriously undermined the complainant’s credibility to have necessitated the jury acquitting him not only of the offence the subject of the first count, but to have deprived her evidence of the credibility and cogency necessary to support a finding of guilt beyond reasonable doubt in respect of the balance of the counts on the indictment.

2. [47]

   The Crown submitted that after consideration of all of the evidence the jury’s verdict is rationally supportable, in large part due to the complainant’s explanation in her evidence for the limited disclosure of the applicant’s sexual mistreatment of her in her 2011 interview. The Crown emphasised that it was open to the jury to have accepted the complainant as an honest witness who was making a genuine attempt to give accurate and reliable evidence about the serialised sexual abuse she had been subjected to over a period of years, but that they may nevertheless have found that her account of the offending the subject of the first count was of insufficient weight and certainty, in particular as to point in time, to justify them returning a verdict of guilty beyond reasonable doubt.

3. [48]

   On the appeal the Crown emphasised that in her evidence the complainant expressed some uncertainty as to when the sexual misconduct the subject of Count 1 occurred. While at trial the parties apparently reached agreement that the issue of the chronological timing of the first bedroom incident would not be treated as significant, it was unsurprisingly treated as an issue of legal significance in the trial judge’s directions to the jury (as to which, it is noted, no issue was taken at trial or on the appeal). Those directions are as follows:

4. [49]

   Later, his Honour directed the jury as follows:

5. [50]

   On the appeal the Crown submitted that once the jury were directed that time was a particular to be proved by the Crown beyond reasonable doubt, it was inevitable that the Crown could not establish to the criminal standard that the conduct the subject of Count 1 occurred between the dates particularised, given the inconsistency in the complainant’s evidence as to when the incident occurred; an inconsistency which is patent from her evidence summarised at [22(1)] above.

6. [51]

   On the appeal the Crown also acknowledged the manifold discrepancies between the complainant’s account of the incident the subject of Count 1 in her 2011 and 2013 interviews as a further basis upon which the jury may have been left with a reasonable doubt as to the applicant’s guilt providing, in turn, a rational basis upon which the verdicts may be reconciled. Of further significance, the Crown accepted that the allegation that the applicant “rubbed” his fingers “between” the complainant’s labia in her 2013 interview was sufficient to satisfy the element of penetration in a charge of sexual intercourse, whereas the touching of the complainant’s vagina as she detailed in the 2011 interview was not. With no alternative count of attempted sexual intercourse or indecent assault available to the jury, the Crown submitted (and in my view, persuasively) that, presented with competing scenarios as to what the complainant alleged occurred, the jury may not have been satisfied the evidence was sufficient to support a verdict of guilty without a reasonable doubt as to the applicant’s guilt on the first count impeaching the complainant’s credit generally so as to undermine the verdicts of guilty returned on the other counts.

The not guilty verdict on Count 10

1. [52]

   The applicant submitted that the acquittal on Count 10 also had the capacity to undermine the reliability of the complainant’s evidence generally, and together with the concerns raised in respect of the applicant’s acquittal on Count 1, should have given rise to a reasonable doubt as to the applicant’s guilt on all counts.

2. [53]

   The applicant emphasised that in both the complainant’s 2013 interview and her evidence under cross-examination, she said that she told her parents about the applicant’s indecent assault of her that day in the context of her disclosure of the applicant’s sexual misconduct more generally. Her account in the interview was as follows:

3. [54]

   When the complainant was asked during cross-examination whether she recalled giving the answer extracted in the preceding paragraph, she responded as follows:

4. [55]

   The applicant submitted that the complainant’s account of disclosing the “tickling incident” to her parents was inconsistent with their evidence. The complainant’s father, when asked whether in October 2011 the complainant disclosed “a single incident” (referring to the conduct the subject of Count 1) he said “yes”. The complainant’s mother gave similar evidence:

5. [56]

   The applicant submitted that the inconsistency between the complainant’s evidence and that of her parents can only be rationally explained on the basis that contrary to her evidence she did not disclose the tickling incident to her parents at all. In the applicant’s submission, a failure to complain of this event is inexplicable given that, according to the complainant, it happened on the same day that she disclosed the applicant’s sexual misconduct and, in addition, it was, on any view, the least serious of all the allegations of sexual misconduct and not one that she would have any reason to understate or overlook.

6. [57]

   In the alternative, so it was submitted, were she to have complained about it to her parents as she contends, there was no rational explanation for the failure to complain of the same incident in the 2011 interview, nor any satisfactory explanation for her account in that interview that the applicant only sexually misconducted himself once and many years earlier. The applicant submitted that the explanation offered by the complainant that she had seen the “damage” her disclosure had caused and “didn’t want to make it worse” had no traction, particularly given that the applicant claimed to have already disclosed to her parents that the applicant had tickled her in a sexual way such that the disclosure to the police of that incident could not seriously have made the context of her general complaint about the applicant’s misconduct any worse.

7. [58]

   The applicant also submitted that because the tickling incident was the last in time, its comparative recency allowed the jury to meaningfully compare the complainant’s evidence with the recollection of her parents and others. In this respect, the complainant’s account was that the applicant’s visit to her home on the day in question was preceded by a visit to Seven Hills RSL Club. This was not an account that was supported by any other witness. The applicant gave evidence of having visited an RSL Club but suggested that occurred in 2005.

8. [59]

   The Crown submitted that the acquittal on Count 10 could be rationally reconciled by the jury having a reasonable doubt as to a sexual connotation in the complainant’s description of the tickling incident such as to have created a reasonable doubt as to guilt for that offence.

9. [60]

   The Crown also submitted that the acquittal may equally have been a product of the jury’s rational concern that the complainant may have been exaggerating her description of the applicant’s tickling of her at the culmination of what had been, by that time, a serialised course of sexual misconduct, but not in such a way as to negatively impact on her credit generally. The Crown referred to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 where, at [235], Wood CJ at CL identified a number of situations where a not guilty verdict would not lead to a conclusion of inconsistency, including:

10. [61]

    The Crown’s submissions set out above at [47]-[50] and [58] identify with precision what I am satisfied is a rational basis for the jury returning verdicts of not guilty on Counts 1 and 10 consistent with the jury making their assessment of the complainant’s credibility and reliability as a witness with the advantage they enjoyed after having seen and heard her give her evidence, as a teenager aged 16, of the assaults she was subjected to when she was a child aged between 4 and 10 years. I am also of the considered view that, consistently with their obligation to afford the applicant the benefit of any reasonable doubt they had in respect of either of Counts 1 or 10 when considering their verdicts in respect of the balance of the counts on the indictment, it was open to them to find the applicant’s guilt proved beyond reasonable doubt on Counts 2-5 and 7-9. In my judgment, those factors identified by the Crown which might have led to a heightened degree of caution in the jury’s assessment of the complainant’s evidence in respect of Counts 1 and 10 did not dictate or require a wholesale rejection of her evidence as a credible witness.

The not guilty verdict on Count 6

1. [62]

   On this count, the parties directed submissions not to issues of credibility per se, but to the sufficiency of the constituent elements of the offence, allied with the trial judge’s directions to the jury as to how they should approach their assessment of the evidence consistent with those directions.

2. [63]

   The applicant submitted that the only reasonable conclusion to be drawn from the jury acquitting the applicant on Count 6 was that they were not satisfied beyond reasonable doubt of the complainant’s evidence of the entire episode of sexual misconduct which was relied upon for proof of each of Counts 4, 5 and 6 on the indictment, there being nothing in her evidence to distinguish between the conduct relied upon by the Crown in proof of all three counts. On this analysis, the applicant submitted that the verdict of not guilty on Count 6 is only susceptible to rational explanation as being contrary to logic and common sense and strongly suggestive of the jury taking a dissociative approach to their consideration of individual counts on the indictment contrary to MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. The applicant submitted that the jury must have failed to afford weight to their generalised doubts about the credibility of the complainant in finding a doubt as to the applicant’s guilt on Count 6 in their consideration of Counts 4 and 5 in particular, and more generally in their consideration of the balance of the counts on the indictment on which verdicts of guilty were returned.

3. [64]

   The Crown submitted that the acquittal on Count 6 was readily susceptible to rational explanation by reason of the objective lack of cogency in the complainant’s evidence of the penetration of her genitalia – an essential element of the conduct charged as Count 6. Section 61H(1)(a) of the Crimes Act provides:

4. [65]

   The Crown also submitted on the appeal that the submissions of both counsel, and his Honour’s directions, created “a false issue” of the type identified in R v Stringer [2000] NSWCCA 293 at [18]-[19] given the trial judge’s direction that in order to convict the applicant of Count 6, the jury would need to be satisfied beyond reasonable doubt that the applicant inserted his finger into the complainant’s vagina to some extent. Clearly enough, his Honour’s direction, extracted below at [67], was contrary to law in that penetration is constituted not by penetration to any extent of a female’s vagina, but a female’s genitalia.

5. [66]

   The complainant’s evidence as to what occurred in the course of the incident relied upon by the Crown at trial in support of Count 6 of the indictment is confined to the following account in the 2013 interview:

6. [67]

   The “false issue” contended for by the Crown on appeal arose by reason of the Crown Prosecutor opening to the jury in the following way:

7. [68]

   The trial judge compounded the Crown’s error by directing the jury as follows:

8. [69]

   Although the Crown needed only to contend that the applicant penetrated the complainant’s genitalia to some extent in order to support a verdict of guilty on Count 6, the jury were directed (in the applicant’s favour but contrary to law) that penetration of her vagina was an essential element of the offence. In circumstances where the complainant’s evidence of penetration was referenced to the applicant putting his finger to his nose after touching her genital region, and not specifically to him having penetrated her vagina to any extent, the doubt resonating in the jury’s verdict on Count 6 (albeit on what appears to be erroneous legal directions from the trial judge) is explicable and the verdict of not guilty rationally reconciled with the guilty verdicts returned on other counts. On that analysis, the reference to Stringer does not need to be further explored.

Orders

1. [70]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [71]

   DAVIES J: I agree with Fullerton J.

3. [72]

   N ADAMS J: I have had the advantage of reading in draft the judgment of Fullerton J. Before indicating my judgment in this matter I consider it necessary to raise the threshold question of whether this court has jurisdiction to publish this judgment in circumstances where, as Fullerton J has noted at [3], the applicant is deceased. The Registrar was informed of the applicant’s death by a solicitor from the Office of the Director of Public Prosecutions in mid May 2018. A letter from the NSW Coroner’s Court confirming that the applicant died on 13 May 2018 was provided to the Registrar at that time and that letter was subsequently provided to the judges sitting on this appeal. For reasons that will become clear, I do not consider it necessary to address the question of whether this “fresh” evidence is properly before the court.

4. [73]

   As a general rule a convicted person’s right of appeal abates on death. The relevant principles were discussed by Bathurst CJ (with whom Hall and Button JJ agreed) in the decision of this court in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102. His Honour stated at [17], “It is clear that at common law a convicted person's right of appeal against conviction and penalty abates on death, with the possible exception of the case where the relevant penalty is a fine for which the estate of the deceased convicted person is liable: R v Rowe [1955] 1 QB 573 at 575; R v Jefferies [1969] 1 QB 120 at 124”. His Honour went on to state at [18]:

5. [74]

   It is to be accepted that in this matter, unlike in the decision of Sen v The Queen, the applicant was still alive at a time when the appeal was heard. There were no more steps required for him to take in order to prosecute his appeal. On that basis it may well be the case that the general principle that a convicted person’s right of appeal abates on death does not apply in such a matter.

6. [75]

   Both Fullerton and Davies JJ have proceeded on the basis that the court does have jurisdiction. In addition, neither the Crown nor any person representing the applicant has been afforded the opportunity to be heard on this threshold question. In those circumstances I have concluded that it is neither necessary nor appropriate for me to determine any threshold question of jurisdiction. I shall proceed on the same basis as Fullerton and Davies JJ that the court does have jurisdiction in this matter.

7. [76]

   Turning to the appeal itself, I agree with her Honour that the appeal should be dismissed for the reasons provided by his Honour. I too am not persuaded, for the reasons set out by her Honour, that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt on counts 2 – 5, and counts 7 - 9 because of their verdicts of not guilty on counts 1, 6 and 10.

8. [77]

   As her Honour has observed (at [18]) the focus of the enquiry is upon any explanation for the acquittals rather than the convictions.

9. [78]

   The applicant’s acquittal on count 1 is explicable on a number of bases. There were numerous inconsistencies between the complainant's account in the 2011 and 2013 interviews respectively. Her Honour has set out those inconsistencies at [20] – [22]. One of those inconsistences was as to whether the complainant was four years of age or seven years of age at the time of the alleged offence. The acquittal on count 1 is to be considered in the context that the trial judge directed the jury that time was a particular to be proved by the Crown beyond reasonable doubt.

10. [79]

    The applicant’s acquittal on count 6 is also explicable. It was an allegation of digital penetration of the complainant’s “actual vaginal canal.” The high point of the complainant’s evidence of digital penetration was that the appellant inserted his finger "up my vagina but it wasn't very far." The complainant also described this incident as one where the appellant “tried” to insert his finger into her vagina. As Fullerton J has noted at [68], the trial judge directed the jury (incorrectly) that this allegation would be constituted by penetration “to any extent of the female vagina”. The direction should have referred to penetration “to any extent of the genitalia” of the complainant.

11. [80]

    Finally, the applicant’s acquittal on count 10 is explicable on a number of bases. It was an allegation of tickling starting from the complainant’s neck moving towards her waist and concluding with the “top” of her vagina (the “triangle” part). It was entirely possible that the jury was not satisfied that there was a sexual connotation in relation to this incident. In addition, neither of the complainant's parents recalled her complaining of this incident in 2011 even though it was alleged to have occurred on the same day that first complaint was made to them.