AZ v R

1. [1]

   WHITE JA: This is an application for leave to appeal against convictions on charges of child sexual assault and indecency. The name of the applicant is a pseudonym to protect the identity of the complainant and the complainant’s younger brother.

2. [2]

   On 7 March 2017 the applicant was convicted by a jury on ten counts (out of 11). He was given an aggregate sentence of 13 years’ imprisonment with a non-parole period of nine years. The sole ground of appeal is that the verdicts of the jury on the ten counts on which the applicant was convicted were unreasonable and not supported by the evidence and occasioned to him a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   Section 5(1)(b) of the Criminal Appeal Act provides that a person convicted on indictment may appeal to this Court with leave against the person’s conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal. Section 6(1) provides that such an appeal shall be allowed if the Court is of the opinion that:

4. [4]

   In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the Court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 493). The plurality said:

5. [5]

   The plurality added (at 494-495):

6. [6]

   In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the “authoritative guidance” given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is “the constitutional tribunal for deciding issues of fact”, the “abiding importance of the role of the jury as representative of the community in that respect”, and that the setting aside of a jury’s verdict “... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, and that “... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury” (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that:

The Charges

1. [7]

   The applicant was described as the best friend of the complainant’s mother. The applicant and the complainant’s mother had met in 2011 and they became close, but platonic, friends. The complainant’s mother had two children, namely the complainant who was seven years old as at 2 March 2015 (being the last date of the alleged offences), and his younger half-brother, who was, at that time, four years of age. The children called the applicant “uncle”. He often looked after them when the complainant’s mother was working, including, on occasion, overnight. The Crown accepts that there was no suggestion that the applicant deliberately inveigled his way into the family for the purpose of gaining access to the children. It is not disputed that at relevant times the children were under his authority when he allegedly committed the offences.

2. [8]

   In these reasons I will call the complainant “Thomas” (a pseudonym) and I will call his younger brother “Christopher” (also a pseudonym).

3. [9]

   The Crown’s case depended upon Thomas’ evidence. Christopher, who was only four at the time of the alleged offences, was not called as a witness. The applicant does not suggest that he should have been called. There was no corroboration of Thomas’ complaints. Nor could any corroboration be expected from Christopher given his age. Because the applicant was a frequent visitor to the children’s house and sometimes stayed overnight in the bed of the complainant’s mother (where the offences the subject of counts 4-11 were said to have occurred), the presence of the applicant’s DNA was a neutral factor. Although the Crown’s case was that the applicant on 2 March 2015 masturbated himself, masturbated Thomas and made Thomas masturbate the applicant, it was not the Crown’s case that the applicant ejaculated on 2 March 2015, although other “context evidence” of sexual contact between the applicant and Thomas was adduced in which Thomas gave evidence consistent with the applicant’s having ejaculated. There was no forensic evidence to support or contradict Thomas’ evidence.

4. [10]

   The applicant was charged with 11 offences. The first three offences were alleged to have taken place at Emerton Pool.

5. [11]

   The first count on the indictment was that between 1 June 2014 and 31 December 2014 at Emerton the applicant assaulted Thomas, a person then under the age of 16 years, namely seven years, and at the time of such assault did commit an act of indecency upon him contrary to s 61M(2) of the Crimes Act 1900 (NSW). The act relied upon was that the applicant touched Thomas’ penis.

6. [12]

   The second count was that between 1 June and 31 December 2014 at Emerton the applicant assaulted Christopher, a person then under the age of 16 years, namely four years, and at the time of such assault did commit an act of indecency on him. Again, the offence charged was an offence contrary to s 61M(2) of the Crimes Act. The Crown alleged that the applicant touched Christopher’s penis.

7. [13]

   The third count was that between 1 January and 31 December 2014 at Emerton the applicant committed an act of indecency towards Thomas, a person then under the age of 10 years, namely seven years. The offence charged was an offence against s 61O(2) of the Crimes Act. The act relied upon was that the applicant masturbated himself in front of Thomas.

8. [14]

   Counts 4-7 were described by the Crown as having arisen from a “Weekend Bedroom Incident”.

9. [15]

   Count 4 charged that between 6 June 2014 and 28 February 2015 at Emerton the applicant had sexual intercourse with Thomas, then aged seven, in circumstances of aggravation, namely Thomas was at the time under the applicant’s authority. The charge was laid under s 66A(2) of the Crimes Act. The act relied on was that the applicant allegedly made Thomas suck his penis. The applicant was acquitted on this count.

10. [16]

    Count 5 was in the same terms as count 4. The act relied upon was that the applicant sucked Thomas’ penis.

11. [17]

    Count 6 charged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant made Thomas masturbate him.

12. [18]

    Count 7 alleged an offence against s 66B of the Crimes Act that the applicant attempted to have sexual intercourse with Thomas. The act alleged was that the applicant attempted to put his penis into Thomas’ anus.

13. [19]

    Counts 8-11 concerned offences alleged to have occurred on 2 March 2015 at Thomas’ home.

14. [20]

    Count 8 alleged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant masturbated himself in front of Thomas.

15. [21]

    Count 9 alleged an offence against s 61M(2) of the Crimes Act. The act alleged was that the applicant assaulted Thomas and at the time of the assault committed an act of indecency upon him. The act alleged was that the applicant masturbated Thomas.

16. [22]

    Count 10 alleged a further offence against s 61O(2) that the applicant committed an act of indecency with Thomas. The act alleged was that the applicant made Thomas masturbate him.

17. [23]

    Count 11 alleged an act of attempted sexual intercourse contrary to s 66B of the Crimes Act. The act alleged was that the applicant attempted to put his penis into Thomas’ anus.

The complaint

1. [24]

   The charges arose following a complaint made by Thomas to his mother on 2 March 2015. That day was a Monday. It was a school day, but Thomas did not go to school. It was also a day upon which Thomas played in a grand final for his indoor soccer team. In the evidence it was also called the grand final day. After the game the children, their mother, the applicant and a friend of the mother’s called Alex returned to the mother’s house. The applicant went to the shops to buy dinner so that the mother would not have to cook . Thomas called the applicant “Dave”. The child’s mother gave evidence that:

2. [25]

   The mother gave evidence that when the applicant returned Alex told him that he needed to leave. She said:

3. [26]

   The police were called. Senior Constable Oxford provided a statement of attending at the house in Emerton with Constable Taylor and having a conversation with the child’s mother as follows:

4. [27]

   In cross-examination Thomas’ mother said she had no recollection of the applicant denying the allegation.

5. [28]

   Senior Constable Oxford also spoke to Thomas. His statement included the following:

6. [29]

   Thomas was interviewed by a police officer attached to the Penrith Joint Investigation Response Team (JIRT) on 12 March 2015. The video recording of that interview was part of the complainant’s evidence-in-chief. It formed the basis of counts 1-3, and 8 and 9.

7. [30]

   Thomas was interviewed a second time by a police officer associated with Penrith JIRT on 2 September 2015. The video recording of that interview was also part of the complainant’s evidence-in-chief. It formed the basis of counts 4-7, and 10 and 11. It was in the second interview, but not in the first interview, that Thomas said that the applicant made Thomas suck the applicant’s penis, that he sucked Thomas penis and that he attempted to put his penis into Thomas’ anus.

8. [31]

   Thomas was interviewed a third time on 3 February 2017 and a fourth time on 13 February 2017. The video recordings were also part of his evidence-in-chief. The trial commenced on 14 February 2017. Thomas gave evidence at the trial.

Summary of applicant’s contentions

1. [32]

   One of the grounds upon which the applicant contends that his convictions were unreasonable or cannot be supported having regard to the evidence are the inconsistencies in Thomas’ record of interviews as to where the offences alleged in counts 1-3 occurred. The applicant says that further inconsistent evidence was given in relation to that matter in his evidence in cross-examination at the trial.

2. [33]

   In his first interview Thomas stated that the events he described that led to the laying of counts 1, 2 and 3 took place at Parramatta pool. During the second interview he stated that the acts occurred at Penrith or Mount Druitt pools. He could not say which. In the third interview when asked to describe the swimming pool he said that “I think it was Emerton pools”. He confirmed that in answer to Q135. The transcript records the interviewer’s question “But you think now it was Emerton. Is that right?” and there being no audible reply. The video recording shows that Thomas nodded in answer to that question. In the fourth interview he identified the pool where the alleged offences occurred as being a five-minute walk or two-minute drive from where he used to live. This would be the Emerton pool.

3. [34]

   Secondly, the applicant relied upon the verdict of acquittal on count 4 and submitted that this gave rise to an inconsistency between verdicts. Referring to R v Lee (Unreported, 27 June 1991, BC9101839), Jones v The Queen (1997) 191 CLR 439, R v Carbone [2000] NSWCCA 387, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Norris v Regina [2007] NSWCCA 235, TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 and TA v R [2015] NSWCCA 151, the applicant submitted that the only reasonable explanation for the acquittal on count 4 could have been doubt about the complainant’s veracity in his statements in the second record of interview, which should have led to the jury’s having a reasonable doubt in respect of the other counts which also depended upon Thomas’ uncorroborated evidence.

4. [35]

   Thirdly, the applicant relied on evidence given by Thomas in cross-examination in which he conceded that the acts the subject of counts 2 and 5 did not occur. In his summing up to the jury the primary judge noted that Thomas conceded that “Dave never tried to touch his rude part and that Dave had never touched Christopher’s rude part.” The Crown told the jury that it would be very difficult for the jury not to have a reasonable doubt about counts 2, 4 and 5. Nonetheless, the jury convicted the applicant on counts 2 and 5.

5. [36]

   Fourthly, it was common ground at the trial, and the jury was so directed, that it was an essential element of the Crown’s case that the offences charged in counts 8-11 occurred on 2 March 2015. In cross-examination Thomas conceded that none of the acts charged occurred on that day. The applicant says that the jury ought to have had a reasonable doubt as to an essential ingredient of the offence.

6. [37]

   Fifthly, the applicant submitted that as the jury was not satisfied that the acts the subject of count 4 occurred and Thomas gave evidence in which he denied that the acts the subject of count 5 occurred, the jury could not be reasonably satisfied that the acts the subject of counts 6 and 7 occurred. They were not referred to in the first record of interview. The applicant also submitted that Thomas’ evidence as to how the acts the subject of count 7 occurred (attempted anal/penile penetration) and Thomas’ statement in the second interview as to what it felt like and whether it hurt were not credible.

7. [38]

   Sixthly, the applicant submitted that a reasonable doubt should be held as to Thomas’ credibility by reason of evidence he gave in the absence of the jury when the primary judge was asked to determine whether Thomas should or should not give evidence on oath or affirmation. The sentencing judge concluded that Thomas was not capable of giving sworn evidence. He was nine years old at the time of the trial. Thomas gave the following evidence on the voir dire:

8. [39]

   The applicant relies upon the cumulative effect of these matters.

9. [40]

   It is convenient to address the relevant topics in the following order:

Preliminary issue: video evidence

1. [41]

   Thomas’ evidence-in-chief substantially consisted of the video recordings of his four interviews by police officers with the JIRT on 12 March 2015, 2 September 2015, 3 February 2017 and 13 February 2017. Thomas’ evidence at the trial was given from a remote location and was seen by the jury by video. The video recordings of his interviews by the JIRT interviewers and his evidence at the trial were tendered on appeal.

2. [42]

   I considered it necessary to watch and listen to Thomas’ four records of interview that substantially comprise his evidence-in-chief and to watch the video recordings of his evidence at the trial, rather than attempting to reach a conclusion as to whether the verdicts were unsafe or unsatisfactory based only on a review of the transcripts.

3. [43]

   In determining an appeal that relies on s 6(1) of the Criminal Appeal Act, (that the verdict was unreasonable or cannot be supported having regard to the evidence or there was a miscarriage of justice) a court of criminal appeal is required to make its independent assessment of the whole of the evidence (M v The Queen at 493; MFA v The Queen (2002) 213 CLR 606; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [22]; R v Baden-Clay at 331 [71]; GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 at [20]).

4. [44]

   This is the starting point. In SKA v The Queen the plurality (French CJ, Gummow and Kiefel JJ) approved a reservation expressed by Simpson J in the Court of Criminal Appeal in that case (SKA v R [2009] NSWCCA 186 at [108]) that caution should be exercised in viewing a recording of the complainant’s evidence if to do so might create an imbalance given that the Court would not be viewing the evidence of other witnesses. The plurality noted an additional consideration that the recording in that case was of only the complainant’s evidence-in-chief and might not have been a fair representation of her evidence as a whole (at [29]).

5. [45]

   There is no such imbalance in the present case. The applicant did not give evidence and the whole of the evidence of the complainant was available to be reviewed in this Court in the same form as it was seen by the jury.

6. [46]

   In SKA v The Queen the plurality observed (at [31]) that the account given and the language used by witnesses which were available by way of transcript are usually sufficient for review of the evidence and that:

7. [47]

   That necessity is present in the current case. The Crown submitted that it was necessary for this Court to view the video recordings of the JIRT interviews to appreciate fully the complaints of Thomas in 2015 about events that had occurred only days or weeks earlier when he was seven, and his further interview in September 2015 when he was eight, which added additional complaints. The Crown submitted that Thomas responded to questions not just by oral answers but expressively with nods, shakes of the head, shrugs or hand movements. Sometimes his non-verbal responses were captured by the interviewer’s next question. This was not always the case. I have referred to an example of this at para [33] above.

8. [48]

   The Crown also submitted that insofar as the applicant relies upon the fact that serious allegations were only raised for the first time in the second interview in September 2015, it was necessary for this Court to view the first interview for itself to observe when Thomas became very tired and uncommunicative. The video recordings demonstrate the correctness of this submission.

9. [49]

   The Crown submitted that concessions made by Thomas in cross-examination could be explained by confusion or exhaustion. In submissions on appeal the issue was raised as to whether Thomas might have given answers because he wanted to end a cross-examination that he found traumatic.

10. [50]

    Because Thomas’ evidence was given by video the jury saw the same images and heard the same intonations of voice as are available to this Court. Once it is accepted, as it should be, that the recordings of the complainant’s JIRT interviews should be watched, it also follows that his evidence, including his cross-examination, should be watched so as to maintain balance, even if the Court were not otherwise persuaded (as I am) that the video recording of Thomas’ evidence given at trial should be watched to assess the significance of the concessions made in cross-examination.

11. [51]

    In CLC v R [2015] NSWCCA 248 Basten JA said:

12. [52]

    In CLC v R Wilson J and R S Hulme AJ elected not to view the video recordings of the complainant’s interviews with the police. Wilson J said:

13. [53]

    In the present case, in my view, there are compelling reasons as to why this Court should review the recorded evidence. It is necessary to do so:

14. [54]

    I acknowledge the burden on the Court of viewing the videos. The four JIRT interviews lasted almost four hours and the additional evidence at trial about another one and a half hours. But the burden is imposed by the requirement that in determining an appeal under s 6(1) the Court must independently assess the whole of the evidence. The relationship between the role of the jury and the role of this Court in determining an appeal under s 6(1) is determined by the “authoritative guidance” in M v The Queen quoted at [5] above. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt entertained by a court of criminal appeal that the Court of Criminal Appeal can refrain from setting aside the conviction. For the critical part of the evidence the jury in this case does not have such an advantage.

15. [55]

    Accordingly, I have watched the four records of interview and Thomas’ evidence at the trial. As appears in more detail below, I accept the Crown’s submission that in the first JIRT interview that took place only 10 days after his complaint to his mother, Thomas illustrated his answers with hand movements that need to be seen to obtain a full appreciation of the answers on the transcript. It is also clear from the video that by the end of the interview Thomas was very tired.

16. [56]

    By contrast, the recording of Thomas’ evidence given at the trial does not suggest that his concessions in cross-examination were the product of confusion, or tiredness, or of being overborne by the questioner, or wanting to have the whole thing over.

Complainant’s evidence on the voir dire

1. [57]

   Thomas did not give sworn evidence or evidence on affirmation. That does not affect the weight of his evidence (The Queen v GW (2016) 258 CLR 108; [2016] HCA 6). The applicant submitted that it was significant that the apparent reason that the primary judge decided that Thomas was not capable of giving sworn evidence was his hostility to the applicant that appears from the evidence he gave quoted at para [38] above and his apparent determination to give evidence that would see the applicant sent to gaol. The jury was not privy to that evidence. The applicant submitted that it showed a “potential bias” on the part of Thomas. Thomas did give evidence before the jury that he wanted Dave to get into trouble. This was the same sentiment as had been expressed in the absence of the jury on the voir dire (see [38]. It is consistent with Thomas’ giving truthful evidence of the sexual assaults he said that the applicant had committed that he would want the applicant to go to gaol as a result of those assaults.

2. [58]

   The evidence given on the voir dire does not materially affect the credibility of Thomas’ evidence. Thomas gave substantially the same evidence before the jury. This did not cause the jury to doubt his credibility.

Acquittal on count 4

1. [59]

   The jury’s acquittal of the applicant on count 4 is consistent with the jury’s accepting Thomas’ general credibility.

2. [60]

   The act relied upon for count 4 was that the applicant made Thomas suck his penis. His evidence at the trial was that the closest the applicant’s penis got to his mouth was about a metre away. The acceptance of Thomas’ evidence given at trial on this count should, and presumably did, give the jury pause to consider the reliability of his evidence given at the second JIRT interview.

3. [61]

   Count 4 was laid on the basis of matters raised for the first time in the second interview. In that interview Thomas was asked what he had come to talk to the interviewer about that day. He said “About Dave”. He was asked (Q54) “Tell me what you’ve come to tell me about Dave?”. His answer was:

4. [62]

   Count 4 was that the applicant made Thomas suck his penis, not that the applicant sucked Thomas’ penis. The latter allegation was the subject of count 5. The question of whether the applicant made Thomas suck his penis was raised by the interviewer. She asked:

5. [63]

   The answer was “Well, [then after a long pause] well, well, he did do that once but I said I don’t, I didn’t want to but he did it to me though.” The questions then continued:

6. [64]

   The question noted at [62] above is an accurate transcription of the question asked. It would probably have been understood by Thomas as a question whether Dave ever asked him to put Dave’s rude part in Thomas’ mouth. The answer to the question was very hesitant as appears from the transcript quoted above.

7. [65]

   The interviewer was wrong in saying that Thomas had said when they first started talking that Dave had asked Thomas to suck Dave’s rude part. Thomas’ complaint was that the applicant had sucked his rude part.

8. [66]

   Later in the interview the interviewer said:

9. [67]

   The jury could properly have considered that in these circumstances the answers given by Thomas in his record of interview from which he resiled in his evidence-in-chief did not reflect adversely on his credibility. I do not consider that his evidence-in-chief at the trial, that departed from his hesitant acceptance of what was put to him as a leading question in his second record of interview, on which he could not or did not elaborate, adversely affects his credibility on other issues. The applicant’s acquittal on count 4 is not inconsistent with his convictions on the other counts.

Conviction on counts 2 and 5

1. [68]

   Count 2 was that the applicant touched Christopher’s penis at Emerton pool. Count 5 was that the applicant sucked Thomas’ penis at his home.

2. [69]

   The evidence on count 2 that the applicant assaulted Christopher was based on the first JIRT interview in which Thomas said:

3. [70]

   As noted above, Thomas later said that this occurred not at a pool at Parramatta, but at Emerton.

4. [71]

   In cross-examination Thomas gave the following evidence in which I interpolate my observations from the video recording:

5. [72]

   Shortly after this evidence and at the conclusion of the cross-examination the following evidence was given in which I interpolate my observations from the video recording:

6. [73]

   During the pauses noted above Thomas appears to be considering the questions. From my watching of the video recording and listening to the evidence that was given, I do not think that Thomas was confused, tired or overborne. His evidence that Dave had touched his rude part, had made him touch Dave’s rude part and had tried to put his rude part in Thomas’ bottom is inconsistent with the notion that at this point in his cross-examination he was willing to go along with the cross-examiner’s suggestions.

7. [74]

   It is unsurprising that the Crown prosecutor told the jury that:

8. [75]

   The Crown submitted that the jury was entitled to accept parts of Thomas’ evidence and reject others. As a general proposition that is no doubt true. But there are limits to which it is true and past which a conviction will be unsafe. In Cross on Evidence (11th ed, 2017) J. D. Heydon states at p. 703 [17565]:

9. [76]

   The authority cited for that proposition is R v Parkinson [1990] 1 Qd R 382; (1990) 44 A Crim R 177. Parkinson concerned allegations of sexual assault by the applicant’s 12-year-old nephew. During the course of the trial the complainant denied he had been abused by the accused, withdrawing from various statements made out of court. Ryan J (Kelly SPJ agreeing) and Macrossan CJ held that the jury’s verdict of guilty was unsafe and unsatisfactory and quashed it accordingly. Ryan J said (at 183):

10. [77]

    Macrossan CJ stated (at 180):

11. [78]

    In this case the trial judge summarised the Crown’s submission and said:

12. [79]

    Consistently with The Queen v GW it is the fact that the prior statement of the complainant was contradicted at the trial that raises the doubt. The fact that the contradiction was not on oath does not lessen its effect. There was no suggestion of any inducement to Thomas to change his story.

13. [80]

    Reviewing the video recording of the first interview and his evidence at the trial, I have the doubt that the Crown prosecutor suggested the jury should have as to the applicant’s guilt on this count.

14. [81]

    Likewise, in relation to count 5, the Crown prosecutor said to the jury that Thomas’ evidence that Dave had never tried to suck Thomas’ rude part and had never done so did not appear to be just a lapse of memory, but an acceptance that Dave never tried to suck his rude part. The Crown prosecutor told the jury that in relation to count 5 the jury might have a reasonable doubt .

15. [82]

    As noted above, the facts alleged in relation to count 5 were that on a weekend in Thomas’ mother’s bedroom, the applicant sucked Thomas’ penis. The allegation was first raised in the second JIRT interview. It was raised in the same series of questions and answers dealing with what became count 4. These are set out below. It must be remembered that the jury acquitted the applicant of count 4 that alleged that the applicant made Thomas suck his penis, but convicted him on count 5 that alleged that the applicant sucked Thomas’ penis, even though in his evidence at the trial Thomas did not maintain either allegation. In assessing the reliability of the questions and answers in the second interview it is relevant that Thomas was able to resist suggestions put to him. The transcript is as follows:

16. [83]

    The last answer indicates that Thomas was uncertain as to the time of day the acts occurred but that does not necessarily detract from the credibility of his evidence that the acts he described did occur (Cabot (a pseudonym) v R [2018] NSWCA 265 at [63]-[64]). The interviewer asked Thomas to tell her everything that happened from the beginning to the end. Thomas asked for and was given a break. On resumption the interviewer reminded Thomas of what he had said and the questions continued as follows:

17. [84]

    The interview then continued as quoted at [66] above.

18. [85]

    In cross-examination Mr Burke, who appeared for the applicant, asked the following questions:

19. [86]

    At no part of his cross-examination did Thomas appear confused or tired or overborne. As noted above (at [72]) Thomas paused before answering the question “Q: Dave has never touched your rude part, has he?” before answering “He has”. He again paused and appeared to be thinking hard after the question “Q: Dave has never tried to suck your rude part, has he?” before answering “No” and saying clearly in the answer to the next question that the applicant had never sucked his rude part. He rejected the cross-examiner’s next two suggestions before agreeing that the applicant had never touched Christopher’s rude part.

20. [87]

    The concessions in cross-examination go beyond the kind of inconsistencies in evidence as to details of events that are to be expected (M v The Queen per McHugh J at 534; Cabot v R at [59]-[60]). They were a clear acceptance by Thomas that some of the acts charged never took place. They stand in contrast to the inconsistencies in evidence in relation to counts 1 and 3 addressed at [121] and following below.

21. [88]

    Walton and Wilson JJ have emphasised the importance of the fact that the jury is the body entrusted with the primary responsibility of determining the applicant’s guilt or innocence and have observed (at [149]) that the jury’s advantage in being present at the whole of the trial is of considerable importance in determining a ground of appeal under s 6(1). Their Honours refer to the observations members of the jury will make during the course of the trial, including not only the jury’s observations of witnesses and their demeanour, but the jury’s observation of the accused when particular evidence is given and throughout the trial (at [148]). The Crown did not submit that the jury’s opportunity to observe the applicant whilst Thomas and Thomas’ mother gave evidence or at other stages of the trial, was a factor that could lead this Court to conclude that no miscarriage of justice occurred even if this Court had doubt about the applicant’s guilt. The jury’s task was to decide on the applicant’s guilt or innocence on the basis of the evidence adduced. Nothing in the authoritative guidance given to courts of criminal appeal in M v The Queen permits this Court to address its task on the basis of anything other than the evidence adduced.

22. [89]

    Here, the only relevant advantage the jury had was in seeing and hearing the evidence given by Thomas’ mother. Whilst she gave evidence in chief quoted (at [25]) that would be consistent with the applicant’s having a consciousness of guilt of some indecent acts committed upon Thomas, it would not support an inference that the applicant had a consciousness of guilt of the particular offences with which he was charged. Further, her evidence must be weighed against the fact that she told Senior Constable Oxford and Constable Taylor that she told the applicant what she was told by Thomas and he was shocked and then angry and then denied everything (at [26]).

23. [90]

    The issue arising from the inconsistency between statements made by Thomas in the JIRT interviews in relation to counts 2 and 5 and his evidence in cross-examination at the trial is not whether his statements in the JIRT interviews should be preferred to the evidence that he gave at trial; whether on the basis that the first two JIRT interviews were closer in time to the matters about which he complained, or were in a more informal setting, or were conducted by interviewers who might have appeared to Thomas to be more sympathetic or less threatening than counsel at the trial. The issue rather is whether the concessions made in cross-examination give rise to a doubt as to the accuracy of what was said in the JIRT interviews.

24. [91]

    In the first JIRT interview (less so in the second JIRT interview) Thomas was asked open-ended questions. In both interviews the interviewer would take up a particular topic and then ask Thomas to give more details of his complaint. There was nothing improper about the questioning, but its nature was such as to confirm and then seek elaboration of the complaint. Naturally enough, the JIRT interviews proceeded on the basis that the interviewer accepted Thomas’ complaint and then sought further details of it. Understandably, his account was not challenged.

25. [92]

    There was no opportunity for the applicant to challenge or otherwise test Thomas’ version of events prior to the trial. Although there was some scope for confusion in the framing of some questions (as set out in the first part of the cross-examination extracted at [85] above), there was no ambiguity or other difficulty with the questions extracted at [72] above that are repeated at [85]. There is no indication that Thomas was intimidated by a person (the barrister) in apparent authority. As noted above, he did not appear confused or tired. He paused before answering the questions and resisted some of the suggestions put to him. The questioning was measured and polite.

26. [93]

    The Crown prosecutor told the jury that it could have a reasonable doubt about the applicant’s guilt on count 5. I have that doubt. It is a doubt the jury should have shared. The applicant should be acquitted of count 5.

Counts 8-11

1. [94]

   The act of indecency alleged in count 8 was that the applicant masturbated himself in front of Thomas. In his first JIRT interview Thomas gave the following answers to the interviewer’s questions that became part of his evidence-in-chief:

2. [95]

   In giving the answer to question 110, Thomas avoided looking at the interviewer. That might be because of embarrassment. Another possibility is that he was making it up.

3. [96]

   Later in the interview, Thomas responded to the questions he was asked as follows:

4. [97]

   Thomas was asked how long all this lasted for and said, “Like half an hour, something.”

5. [98]

   Count 9 was that on this occasion in his mother’s bedroom on the grand final day the applicant masturbated Thomas. In addition to the questions and answers quoted at para [96] above, Thomas said the following:

6. [99]

   Count 10 was that on grand final day the applicant made Thomas masturbate him and this took place in Thomas’ mother’s bedroom. The same evidence as set out above was relied upon by the Crown. In addition, in his second JIRT interview, Thomas answered questions as follows:

7. [100]

   Count 11 was that on grand final day in Thomas’ mother’s bedroom the applicant attempted to put his penis in Thomas’ anus.

8. [101]

   Thomas described this alleged conduct in his second interview. Thomas gave the following answers to the questions he was asked:

9. [102]

   Thomas was then asked to describe the events. He said that he was standing on the bed and that the applicant was standing on the floor. The questioning continued as follows:

10. [103]

    In cross-examination Thomas was taken through what it can be inferred were counsel’s instructions as to the events that took place after Thomas’ mother had left for work on the morning of the grand final day up to the time the applicant, Thomas and Christopher left the house to visit the shops. He was asleep in his mother’s bed, but at some stage became aware that the applicant was there because he heard him talking to his mother. The applicant was meant to drive him to school that morning, but he told his mother that he wanted to stay home from school. He went back to sleep. Christopher was watching television in the lounge room. He was asked:

11. [104]

    This indicates a degree of suggestibility.

12. [105]

    Thomas and the applicant and Christopher spoke about what they were going to do that day to get ready for the grand final. The applicant was going to get some bandages for Thomas’ knee and head and someone had suggested headgear. The applicant said something to Thomas about shopping for his mother’s birthday and he was going to take Thomas to the shops. They left the house before lunchtime and were going to have lunch at the shops. They did have lunch at the shops. He woke up and got dressed and then the applicant, he and Christopher left for the shops.

13. [106]

    Thomas was then asked, “That’s all that happened in the room that day, isn’t it?” The video shows a long pause before Thomas answered, “Yes.”

14. [107]

    Thomas was then asked about visiting his mother where she was working at a promotional stand at the shopping centre. He agreed that he and Christopher ran up and spoke to her. He later changed that evidence saying that he did not visit his mother on that day, but on another day. Thomas’ mother said that he did visit on that day.

15. [108]

    Thomas gave the following evidence:

16. [109]

    The question “Are you okay? Do you need a break?” was evidently prompted by Thomas’ behaviour. At the time the question was asked he had a big smile and was lolling on the seat but did not appear tired.

17. [110]

    The cross-examination continued about the soccer grand final. Thomas noticed that at some stage the applicant was not sitting watching the game. He was asked some questions about the applicant’s telling him that he had had a phone call. He denied he was upset with the applicant for not watching. He asked to take a break. At that point Thomas was laughing as if at a private joke.

18. [111]

    A short adjournment was taken. In the absence of the jury, the primary judge said:

19. [112]

    The question was not completed nor answered and the topic was not pursued.

20. [113]

    After the short adjournment Thomas was asked questions about events when he got home after the soccer grand final. He again said that he was not upset about the applicant not watching the game. He agreed that he had an argument at home with the applicant. He agreed that he told his mother what the applicant had bought for her as a birthday present and that upset the applicant who got a bit angry with him. He told the applicant that he wanted McDonalds for dinner and the applicant, who had got upset with him for talking about his mother’s present, said he would not get Thomas food from McDonalds. The applicant said he would get Christopher food from McDonalds and that made Thomas a little bit angry with the applicant.

21. [114]

    Thomas then gave the following evidence:

22. [115]

    In re-examination Thomas was asked to take his mind back to when he was first talking to his mother about what the applicant had done. The Crown asked:

23. [116]

    Thomas asked him to repeat the question. He said he could not remember. He was then asked whether he told his mother or Alex any lies that night, and said “No”.

24. [117]

    Thomas’ answer [at T116] referred to at [114] above that he told his mother “about the other days that he did it” is consistent with Thomas’ not regarding the actual day he said the events occurred as being important, but rather that it was the sexual assaults themselves rather than their date that was important. This would be perfectly understandable. It was not the basis on which the trial was run.

25. [118]

    As noted above, Thomas gave evidence at the conclusion of his cross-examination quoted above at [85] that the applicant had touched his rude part and had made him touch the applicant’s rude part, and had tried to put his rude part in Thomas’ bottom. But the clear effect of his evidence extracted above, was that these things did not happen on grand final day.

26. [119]

    It was common ground at trial and on appeal that the date on which the offences alleged in counts 8-11 occurred was an essential part of the Crown case that needed to be proved beyond reasonable doubt. The primary judge told the jury that:

27. [120]

    Thomas’ unequivocal evidence in cross-examination that the acts the subject of counts 8-11 did not take place on grand final day does give rise to a reasonable doubt as to whether the events took place on that day. Contrary to the submissions of the Crown, his answers were not ambiguous, and it is not open to infer that he was confused. The questioning was not repetitive or confusing. Nor was he dismayed at the manner of questioning. The questioning bore no similarity to the questioning that was the subject of comment in this Court in Abbott (a pseudonym) v R [2017] NSWCCA 149 to which the Crown referred. One can accept the Crown’s submission that Thomas gave vivid and age-appropriate descriptions of the incidents that were the subject of the charges and that he credibly described the applicant telling him every time he “did it” to keep “the game” a secret. Thomas never resiled from his evidence that the acts the subject of counts 8-11 occurred. He did resile from his evidence that they occurred on grand final day. The day on which those acts occurred was accepted to be an essential ingredient of the offences. I have a doubt as to whether the acts took place on that day in the light of Thomas’ clear evidence that they did not take place on that day.

Counts 1 and 3

1. [121]

   As noted above, I have held that the conviction on count 2 should be quashed. Further submissions were made as to why the convictions on it and counts 1 and 3 should be quashed.

2. [122]

   As noted at [32] above, the applicant submitted that there was a particular reason to doubt his conviction on counts 1-3 because of the discrepancies in Thomas’ evidence as to where the pools at which the conduct allegedly took place were situated. In his first interview Thomas said that the conduct occurred at pools at Parramatta. In his second interview he said that the conduct took place at pools at either Mount Druitt or Penrith. It was not until his third interview that he suggested, and initially tentatively, that it took place at the pool at Emerton. He confirmed this in his fourth interview.

3. [123]

   There was a complication in the laying of the indictment in that Thomas’ mother suggested to the police that the events would not have occurred at a pool in Parramatta but could have occurred at a pool at Stanhope Gardens. This is a red herring. Thomas did not say that the offences occurred at a pool in Stanhope Gardens and the indictment ultimately did not so charge.

4. [124]

   Thomas’ mother gave evidence that prior to 2 March 2015 she had regularly taken her children to the Emerton pool.

5. [125]

   Thomas said in oral examination in chief that from the age of six to seven he had been to about three pools with his mother. He had not been to the pool at Parramatta. Towards the end of the cross-examination Thomas gave the following evidence:

6. [126]

   Counsel was wrong in putting to Thomas that he had “just said that it didn’t happen at Emerton Pool”. Thomas said he couldn’t remember and it might not have happened.

7. [127]

   There was a long pause between the question “That didn’t happen, did it?” and the answer “I can’t remember.” The answer “He did” to the question “Dave didn’t touch his own rude part with you at any pool did he?” was unequivocal.

8. [128]

   Thomas’ evidence that he could not remember whether Dave touched him on the rude part at Emerton Pool and that might not have happened was immediately qualified by his asserting that that did happen at Emerton Pool.

9. [129]

   Again, the Crown accepted that it was an essential ingredient of its case that the conduct the subject of counts 1-3 took place at Emerton Pool and not at some other pool.

10. [130]

    Thomas was seven at the time of the first interview. He was vague as to matters of locality. He could not tell the interviewer what street in Emerton he lived in. When asked where the pools were and after his saying it was in Parramatta, Thomas leant back, stretched and yawned.

11. [131]

    In the second interview Thomas said that in the showers at the pool the applicant made him touch the applicant’s penis “and it was all gooey”. . He volunteered that the shower had curtains. In his closing address to the jury the Crown prosecutor acknowledged that there was no curtain at the Emerton Pool, but said that the incident described by Thomas could be a separate event from the events the subject of counts 1-3. The Crown said that the offences were part of a wider pattern of conduct. Thomas’ evidence was that he went to three pools with the applicant. The “gooey” incident did not occur at Emerton Pool.

12. [132]

    Thomas’ confusion in identifying the location of the pool the subject of counts 1 and 3 does not cause me to have any real doubt that the events he described as having taken place at Emerton Pool did take place, and did take place at the Emerton Pool.

Counts 6 and 7

1. [133]

   Thomas’ evidence that the applicant made Thomas masturbate the applicant was given in the second interview. Part of his evidence is quoted at [83] above (answers to questions 270 and 271). He was also asked questions and gave answers as follows:

2. [134]

   In cross-examination he adhered to that evidence and asserted that the applicant had made him touch the applicant’s rude part. I accept Thomas’ evidence in relation to count 6.

3. [135]

   Similarly, I accept Thomas’ evidence in relation to count 7. Thomas was adamant in cross-examination that the applicant had tried to put his rude part in Thomas’ bottom. Thomas’ answer to Question 271 in the second record of interview (quoted at [83] above) was part of his evidence-in-chief on this count. He answered further questions as follows. The questions follow immediately after those quoted at [133] above:

4. [136]

   The applicant submitted that if this had happened then it could not have been the case that it did not hurt when the applicant tried to penetrate Thomas and it was not believable that Thomas could not remember how it felt. This submission assumes that the applicant had obtained an erection. Thomas’ evidence that the applicant tried, but failed, to penetrate him and he did not experience pain would indicate that the applicant did not obtain an erection. On that basis, Thomas’ evidence is not incongruous.

Effect of reasonable doubt on charges 2, 5 and 8-11

1. [137]

   For the above reasons I consider that a verdict of acquittal should be entered on counts 2, 5 and 8-11. The question then is whether the reasonable doubt on those questions should occasion reasonable doubt in relation to counts 1, 3, 6 and 7. Whether a reasonable doubt in relation to some matters must occasion a reasonable doubt in relation to others depends upon the full range of circumstances (Markuleski at [65]).

2. [138]

   I consider that Thomas’ concessions in cross-examination raise a reasonable doubt as to the applicant’s guilt in relation to counts 2, 5 and 8-11. By the same token, his discrimination between the acts he conceded did not occur and those acts he maintained did occur have the ring of credibility. His concession that the acts the subject of counts 8-11 did not occur on grand final day does not itself affect the credibility of his evidence that the acts he described did occur, although not on that day.

3. [139]

   The qualification to this is that his evidence in cross-examination affects the credibility of some of his evidence in the JIRT interviews. But allowance must be made for the fact that he told his mother that the games and touching occurred that morning, when in fact, according to his evidence at the trial, they had occurred on earlier occasions. The interviews proceeded on the basis of his initial complaint. In my view that does not materially affect the credibility of his evidence as to the substance of the acts he described in the first interview, as distinct from the date of their occurrence.

4. [140]

   Thomas’ evidence at the trial calls into question the reliability of his records of interview. But making full allowance for the contradictions between the records of interview and his evidence at the trial and the doubt to which they give rise in relation to the specific counts 2, 5, 8, 9, 10 and 11, I do not have doubt as to the convictions on counts 1, 3, 6 and 7.

Proposed orders

1. [141]

   For these reasons I propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal from the convictions on 7 March 2017 on counts 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 on the indictment.

   2. (2)

      Appeal allowed in part.

   3. (3)

      Order that the verdicts and convictions on counts 2, 5, 8, 9, 10 and 11 be set aside, and in lieu thereof that the applicant be acquitted on those counts.

   4. (4)

      Order that the sentence imposed on the applicant on 10 April 2017 be quashed.

   5. (5)

      Remit proceedings to the District Court for the applicant to be resentenced on counts 1, 3, 6 and 7 on the indictment.

2. [142]

   WALTON AND WILSON JJ: White JA has set out the evidence and circumstances relevant to this application. His Honour has also referred to his observations of the recorded evidence, which the Court was urged to view. Although we have concerns about the increasing frequency with which this Court is asked to take that course, and as to the absence of necessity to do so in most cases, for the reasons recorded by the presiding judge, it was appropriate in this case to view the material.

3. [143]

   White JA has dealt with the applicant’s contentions as to Thomas’ evidence (adopting the pseudonym used by the presiding judge) on the voir dire at [57] – [58], and we agree generally with what has there been said.

4. [144]

   As to the asserted inconsistency between the acquittal returned with respect to count 4, and the verdicts of guilty returned by the jury with respect to the remaining counts, as his Honour has observed, there is a rational basis for the difference. Distinguishing this count from the remaining counts was the qualitative difference in the complainant’s evidence with respect to it, both in the Joint Investigation Response Team (“JIRT”) interviews, and in additional evidence in chief at trial. That is, even without turning to evidence given in cross-examination, there were difficulties with this count, in the jury being satisfied beyond a reasonable doubt as to whether penetration had actually occurred. The complainant’s evidence in chief on the remaining counts did not suffer from the same uncertainty. It was thus entirely rational for the jury to arrive at the verdict that it did with respect to count 4, and points to the care with which the jurors approached their task. We otherwise agree with the observations and conclusions of White JA at [59] – [67] with respect to this issue.

5. [145]

   As to the disposition of the remaining arguments of the applicant, although we too would grant him leave to appeal, we have reached a different conclusion overall to that of White JA. His Honour would dismiss the appeal against conviction for counts 1 and 3, but otherwise allow it. We would dismiss the appeal.

6. [146]

   In those circumstances, without intending to repeat evidence already referred to, it is appropriate to set out our reasons for our differing conclusions.

7. [147]

   Initially, it is worth making a few general observations about the nature of a criminal trial and, in particular, a trial conducted before a jury. Such trials have a very particular environment, impossible to replicate in transcript, or by any later viewing of recordings of evidence.

8. [148]

   Again, as a general statement, the trial environment is informed by every aspect of the trial: the opening proceedings and what the jury is told by the trial judge then and during the trial about its task; the observations of the interchange between counsel and witness; the observations of witnesses and the demeanour of each, and the differing observations that may be made at different stages of the evidence of the same witness; and the presence before the jury of the accused person, and the opportunity the jury has to observe him or her when particular evidence is given, and throughout the trial. All of those aspects of a jury trial have a bearing on the verdicts ultimately returned by the tribunal of fact.

9. [149]

   The environment of the trial provides the context to the jury’s observations of evidence, and decisions made by jurors as to what evidence should be accepted and what rejected; and to their receptiveness or otherwise to arguments placed before them. The jury’s advantage in being present at the whole of the trial is of considerable importance in determining a ground of appeal that contends that the verdict or verdicts returned by a jury were unreasonable and not supported by evidence.

10. [150]

    The High Court gave particular emphasis to the fundamental role of the jury in determining questions of fact in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, at [65] – [66] where it said,

11. [151]

    In making that statement, the High Court referred to and was informed by a history of twentieth century Australian jurisprudence that has consistently given primacy to the responsibility of the jury to determine matters of fact, and rejected the notion that an appellate court should or could substitute its view of such matters for that of the jury.

12. [152]

    In Hocking v Bell (1945) 71 CLR 430, one of the decisions referred to in Baden-Clay, Latham CJ said, at 440,

13. [153]

    Part of the importance of the role of the jury in the operation of the criminal justice system is the participation of the community through twelve of its members, and the significance of that participation in maintaining confidence in the administration of justice. The advantage of involving the community in the judicial process was described as “inestimable” by French CJ in Alqudsi v The Queen (2016) 90 ALJR 211 at 715 [2]; [2016] HCA 24.

14. [154]

    In Kingswell v The Queen (1985) 159 CLR 264 Deane J said, at 301 – 302,

15. [155]

    Considerations such as these are of importance when considering whether a verdict returned by the representatives of the community in the form of the jury is unreasonable or unsupported by the evidence.

16. [156]

    Ultimately, the question for this Court is whether, upon the whole of the evidence, it was open to the jury to reach the verdicts it did. In a trial such as the present, examination of the evidence of the complainant will be of greatest importance to answering that question, but that does not detract from the necessity of examining the whole of the evidence, and assessing the whole taken together. Whilst, in common with the jury, the Court could view the recorded evidence of the complainant, there remains to the jury the advantage of participating in the whole of the trial, and observing all of the witnesses give evidence, in the particular environment of a trial court.

17. [157]

    The complainant’s evidence was given principally by way of previously recorded interviews with JIRT officers (pursuant to s 306S of the Criminal Procedure Act 1986 (NSW)), supplemented by some limited examination in chief at trial, and tested by cross-examination at trial. The evidence given by means of the recorded interviews may have been regarded by the jury as compelling; that is my assessment of it. However, there were inconsistencies and concessions in the evidence given by Thomas at trial. The applicant relies upon these inconsistencies and concessions to argue that the verdicts for counts 1 – 3 and 5 – 11 were unreasonable and unsupported by the evidence.

18. [158]

    In assessing that contention, not only should the evidence of Thomas be taken as a whole and not piecemeal, but the evidence given at trial more broadly must be taken as a whole. It was, of course, entirely open to the jury to accept part of Thomas’ evidence, and not other parts.

19. [159]

    The evidence of the complainant in his JIRT interviews was, in our assessment, visceral and utterly believable. The chronology, the content, the language used, the physical demonstrations given on occasion, and the demeanour of the complainant, all point ineluctably to his credibility and reliability. In his cross-examination, the complainant appeared less reliable and retracted some parts of the allegations earlier made by him. The tribunal of fact, having regard to Thomas’ apparent uncertainty at times, and the concessions he made at trial, could have concluded that his evidence did not establish the charges to the very high criminal standard. However, that conclusion was not, in our assessment, the only conclusion reasonably available. Considering the whole of Thomas’ evidence, and placing it with the whole of the evidence given at trial, there was a clear and persuasive basis for the verdicts reached by the jury which, in our view, rebuts the assertion of unreasonableness, or that the verdicts were unsupported by the evidence.

20. [160]

    The JIRT interviews formed a significant part of the evidence. The interviews had what the jury may have regarded as an advantage over the complainant’s evidence at trial of immediacy relevant to the offences alleged by him, a not unimportant consideration when the witness is a young child.

21. [161]

    Unlike adults, the memories and thus the evidence of young children may be expected to deteriorate with the passage of even a relatively short period of time, a matter that a jury, taking into account its members’ experience of life and understanding of people, would be entitled to have regard to.

22. [162]

    The first of the JIRT interviews was recorded on 12 March 2015, only ten days after the conduct the subject of counts 8 and 9 was alleged to have occurred. The second interview was conducted on 2 September 2015, about 6 months after the conduct the subject of counts 9, 10, and 11. The third, which contained little about the alleged offences, was rather later, being recorded on 3 February 2017 (less than a fortnight before the commencement of the trial). The timeliness of the JIRT interviews no doubt posed something of a contrast to the evidence of the complainant at trial, evidence given years rather than days or months, after the conduct described had taken place.

23. [163]

    In the interviews the complainant was asked open ended questions, as is required, and the interviewers clearly endeavoured to ask questions in a straightforward way, appropriate for a young child. The environment in which Thomas was questioned was intended to be one which did not intimidate or overawe a child. What Thomas said in response came, the jury may have thought, from his memory of real events, and perhaps transparently so.

24. [164]

    This is to be contrasted with evidence in chief at trial and, more particularly, in cross-examination. The evidence at trial was taken from the complainant as he sat in a remote witness room of a court house, an environment which, whilst less formal than that of a witness box in a court room, is still one liable to give rise to some level of anxiety in a child. The questions asked of Thomas in his evidence often gave or suggested the answer, and were frequently asked in a way that a young child may have struggled to comprehend (such as questions framed with a double negative).

25. [165]

    Adults may be able to interpret the meaning of a question asked with a double negative or in a circuitous way; they may be able to maintain a truthful assertion even where an adult in a position of apparent responsibility, such as a bewigged barrister, asks questions that suggest that he or she did not accept the answers previously given; that is a much more difficult task for a young child. The comments of Fagan J in Abbott (a pseudonym) v R [2017] NSWCCA 149 at [78] are in our opinion apposite.

26. [166]

    There can be no criticism of an accused person who seeks to fully test the evidence of a child or any witness; that is our system of justice and cross-examination is one of the best means available to an accused to test the case presented against him or her.

27. [167]

    The fact that there is a contradiction or concession by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness. Such concessions do not necessarily dictate that a jury must have held a reasonable doubt; much less should they dictate that an appellate court must overturn the verdicts returned by the jury.

28. [168]

    The question turns on a careful examination of the whole of the evidence placed before the tribunal of fact, to determine whether it was open to the jury to be satisfied of an appellant’s guilt beyond reasonable doubt, bearing in mind the jury’s advantage of having sat in the jury box, and observed the proceedings as they took place.

29. [169]

    The content of Thomas’ evidence in chief in the interviews and his demeanour when giving it, were available to the jury to inform its assessment of the reliability of his allegations against the applicant. At the time of the JIRT interviews Thomas was aged 7 - 8 years, a very young child to be describing sexual matters. Given his young age, the language he used of itself underlines the veracity of what he said. He described the applicant playing “the game” with him in a way that presents a vivid account of an actual memory. The language used emphasises both the complainant’s lack of sophistication and, pointing to truthfulness, his knowledge of sexual matters, knowledge that a child of that age should not legitimately have. He described the part of his body that the applicant touched as “where you wee”; the orifice the applicant was alleged to attempt to penetrate with his penis was “where the poo comes out of”. When describing the applicant urging Thomas to masturbate him, Thomas said the applicant told him to “put two hands on and go faster”; he was instructed to “go up and down” and to “go faster”. What seems to have been ejaculate was “gooey” and felt like “mud”; the goo smelt “yucky”, and Thomas said he didn’t like the taste of the applicant’s rude part. This is the sort of language, and the type of descriptions, that might be expected from a young child recounting real events of a sexual nature.

30. [170]

    Having examined the whole of the complainant’s evidence, and giving due regard to the concessions extracted by questioning at trial, we are left with no doubt as to the availability of the jury’s verdicts with respect to the offences the subject of counts 1 – 3 and 5 – 11. Both the content of the allegations the complainant made, and his manner of expressing them are, in our opinion, indicative of credibility.

31. [171]

    This was not the only evidence, however, relevant to the jury’s determinations and the verdicts ultimately returned. There was other evidence available to the jury that gave powerful support for the evidence given by Thomas in his JIRT interviews, and which operated to reduce the significance of the apparent concessions and uncertainties that arose in cross-examination. This was the evidence of complaint, which was admissible to prove both the truth of what was said (at least for the counts of 12 March 2015) pursuant to s 66 of the Evidence Act 1995 (NSW), and to buttress the complainant’s credit, pursuant to s 108(3) of that Act. Not only were the terms of the complaint compelling, but so too were the circumstances in which it arose.

32. [172]

    Thomas made complaint to his mother on the day on which it was alleged that counts 8 – 11 had been committed, at what seems to have been the first reasonable opportunity the complainant had to speak to his mother in the absence of the applicant. At a time when the applicant had left the family home to get some food, but was due to return, the complainant asked his mother, “Does [the applicant] have to come back?”. When told he would return, the complainant became anxious and said that he did not want the applicant to come back. He was asked why, and referred to not liking “the games, especially this morning”. It will be recalled that the “games” of that morning included acts of masturbation and attempted anal penetration, acts that Thomas said in evidence that he didn’t like, and had told the applicant previously (at the time of the commission of counts 5 - 7) that he didn’t want to do. It was open to the jury to regard that chronology, and the circumstances in which disclosure was made, as significant, and consistent with a real experience.

33. [173]

    The contents of the complaint are available to support such a conclusion. Thomas’ disclosure has the air of something told with embarrassment and reluctance, as might be expected of a young boy, but with particular reference to and emphasis on aspects of experience that tend to be those that linger strongly in memory – those of smell and taste. Having been assured by his mother that he would not get into trouble if he told her about the games, the complainant pointed to his genital area and said he didn’t like “the games”, and didn’t like “the taste”. He told his mother he “didn’t like the taste and the gooeyness of [the applicant’s] woo-woo”, the “woo-woo” being the 7 year old complainant’s word for penis. He also told his mother “it smells”. He was anxious about the applicant’s return to the family home, and anxious that he would get into trouble for telling about the games. Thomas said that the applicant had told him to keep the games a secret.

34. [174]

    This evidence, in our view, provides very strong support for the veracity of the complainant’s evidence. It is exactly what might be expected of such a disclosure made by a young child, and reinforces the credibility of the complainant’s account of the assaults upon him.

35. [175]

    The jury may have regarded the applicant’s response to news of the disclosure as providing some further support for the verdicts ultimately returned. On his return to the house, the applicant was denied admittance by the mother’s friend, Alex who asked him to leave, telling the applicant it was not a good time. The complainant’s mother was behind Alex, also telling the applicant to leave. In her evidence, she said that the applicant responded, to Alex and her, “What do you know, what does she know, what has he said”. If the jury accepted (as was open to it) that this was the applicant’s response to being unexpectedly denied admittance to a house where he had previously been welcome, this evidence also would have pointed to the reliability of the complainant’s allegations. The fact that the complainant’s mother agreed in cross-examination that the applicant had seemed shocked by the allegations and denied them need not have detracted from the probative value of the applicant’s questions. That is a matter best assessed by a jury, in the context of the whole of the evidence.

36. [176]

    One further piece of evidence may have been regarded by the jury as providing support for the complainant’s assertions, being the disclosure made by Thomas to two uniformed police officers after police were called to attend the family home on 2 March 2015. When asked by Senior Constable Oxford what had happened that day, the complainant gave an account of the applicant asking him to “play the game” and touching his “rude bit” that morning, consistent with what he had said to his mother. It was open to the jury to have regard to what its members may have considered to be the unlikelihood of a 7 year old child giving a uniformed police officer anything other than an account of something that actually happened to him that day.

37. [177]

    All of this evidence is supportive of the reliability of the complainant’s accounts of the applicant’s conduct towards him.

38. [178]

    The only other feature of this matter that requires some comment is the concession made by the Crown Prosecutor in closing address, referred to in the judgment of White JA.

39. [179]

    A Crown Prosecutor has a role which is unlike that of other counsel. In the discharge of his or her duties the Crown Prosecutor is obliged to comply not just with the Bar Rules, but also with the Guidelines laid down from time to time by the Director of Public Prosecutions, and with pronouncements of the superior courts, such as those made in Whitehorn v The Queen (1983) 152 CLR 657 R v Apostilides [1984] HCA 38; and R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.

40. [180]

    In circumstances where there is no evidence available to support a charged offence, it will be appropriate for a Crown Prosecutor to raise the issue with the court, and invite the trial judge to direct that a verdict of not guilty is returned. Where there is some evidence to support a charged count, but notwithstanding that there is some obvious and very serious defect in the Crown case, a Crown Prosecutor may invite the trial judge to give the jury a Prasad direction: R v Prasad (1979) 2 A Crim R 45. Where, however, there is conflicting evidence relevant to a charged count, a Crown Prosecutor may point out the conflict in address to the jury, but should in our opinion avoid straying into the jury’s function of assessing the reliability of disputed evidence.

41. [181]

    It is noted that the concessions made at trial were not maintained by counsel for the Crown before this Court. In this Court the Crown strongly argued that the complainant’s evidence was reliable with respect to those counts where the jury returned verdicts of guilty, and this Court should so conclude.

42. [182]

    However, the Crown having made the concessions at trial, it was a matter for the jury to consider the submissions made to it. The jury was not bound by anything said by counsel in closing address. As the jury was directed by the trial judge more than once, counsels’ submissions were not evidence, and should be given the weight the jury thought they deserved.

43. [183]

    The submissions of the Crown Prosecutor were not determinative before the jury, and are no more determinative before this Court. The Crown’s concessions at trial are a feature to be closely considered, and which point to a need for a careful examination of the evidence of the complainant, and of the evidence placed before the jury as a whole. They are of no greater weight.

44. [184]

    Having carefully considered the trial transcript and the recorded evidence, that being the whole of the evidence, we have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of those counts where verdicts of guilty were returned: M v The Queen (1994) 181 CLR 487 at 494 – 495; The Queen v Baden Clay at [66].

45. [185]

    The orders we propose are:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       Appeal dismissed.