AH v R

1. [1]

   SIMPSON AJA: On 16 October 2017 the applicant entered pleas of not guilty to all counts on an indictment that alleged eight offences of aggravated indecent assault, contrary to s 61J of the Crimes Act 1900 (NSW), the circumstance of aggravation being that the victim was under the age of 16 years. A jury was empanelled and a trial proceeded. At the close of the Crown case on 19 October 2017 the trial judge directed, and the jury returned, a verdict of not guilty on Count 6. On 20 October 2017 the jury returned verdicts of guilty on Counts 1, 3, 4, 5, 7 and 8, and not guilty on Count 2. On 15 December 2017 the applicant was sentenced to an aggregate term of imprisonment of 11 years and 6 months commencing on 17 May 2017, with a non-parole period of 7 years and 6 months, which will expire on 16 December 2024.

2. [2]

   Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) the applicant now seeks leave to appeal against the convictions on two stated grounds. Leave is required because both grounds involve questions of fact or questions of mixed fact and law. The applicant does not seek leave to appeal against the sentence imposed.

Background

1. [3]

   The following background facts are uncontroversial.

2. [4]

   The complainant was born in March 2002. As at 2011 she lived in a NSW regional city with her mother (SM) and four younger siblings. In that year SM commenced a relationship with the applicant. In November 2011 a son was born of that relationship. In November 2014 SM and the applicant married. They separated in January 2015.

3. [5]

   In November 2016 the complainant made complaints, initially to a school friend, then another friend and a friend of SM, and eventually to SM. She said that, over the previous three years, the applicant had “raped” her. Her allegations were reported to police. The complainant subsequently took part in four interviews with a police officer, Detective Sergeant Peter Kinderman, attended by caseworkers of the Department of Family and Community Services. Each interview was electronically recorded.

4. [6]

   The first interview took place on 22 November 2016. When asked what she had come to tell the interviewers, she said:

5. [7]

   She then made a number of allegations. She said that the last occasion on which the applicant had “touched” her was “around March last year” (that is, 2015), after the separation of the applicant from SM. That event occurred, she said, at the former home of the applicant’s mother (in a suburb of the same regional city). The complainant gave a detailed account of what she said then occurred, to which it will be necessary to return. Her allegations were of penile/vaginal penetration. The complainant was then 12 or 13 years of age.

6. [8]

   The following day, 23 November 2016, the complainant took part in a further recorded interview with the same police officer and caseworker. She was asked about “the first time something happened with [the applicant]”. She gave a detailed account of an event she said had occurred at her home, at a time when SM had gone away for a couple of days, when she (the complainant) was finishing Year 6 and about to commence high school. This event, on the complainant’s account, involved digital penetration.

7. [9]

   The complainant spoke of “multiple” incidents that she said occurred after the applicant had picked her up in his car from either swimming or touch football training. She said that the applicant had a practice of diverting to a park, or to a weir, or to a place where there were soccer fields, where both digital and penile penetration took place.

8. [10]

   The complainant also spoke of assaults that she said had taken place in her bedroom at home. She said:

9. [11]

   Finally, in this interview, the complainant spoke of an occasion when she had been showering in the bathroom at the home in which both she and the applicant lived. She said the applicant entered the bathroom, naked, and “forced himself into me”, inserting his penis into her vagina.

10. [12]

    The applicant was interviewed by police on 12 December 2016. That interview, too, was electronically recorded. The specific allegations made by the complainant were put to him. In relation to each, he replied that he had no comment. When then asked if there was anything that he would like to say about the allegations, he replied:

11. [13]

    The third interview with the complainant took place on 21 July 2017. This followed the complainant contacting the police officer to inform him that she had located some text messages that had been sent to her by the applicant after the separation of the applicant and SM. The complainant said that she was not aware of any incidents other than those of which she had already spoken.

12. [14]

    On 4 October 2017 the complainant took part in a further interview, having informed police officers that she had recalled a further two incidents which she said had occurred in Canberra and Batemans Bay. The first, she said, occurred when the applicant was driving her to Canberra with a view to selection for a touch football team. The applicant pulled off the road and forced her into penile/vaginal intercourse.

13. [15]

    The second incident, the complainant said, took place in a swimming pool at the home of the applicant’s aunt in Batemans Bay. This also involved both digital penetration and penile/vaginal intercourse.

14. [16]

    As a result of this interview, additional charges were laid. These became Counts 1 and 2 on the indictment.

15. [17]

    The indictment charged eight counts of offences of sexual intercourse without consent with the complainant, knowing that she was not consenting, and at a time when she was under the age of 16 years. The counts were in identical terms except for the dates on, and the locations at, which the offences were alleged to have been committed, and the age of the complainant at those times. The counts were arranged on the indictment in chronological order, starting with the most recently made allegation of events at Batemans Bay. (The allegations concerning incidents the complainant said occurred in Canberra did not find their way onto the indictment, presumably for jurisdictional reasons.)

The trial

1. [18]

   Pursuant to s 306U(2) of the Criminal Procedure Act 1986 (NSW) the complainant’s evidence in chief was given by way of the electronically recorded interviews. She was cross-examined at a remote location in accordance with s 294B of the Criminal Procedure Act.

2. [19]

   Evidence in the Crown case was given by the complainant, the school friend to whom she had made her initial complaint (to whom I will refer as MD), by the complainant’s grandfather (to whom I will refer as RM), SM, a male friend with whom the complainant had worked (LW), the applicant’s cousin, WH, a friend of SM (SEM), a male teacher of the complainant (SD), and Detective Sergeant Kinderman.

3. [20]

   As indicated above, at the close of the Crown case, on the application of counsel for the applicant, the trial judge directed the jury to return a verdict of not guilty on Count 6.

4. [21]

   The applicant gave sworn evidence. He denied all allegations.

5. [22]

   Counsel addressed and the trial judge summed up. No complaint is made about the content of the summing up. It is, however, apposite to observe two features of it. The trial judge said:

6. [23]

   The trial judge also directed the jury that, if it were not satisfied beyond reasonable doubt of some essential element of any count, an alternative verdict, not involving any issue of consent, was available and should be considered.

7. [24]

   The jury retired at 3.09pm on 20 October 2017. Shortly after, they sent a note asking a question about the possible alternative verdicts. The trial judge directed them that they need only consider the alternative verdict if, in the case of any count, they found the applicant not guilty. At 4.09pm the jury returned with the verdicts already mentioned: guilty on Counts 1, 3, 4, 5, 7 and 8 and not guilty on Count 2 and its alternative.

The proposed grounds of appeal

1. [25]

   The two grounds of appeal were formulated as follows:

2. [26]

   Having regard to the grounds of appeal, it is necessary to outline, in more detail, the allegation on which the Crown case was based.

3. [27]

   Chronologically the earliest offences were the last the complainant reported. The conduct said to constitute Counts 1 and 2 was alleged to have occurred at Batemans Bay, at the home of the applicant’s aunt, WH, on 24 March 2013 when the complainant was 11 years of age. SM gave evidence that the family had travelled to Batemans Bay for the wedding of a friend. The following day they visited WH. WH’s home had an above ground swimming pool. The complainant said that all the children were in the pool, and that the applicant joined them. She said:

4. [28]

   In cross-examination the complainant accepted that SM and WH were seated near the edge of the pool, within earshot. SM said that she had been outside the house for some of the time but spent most of the time inside the house with WH. WH said that most rooms in the house had a view of the pool.

5. [29]

   Photographs taken by SM on her mobile phone were in evidence.

6. [30]

   The applicant’s evidence was that the family had had a barbecue lunch but that he had been in the pool with three of the children. He said:

7. [31]

   As has been noted above, the complainant did not initially disclose these events. She explained that her memory had been prompted when she and a friend had driven through Batemans Bay and she had seen an ice cream or fish and chip shop that she had seen on the previous visit.

8. [32]

   The offence constituting Count 3 was alleged to have been committed between 12 and 16 September 2013 (when the complainant was 11 years of age), in the lounge room of the family home. The complainant gave an account of this event in the interview of 23 November 2016. She said that SM had gone to Sydney to visit relatives, leaving the children in the care of the applicant. The applicant had prepared a meal and the family were in the lounge room watching a video. The complainant was asked about “the first time something happened with [the applicant]”. As recorded in the transcript of the interview, she answered:

9. [33]

   There was significant evidence that the complainant was highly distressed on this occasion. SM gave evidence while she was in Sydney, she had received a number of (apparently missed) telephone calls from the complainant. She had also received a call from the complainant’s godmother (SEM), telling her that the complainant was very distressed. She spoke to the complainant, who was “a mess”; SM could hardly understand her, and had to calm her down. The complainant told her that the applicant was “chasing her around the house”. RM, the complainant’s grandfather, confirmed that the complainant was “very emotional”.

10. [34]

    SM returned home early the next morning. She asked the applicant about the events of the previous evening. He told her that the complainant had lost the keys to her bedroom. She said that when she asked the complainant about the telephone calls she said:

11. [35]

    The applicant denied the allegations. He said that the complainant had lost the keys to her bedroom and was upset about that. He said that she was angry and shouting at him; she was crying and “a little bit” hysterical.

12. [36]

    The offences constituting Counts 4 and 5 were, respectively, alleged to have been committed between 1 December 2013 and 30 September 2014, and 30 April 2014 and 31 August 2014 when the complainant was 11 years (Count 4) and 11 or 12 years (Count 5). The complainant’s evidence was that, at the time, she was attending swimming training, from which the applicant would pick her up; and that she had been refereeing touch football matches, from which again, she had been picked up by the applicant.

13. [37]

    Although the complainant said that what happened was a regular occurrence, she gave evidence of specific occasions. In relation to Count 4, she said:

14. [38]

    SM confirmed that there had been an occasion when the complainant was late coming home from swimming and that she had text messaged her.

15. [39]

    The complainant gave evidence that the applicant also picked her up after she had refereed touch football. What happened replicated what had occurred after swimming. She gave a specific instance, the first time it had occurred after touch football, saying:

16. [40]

    The complainant confirmed that notwithstanding the generality of the language used, that incident had occurred after a touch football game.

17. [41]

    The applicant agreed that he picked up the complainant after swimming and after touch football. He said that when he did so he took her straight home. He did not divert to parks or weirs. He denied inappropriately touching the complainant.

18. [42]

    The events giving rise to Count 6 were said to have occurred between 1 October 2014 and 31 March 2015 when the complainant was 12 or 13 years of age. The complainant gave evidence in general terms that the applicant was in the habit of entering her bedroom while she was asleep, usually when SM was out with friends. She said:

19. [43]

    When asked in oral evidence, the complainant could not recall a specific occasion when this occurred. It was this lack of precision that led the trial judge to direct a verdict of not guilty on this count.

20. [44]

    The offence giving rise to Count 7 was said to have been committed between 1 February 2015 and 2 April 2015 (when the complainant was 12 or 13 years of age), in the bathroom at the home occupied by the family. The complainant said that, while she was showering, the applicant “would enter” the bathroom, naked, and force his penis into her vagina. Thereafter, she said, she locked the door when showering.

21. [45]

    When asked if he ever entered the bathroom while the complainant was showering, the applicant said:

22. [46]

    The final incident, giving rise to Count 8, was alleged in the indictment to have taken place between 1 February 2015 and 2 April 2015, after the separation of SM and the applicant, at the former home of the applicant’s mother. The complainant was then either 12 or 13 years of age. The complainant was more specific, putting the date as probably early March of that year.

23. [47]

    She said that the applicant had sent her a text message, suggesting that they meet and talk, an invitation she declined. However, SM, who, at this stage was unaware of the applicant’s activities, had asked the applicant to pick the complainant up and take her home. She had also asked him to pick up some clothing for their son, which was at his mother’s home.

24. [48]

    The complainant said that the applicant invited her to come into the house, which she initially declined to do, but eventually did. The applicant directed her to a room at the end of a hallway, told her to lie on a mattress on the floor, which she refused to do. She said:

25. [49]

    The applicant agreed that there was an occasion when he went with the complainant to his mother’s home to get some clothes for his son. He said that the complainant waited in the car while he did so, which only took a short time. He denied the specific allegation.

The submissions of the parties

1. [50]

   The inconsistency ground was primarily directed to the verdicts on Counts 1 and 2, the incidents said to have taken place in the swimming pool at Batemans Bay, although it was said also to have some relevance to the remaining counts. The point made may be stated simply. It was that, on the complainant’s account, the two separate incidents in the pool (digital penetration and penile/vaginal penetration) giving rise, respectively, to Counts 1 and 2, occurred in close proximity in time, and while the applicant and the complainant (and other children) were in the swimming pool and under possible observation by at least SM and WH as well as the other children. It was argued that the jury’s rejection of the complainant’s evidence on Count 2 could not be reconciled with its acceptance of her evidence on Count 1.

2. [51]

   It was submitted that there is no rational way of reconciling the two verdicts. Reliance was placed on the decision in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 (discussed below).

3. [52]

   In response, the Crown referred to the evidence given by the complainant, pointing out that, while the complainant said that, in respect of the digital penetration, the applicant shielded her body (“hiding me behind him to do it all”) from the view of the adults present, the detail of the circumstances of the asserted penile penetration was relatively sparse. In these circumstances, the Crown submitted:

4. [53]

   It has become increasingly common in this Court, where multiple counts have been charged, with differential verdicts, for a ground alleging irreconcilable inconsistency to be pleaded. Consideration of such a ground may begin with the decision of the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35, where it was held that the test is one of “logic and reasonableness” (at 366); and see Jafary v R [2018] NSWCCA 243 at [30].

5. [54]

   The escalation in complaints of inconsistency in differential verdicts may have commenced with the decision of the High Court in Jones. In that case the appellant was charged with three offences of sexual intercourse with a female child. The jury convicted on two of the three counts, and acquitted on the other. Proof of each count depended on the uncorroborated evidence of the complainant in that case. By majority the High Court set aside the convictions on the basis that they were (in the language of the day) “unsafe and unsatisfactory”. Their Honours found that the acquittal damaged the credibility of the complainant with respect to all counts in the indictment. They considered that:

6. [55]

   Their Honours considered a number of potential explanations for the rejection of the complainant’s evidence, and concluded:

7. [56]

   It seems that too much has been read into the judgment in Jones. The decision came under close scrutiny in this Court in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. Spigelman CJ undertook an exhaustive review of decisions of this and other appellate courts since Jones, and concluded:

8. [57]

   Wood CJ at CL agreed. His Honour referred to a “presumption”, that appeared to have arisen in cases where the only direct evidence of charges resulting in acquittal was that of the complainant, and where the jury had convicted on the remaining counts. The “presumption” was that:

9. [58]

   After also undertaking a consideration of cases in which Jones had been applied, his Honour said:

10. [59]

    His Honour then quoted from the judgment of McHugh J in KRM as follows:

11. [60]

    The apparent assumption that acquittals on some counts and conviction on others necessarily denotes rejection of the complainant’s credibility or reliability was rejected in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. Gleeson CJ, Hayne and Callinan JJ, in a joint judgment echoed the references of McHugh J to the standard direction to a jury to consider each count separately; that the jury may accept or reject the evidence of any witness in whole or in part; they emphasised that the onus of proof of each count lies on the prosecution; and, that before conviction, every juror must be satisfied beyond reasonable doubt of each element of the offence under consideration. (This last proposition may require some modification in light of amendments to the Jury Act 1977 (NSW) permitting, in limited circumstances, majority verdicts, but generally remains applicable.)

12. [61]

    Their Honours held it not to be unreasonable for a jury to require, in some circumstances, some supporting evidence before conviction but they added that that circumstance:

13. [62]

    In fact, in my opinion, differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.

14. [63]

    In this respect, it is apposite to recall the trial judge’s direction, set out above in [22]. That direction was a strong indication to the jury that any doubt that it had about the complainant’s credibility should be “factored in” to their consideration of her credibility on other counts. Even in the face of that direction, the jury was satisfied of the complainant’s reliability in relation to Count 1.

15. [64]

    A number of potential explanations for the acquittal of the applicant on Count 2 may be hypothesised. The complainant was 11 years old at the time and, it may be assumed, sexually inexperienced (in the light of the evidence that this was the first offence committed on her by the applicant). Her description of the alleged penile penetration was, as mentioned above, sparse, possibly reflecting her sexual inexperience and limited understanding. These are, in my opinion, the most likely explanations for what appears to me to be the highly responsible approach taken by the jury to its task. The acquittal of the applicant on Count 2 is not a reflection on the complainant’s credibility, rather, it may indicate some doubt about her understanding as an 11 year old of what had happened. The jury was, in the circumstances, entitled to given the applicant the benefit of the doubt on a serious criminal charge.

16. [65]

    I would, accordingly, reject ground 1 of the proposed appeal. It is therefore unnecessary to consider any impact of the acquittal on Count 2 on the remaining verdicts.

17. [66]

    Three points were made in support of the proposition that the convictions were unreasonable. The first was that each allegation by the complainant was without corroboration, notwithstanding that some incidents were alleged to have taken place in circumstances in which corroboration might have been available. The events giving rise to Counts 1 and 2 took place, on any view, in circumstances where they could have been, but apparently were not, observed by at least two adults (SM and WH). The complainant did not, at any time, make any complaint or show any sign of discomfort at what she said had happened. The events giving rise to Count 3 occurred at the home of the complainant and the applicant, in the presence of the complainant’s younger siblings, none of whom, it appears, or least so far as the evidence goes, observed anything untoward. Again, there was nothing to suggest that the complainant made any complaint about the applicant’s asserted conduct.

18. [67]

    The absence of corroboration of any event, particularly those said to have taken place in the presence of others, whether adults or children, was the first point made. The absence of complaint or protest from the complainant was the second point made. The third point was related to the first and second: that, in the circumstances, the complainant’s accounts were implausible such that they should have given rise to a reasonable doubt in the minds of the jury.

19. [68]

    The Crown responded that, in relation to Counts 1 and 3, the applicant had taken steps to ensure that others present did not or could not observe his conduct, by (in the case of Count 1) shielding (“hiding”) the complainant’s body with his, and (in the case of Count 3) placing a blanket over himself and the complainant. The absence of corroboration in these cases is hardly surprising. The remaining incidents were said to have been committed in circumstances (as is often the way with sexual offending) where corroboration would be unlikely. The absence of contemporaneous complaint is frequently seen in cases of sexual offending, particularly of young children, and does not bear on the reliability of the complainant’s evidence. It was argued that the complainant’s accounts were not “implausible”.

20. [69]

    The test to be applied by this Court where a verdict of guilty is alleged to be unreasonable is well-known. The question that this Court must ask itself is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. That question is to be answered by this Court making its own independent assessment of the evidence, having regard to the advantages enjoyed by the jury from seeing and hearing the witnesses called in the trial: The Queen v Baden-Clay (2016) 258 CLR 308 at [65]; [2016] HCA 35.

21. [70]

    I accept the analysis proposed by the Crown. The applicant’s proposition overlooks two things. First the evidence of SM, that, for most of the time at the Batemans Bay home, she was inside the house with WH, and not watching the children (and the applicant) in the pool; second, that in respect of Count 3, the applicant took steps to conceal from the other children what he was doing. And it cannot be overlooked that the children were younger than the complainant, and could not be expected to be alert to sexual behaviour on the part of the applicant.

22. [71]

    There was, moreover, a strong body of evidence of the complainant’s distress on that occasion. The applicant attempted to explain this by saying that the complainant had locked herself out of her bedroom and lost the keys. The jury plainly rejected that explanation as not a reasonable explanation for the complainant’s distress. It was open to the jury to take that view.

23. [72]

    In my opinion, it was open to the jury to accept the complainant’s evidence. For my part, having carefully considered the evidence, I am satisfied beyond reasonable doubt that the applicant was rightly found guilty on those counts that resulted in conviction.

24. [73]

    I would grant leave to appeal but dismiss the appeal.

25. [74]

    The orders I propose are:

    1. (1)

       Leave to appeal against conviction granted;

    2. (2)

       Appeal dismissed.

26. [75]

    BUTTON J: I agree with Simpson AJA. On my own assessment, the verdicts of guilty are not unreasonable on either basis.

27. [76]

    LONERGAN J: I have had the benefit of reading the judgment of Simpson AJA in draft.

28. [77]

    I agree with her Honour’s analysis of the Crown case and I embrace and agree with her Honour’s reasons for rejecting Ground 1 of the appeal.

29. [78]

    In respect of Ground 2, the unreasonable verdict ground, I have independently considered and assessed the whole of the evidence and I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the charges found against him.

30. [79]

    Having carried out my own careful assessment of the evidence, I am satisfied beyond reasonable doubt that the applicant was rightly found guilty on the counts that resulted in conviction.