GD v R

1. [1]

   MACFARLAN JA: In March 2017 the applicant, GD, was tried in the District Court before a judge and jury on the following charges:

   1. (1)

      That between 1 January 2005 and 31 December 2005 he assaulted the complainant, and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act 1900 (NSW)).

   2. (2)

      That between 1 March 2006 and 31 August 2007 he assaulted the same complainant, and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act).

   3. (3)

      That between 1 March 2006 and 31 August 2007 he assaulted the same complainant and at the time of the assault committed an act of indecency on the complainant, the complainant then being a person under the age of 10 years (s 61M(2) Crimes Act).

   4. (4)

      That between 1 January 2007 and 12 November 2007 he had sexual intercourse with the same complainant, the complainant then being a person under the age of 10 years (s 66A Crimes Act).

2. [2]

   The complainant in respect of each charge is the applicant’s daughter. She was born in November 1997 and accordingly turned eight at the end of 2005. The first offence was alleged to have been committed at the family home at which the applicant then lived with his wife, the complainant and a younger son (referred to in the evidence as the “Nancy” home). The remaining offences were alleged to have been committed at another home to which the family moved in March or April 2006. The applicant gave evidence denying any misconduct.

3. [3]

   The jury returned verdicts of not guilty on Counts 1, 2 and 3 but found the applicant guilty on Count 4.

4. [4]

   The applicant seeks to appeal to this Court against his conviction on the following ground:

5. [5]

   As this ground does not involve a question of law alone, the applicant requires leave to appeal (s 5 Criminal Appeal Act 1912 (NSW)).

6. [6]

   As the jury’s verdicts of acquittal on Counts 1, 2 and 3 are material to the applicant’s case that his conviction on Count 4 was unreasonable, I refer as follows to the significant evidence and other aspects of the trial relating to all four counts.

Count 1 – 2005

1. [7]

   The complainant gave the following evidence-in-chief of an indecent assault that occurred in 2005 when the family was living in the Nancy house:

2. [8]

   The complainant could not remember the applicant saying anything. She said the touching continued for “[m]aybe a few minutes” and there was “[r]ubbing, pinching a little”. She said that she and the applicant were “in the covers” of the bed.

3. [9]

   She gave the following evidence-in-chief about other incidents that occurred in the Nancy house:

4. [10]

   The complainant said that she recalled that when they “played that game” the applicant said once in the Nancy house, “but only once”, that he would hurt the complainant’s mother if the complainant told her what occurred (transcript p 76).

5. [11]

   In opening, the Crown Prosecutor said that “this type of incident happened quite often in [the Nancy house] and on some occasions [the applicant] would pinch and pull her vagina and that would hurt her, she would tell him it hurt her and she would tell him to stop”. No reference was made to a threat to hurt the complainant’s mother.

Count 2 – 2006/7

1. [12]

   The complainant gave evidence that this incident occurred after the family moved to the second house referred to above. In that house she had a double bed that “had a light purple cover on it and poles around it that held like a curtain, a light purple curtain”. What occurred “was pretty much the same as what happened in the Nancy house”. She said:

2. [13]

   She said that this occurred for a few minutes and that she was “pretty sure” that she told the applicant to stop. She said it happened a couple of times and that the applicant said he would hurt the complainant’s mother if the applicant told anyone about what had occurred.

3. [14]

   In opening, the Crown Prosecutor said that this conduct occurred “a number of other times” and that during the incident the applicant said “Don’t tell your mum, don’t tell her or I will kill her, you know I will do it”.

4. [15]

   The applicant’s record of interview with the police (“ERISP”) records that the interviewing police officer said that he was going to “read out to you the allegations” (Q78). One of the “allegations” was that incidents similar to what became the subject of Count 2 occurred 10 to 15 times.

5. [16]

   As the applicant submitted on appeal, this was evidence that the complainant had complained to the police in these terms (see s 60(1) Evidence Act 1995 (NSW)). At the trial, the applicant’s counsel addressed on this assumption without objection.

6. [17]

   The complainant’s mother gave evidence that the applicant was “quite often” under the complainant’s bedcovers. The applicant denied that he was ever under “the proper bed covers” but said “[m]aybe a blanket, maybe a doona or blanket I may have put over my legs”.

Count 3 – 2006/7

1. [18]

   The complainant gave evidence as follows of an incident that occurred when she was in Year 4 at school:

2. [19]

   She said that the complainant had his hand on her hand and that her hand was moving up and down on his penis.

3. [20]

   The applicant’s mother gave the following evidence in cross-examination:

Count 4 – “winter” 2007

1. [21]

   The complainant gave the following evidence-in-chief in relation to this Count:

2. [22]

   In cross-examination, the complainant explained her evidence-in-chief that she was “pretty sure it was in my vagina” as follows:

3. [23]

   In opening, the Crown Prosecutor said that “[i]t really hurt [the complainant] but she could not remember saying anything or [the applicant] saying anything”. No reference was made to any words being exchanged during the course of the event relating to Count 4.

4. [24]

   The applicant’s ERISP records that the complainant told the police that “similar incidents occurred about a further 10 times” (Q125). It was not however clear from the ERISP whether this allegation related to the Count 4 incident only, or to the other alleged conduct of the applicant.

Altercation between the applicant and his father-in-law – 18 May 2007

1. [25]

   In the recorded interview by the police of the complainant on 16 August 2008 referred to below, the complainant described the following incident that occurred on 18 May 2007 (which she referred to erroneously as probably occurring in August 2007):

2. [26]

   The applicant said that she spoke to the police on the day of that incident or the next but did not give a statement. She said that she also told the police officer about an earlier incident in which she said that the applicant held her mother over the balcony stairs railing. This is to be contrasted with the complainant’s mother’s evidence that the balcony incident occurred in June 2008.

3. [27]

   As indicated in the passage quoted above, the applicant moved out of the family home immediately after the altercation with his father-in-law. He returned at the end of August 2007.

The “steak and chips” incident – June 2007

1. [28]

   The complainant gave evidence of the following incident that she said occurred whilst she was having dinner with her parents and brother, apparently in June 2007:

Emails exchanged between the applicant and complainant – mid 2007

1. [29]

   A number of emails exchanged between the applicant and complainant between 27 March and 24 August 2007 were in evidence. They are friendly in tone. The complainant’s emails of 27, 29 March, 3 April and 24 August concluded “Love [the complainant]”. That of 5 August 2007 concluded “Love ya” and “Love [the complainant]”. Her 7 August 2007 email concluded similarly.

2. [30]

   When it was suggested to the complainant that the emails from her showed affection between her and her father, she replied:

3. [31]

   In later answers she said that she did not know whether she wrote them and they may not have been written by her.

Applicant’s return to home and subsequent holidays

1. [32]

   The applicant returned to the family home in late August 2007. In October 2007 the family had a holiday on the Gold Coast and in April 2008 in the United States.

The tongue in mouth incident – June 2008

1. [33]

   The complainant gave evidence of an incident that appears to have occurred in late June 2008 in which the complainant says that the applicant lay on top of her on a lounge and “started licking my face, he put his tongue inside my mouth, licked my face more”. She complained to her mother about the tongue being put in her mouth only about five days later because she thought that her mother had seen, not only the licking, but also the applicant put his tongue into the complainant’s mouth, when apparently she had not.

The complainant’s interview with the police on 1 July 2008

1. [34]

   The complainant’s parents separated on 30 June 2008, from which date an apprehended violence order (“AVO”) against the applicant became effective.

2. [35]

   The police interviewed the complainant on 1 July 2008. A typed statement was prepared but it was not in evidence. The record of a later interview, of 16 August 2008, that was in evidence, recorded that at the 1 July interview the complainant told police about the “steak and chips” incident and the “tongue in mouth” incident.

The complainant’s interview with the police on 16 August 2008

1. [36]

   The DVD recording of this interview was played to the jury and a transcript of it was marked for identification. I viewed the DVD for the purpose of determining the appeal. The complainant appeared to be relaxed during the interview. At times during it she smiled and laughed.

2. [37]

   She said in evidence that she felt comfortable talking to the lady police officer. She said that although she knew that her father would find out whatever she said, she was prepared to willingly cooperate with the police.

3. [38]

   At the commencement of the interview, the principal interviewing officer, Detective Senior Constable Sandra McLachlan, asked the complainant why her mother had brought her to speak to the police on that day. The complainant’s answer was “Because I said that I didn’t tell you everything” (Q24). DSC McLachlan responded by saying:

4. [39]

   The complainant then described the 2007 altercation in which her grandfather was injured. She then volunteered a description of an incident in 2006 when her parents starting “fighting a bit” and the applicant “tipped the table over on us, and then everything fell off, and we all, and there was glass, and everything everywhere” (Q30). After responding to questions about these two incidents, the complainant also volunteered a description of an incident that she said occurred when she was 5 or 6 when, at the dinner table, her fork accidentally hit the applicant near the eye as she was playing around, with the result that he dragged her by her hair into the bedroom, yelling at her as he did.

5. [40]

   DSC McLachlan concluded by asking the complainant whether there was “anything else that you would like to tell us today?” (Q204). In response, the complainant volunteered a description of yet another incident, which she said she could not fully remember, in which, during an argument between her parents, the applicant threw a tray and hit the door in the loungeroom with it (Q205).

The complainant’s further statements to the police

1. [41]

   On or about 3 December 2009, the complainant went with her mother to the police station to complain that the applicant had breached the AVO to which he was subject. As a result, the applicant gave a statement dated 3 December 2009. She agreed in cross-examination that she knew that the applicant’s conduct of which she informed police “might possibly be a criminal offence”.

2. [42]

   On 20 October 2011 the complainant gave the police a further statement in relation to another alleged breach of the AVO by the applicant, on 2 December 2009.

Complaint about the charged events

1. [43]

   The complainant gave evidence that she did not tell the police about the events the subject of the present criminal charges until November 2014. In evidence-in-chief, she gave the following explanation for not doing so earlier:

2. [44]

   In cross-examination, she said that she did not complain earlier because she was “too scared” and was “embarrassed”. In re-examination, she said that she was scared because the applicant “told me if I ever tell anyone he would hurt my mum” and that she was embarrassed “[b]ecause I was only a kid and it’s embarrassing and I didn’t want anyone to know that this happened”. In opening, the Crown Prosecutor said that the complainant did not complain earlier due to fear of the applicant arising out of his threats and violence to members of the family. He did not give embarrassment as a reason.

3. [45]

   The complainant’s mother gave evidence that the complainant complained to her in September 2014 via text messages when they were together in the loungeroom of their home. Presumably, the complaint related to the conduct the subject of Counts 1, 2 and 4, and similar conduct, as the complainant only told her mother about the Count 3 conduct later, in the circumstances described in [20] above.

4. [46]

   A print-out of the text or texts was marked for identification at the trial, but neither party tendered it. The complainant did not give evidence that she communicated the complaint by this means because she was embarrassed to talk about the incidents. In fact, the complainant did not suggest in her evidence that she communicated the complaint to her mother by text. Rather, she said that she and her mother were at home alone and that “I was telling my Mum”.

5. [47]

   The complainant also gave evidence that, so the complainant thought, at the same time that she told her mother “everything else”, she told her that “a long time ago” the applicant had said to her “[o]h, I can’t wait till you grow boobs so I can play with them”. The complainant’s mother gave evidence to similar effect of a conversation that occurred sometime after 30 June 2008, whilst she and her daughter were in the car stopped at a set of traffic lights.

6. [48]

   The complainant’s mother gave evidence that a few weeks after the text messages were exchanged on 11 September 2014 she asked the complainant whether “she touched her father”. She said that the complainant responded in the terms set out at paragraph [20] above.

7. [49]

   On 13 November 2014 the applicant sent flowers and a present to the complainant. On 18 November 2014 the complainant made the complaints concerning the present criminal charges in the course of an interview with the police. The evidence does not indicate when the police were first contacted by the complainant or her mother.

8. [50]

   In cross-examination, the complainant agreed that in the course of Family Court proceedings between her parents, she had taken the side of her mother. Her evidence continued:

Relevant principles

1. [51]

   The principles applicable to an unreasonable verdict ground of appeal were recently re-stated by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v R [2017] NSWCCA 78 at [84]-[86] as follows:

2. [52]

   In Romolo v R [2018] NSWCCA 3 at [24], after quoting these paragraphs, I pointed out (with the concurrence of Button J):

3. [53]

   The applicant did not contend that he should be granted leave to appeal, and his appeal allowed, simply upon the basis that the verdicts of not guilty on Counts 1, 2 and 3 were inconsistent with the verdict of guilty on Count 4. As Simpson J observed in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [121]-[126], such a contention is different to one where, as here, a verdict is asserted to be unreasonable due to the insufficiency of the evidence. Verdicts will not be found to be inconsistent if there is a logical and reasonable basis upon which the verdicts may be reconciled (see Nguyen v R [2017] NSWCCA 145 at [34]-[48]).

4. [54]

   The applicant did argue however that the acquittals formed part of the material for this Court to take into account in considering whether the conviction on Count 4 was unreasonable. This is undoubtedly correct and necessitates consideration of possible explanations for the different verdicts.

5. [55]

   As, for the reasons I give below, the delay in the making of the complaint about the charged matters assumes particular importance on this appeal, it is necessary to make the following observations concerning evidence of delays in complaints of sexual offences.

6. [56]

   In The Queen v Lillyman [1896] 2 QB 167 at 170-1 Hawkins J referred to the statement in Hawkins’ Pleas of the Crown, in relation to charges of sexual offences, that “[i]t is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact”. In Kilby v The Queen (1973) 129 CLR 460 at 469; [1973] HCA 30 Barwick CJ said in relation to this “presumption”:

7. [57]

   In M v The Queen (1994) 181 CLR 487 at 514-5; [1994] HCA 63 Gaudron J, consistently with Barwick CJ’s observation, pointed out that the “presumption” is not a presumption of law but an assumption of fact and is no longer seen as conclusive. Her Honour noted that that assumption was still accorded respect and continued:

8. [58]

   Her Honour then pointed out that an assumption of the kind adopted in Hawkins’ Pleas of the Crown certainly cannot be adopted in cases of sexual assault on a child by a person who has the child’s trust and confidence as there are frequently good reasons for no complaint being made.

9. [59]

   In Suresh v The Queen [1998] HCA 23; 72 ALJR 769 at [5] Gaudron and Gummow JJ referred to the assumption that the victim of a sexual offence will complain at the first reasonable opportunity as being of doubtful validity, particularly in cases of child sexual assault. Basten JA referred to this passage in Jarrett v The Queen (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [37]. As his Honour pointed out, reference now needs to be made in this context to s 294(2)(c) of the Criminal Procedure Act 1986 (NSW), introduced in 2006. That section provides that on the trial of a person for prescribed sexual offences, such as here, the trial judge “must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning”. The trial judge considered that such evidence existed in the present case and gave such a warning to the jury. He did so without objection by the Crown.

10. [60]

    In light of s 294(2)(c) and the authorities to which I have referred, I approach my independent assessment of the evidence in the present case on the basis that, whilst delay in complaining is capable of casting a reasonable doubt on the complainant’s reliability, the particular circumstances of the case, including the complainant’s stated reason for delay, need to be carefully considered.

Counts 1, 2 and 3

1. [61]

   There were significant discrepancies between the evidence that the Crown foreshadowed in its opening would be given by the complainant in relation to Count 1, and that which the complainant in fact gave. These were that, in opening, the Crown said that the conduct described in Count 1 occurred at the Nancy House “quite often”, whereas in evidence the complainant said that it occurred “two to three times”. Further, in opening, the Crown foreshadowed evidence that the complainant told the applicant to stop what he was doing but the complainant did not give that evidence. On the other hand, the complainant gave evidence that the applicant said that he would hurt the complainant’s mother if the complainant told her what had happened, whereas there was no reference to that evidence in the Crown’s opening. The complainant also gave evidence that the Count 1 conduct was a “game” but that description was difficult to reconcile with her evidence of the applicant’s threat to hurt her mother.

2. [62]

   In relation to Count 2, the complainant again gave evidence that the applicant said that he would hurt the complainant’s mother if the conduct was disclosed. The Crown’s opening however foreshadowed evidence that the applicant said that he would kill the complainant’s mother if the complainant told her what had happened. Further, the complainant gave evidence that the conduct occurred a “couple of times” whereas in opening the Crown said that it occurred “a number of other times”.

3. [63]

   The complainant’s evidence was partially corroborated in respect of both Count 1 and Count 2 by her mother’s evidence that the applicant was “quite often under the bedcovers”.

4. [64]

   As to Count 3, the complainant’s evidence that the applicant was standing whilst the conduct occurred was inconsistent with the evidence of her mother that the complainant told her that the applicant was sitting on the toilet.

5. [65]

   It is possible that these particular matters that I have identified in relation to Counts 1, 2 and 3 led the jury to acquit the applicant on those counts, rather than the jury acting on a more generally founded view that it would be unsafe to convict on the evidence of the complainant. Thus, the Crown contended on appeal that there were logical and reasonable reasons why the jury might have returned verdicts of acquittal on Counts 1, 2 and 3 and one of guilty on Count 4, with the result that it cannot be assumed that the jury found the complainant’s evidence unreliable as a whole.

Count 4

1. [66]

   There were no similar inconsistencies between the complainant’s evidence and the Crown’s opening in relation to Count 4, nor between her evidence and any other evidence. Whilst the Crown said in opening that the complainant could not recall the applicant saying anything when the conduct occurred, that was not obviously inconsistent with the complainant’s evidence that the applicant said “shh” and that the complainant told him to stop what he was doing.

2. [67]

   The applicant’s ERISP recorded that the complainant told the police that “similar incidents occurred about a further 10 times” but as I noted above (see [24] above) it was not clear whether this allegation related to the Count 4 incident only or to the other alleged conduct of the applicant as well. In evidence, the complainant did not suggest that Count 4-type conduct occurred more than once. If the ERISP allegation related to Count 4, it was thus inconsistent with the complainant’s evidence. If it related to all of the sexual conduct, it was inconsistent with her evidence that the Count 1 conduct occurred two or three times, that the Count 2 conduct occurred a couple of other times and the Count 3 and 4 conduct occurred only once. I agree with the applicant’s submission on the appeal that the police officer’s assertion recorded in the applicant’s ERISP about what the complainant had told the police was, although double hearsay, evidence of what the complainant had said (see s 60 Evidence Act 1995 (NSW)).

3. [68]

   The applicant contended that the complainant gave inconsistent evidence about when the Count 4 incident occurred. He submitted that her description of it as occurring in “winter” raised a question as to whether it did occur because in the winter months (June, July and August) the applicant was not living at the family home. He moved out after the incident in which the complainant’s grandfather was injured on 18 May 2007 and only returned at the end of August 2007.

4. [69]

   In her evidence however the complainant nominated May as a month in which the incident possibly occurred and related her recollection of its timing to the change of her bedding from summer to winter mode. She said that as a matter of practice that change occurred each year when daylight saving ceased and that the Count 4 incident occurred after the change in 2007. As it was clearly open to the jury to draw on its own general knowledge to conclude that daylight saving would have ended before the commencement of June there was in my view no inconsistency or inherent unlikelihood in the complainant’s evidence on this topic.

5. [70]

   The applicant further submitted that the complainant’s evidence in relation to Count 4 was unreliable because she said that it occurred after the poles on her bed were taken away and, so the applicant submitted, if the poles had been taken away, the bed would have collapsed. However, the jury was well entitled to take the view that the complainant’s evidence was consistent with that part of the poles that was above the bedstead being removed. This was a sensible and obvious explanation for what she said and was supported by apparent joins in relevant places on the poles at the bedhead. These were apparent from the coloured photograph of the bed that was before the jury.

6. [71]

   The applicant further submitted that the manner in which the complainant described the Count 4 incident in evidence revealed a lack of certainty that penetration occurred. However, I do not consider this to be so. The applicant stated without qualification that she “felt his finger go inside of me”. The only possible equivocation was in her following statement “I’m pretty sure it was in my vagina” (see [21] above). In later evidence the applicant explained that apparent equivocation in what I consider to be a satisfactory manner (see [22] above).

The 2007 emails

1. [72]

   A further item of evidence comprised copies of emails passing between the complainant and the applicant in mid-2007. The affection that the complainant shows for the applicant in them is difficult to reconcile with her later complaints about substantially contemporaneous events. It must be borne in mind however that the applicant was aged nine at the time and may, in the words of Gaudron J in M v The Queen at 515, have been “reluctant to resist the offender or to protest and, on that account, reluctant also to complain”. Nevertheless the emails constitute a significant part of the evidence which is to be assessed in its totality.

2. [73]

   I add that the emails are in my view of considerably less significance than the complainant’s police interviews in mid-2008 to which I refer below. As well as being a year older, she accepted that during those interviews she felt safe. For these reasons, and because of the features of the 16 August 2008 interview to which I refer below, it is considerably more likely that if the conduct referred to in the present criminal charges had occurred then the complainant would have referred to it in those interviews.

Delay in complaint

1. [74]

   If the evidence to be considered had finished at that point (that is, without evidence of delay in complaint), I would not have concluded that the verdict on Count 4 was unreasonable. As I have indicated, there were particular inconsistencies and discrepancies at the trial in relation to Counts 1, 2 and 3 that may have led the jury to acquit the applicant on those counts without taking a generally adverse view of the complainant’s reliability. As a result, the acquittals on Counts 1, 2 and 3 are of limited significance in considering the reasonableness of verdict on Count 4.

2. [75]

   For the reasons I have given above, none of the particular matters to which the applicant pointed on appeal in relation to Count 4 provided compelling support for his appeal. What to my mind however tips the balance from a view that the jury could have, but need not have, had a reasonable doubt about the Crown’s case on Count 4 to one that it should have done so is the evidence of the complainant’s delay in complaining. I fully acknowledge the caution with which evidence of this kind must be approached, particularly, as relevant here, in the case of child sexual offences. In my view however the particular circumstances of this case, when taken in the context of the evidence as a whole, should have led the jury to return a verdict of not guilty on Count 4. His conviction on that count is accordingly unsafe and unsound.

3. [76]

   The complainant first spoke to the police on about 18 May 2007 in connection with her father’s infliction of injury on her grandfather (see [26] above). Secondly, she was interviewed by the police on 1 July 2008, at least about the “steak and chips” incident and the “tongue in mouth” incident (see [35] above), the latter having an apparent sexual connotation.

4. [77]

   Thirdly, she was interviewed by the police on 16 August 2008 (see [36]-[40] above). There are a number of significant features of this interview, as follows.

5. [78]

   First, the complainant appeared relaxed during the interview, and said in evidence that she was. Secondly, she was prepared to cooperate with the police notwithstanding that she knew that her father would find about what she said. Thirdly, the interview came about because, as the complainant said, she had not told the police “everything” when she spoke to them previously. Fourthly, the interviewing officer noted that the complainant had said that she did not previously tell the police “everything” and indicated that the complainant should “start from the beginning right to the end”. Fifthly, the complainant volunteered descriptions of two incidents without being led to them by the police officer. Sixthly, the interviewing officer concluded by asking whether there was anything else that the complainant “would like to tell us today” and this led her to give a description of yet another incident. Seventhly, the complainant did not make any reference to the alleged sexual assaults of which she complained in 2014, notwithstanding that she had complained to the police on 1 July 2008 about the “tongue in mouth” incident which appeared to have a sexual connotation. The complainant referred to this incident again in the interview on 16 August 2008.

6. [79]

   The complainant gave further statements to the police, on 3 December 2010 and 20 October 2011, about alleged breaches by the applicant of the AVO that was in force (see [41]-[42] above). She did this notwithstanding that she knew that the applicant’s conduct of which she informed police “might possibly be a criminal offence”.

7. [80]

   In her evidence-in-chief, the complainant gave two reasons for not complaining earlier.

8. [81]

   The first was that she was scared. However, this explanation is not easy to reconcile with the fact that any fear of her father she may have had did not deter her from making repeated complaints to the police about serious misconduct of her father, including potentially criminal conduct.

9. [82]

   Secondly, she said that “when I was younger I didn’t understand what was happening was wrong” and she thought “it was just tickling, a game”. That explanation however is difficult to reconcile with the threats that she said the applicant made at the time of the incidents (see [10] and [13] above).

10. [83]

    In cross-examination, the complainant, for the first time, gave embarrassment as a further reason for not complaining earlier. She repeated that in re-examination. It is however difficult to give much weight to that explanation as it was not proffered in evidence-in-chief and was not referred to by the Crown Prosecutor in opening. He referred only to the complainant’s fear arising out of the applicant’s threats and violence to members of the family.

Conclusion

1. [84]

   My independent assessment of the proceedings at the trial has left me with a reasonable doubt as to the applicant’s guilt of the offence charged under Count 4, that being the only offence of which he was convicted. I do not consider that the doubt is one that can be explained by the jury’s advantage in hearing and seeing the evidence being given. Whilst there were some inconsistencies in the evidence, and the emails that the complainant wrote in mid-2007 are not easy to reconcile with her evidence, the aspect of the Crown’s case that causes me most concern, and leads me to the conclusion that it did not prove its case beyond reasonable doubt, is the evidence concerning the complainant’s delay in making complaints and her professed reasons for not doing so. I fully acknowledge the need to take account, as I have done, of the complainant’s tender age at the time of the incident and of the police interviews, she only being 10 years of age when the most significant interview took place on 1 July 2008.

2. [85]

   For these reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the applicant’s conviction of the offence charged in Count 4 of the indictment filed on 20 March 2017.

   4. (4)

      Direct a judgment and verdict of acquittal on that charge.

   5. (5)

      Direct that the applicant be released from custody forthwith.

3. [86]

   HOEBEN CJ at CL: I agree with Macfarlan JA and the orders which he proposes. My independent assessment of the proceedings at trial has left me with a reasonable doubt as to the applicant’s guilt of the offence charged under count 4. I do not consider that the doubt is one that can be explained by the jury’s advantage in hearing and seeing the evidence given at trial.

4. [87]

   GARLING J: I am grateful to Macfarlan JA for setting out comprehensively all of the facts and matters relevant to the determination of this appeal. I will refrain from simply repeating them.

5. [88]

   As the ground of appeal relied upon is that the verdict is unreasonable or cannot be supported having regard to the evidence, it is necessary that I make my own assessment of all of the evidence adduced at the trial, which I have done.

6. [89]

   For my part, setting aside any criticism of the Crown case by reference to the issue of the complainant’s delay in making her first complaint, I am nevertheless left with a real doubt about the applicant’s guilt. The complainant’s evidence about the events constituting Count 4 was, in my view, quite unsatisfactory. Her evidence about the terms of her 2007 emails, even for a person of her young age, was unpersuasive. Neither of these features could be explained by the jury being able to see the complainant give evidence, an advantage which I do not have.

7. [90]

   Accordingly, I agree with the orders proposed by Macfarlan JA.