ML v R

HOEBEN CJ at CL:

On 6 November 2013 the appellant was found not guilty on count 1, but guilty on count 2 (thereby no verdict was required on the alternative count 3).

On 29 November 2013 the appellant was sentenced to imprisonment with a non-parole period of 4 years and 9 months, commencing 1 November 2013 and expiring 31 July 2018, with a balance of term of 2 years and 9 months, expiring 20 April 2021.

The appellant has appealed against his conviction as follows:

It was the Crown case that the appellant sexually assaulted his girlfriend’s 4 year old daughter when babysitting her alone on Mothers Day, 8 May 2011, by attempting to penetrate her vaginal/anal area with his penis and also putting his penis into her mouth. The appellant denied all wrongdoing.

The complainant (LB) was aged 4 years and 3 months on 8 May 2011 and there was no dispute that the appellant was looking after the complainant on that day.

Evidence of “complaint” was adduced relating to things the complainant said on 13 May 2011 and in addition, a video recorded interview conducted with the complainant on 18 May 2011, was admitted as part of her evidence in chief, pursuant to s306U Criminal Procedure Act 1986.

In the video recorded interview, the complainant gave the following evidence:

When the complainant gave evidence at the trial on 31 October 2013 she was aged 6 years and 9 months. Her memory was poor.

The following is a summary of the evidence which she gave at the trial. She had been sleeping on her mother’s bed when the appellant woke her up and told her to get up. The appellant got the banana out of his pants. She sucked the banana juice out of his “biddie widdie”, which is what he wees out of. He put hazelnut chocolate which he got out of the cupboard on the banana juice. She did not remember anything else.

She did not remember telling anyone about what the appellant did. She kept the secret for “a hundred years”. She did not remember telling her mother. She did not tell her uncle. She said that she and her mother did not want the appellant to come back because “I think we don’t want him to do that again what he did before”. She did not remember the appellant showing anything to her on his phone.

In cross-examination the complainant did remember speaking with the lady and the police officer as shown on the DVD. (Earlier she had said that she did not remember.)

When she was 4, she could work the DVD player at home and she had lots of DVDs, but none of them had rude things on them. She was allowed to play on her mother’s old phone but she did not remember watching any videos on it. When asked whether it was on her mother’s old phone that she saw a video of a black haired girl sucking nana juice from a banana she said both “No” and “I don’t remember”.

The following cross-examination occurred at T.32.1-34.26:

The complainant did not remember getting into trouble at the Milestones Early Learning Centre (Milestones). She remembered telling her teacher that the appellant had pushed her off her chair but she did not know if the appellant had ever done this.

The Acting Director of Milestones, Ms Watters, gave evidence. She said that in February 2011 the complainant was acting inappropriately and would often not comply with teachers’ requests. She said that in April 2011 the complainant became very affectionate towards the teachers and would often try to kiss them on the lips or on the breasts. She had made three online reports to DOCS in April and May.

Ms Watters said that on 13 May 2011 the complainant’s teacher brought the complainant to her because the complainant was swearing and telling her teachers not to touch her. She got the complainant to do some drawing and during that time the complainant said to her “ML put a banana up my bottom”. She asked the complainant “Did you have clothes on?” to which the complainant replied “No and it really hurt”. She asked “Did you tell your mum?” and the complainant replied “No and ML’s naughty”. This was the first time any explicit complaint was made.

Under cross-examination she said that the first record of strange behaviour by the complainant was on 17 February 2010 when the complainant was noted as yelling out “fuck” over 20 times, hitting teachers and kicking and spitting. The next record was 9 November 2010 for kicking, hitting, screaming and swearing and thereafter the complainant’s behaviour had progressively deteriorated.

The complainant’s mother gave evidence that she knew the appellant from high school when she had a relationship with him. She renewed that relationship for about a month in April/May 2010 during which time the appellant lived with her and her daughter. During that time, she was working at Subway but the appellant was not working.

The following is a summary of the evidence which the complainant’s mother gave at trial. There was only one occasion when she left the complainant in the care of the appellant. This was on Mothers Day, 8 May 2011. The complainant and the appellant had made chocolate cupcakes with icing which were for dessert.

On the morning of 13 May 2011 after a “poker night” she was still “pretty much asleep” and in bed when the complainant came into the bedroom and used the words “ML” and “banana”. When she did so the appellant quickly cut off the complainant and told her to shut up.

That afternoon, when she picked the complainant up from day care, she asked the complainant what she had meant by “ML” and “banana” to which the complainant replied that ML had put a banana up her bottom (T.59.35). When they got home and they were alone she asked the complainant again and the complainant said “ML put a banana up my bottom and banana juice in my mouth”. The complainant said that the appellant got the banana from “in his pants”. She rang her friend, Amanda Gill, and asked her to come over and the complainant told Ms Gill the same thing as she had told her.

Later that day, a conversation took place between her and the appellant when the complainant was present.

The appellant then left the house. She said that at the time she did not have any bananas in the house because it was just after the Queensland storms and bananas were too expensive. She did have chocolate icing, but not chocolate itself. She had Nutella hazelnut chocolate spread, but nothing that could be described as “lubricant chocolate”.

The next day (14 May), she asked the complainant again what had happened and the complainant replied that she had seen a dark-haired girl do it. When asked on what, the complainant said “on ML’s phone”. The complainant’s mother remembered that while the appellant was staying with her, he had used her old phone. When she checked the phone, after some difficulty, she found two video files which appeared to have been sent from a pornographic site. One of them contained a black-haired girl engaging in fellatio. The phone was later handed to the police.

When cross-examined, the complainant’s mother said that during 2010 until February 2011 the complainant was attending Milestones twice a week. Thereafter, the complainant attended three times a week. The complainant was reported as swearing, being angry and refusing to comply with requests. She said that when she found the pornographic video on her old phone, she asked the complainant “Did ML wake you up?” and “Did he show you this and ask you if you would do it?” to which the complainant nodded her head but did not say anything.

In re-examination she said in May 2011 the complainant did not have a good appreciation of days and dates.

Amanda Gill gave evidence that when she went to the complainant’s house on 13 May 2011, the complainant’s mother asked her to repeat what she had told her. The complainant said that ML had stuck his banana in her bum. When Ms Gill asked when, the complainant replied “last night”. Ms Gill said that on the same day, the complainant’s uncle spoke to the complainant and when he asked her what she meant by “banana”, she pointed at his crotch.

The complainant’s uncle gave evidence that on 13 May 2011 when he had gone to the complainant’s home, he heard a conversation between his sister and the appellant in which he heard the appellant say “No I didn’t” and the complainant say “Yes you did”. He heard the appellant again say “No I didn’t” to which the complainant said “Yes you did”. He then saw the appellant leave with a bag of belongings.

The uncle said that the complainant’s mother asked her to tell him what had happened to which the complainant said “ML stuck a banana in my butt and my mouth” and that he got the banana from “his pants”. He said that later she told him that the appellant “tried to stick a banana in my butt and stuck it in my mouth” and that he got the banana from his “pants”. There was no mention to him of chocolate being involved.

The JIRT caseworker, who interviewed the complainant on 18 May 2011, gave evidence that when she asked the complainant to identify on the drawing of a boy where the banana had come from, the complainant pointed to the genital area on the front of the boy. In cross-examination, she said that before the interview there had been no mention of chocolate being involved in the allegations. If there had been, she would not have used the example of a chocolate cake at the beginning of the interview.

Dr Andrew Gardiner examined the complainant on 19 May 2011 at the Tamworth Rural Referral Hospital. He reported that the complainant

He said that:

The “Dora the Explorer” pyjama top, which the complainant said that she was wearing, was given to the police on 24 May 2011. It was subjected to DNA testing but no semen or any male DNA profile was located.

The appellant gave evidence and was cross-examined. The following is a summary of his evidence. There was only one day when the complainant was left in his care, which was Mothers Day on 8 May 2011. After the complainant’s mother had gone to work, he made the complainant breakfast which was Nutella on toast. Some time later they decided to make cupcakes. They went to the nearby supermarket for icing and chocolate chips. The complainant was wearing her “Dora the Explorer” pyjamas and a dressing gown. Back home they made the cupcakes and cooked them, then the complainant put icing on and the appellant put little icing messages on them. The complainant ate the left over mixture.

He did remember an occasion on the morning of Friday, 13 May 2011 when the complainant came into their bedroom and started talking. He could not remember what she was talking about but he told her to shut up. It was on the evening of that day that the complainant’s mother told him that the complainant had made allegations that he put a banana up her bottom, which he denied. He said that the complainant turned around and said “Yes he did”. He replied to her “No I didn’t”. When he asked the complainant’s mother whether she believed him, she said that she did not know what to believe. He decided that he was not going to stay where he was not trusted and left.

He agreed that while he was staying with the complainant’s mother, he had used her old phone and that once or twice he had watched a porn video on it, including one that showed a dark-haired woman having sex with a man including fellatio. He denied ever showing the complainant that video. He denied ever placing his penis near the complainant’s bottom or mouth or putting chocolate or Nutella on his penis and presenting it to the complainant.

The trial commenced on 30 October 2013. No evidence was called until 31 October 2013. The evidence concluded on 4 November 2013 and the jury retired at 9.21am on 6 November 2013 to consider its verdict. The jury returned at 2.24pm with a not guilty verdict on count 1 and a guilty verdict on count 2.

In the course of the summing up, the following exchange took place between counsel and her Honour:

By judgment, dated 5 November 2013, her Honour rejected the application for a s165 warning. Her reasons were as follows:

In the course of her summing up her Honour gave warnings in the following form:

Apart from providing the warnings and guidance referred to, the trial judge accurately and comprehensively summarised the defence case. Relevant to the issues raised in the appeal were the following parts of that summary:

Defence counsel in his address to the jury said:

The appellant submitted that by reference to logic and reasonableness as an exercise in fact finding the two verdicts cannot stand together. This was because of the following considerations.

The appellant submitted that if the jury did not regard the complainant’s evidence as sufficiently reliable to be satisfied that the fellatio occurred, it was difficult to see how they could have been satisfied that the attempted penile penetration occurred. He submitted that there was no evidence in the trial which raised a doubt in respect of the fellatio allegation while not necessarily raising a similar doubt in respect of the attempt count. While accepting that a Markuleski warning had been given, the appellant submitted that it was difficult to understand how evidence which led to doubts about the alleged fellatio would not have also led to doubts about the attempted penile penetration.

The principles applicable when considering “apparent” inconsistent jury verdicts were comprehensively analysed in MFA v The Queen [2002] HCA 53; 213 CLR 606. Those principles have not been qualified in later cases. The plurality (Gleeson CJ, Hayne and Callinan JJ) recognised the advantage of a jury over an appellate court in relation to certain evidence:

The plurality also stressed the importance to be accorded to a jury verdict:

More recently, observations to similar effect were made by Simpson J (with whom McClellan CJ at CL and Latham J agreed) in R v TK [2009] NSWCCA 151; 74 NSWLR 299 at [135]:

On the facts of this case, there are at least two reasonable bases for the jury distinguishing between counts 1 and 2 without necessarily forming an adverse view to the complainant’s reliability or veracity. The lack of precision in her evidence and what she said in May 2011 is explained by her age at the time. The jury might also have had some doubts as to the accuracy of the evidence of family members such as her mother and her uncle, neither of whom reported the matter to the police and in circumstances where her mother had been in a relationship with the appellant. It was open to the jury to give more weight to the evidence of the non-family members, i.e. Miss Watters and Ms Gill, both of whom gave evidence that the complainant had only complained of the appellant putting “a banana in my bottom”. Alternatively, it was open to the jury to give greater weight to the initial complaints, than to those made later. The first explicit complaint was made to Miss Watters and it was restricted to “a banana in my bottom”. The initial complaint to her mother was also limited to putting a banana up her bottom. The first time that she told anyone about there being any “juice in my mouth” was when she spoke to her mother again later that evening when they were both alone at home.

Another point of distinction on which the jury may have relied was the evidence relating to the confrontation between the complainant and the appellant. There was evidence from the mother and from the uncle that when she confronted the appellant with the complainant’s allegation that he had put a banana up her bottom and he denied it, the complainant intervened and said “He did”. The complainant maintained her allegation even when the appellant stared intently at her. It was well open to the jury to regard this as significant evidence of the appellant confronting his accuser and the complainant not being intimidated but staunchly maintaining her position.

Another potential point of distinction is the confusion relating to the evidence of fellatio when compared to that relating to the banana in the bottom. There had been the early unfortunate mention of chocolate in the recorded interview of 18 May. The evidence concerning the banana juice and its relationship to chocolate in the recorded statement of 18 May 2011 was simply not clear. Most importantly, however, there was the evidence from the complainant and on the pornographic video of the girl with dark hair engaging in fellatio which the complainant had seen. Given the strong case put forward by the defence as to the impressionability of the complainant, and a tendency on her part to confabulate, the jury may well have thought that there was a reasonable hypothesis that the complainant’s evidence as to fellatio related to what she had seen on the video and not what had happened.

It follows that it was open to the jury to distinguish the two counts on any of the above bases without disbelieving the complainant thereby giving rise to an inconsistency and an unreasonable verdict. This ground of appeal has not been made out.

In order to understand the submissions on this ground, it is necessary to set out the relevant sections of the Evidence Act 1999.

The appellant submitted that warnings should have been given pursuant to s165 because of the forensic disadvantage caused to him by the complainant’s inability to remember at trial what she had said in her statement of 18 May 2011. The forensic disadvantage was that the appellant was not able to cross-examine the complainant effectively as to what she had said in the statement.

The appellant submitted that by analogy the situation was the same as that identified by Howie J in R v DBG [2002] NSWCCA 328; 133 A Crim R 227. At [37] – [38] Howie J (with whom Meagher JA and Simpson J agreed) described how delay in complaint could forensically disadvantage an accused and for this reason, it was necessary for a warning to be given so as to ensure that a fair trial took place. While accepting that no delay had occurred here, the appellant submitted that the same issue arose, i.e., he was unable to properly cross-examine the complainant because of her lack of memory which was almost the same situation which would arise if significant delay in complaint had occurred.

When asked by the Court to formulate the warning which should have been given by the trial judge, the appellant responded as follows:

The appellant submitted that her Honour had erred in rejecting the defence’s application for a warning under s165. He submitted that the fact that the complainant’s lack of memory at trial may have resulted from her age was not a good reason for declining to give the warning. This was because the warning did not relate solely to the complainant’s age. He submitted that the warning was not being sought because of the complainant’s age but because of the forensic disadvantage caused to him by the complainant’s inability to remember what had occurred in May 2011.

The appellant submitted that a warning was necessary because the jury would not have understood the significance of the forensic disadvantage to which he was exposed because of the complainant’s lack of memory. He submitted that this was a subtle disadvantage which required a specific warning from the trial judge. On that issue, he relied upon what was said by Howie J in R v DBG at [37] and [38]. He submitted that where such a forensic difficulty arose, it was necessary for the trial judge to bring home to the jury the consequences which that forensic difficulty gave rise to, i.e. the inability to test a fundamental part of the Crown’s case.

The appellant submitted that it was not sufficient for the trial judge to summarise the defence submissions and to specifically refer to that forensic disadvantage in that summary. He submitted that what was required was for the judge to give a specific warning along the lines which he suggested which carried with it the specific endorsement of the Court. The appellant submitted that what was needed was a warning to the effect that the evidence might be unreliable and that there was a need for caution in determining whether or not to accept it and the weight to be given to it.

As was raised in oral submissions before the Court, a proper reading of the application made at trial and how her Honour dealt with it in her judgment, makes it clear that the application was made pursuant to s165A(2). What counsel at trial was seeking was a warning which related specifically to the complainant and the various personality and psychological problems which she had which might render her evidence unreliable, i.e. the matters referred to by Dr Gardiner, i.e. that she was indiscriminately and inappropriately affectionate and may well have had a reactive attachment disorder based on some degree of preceding emotional deprivation.

If that were the application made at trial, it was appropriately dealt with by her Honour. As her Honour pointed out, a crucial issue in the trial was the reliability of the complainant. Her unreliability and tendency to tell untrue stories was the basis of the defence case. There was no useful purpose to be served by her Honour providing a warning beyond those which she had already given in circumstances where the warning would simply restate a primary issue to be decided in the trial. The other difficulty as her Honour recognised was that the complainant’s age was inextricably linked to the arguments directed at her reliability. The psychological issue which the defence sought to include as part of the warning was two edged. It also meant that the complainant would be more liable to exploitation of the kind which occurred which might also explain her lack of distress when relating to various persons what she said the appellant had done to her.

To the extent that this ground of appeal is based on the actual application made at trial, it should be dismissed.

From the oral submissions in the appeal, and most particularly from the formulation of the warning which the appellant says should have been given, the issue raised in Ground 2 is different to that raised at trial. Although defence counsel at trial was aware of, and submitted that the complainant’s lack of memory gave rise to a forensic disadvantage for the defence, that was not the basis of his application for a warning.

If that is the case, Ground 2 raises an issue which was not raised at trial and leave is required under r 4 of the Criminal Appeal Act 1912. Because the matter was fully argued and it was asserted to give rise to a miscarriage of justice, I would grant leave.

While there is an initial plausibility to the analogy which the appellant seeks to draw between the need to provide a warning in the case of delay, such as arose in DBG and the circumstances of this case, there are important differences.

The forensic disadvantage for the appellant in not being able to cross-examine the complainant in relation to her statement was inextricably linked to the complainant’s age. That issue arises in most cases where sexual offending occurs to a very young child. In this case, there was nothing subtle about the forensic disadvantage. It was obvious to the jury for a number of reasons. Defence counsel had specifically referred to it. Her Honour had set it out more precisely in her summing up. The responses by the complainant in cross-examination further highlighted the issue.

Importantly, and unlike the situation which arises in the case of delay, the defence had available to it evidence of contemporaneous complaints and a lengthy statement made within 10 days of the offending. There were differences and inconsistencies in that evidence which provided the defence with fertile ground for comment and challenges to the complainant’s reliability. Apart from the appellant’s denials in evidence, it was this which formed the core of the appellant’s defence. The jury were well aware of the issue of the complainant’s reliability since it was stressed, not only by the defence and her Honour, but by the Crown.

The appellant’s submissions and the analogy sought to be drawn with the situation which arises where delay has occurred, significantly exaggerate the extent of the forensic disadvantage. With delay, such as occurred in DBG, an accused is prevented by the effluxion of time from making any meaningful challenge to the complainant’s evidence. He or she may not remember where they were, what they were doing and any other surrounding circumstances. That was not the case here. The appellant was fully aware of all the circumstances and able to meet them by his direct evidence and by his ability to cross-examine other witnesses besides the complainant. One also needs to keep in mind that cross-examination of a 4 year old complainant (such as is postulated here) even close in time to when complaints or statements were made may well be unproductive, or even counter-productive, as a result of the complainant’s age and the nature of the offending.

It follows that a fair trial took place and that there was no miscarriage of justice. The jury were clearly aware of the fundamental issues, particularly the reliability of the complainant since that had been stressed by the parties and by her Honour’s forceful Murray direction. To the extent that the appellant suffered a forensic disadvantage by not being able to cross-examine the complainant on her statement, that disadvantage was modest given the availability of contemporaneous material relating to the complaint. It is a trite observation that a fair trial does not mean a perfect trial.

I have concluded that, in the circumstances of this case, no further warning was required by her Honour to ensure a fair trial and that no miscarriage of justice took place. This ground of appeal has not been made out.

The orders which I propose are:

JOHNSON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.

DAVIES J: I agree with Hoeben CJ at CL.