Stanford v R

SIMPSON AJA: On 31 October 2016 in the District Court at Tamworth the appellant was arraigned on an indictment that charged three offences of sexual intercourse with a child under the age of 10. All offences were alleged to have been committed on one day between 17 January 2007 and 17 January 2008 at Walhallo in NSW. The appellant entered a plea of not guilty to each count and a jury trial proceeded.

On 7 November 2016 the jury returned its verdicts. It found the appellant guilty on the first and second counts, and not guilty on the third.

The appellant now appeals against the convictions. He has not sought leave to appeal against the sentences subsequently imposed.

The appellant raises two grounds of appeal against the convictions. The first asserts error in the directions given to the jury (specifically, failure to give a warning pursuant to s 165 of the Evidence Act 1995 that the evidence of the complainant might be unreliable). The second asserts that the verdicts are unreasonable or cannot be supported having regard to the evidence. The latter ground, raising questions of fact, requires the leave of the court (see Criminal Appeal Act 1912, s 5(1)(b)). The first, however, involving a question of law alone, is brought as of right (Criminal Appeal Act s 5(1)(a)). That being so, it will be convenient to continue to refer to the appellant as the appellant.

What follows is an account of the case presented by the Crown, and should not be taken as representing any findings of fact. There was, however, a good deal of background material that was not in dispute.

It is useful to commence by identifying some of the individuals involved. Many are members of an extended aboriginal family, some of whom lived in Moree, and others of whom lived in a township called Caroona. One part of Caroona is known as Walhallo.

Two generations of the extended family are involved. Relevant members of the older generation are Ms Ellie Porter (known as “Nan”), and her husband, whose first name does not appear but who was known as “Pop”. Mr Porter died in September 2007. He had been ill for some time. He had a sister, Roma Stanford (nee Porter), who is the wife of the appellant. Jennifer Porter and Maria Slater (nee Porter) are daughters of Ms Ellie Porter and Mr Porter, and nieces of Ms Roma Stanford, and, by marriage, of the appellant.

Ms Ellie Porter and Mr Porter lived in Caroona, as did Jennifer Porter, and the appellant and his wife Roma Stanford. Maria Slater lived in Sullivan Place (commonly referred to as “Sullys”) in Moree. The complainant was Maria Slater’s foster daughter and lived with her at that address. She called Ms Slater “Mum”. At times in her evidence she referred to Ms Slater as her “stepmother”.

The complainant was born on 17 January 1999. She has a moderate intellectual disability. From about the age of 3 she lived in Moree with her foster mother, Maria Slater. She attended a primary school in Moree, and, later, the Moree Secondary College, where she was placed in a small class for children with a variety of disabilities.

The evidence does not disclose the distance between Moree and Caroona. There was evidence that Ms Slater at times travelled from Moree to Caroona to visit members of her family there. The Crown case was that on one of those occasions, when the complainant was 8 years old, she was left alone for a time in the care of the appellant, who then committed three acts of sexual intercourse with her.

On the Crown case the offences came to light in mid 2014, when the complainant was 15, and a student at the Moree Secondary College. An Aboriginal Learning Support Officer (Ms Brenda Richens) was conducting a class which might be described as a sex education class.

The complainant told Ms Richens that her uncle (who she thought was named Ron Smith or Porter) had made her take her clothes off while her mother and aunt were out. Ms Richens immediately terminated the conversation and took the complainant to a head teacher (Ms Meghan Baldwin). Ms Baldwin had a conversation with the complainant, as a result of which she reported the conversation to the principal of the school and to the Department of Family and Community Services (“FACS”).

On 4 August 2014 the complainant took part in an interview with Detective Senior Constable Hinton, in the presence of an officer of FACS. She was then 15 years of age. The interview was video recorded and transcribed. Annexed to these reasons are lengthy verbatim extracts from the transcript of the interview.

At the commencement of the interview, and again, during it, the complainant gave her birthday as July 17. (It is, as indicated above, in fact January 17). At an early point in the interview, she acknowledged that she was there to talk about her “Uncle Ron” (answers to questions 42-45). When asked “what happened with Uncle Ron” she initially said that she did not know, but then said that he touched her on “the private parts” (which she identified as the vagina). She was asked where she was when this happened to which she replied “at Caroona”. Caroona, she said, was near Tamworth. She said they were in Uncle Ron’s house (answers to questions 76-79). When asked when “this happened”, she initially said “a couple of weeks ago”, then “… a long, long time ago (answers to questions 77-82).

Detailed analysis of the answers given by the complainant reveals that she gave a reasonably clear account of three discrete incidents (as reflected in the indictment). The first incident, (recorded substantially in the answers to questions 154-191), according to the complainant, took place in the lounge room of the appellant’s home. The complainant was wearing shorts, underpants and a T-shirt. The appellant touched her vagina with his “whole hand”, and inserted one finger into her vagina. “That” [it is not quite clear what the questioner intended, or the complainant understood, by the word “that”] lasted for about 2 minutes. The complainant told the appellant to stop it, and he threatened her that if she told anybody, he would do it again (answers to questions 193 and 195).

The second incident of which the complainant spoke emerges substantially from the answers to questions 228 to 285. It took place in the kitchen. The complainant said that the appellant closed the curtains and locked the doors, pulled down the complainant’s pants (both shorts and underpants) (answers to questions 263, 265) and inserted two fingers (answer to question 278) into her vagina. (The complainant had earlier (answers to questions 85 and 86) spoken of the appellant closing the curtains and locking the doors, but had not then fixed this in the sequence of the events that she alleged).

These allegations were the subject, respectively, of counts one and two on the indictment, on each of which the appellant was convicted.

The complainant said that the appellant opened the curtains and unlocked the door when her mother (Ms Slater) came into the yard.

She was asked how many times her Uncle had touched her, to which she replied “two times” (answers to questions 251-153). However, she went on to give an account of a third incident.

The third incident of which the complainant spoke involved penile-vaginal penetration (answers to questions 297 and following). The complainant said that the appellant pulled his pants down, and inserted his penis a short way (“a little bit”) into her vagina. In answer to some questions from the FACS officer, the complainant said that both she and the appellant were standing up, near the sink, but that no part of her body was touching the sink. This allegation was the subject of the third count on the indictment, of which the appellant was acquitted.

On 5 October 2015, by arrangement with police, the appellant attended the police station at Quirindi, where he was arrested. He received some legal advice not to participate in an interview. Police nevertheless, “in fairness …” outlined the allegations to him. The appellant denied each allegation.

In response to the allegation of penile-vaginal penetration he said:

When asked in general terms if he wished to say anything else, the appellant replied:

He declined to make a hand written statement

The complainant was 17 at the time of giving evidence. Her evidence in chief was, pursuant to s 306S of the Criminal Procedure Act 1986, given by way of the recorded interview. She was briefly cross-examined. Inter alia, she said that she did not know whether Ms Slater ever left her at the appellant’s house and could not remember ever staying with “Uncle Ron” by herself.

In answer to a direct question, she confirmed her allegation of penile-vaginal penetration of which she said she was sure.

Ms Richens gave evidence of the brief conversation she had had with the complainant. As Ms Richens described it, she was teaching the students of their entitlement to refuse physical approaches from others. When asked about the class, she said::

She said that the complainant then said to her:

The complainant affirmed that she did, and Ms Richens took her to a “sensory room”. She said that she asked the complainant what happened. The complainant replied:

Ms Richens said that she then terminated the conversation and took the complainant to a head teacher, Meghan Baldwin. Ms Baldwin had a conversation with the complainant. At the conclusion of the conversation Ms Baldwin made a note of her recollection of what had passed between her and the complainant. She was permitted to read that document to the jury. It is necessary to set it out in full. The evidence Ms Baldwin gave was as follows:

The complainant’s foster mother, Ms Maria Slater, who gave evidence in the Crown case, said that at times she visited her sister (Jennifer Porter) at Walhallo, and, while there, visited the appellant and his wife Roma. On those occasions she took the complainant with her. She denied that there was any occasion when she left the complainant at the home of the appellant and his wife so that the complainant was left alone with the appellant.

In cross-examination she described the complainant as “a very clingy girl to me”, who she could not let go. The complainant, she said, would not leave her at all. She said:

She recalled visiting the appellant and his wife when the complainant was about 7 to 10 years old, but said there was no occasion when the complainant was left with the appellant and his wife together, and no occasion when the complainant was left with the appellant alone. She was sure about that.

Ms Jennifer Porter also gave evidence in the Crown case, to similar effect. She recalled Ms Slater and the complainant coming to visit her at times, but could not recall any occasion when the complainant was at the appellant’s home. She said the complainant “used to go everywhere with Maria”.

In cross-examination she said that “wherever Maria went, [the complainant] went with her. She said:

The appellant gave evidence. To the allegation that he had digitally penetrated the complainant he said:

He denied ever having been asked to look after the complainant by himself and said that, in the last 10 years, there had never been an occasion when that had happened. He said that he had never seen the complainant separately from Ms Slater.

He said he knew the name “Ron Smith” as that of a person who, he said, lived in Moree and who, so far as he could recall, he had never met. He thought that he was related to Ms Slater’s side of the family.

In cross-examination it was put to him that the complainant had been taken to his house by Ms Slater and left there for a short time, while Ms Slater and Ms Roma Stanford visited Mr Porter. He denied that that had happened. He denied explicit suggestions put to him in terms of the allegations made by the complainant.

The appellant’s wife, Ms Roma Stanford, also gave evidence. She recalled Ms Slater bringing the complainant to their home in Caroona but said “they’d be together all the time”. She said they only called in briefly, on a few occasions. The following questions and answers as recorded in the transcript may be reproduced in full:

She said she knew of a man called Ron Smith, who, she said, was a friend of Ms Slater’s family and may have been related to them. The last she knew, he lived in Moree. She was asked if she had ever heard of him being called “Uncle Ron” to which she replied:

In cross-examination she agreed that, in Aboriginal communities, it was not uncommon for older males in an extended family to be referred to as “Unc” or “Uncle”.

She also agreed that, in Aboriginal communities, it was not uncommon for children to be left for short periods of time in the care of extended family members. However, when it was directly put to her that there had been at least one occasion, when the complainant was about 8 years of age, in which she had been left by Ms Slater with the appellant for a few minutes while Ms Slater and Ms Stanford went to see Mr Porter, she said she did not think so. She said:

She said:

The grounds of appeal are:

It is convenient to commence with ground two.

The appellant’s submissions in this respect essentially focused on two aspects of the trial. The first was a number of inconsistencies in the various accounts of events given by the complainant. I will come to these. The second was the acquittal of the appellant on the third count, raising questions about the reliability of the complainant’s evidence in general, and particularly with respect to the two counts on which the appellant was convicted.

Before embarking on a consideration of the detail of the submissions, it is necessary to outline the principles of law applicable when a verdict is said to be unreasonable or unavailable on the evidence.

The test to be applied is well established, well rehearsed and well known. The starting point is the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is worth repeating yet again what the High Court there said:

Their Honours, however, went on with some qualification of that principle. They said:

These principles have been affirmed on many occasions since: for example, Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365.

A particular line of authorities has developed in the application of those principles where the unreasonableness of the verdict is said to arise from inconsistency of verdicts – that is, where a person accused of multiple offences is convicted of one or more, but acquitted of another or others. In those circumstances the court must be astute to ascertain whether there is a proper way to reconcile the verdicts (MacKenzie at p 367); Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [8]. The test is one of logic and reasonableness: MacKenzie at p 366. That assessment must be made in the light of the facts and circumstances of the particular case: MFA at [34].

In Jones v The Queen (1997) 191 CLR 439 a jury convicted an accused person of two out of three counts on an indictment, but acquitted on one count. The Crown case in respect of each count depended on the evidence of the complainant. The High Court found no basis for thinking that the quality of her evidence was higher in respect of the counts that led to conviction than it was in respect of the count that resulted in acquittal. When that circumstance was combined with two other factors – a lengthy and unexplained delay by the complainant in making complaint, and the uncorroborated nature of the allegations – the High Court concluded that the convictions were (in the language that then prevailed) unsafe and unsatisfactory (at p 455).

As comprehensively explained by Spigelman CJ in Markuleski, the decision in Jones is not authority for a generalised proposition that a mix of verdicts in a trial where multiple offences have been charged is indicative of the unreasonableness of verdicts of guilty. In MFA, a submission that Markuleski was wrongly decided was rejected (at [32]). Where the evidence on all counts is that of a single witness, however, careful scrutiny of the surrounding circumstances is required.

In this case the two additional factors (delay and absence of corroboration) that, combined with the apparent rejection by the jury of the complainant’s credibility in Jones, led the High Court to find the convictions unsafe and unsatisfactory are also present – requiring, therefore, the same careful scrutiny that the High Court said was required in that case (p 453).

There are features of the complainant’s evidence that readily explain the verdict of not guilty on the third count. That was the count in which penile-vaginal penetration was alleged. The complainant’s initial account to Ms Richens (brief and cut short as it was) made no mention of penile-vaginal penetration. Equally, it made no mention of digital penetration and could be seen to be inconsistent with her complaints as later articulated (to Ms Richens the complainant said that the appellant made her take her clothes off – she later said that, in the second incident, the appellant pulled her pants down). Perhaps more significantly, she expressly disavowed, to Ms Baldwin, penile penetration. Finally, the account she gave of the third incident is highly implausible. It was that while the two were standing in the kitchen, near but not touching the sink, the appellant (a grown man, and said in defence counsel’s final address to be a large man) penetrated her vagina with his penis, she being an 8 year old girl at the time.

It is, therefore, scarcely to be wondered at that the jury did not accept the account of this offence given by the complainant in the interview, and affirmed by her in cross-examination.

The present question, however, is what, if any, impact the jury’s rejection of the complainant’s evidence in respect of this allegation ought to have on the assessment of her reliability in respect of the other two counts.

With considerable hesitation, I have come to the view that the evidence does not reach the high standard necessary for conviction. In coming to that view, I have been fully conscious of the advantage the jury had in observing both the complainant and the appellant, and of its constitutional role in the determination of guilt or otherwise of a criminal charge. I have been particularly conscious that while the complainant’s intellectual disability may explain some of the hesitancies and inconsistencies in her accounts, it does not render her a witness unworthy of belief. I have paid particular attention to the injunction of the High Court in M that it is only where a jury’s advantage is capable of resolving a doubt experienced by the court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. I have not reached that view.

For the reasons I gave in SKA v R [2009] NSWCCA 186, I have not watched the video recording of the complainant’s interview. Particularly in circumstances where the appellant also gave evidence which was not video recorded, it seemed to me that to see one witness in video recording, and to read the evidence of another is potentially productive of unfairness to one or the other. The High Court did not find fault with that approach. SKA at [28]-[35], [116]-[117].

I am also conscious that there was no serious attack on the complainant’s credibility in the sense of any suggestion of deliberate untruthfulness. So far as can be gauged from the transcript of the complainant’s evidence she gave her evidence to the best of her ability. I mention also that, taken alone, the sequence of events up to the recording of the interview is suggestive of a spontaneous response to what she was being told by Ms Richens.

The evidence is that the complainant was prompted to disclosure by the discussion Ms Richens began in class, and she continued those disclosures to Ms Baldwin. However, her initial disclosure to Ms Richens included possible identification of another “Uncle Ron”. Her disclosure to Ms Baldwin began by a clear assertion that the events had taken place at “Sullys” in Moree something she then confirmed in answer to a direct question by Ms Baldwin. It is not to be overlooked that, so far as there was any evidence of the existence of a “Ron Smith” it was that a person by that name lived in Moree, and that it was commonplace in Aboriginal communities for children to refer to men as “Uncle”. (I have not overlooked the absence of any evidence, in cross-examination or otherwise, of Ms Slater of any association or connection with such a person).

There was also the consistent evidence, which cannot be discarded, of a lack of opportunity for the appellant to conduct himself as alleged. The evidence was also consistent that the complainant was a “clingy” child, attached to Ms Slater, and that Ms Slater did not leave her with other people.

In all of the circumstances I have come to the view that the evidence lacked the degree of cogency necessary to sustain the convictions. In my opinion, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the two counts of which he was convicted.

I would therefore uphold ground two, set aside the convictions, and enter a verdict of not guilty.

It is therefore unnecessary to address ground one.

The orders I propose are:

WALTON J: I agree with the orders proposed by Simpson AJA and the reasons for the judgment given by her Honour.

WILSON J: I have had the benefit of reading in draft the judgment of Simpson AJA. Her Honour has set out the factual circumstances of this matter, and the salient parts of the evidence of witnesses given at trial, and I gratefully refer to that summary. My conclusion with respect to ground 2 is, respectfully, different to that of her Honour. This is a brief statement of my reasons for the order I would make with respect to this ground, which is to grant leave to advance it, but dismiss it.

As noted by Simpson AJA, the appellant relies upon inconsistencies in the evidence of the complainant, together with the fact that the jury returned a verdict of not guilty with respect to count 3, to argue that the complainant’s evidence was unreliable, and the guilty verdicts returned in relation to counts 1 and 2 thus unreasonable or unavailable on that evidence.

There were inconsistencies in the evidence of the complainant, and her evidence as to there having been an opportunity for the offences to have been committed was not supported by members of her former foster family. These are matters which give rise to a need for careful scrutiny of the complainant’s evidence. The fact that the jury did not accept to the criminal standard of proof the allegations made by the complainant that grounded count 3 is another reason for close consideration of her evidence. This Court’s obligation to conduct an independent assessment as to both the sufficiency and quality of the evidence must be discharged: Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50, quoted in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].

In common with Simpson AJA I did not view the recorded evidence of the complainant, following the approach adopted in SKA v R [2009] NSWCCA 186. To do so may lead to the complainant’s evidence being given greater prominence and greater weight than that of other witnesses and, in particular, than that of the appellant, for whom there is no recording of the evidence.

Having given the evidence of the complainant and the evidence led at trial as a whole the careful scrutiny necessary to conduct an independent assessment of it, I do not conclude that the verdicts that were returned by the jury were not open.

It is important to bear in mind that the complainant had a significant level of intellectual disability, one which fell within the mild to moderate range for such a disability. This gives necessary context to evidentiary features that emerged at trial, and to the complainant’s evidence more particularly. It also gives particular emphasis to the advantage that the jury enjoyed over the appellate court in observing both the complainant and other witnesses give evidence.

It is clear from an exchange between the Crown Prosecutor and the trial judge prior to the complainant being called to give evidence that her presentation and demeanour were unusual. Without demur from trial counsel for the appellant (who had, like the Crown Prosecutor, seen the recording of the interview with the complainant) the trial judge was told,

In those circumstances, it may be reasonably concluded that the opportunity the jury had for observations of the witness as she was examined and cross-examined was highly significant.

Whilst there are issues with the complainant’s evidence that could give rise to a doubt, for me, that doubt is resolved by the advantage enjoyed by the jury. The primacy of the jury’s role in that regard was recently emphasised by the High Court in R v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35 at [65] – [66], where it was said (with reference to Queensland legislation in similar terms to s 6(1) of the Criminal Appeal Act 1912 (NSW),

The jury similarly enjoyed that advantage when assessing the evidence of Maria Slater, the complainant’s former foster-mother; Ms Slater’s sister, Jennifer Porter; and their aunt, Roma Stanford, the appellant’s wife. Although neither Ms Slater nor Ms Porter gave evidence which was wholly favourable to the Crown case, each was called by the Crown, no doubt in compliance with its duty to call all witnesses “whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”: Whitehorn v The Queen (1983) 152 CLR 657, per Dawson J at 674. That duty extends to any witness other than one with respect to whom there is an identifiable basis to conclude that he or she is unreliable: see generally R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.

In circumstances where Ms Slater, Ms Porter, and Mrs Stanford all had a continuing relationship with the appellant, and may have been regarded as partisan in their respective evidence, the demeanour of each would have been a critical feature in assessing the reliability of their vehement assertions that the complainant was never away from Ms Slater (other than when at school), and never at any stage alone with the appellant. This Court cannot replicate the jury’s advantage in that regard.

All of the matters relied upon by the appellant in this Court to demonstrate the complainant’s unreliability were before the jury, and carefully pointed out by trial counsel for the appellant in cross-examination, and in closing address. On the whole of the evidence, it was in my view open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt with respect to counts 1 and 2.

The differing verdicts do not cause me to alter that conclusion. There was a rational basis for the difference in the verdicts returned with respect to counts 1 and 2, and that returned against count 3, identified by Simpson AJA at [57]. I would respectfully add to that enumeration of relevant features what appears to have been a degree of uncertainty or even unknowing as to penetration. The extent of penile penetration alleged by the complainant was slight, described by her as “a little bit”.

The jury’s conclusion that count 3 had not been proved beyond reasonable doubt does not necessarily imply that the complainant was not believed in what she said about the incident in the kitchen. The factors noted at [57] and [16**], when coupled with her intellectual disability, could readily have led the jury to approach count 3 with a heightened degree of caution, that does not bespeak a wholesale rejection of the complainant as a credible witness: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], per Gleeson CJ, Hayne and Callinan J.

There being a proper and rational basis for the differing verdicts, the verdicts can logically and reasonably stand together in my opinion: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]; MG v R [2017] NSWCCA 14 at [88].

I would grant leave to the appellant to advance this ground, but it should be dismissed.

As I am the minority in that view, there is no utility in addressing ground 1 of the appeal.

The complainant identified her foster mother as Maria Porter, Ellie Porter as her “Nan”, “Uncle Ron” as “Nan’s brother” (he is the husband of Mr Porter’s sister) and Maria and Ellie Porter, as daughter and mother. She thought that “Uncle Ron” was a cousin of Maria Porter (Slater). (He is in fact her uncle.) Detective Hinton then asked:

The following questions and answers are then recorded: