SS v R

1. [1]

   HARRISON CJ at CL: The applicant seeks leave to appeal, pursuant to s 5(1) of the Criminal Appeal Act 1912, against two convictions of aggravated indecent assault contrary to s 61M(2) Crimes Act 1900 (counts 1 and 3) and one conviction of aggravated incite act of indecency contrary to s 61O(1) Crimes Act (count 2), following a trial before his Honour Arnott SC DCJ in the District Court at Parramatta.

2. [2]

   The applicant first stood trial on 10 February 2021 on an indictment charging twelve sexual offences alleged to have been committed against his biological daughter, then aged 12 years. The offences were alleged to have occurred in three separate incidents over a four-month period, shortly after the complainant began residing alone with the applicant. Counts 1 to 9 related to the first incident, counts 10 and 11 to the second, and count 12 to the third.

3. [3]

   The issue at trial in respect of all counts was whether the sexual acts occurred. The defence case was that the complainant had fabricated the allegations, either independently or in collusion with her mother and grandmother, in order to be removed from her father’s custody.

4. [4]

   The allegation in respect of the first incident was that, while seated at the dining table with the complainant and when home alone with her, the applicant placed his foot on her vaginal area (count 1), told her to remove her clothes, resulting in her removing her top but leaving on her underwear (count 2), and then touched her exposed breasts (count 3). Following this, he inserted his finger into the complainant’s vagina (count 4, alternative count 5), rubbed the inside of her vagina (count 6, alternative count 7), rubbed his penis on the outside of her vagina (count 8), asked her to expose her breasts and ejaculated on her leg (count 9).

5. [5]

   With respect to the second incident, it was alleged that the applicant again placed his toe on the outside of the complainant’s vagina (count 10), after which he squeezed her breasts (count 11). The third incident was comprised of a single allegation that the applicant placed his toe on the outside of the complainant’s vagina (count 12).

6. [6]

   In an electronically recorded interview with police, the applicant admitted that there was an occasion when, while he was at home alone with his daughter, he had directed her to remove her clothing and demonstrate what she did while watching pornography, as a form of punishment for catching her doing so. He admitted that in compliance with his direction, his daughter removed all of her clothing except her underwear. He denied that he touched his daughter on the top of her vagina or that he inserted his fingers in her vagina. He described asking her to show him what she did when she watched pornographic material: "All I did, I get a, she demon- she feel herself. I show, show me what you do. What do you do when you feel, you feel content. So she started playing with herself, ‘Oh, this is what I do’. I said, ‘When you do that how do you, what do you feel?’’’. He said that she demonstrated touching herself at the top of her vagina, playing with herself, just outside of her pants, and that this occurred in the kitchen. The applicant said that his daughter was “nervous taking her clothes off in front of me” and was crying as she lay on the couch “feeling herself”. He denied that he had made these requests because he had a sexual interest in his daughter. He denied that he had sexually assaulted her in any way.

7. [7]

   On 3 March 2021, the jury returned the following verdicts:

8. [8]

   On the same date, after being unable to agree on verdicts in respect of the following remaining nine counts, the jury were discharged:

9. [9]

   On 25 July 2022, the applicant was arraigned on an indictment before his Honour Colefax SC DCJ and a jury of twelve in respect of the nine remaining counts upon which the jury in the first trial had been unable to reach a verdict. On 10 August 2022, the jury returned verdicts of not guilty on all counts.

10. [10]

    On 30 September 2022, in respect of counts 1, 2 and 3, the applicant was sentenced to an aggregate term of imprisonment of five years, with a non-parole period of three years, commencing on 2 February 2021. The non-parole period expired on 1 February 2024, and the balance of the term is due to expire on 1 February 2026.

11. [11]

    The applicant relies on the following grounds of appeal:

Background

1. [12]

   The applicant and the Crown each referred to the evidence at the trials in some detail, which was necessary to frame their respective submissions in this appeal. There was no contest about what that evidence was.

2. [13]

   On a Friday evening after school in either June or July, the complainant, who was then 12 years old, and the applicant, were seated at the dining table in the apartment where they lived. No one else was present. The complainant was completing schoolwork, while the applicant was “typ[ing] stuff on his laptop”.

3. [14]

   The applicant asked the complainant to prepare and serve him alcoholic drinks, possibly scotch or vodka. Although she was unable to recall the precise number of drinks she poured, the complainant recalled that it was more than one. She stated that her father “drank alcohol a lot that night” and finished an entire bottle of spirits.

4. [15]

   The applicant told his daughter to lower her feet from the chair on which they were resting. He then placed his foot on top of her vaginal area, over her clothing, and moved it around: Count 1. She closed her legs “so he could stop”.

5. [16]

   The applicant told his daughter to go to the bathroom and take off her clothes. When she asked, “Why?”, he threatened to break her nose if she refused. She removed all her clothes except her underwear and bloomers, then returned to the dining room. When the applicant asked why she had not removed her underpants and bloomers, she lied and said she had her period.

6. [17]

   The applicant told his daughter to stand with her arms and legs spread out “for like, an hour”. She said he previously made her stand on one leg as punishment, but until this occasion, had not made her stand with her arms out or naked. As she was standing, the applicant was “just like typing, and then he’d look at me and then he’d smile and laugh and then he’d start typing again”: Count 2. During this time, the applicant continued to direct his daughter to pour him drinks.

7. [18]

   After an hour, the applicant asked his daughter, “have you leaked yet?”. When she asked what he meant by that, he said “have you [had your] period in that, that time where you were standing?”. When she said she had not, he told her to take her underpants and bloomers off and lay down on the couch. After she complied, he became angry, accused her of lying about her period, and slapped her several times across the face. At one stage, he held her nose so that she could not breathe.

8. [19]

   The applicant told her to spread her legs and uncross her arms, which she had crossed over her chest. The applicant used one hand to rub his daughter’s chest: Count 3. With the other hand, he rubbed her vagina, while trying to “stick his like I don’t know two fingers in”. The complainant said she believed her father was doing this, because she could feel it. When he did this, she screamed because it hurt. The applicant told her to “Shut up or else someone will hear you”: Count 4.

9. [20]

   While the applicant was doing this, he said things like, “I want to make you feel content” and “I want to make you feel satisfied”. At one stage, he told her to moan and demonstrated the noise. She responded, “Can you please stop, can you just stop? Why are you doing this to me? Don’t you hate this?”. Her father replied, “Yeah, yeah, I hate this, it’s just you’ve been a bad girl”. When she asked what she had done, he told her to “Shhh” and kept going. When the complainant pushed him away, he became angry and either threatened to break her nose or held her nose and pulled it forward.

10. [21]

    Eventually, the complainant told her father she was tired and wanted to go to bed. After he allowed her to leave, she took a shower because she felt “gross,” got changed, and went to bed crying.

11. [22]

    A short time later, the applicant entered his daughter’s bedroom with some baby oil. She knew it was baby oil because it was a clear container with blue writing on it. When shown a photograph of baby oil found in her father’s beside drawer, she identified it as the bottle of baby oil he brought into the bedroom. The applicant said, “I’m not finished with you”. The complainant said, “What did I ever do to you? Why? Why?... Do you hate me or something?”. The applicant told her to shut up, slapped her across the face again, and put his hands inside her underpants and rubbed the inside of her vagina “in like a circle”: Count 6 - Count 7. When he asked the complainant “Do you like that?”, she said “No, please get off me”. She told him to stop and was crying. At some stage, he told her, “I just want to make you feel content”.

12. [23]

    The applicant eventually fell asleep, with his hands still inside the complainant’s pants. She got out of her bed, put the baby oil “in like, the far back of his drawer so, like, he hopefully couldn't find it again” and had another shower to remove the baby oil. She slept in her half-brother’s bedroom.

13. [24]

    The following morning, the complainant heard her father’s alarm going off, but went back to sleep and did not wake him. When he woke up, he became angry at her, and as punishment for not waking him to go to work, told her to come into his bedroom and remove her pants. When she asked him, “Why are you doing this to me?”, he screamed at her to “Shut the fuck up”. He put his penis on her vagina and rubbed it on the outside: Count 8. When she tried to push him off her, he became very angry and threatened to break her nose and her pinkie fingers. She started crying. The applicant told her to uncross her arms “because he wanted to see my chest, like, this area” and then masturbated and ejaculated on her legs: Count 9.

14. [25]

    Later that day, the applicant and the complainant went to Coles Express, where he purchased some food and went through a drive-through car wash. When they got home, the complainant went back to sleep. She said there were bruises on her face.

15. [26]

    On a later occasion, the applicant and the complainant were again sitting at the dining table, when the applicant put his foot between her legs on the outside of her vagina: Count 10. He then told his daughter to take her shirt off. She complied but kept her crop top on. The applicant hugged her and squeezed her breast hard, saying “Oh no milk is coming out, good, that means you’re not pregnant because I know you’ve been talking to boys”: Count 11. When she told her father that she could no longer feel her breast, he told her she was lying and punched the right side of her face.

16. [27]

    Approximately six weeks before the complainant spoke to police in August/September 2017, and two weeks after the second incident, she was sitting at the dining table listening to music and reading a book, when the applicant told her to spread her legs and again placed his foot on her vaginal area, on the outside of her clothes: Count 12. She said, “Please don’t do it again” and told him she hated him. In response, he punched her on the forehead.

The applicant’s submissions

1. [28]

   It is somewhat regrettable that the applicant’s submissions on Grounds 1 and 2 consisted almost exclusively of a recitation of the applicable legal principles relating either to appeals asserting that verdicts are unreasonable and cannot be supported having regard to the evidence or are otherwise inconsistent but without any analysis of how these principles applied to the facts in the present case.

2. [29]

   The applicant’s submission with respect to this ground that addressed the present case, as opposed to the applicable legal test for the Court to apply, was as follows:

3. [30]

   The burden of this submission is that the complainant was mistaken about the date upon which certain events occurred so that this renders the convictions on counts related to these events unreasonable. I reject that submission.

4. [31]

   As the Crown quite correctly emphasised, the trial judge directed the jury that they could accept parts of a witness’ evidence and reject others. The jury were therefore entitled to accept the complainant’s evidence that the indecent assaults and act of incitement occurred on an evening preceding a day on which the applicant missed work around her friend KP’s birthday, while accepting that a 12-year-old may be mistaken about whether the incident occurred a few days prior to KP’s birthday, rather than the same day, or on a Thursday evening of the school holidays, rather than a Friday evening following an uneventful day at school.

5. [32]

   The complainant’s mistake as to the sequence of events is readily explicable, given the peripheral nature of the details concerned, her young age and the delay of several months between the incident and her disclosure to the police. What remained clear was that the complainant consistently anchored the event to a time close to KP’s birthday. That was broadly consistent with the totality of the evidence. The applicant gave evidence of the same incident (see below) but was also unable to recall the precise date on which he asked his daughter to stand naked. He initially agreed it occurred in June but later suggested it took place in the July school holidays.

6. [33]

   In the circumstances of this case, the date of the alleged offending for counts 1, 2 and 3 cannot matter. Even if there were some possible significance of the date, as observed by Adamson JA in JL v R [2023] NSWCCA 99 at [97], it is not

7. [34]

   The applicant’s contention that the guilty verdicts on these counts are unreasonable or cannot be supported by the evidence gives rise to the question of whether this Court thinks that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of indecently assaulting his daughter. Speaking for myself, having examined the trial transcript at some length, and having also considered the complainant’s account given in her interview with the police, I have no doubt that it was open to the jury to be so satisfied.

8. [35]

   This ground of appeal is entirely without merit.

9. [36]

   In relation to the contention that the verdicts are somehow inconsistent, the applicant’s only specifically formulated submission was to the following effect.

10. [37]

    In the first trial, counts 1-9 describe an episode of offending that was essentially said by the complainant to have occurred over a 12-hour period at the unit where the complainant lived with her father. The prosecution case relied principally on the word of the complainant. Within that period the counts can be separated in time and place. Counts 1-5 occurred first in the loungeroom, then counts 6-7 in the complainant’s bedroom, and counts 8-9 in the applicant’s bedroom. The applicant submitted in these circumstances that his convictions on counts 1-3 “are logically inexplicable” in “that the jury would not then reach verdicts at least on counts 4-9”.

11. [38]

    I reject this submission. Far from being logically inexplicable, there may be several reasons why the jury in the first trial convicted the applicant on the first three counts and why they were unable to reach a verdict on the remaining counts. One possibility might be because there was evidence before the jury given by the applicant in his recorded interview on 9 October 2017 that in large part aligned with his daughter’s description of what occurred. The following extract should be noted:

12. [39]

    That version is to be compared with the complainant’s account of the incidents given in her JIRT interview on the same day:

13. [40]

    Although these accounts are not identical, they are not significantly dissimilar. It is entirely likely that the jury were fortified by the fact that the conduct establishing the first three counts was in substantial alignment with the applicant’s description of what occurred. That is in my view particularly noteworthy when regard is had to the fact that both versions record what was on any view quite extraordinary conduct between a father and a daughter.

14. [41]

    As the Crown submissions have emphasised, the applicant admitted in his electronically recorded interview with the police that he had asked his daughter to remove her clothes, standing topless in the kitchen, wearing only her underpants. Although the applicant’s reason for asking her to do so differed from his daughter’s account, his admission was strikingly consistent with what she described, both as to the nature of the request and her response to it.

15. [42]

    In addition, there is a significant difference between the objective seriousness of the conduct making up the first three counts and the balance of the charges. The jury may well not have been able to agree in the first trial, or to accept at all in the second trial, that the accused was guilty of such serious offences against his daughter. The convictions on counts 1, 2 and 3, in contrast to either the inability to decide, or the acquittals, on the remaining counts were entirely explicable by reference to that difference.

16. [43]

    Far from being logically inexplicable, the convictions on the first three counts are entirely explicable by reference to both the jury’s obligation to treat all counts separately as well as to their entitlement to believe some of the complainant’s evidence and not believe other parts. Moreover, for the reasons I have just given, there is nothing inconsistent with the jury choosing to convict the applicant on less serious charges but taking an entirely different approach to the remaining charges.

17. [44]

    It is sufficient to recall the following passage from MacKenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35, in which the High Court considered the principles that apply in an appeal based upon an assertion that the verdicts given by a jury were inconsistent, which informs my conclusions on this ground of appeal:

18. [45]

    Ground 2 is entirely without merit.

19. [46]

    Despite the apparent width of this ground of appeal and the applicant’s original submissions in support of it, it became clear following what passed between counsel for the applicant and the bench that the only evidence said to be fresh evidence was that of BB, who was called as a witness at the second trial but not at the first. BB was in a close familial relationship with the applicant and it could not be said that her evidence was not available to him through the exercise of reasonable diligence in the preparation of his case. This evidence could on no count therefore be described as “fresh” evidence.

20. [47]

    This ground of appeal must be rejected.

Orders

1. [48]

   I consider that the following orders should be made:

   1. (1)

      Grant the applicant leave to appeal against conviction.

   2. (2)

      Dismiss the appeal.

2. [49]

   LONERGAN J: I have had the considerable advantage of reading the judgments of Harrison CJ at CL and Dhanji J, in draft. I agree with the reasons of Harrison CJ at CL as to why grounds 2 and 3 of this appeal must be rejected. I agree with the additional observations of Dhanji J as to why that must be the outcome. I express no concluded view regarding the authorities referred to at [57] to [59] of the judgment of Dhanji J, but agree with the conclusion of Dhanji J at [60] that applying the test of logic and reasonableness, ground 2 of this appeal must fail, for the reasons set out by Dhanji J at [60] and Harrison CJ at CL at [38] to [44]. In respect of ground 1, I have separately and independently examined the transcript of the trial and the exhibits and have no doubt that it was open to the jury to be satisfied of the applicant’s guilt on counts 1, 2 and 3. I particularly endorse the reasoning of Harrison CJ at CL at [31] to [33], and Dhanji J at [51] and [52], as to why some imprecision as to the 12-year-old complainant’s recollection as to the date on which these offences occurred is understandable, and does not undermine the cogency of the key elements of her account. I agree with the orders proposed by Harrison CJ at CL.

3. [50]

   DHANJI J: In this matter I have had the benefit of reading the reasons for judgment of Harrison CJ at CL in draft. I agree with the orders proposed by his Honour and in general with his reasons for those orders.

4. [51]

   As Harrison CJ at CL has explained, the applicant’s argument in relation to ground 1 was that the verdicts were unreasonable based on inconsistencies in the evidence as to when the relevant events occurred. It can be accepted that the offences did not, contrary to the complainant’s evidence, occur a couple of days prior to the birthday of the complainant’s friend. Given this, it is apparent from the verdicts that the jury regarded this part of the complainant’s evidence as mistaken while not doubting her account of the commission of counts 1 to 3. It was open to the jury to do so. The jury was, as is usual, instructed that they were entitled to accept some part of a witness’ evidence but not others. Of course, they could not do so capriciously. Here, there was a sound basis for differentiation. Firstly, there was some uncertainty in the complainant’s evidence as to whether the offences occurred prior to or simply near her friend’s birthday. While her evidence settled on the offences being prior to the birthday, the jury were entitled to view her mistake in the context of the uncertainty expressed, her age and the length of time that had elapsed by the time she came to give evidence of the events.

5. [52]

   The above explanation would, to my mind, be enough to explain the jury’s approach. In addition, however, any mistake arises in a context in which the applicant admitted to an incident involving sexually inappropriate conduct with the complainant. The complainant did not suggest that the incident admitted to by the applicant occurred on some other occasion. Given this, the real dispute was not as to when inappropriate sexual conduct between the applicant and complainant took place, but rather the nature and extent of that conduct. The applicant’s argument on this ground must therefore fail.

6. [53]

   In relation to ground 2, the applicant contended that the verdicts of guilty on counts 1 to 3 were inconsistent with the jury’s failure to reach a verdict with respect to counts 4 to 12 at the first trial, and with his acquittals at the second trial. It is convenient to deal with the second alleged inconsistency first – the complaint of inconsistency of verdicts between trials.

7. [54]

   Section 6 of the Criminal Appeal Act 1912 (NSW) does not provide a separate limb by which a verdict may be quashed on the ground that it is inconsistent with some other verdict. Rather, a complaint of inconsistent verdicts is a basis on which it is contended that a verdict or verdicts of guilty are unreasonable within the first limb of s 6. The reasoning underpinning this was explained in MacKenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35 where Gaudron, Gummow and Kirby JJ said:

8. [55]

   Their Honours went on to explain (at 368) that, while there will be in many cases a basis on which the verdicts may be reconciled:

9. [56]

   Consistent with the above, the problem of inconsistent verdicts ordinarily centres around what the alleged inconsistency reveals about the processes of the particular jury. In the context of an acknowledgement that it was “impossible to state hard and fast rules”, the possibility of inconsistency based on verdicts returned by different juries was at least contemplated in MacKenzie at 366. It was, however, pointed out that the difference in results may be “no more than the result of … ‘the different views which the juries separately take of the witnesses’”: MacKenzie at 366, quoting from R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40. (Alternatively, the difference in verdicts between different trials may be the result of the different evidence presented in which case the question on appeal will be resolved based on the fresh or new evidence as opposed to any asserted inconsistency.) See also Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. In the present matter it was open to the two separate juries to take different views of the evidence. The applicant’s complaint that the verdicts of guilty reached by the first jury are inconsistent with the acquittals by the second jury must fail.

10. [57]

    The applicant’s complaint that the first jury’s convictions are inconsistent with that jury’s failure to reach verdicts with respect to the remaining counts, as a basis on which to impugn a jury verdict, perhaps has a stronger, or at least more orthodox, foundation. Even here, however, there has been some debate as to the nature and availability of a complaint of inconsistent verdicts in the context of a mixture of convictions and failures to reach a verdict: see Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191, noting the different views taken by Bathurst CJ and Bell P on the one hand, and Hamill J on the other. (The issue has been considered in this Court in a number of cases since: see Omigie v R [2024] NSWCCA 205; Ferguson v R [2024] NSWCCA 81; SM v R [2022] NSWCCA 13; Bridger v R [2022] NSWCCA 125; and Fisher v R; R v Fisher [2021] NSWCCA 91.)

11. [58]

    For my part, I prefer the view expressed by Hamill J in Daaboul. That is, I do not share the reservations of the majority in applying the principles with respect to inconsistent verdicts where a conviction or convictions are questioned based on the jury’s inability to agree on another count or counts. It seems to me that, where a jury convicts on some counts, and is unable to agree with respect to others, at least one juror (or more if unanimity was not required) while willing to convict on one count, was not willing to convict on some other count. The result may raise concerns with respect to the willingness of a juror or jurors to join in the verdict or verdicts of guilty while at the same time being unwilling to convict on some other count or counts. That the number of jurors so affected is not known is, to my mind, not to the point. For all the appellate court knows, the inability to agree may be because a single juror refused to acquit.

12. [59]

    It seems to me that the reasonableness of the guilty verdicts can as a result become the subject of legitimate scrutiny in the manner discussed in MacKenzie. The different results may “represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise” of the performance of a juror or jurors’ duty, to adapt what was said in MacKenzie (at 368). I would, in this regard, qualify my agreement in Omigie, and apply a test of logic and reasonableness based on MacKenzie without reservation. That said, there may be circumstances where a jury’s failure to agree rather than acquit is significant. One possibility is where the failure to agree may be the result of a failure to agree as between alternatives such as murder or manslaughter, rather than as to guilt or outright acquittal: see Osland at [232] per Callinan J.

13. [60]

    It is not necessary, however, to consider any controversy as to the proper approach in any detail in the present matter. Here, applying a test of logic and reasonableness, the ground must fail. While the applicant’s admissions in the record of interview did not amount to admissions of guilt to counts 1 to 3 in terms, he did, as discussed above, admit that an incident of a sexual nature had taken place with the complainant. That incident bore some similarity to at least the first part of what the complainant said had occurred. In these circumstances, it was open to the jury to accept the complainant’s narrative as to the commencement of the sexual interaction, encompassing counts 1 to 3, while they (or at least some members of the jury) harboured a doubt as to the remaining charges. The applicant’s complaint must fail.

14. [61]

    The complaint in ground 3 was based on the absence of evidence in the first trial (which produced the convictions) which was adduced at the second trial (which resulted in the acquittals). As Harrison CJ at CL has explained, the evidence is not, within the meaning given by the authorities, fresh evidence. Indeed, no evidence was called on the appeal in an attempt to explain why the evidence was not adduced at the first trial. The evidence itself was of a witness who saw the complainant in August and September 2017, in the order of a month after the occurrence of the counts of which the applicant was convicted. The witness gave evidence that she did not see any bruising on the complainant who otherwise appeared happy. The Crown Prosecutor did not consider it necessary to cross-examine the witness, presumably on the basis that the evidence could be reconciled with the Crown case. The Crown Prosecutor’s judgment in this regard was not the subject of any adverse comment by the applicant’s trial counsel. Indeed, an explanation for the evidence not having been led at the first trial that readily springs to mind is that it was of no real consequence. It was not evidence which cast any doubt on the complainant’s account of counts 1 to 3. Certainly, it does not meet the test for such evidence to be admitted on appeal: see Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 and Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26. I would reject the evidence and dismiss the ground.