Mansaray v R

HOEBEN CJ at CL:

The applicant pleaded not guilty to both counts. The trial continued until 17 September 2013 when the jury retired. On the afternoon of 19 September 2013 the jury returned a verdict of guilty in relation to the first count.

On 14 February 2014 the applicant was sentenced by Bennett DCJ to imprisonment with a non-parole period of 3 years commencing 25 January 2014 and expiring 24 January 2017 with a balance of term of 2 years to expire on 24 January 2019.

The applicant seeks leave to appeal against conviction. There is no application for leave to appeal against sentence.

The grounds of appeal are:

The Crown case was that the applicant was the uncle of the complainant who was aged 12 at the time of the offence. He was living in the same premises as the complainant in Bankstown on the evening of Wednesday, 15 August 2012. The Crown alleged that he entered the complainant’s bedroom, lay next to her and penetrated her anus with his penis.

The applicant did not give evidence at trial but was interviewed by the police. His ERISP was before the jury. He did not call any witnesses. He denied committing the offence and said that he was either at the mosque for Ramadan during that night or at home but having a shower while T (whom the complainant referred to as a grandmother) was there. The applicant relied upon the cross-examination of the witnesses called for the Crown and his ERISP.

On 16 August 2012 the complainant was attending Bankstown Primary School. She had arrived in Australia from Sierra Leone in 2006 with members of her family. She lived at XXXX, Bankstown with T, her aunt R (whom she referred to as her sister), the applicant who was also R’s boyfriend and R’s three year old son. The complainant’s sister, F and F’s friend, N, had moved out of the house on 15 July 2012. R was in Africa when the offence took place.

The Deputy Principal of the Bankstown Primary School was Ms Janet Byrne. She was aware that the complainant required additional support in terms of learning and other things. She had developed a trusting relationship with the complainant. On 16 August 2012 at about 11 – 11.30am, Ms Byrne was advised that two women and a baby were at the school to see the complainant. It is common ground that the two women were F and her friend N. The baby belonged to N.

The women had apparently not seen the complainant since they left the house. When they saw the complainant, they hugged and were talking. Ms Byrne remained throughout the conversation.

The two women and the complainant spoke loudly in a language which Ms Byrne did not understand. In the course of their conversation, their voices became raised and high-pitched. Ms Byrne thought that she heard the words “hitting” or “bashing” in the course of the conversation. Later, she heard one of the women say in English “it’s sexual abuse”. When she heard this, Ms Byrne asked the two women to leave and told them that she would take the complainant with her and speak to her.

Ms Byrne took the complainant to her office but because it was lunchtime, did not ask her any questions at that time but allowed her to join the other children. After lunch Ms Byrne spoke to the complainant again but the complainant was reluctant to say very much. She was described by Ms Byrne as “she was really shutting down and not wanting to engage in conversation”. Ms Byrne persisted and her evidence as to what then happened was:

Ms Byrne was unsuccessful in getting any further information from the complainant whom she allowed to take a further break and play with the other children. The school had an afternoon break from 1.15 to 2pm. Ms Byrne resumed speaking to the complainant at 2pm but was unsuccessful in obtaining any further information from her until she suggested that it might be easier for the complainant to draw a picture or write something.

Ms Byrne said that when the complainant made the comment “he did it with me” it was right on bell time, so she allowed the complainant to go home. In cross-examination she agreed that although it was her recollection that it was the complainant who wrote “he did it with me”, it was possible that the complainant had told her that and that she [Ms Byrne] had written those words on the paper. Ms Byrne said that when the complainant wrote the words “he did it with me” she would not make eye contact with her.

The following day, 17 August 2012, Ms Byrne spoke to the complainant when she came to school. Her evidence was:

Thereafter, Ms Byrne contacted the relevant authorities. Two female police officers from the Bankstown Joint Investigation Response Team (JIRT) attended the school. They collected the piece of paper that the complainant had written on. The piece of paper was subsequently marked MFI 3. It is clear that there is other material written on that piece of paper. This was subsequently explained by the complainant in her statement and in her evidence at trial. Ms Byrne said that the rest of what is contained in document MFI 3 was not written in her presence.

N gave evidence. She was then aged 19. She gave evidence without an interpreter. She had arrived in Australia in 2007 from Sierra Leone and after a time, moved into the house at Bankstown. She gave birth to her child in 2011 and ceased residing in those premises on 25 July 2012. This was at the same time that her friend and the complainant’s sister, F, also moved out.

She had problems in the house with T and with the applicant. There were money problems with an allegation by the applicant that she was not paying her way. She had a good relationship with the complainant whom she would see every day. She was attending a school which was close to the complainant’s school. After she left the house, she did not see the complainant again until she and F visited her at her school on 16 August.

She said that when she saw the complainant at school, she was upset because the complainant looked really messy. She said that F was upset as well and that the complainant burst into tears when she saw them and that they were all emotional. They were speaking to each other in the Krio language. The complainant told them that she was still having problems with “grandma” (T), she was not eating enough food and that she had to clean and wash the dishes before she was allowed to go to school in the mornings. The complainant said that she did not want to live there anymore but wanted to live with her and F. When initially asked about what she was told by the complainant, N said “Do I have to talk about it?” and was allowed to take a short break (T.61.45).

When she returned to court, her evidence was:

N’s evidence continued:

When asked what she told the principal, N said:

N was cross-examined to the effect that she and F had talked about the complainant making a complaint about being sexually abused as they were walking towards the school. It is necessary to set out the questions and answers in relation to this issue since both the Crown and the applicant placed reliance upon them.

F gave evidence at trial with the assistance of a Krio interpreter. She was aged 23 when she gave evidence. She had come to Australia in 2006 from Sierra Leone. She had come to Australia with her stepmother, T. The complainant was her little sister. After arriving in Australia, she had moved with T and the complainant to the premises at Bankstown and had shared a room with the complainant until she [F] left on 25 July 2012. At some time before she left the house, the applicant had moved in.

She said that she had gone to the school to see the complainant on 16 August 2012. When she first saw the complainant she was upset because of how untidy the complainant was and she started to cry. She had difficulty talking about what she had been told by the complainant. Her evidence on that issue was:

F was cross-examined along the same lines as N:

After the matter had been reported, the complainant was interviewed on the afternoon of 17 August 2012 by a Department of Community Services employee, Ms Megan Payne, and was remotely supervised by Senior Constable Julie Neagle. The complainant was aged 12 at the time and the interview took place two days after the offence. The interview was videotaped and shown to the jury. No interpreter was used.

The following questions and answers are material to the appeal:

When the complainant gave evidence at trial she was aged 13. She did not use an interpreter. When asked how long the “blank” was inside her bottom, she was unable to remember. She said that she preferred to continue using the word “blank”. She said that when the applicant entered her room, the light was still on. She was on her side, facing the wall, with her knees bent up to her chest. The applicant’s body was pressed against her back and she was scared.

Apart from the clarification of those issues, the complainant’s evidence in chief was what was set out in her videotaped statement.

Under cross-examination the complainant said:

The complainant gave evidence as to what happened to her clothes:

The complainant’s evidence that she was asleep was vigorously challenged as follows:

The issue was raised again:

Fn was the sister to T. She gave evidence that in August 2010 she and the applicant went to the mosque together for Ramadan every day. She said they would go between 7.30pm and 8.30pm. She said that on 15 August 2012 she and the applicant went to the Punchbowl Mosque. He probably arrived at her house about 7.15pm. They finished at the mosque at about 8.30pm and walked back to her house. The applicant did not come in.

The following day she and T, the applicant and the complainant went to the airport to pick up R. She said the complainant appeared normal and did not appear to be upset.

M was the son of T and the half brother of the complainant. On 17 August 2012 he arrived at T’s house at 9.50pm. He had earlier received some messages in relation to the applicant having raped the complainant. He asked the applicant what had happened. The applicant cried and swore by the Ramadam month that he “is not going to be one of the people to do such an act against that young girl”.

Only a minute or two after the conversation, M heard knocking at the front door. The persons at the door announced themselves at police officers. M and T went to the door while the applicant remained in the lounge room. The police had a search warrant and entered the house. M looked for the applicant but he could not find him. Within half an hour M telephoned the applicant and told him that the police had been there and that he was wanted by them. He advised the applicant to come home because the police wanted to speak to him. The applicant replied “yes”.

Dr Alanah Houston gave evidence. On 17 August 2012 she was the Medical Co-ordinator at the Liverpool Sexual Assault Service. She was in charge of the physical examination of persons reporting to the Service, including making observations in the Sexual Assault Unit of certain matters on their bodies.

At about 6.30pm on the evening of 17 August 2012 Dr Houston examined the complainant. She understood that there was an allegation that she had been sexually assaulted by her uncle on 15 August 2012. She was told by the police that there was a suggestion of anal penetration.

She said that she deliberately did not take a history from the complainant. When the complainant was asked to demonstrate her position in bed, she lay on her side with her knees pulled up.

Dr Houston when she examined the complainant was looking for signs of constipation. She could not find any. When she examined the complainant’s stomach, she found it to be very soft and that she was not constipated. The complainant told her that she had defecated since the assault and gone to the toilet on a number of occasions and had passed faeces.

When Dr Houston examined the complainant’s anus and perianal area, she observed that the complainant had some soft faeces which was consistent with her not being constipated.

Dr Houston when examining the anus found two healing fissures at 5 and 7 o’clock.

Dr Houston gave the following evidence:

Dr Houston explained that it was too late to test for any semen presence because 48 hours had passed, particularly in circumstances where a child had been to the toilet and passed her motion.

Dr Houston gave further evidence:

Under cross-examination the following evidence was given:

T was overseas during the trial. Her recorded interview taken through an interpreter on 30 August 2012, was played to the jury. In the course of that interview, she was asked to say what had occurred on the night of 15 August 2012.

It was her recollection that the applicant slept at the mosque that night. She said that he told her at about 10pm that he was going to sleep at the mosque and then he left. T said that he did not return to the house until the morning. She said that she had never been woken up at night by him or by the complainant or by anyone else while they were in that house.

The applicant was interviewed by the police and participated in an ERISP on 18 August 2012. That ERISP became exhibit E.

In the ERISP the applicant denied running away from the police earlier that evening and said that he was not in the house when the police came. He denied sexually assaulting the complainant.

He said that on Wednesday, 15 August 2012 he picked up Fn at around 6.30pm to go to the Punchbowl Mosque for prayers which started at 7pm. Later he said that he picked her up at 7.30pm. Once there he went to the separate men’s area and remained there until 3am. Later he said he left there at 6am.

He said that he returned home at 11pm to have a shower and then left at midnight to return to the Lakemba Mosque. He said that T was there when he went home. She was waiting for him to leave so that she could lock the door. He said that on Wednesday night he was wearing jeans and a black leather jacket. He only wore the traditional gown on Fridays.

When asked about the allegation that he had put his penis into the complainant’s bottom, he said “No, I can’t do it, I didn’t do that, I can’t do that, trust me, I can’t do that in no circumstances. [The complainant] is like a daughter to me” (Q/A621). The applicant denied ever sleeping in the complainant’s bed due to her wetting the bed.

The police attempted to obtain CCTV footage from the Lakemba and Punchbowl Mosques. The CCTV footage from the Lakemba Mosque was grainy and indistinct while the Punchbowl Mosque did not have cameras.

The primary submission for the applicant was that he could not be found guilty unless the jury were satisfied beyond reasonable doubt as to the truth and accuracy of what the complainant said. He submitted that this Court could not be satisfied on that issue and in particular, could not be satisfied that his penis penetrated the complainant’s anus. He submitted that a close scrutiny of the evidence would leave the Court with a reasonable doubt. He then set out a list of matters which he submitted, looked at individually and holistically, would demonstrate that the complainant’s evidence was not accurate and reliable.

The matters to which the Court’s attention was directed were:

The task of this Court where such a ground of appeal is raised is well established and well known: M v The Queen [1994] HCA 63; 181 CLR 48; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question is ultimately whether notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand (M at 492) or, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

In making that assessment the Court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and has had the advantage of having heard and seen the witnesses.

While the comments of a trial judge should always be given appropriate respect, they should not be given the weight sought to be placed on them by the applicant in this case. This was particularly so when one had regard to the context in which the remark by his Honour was made. His Honour was expressing some exasperation with the trial advocate for the Crown because of a point which she was seeking to make in her address.

The question of what weight should be given to an expression of opinion by a trial judge in a jury trial was considered by Crennan J (with whom the plurality French CJ, Gummow and Kiefel JJ agreed) in SKA v The Queen. What happened in that case was summarised by Crennan J as follows:

In this case, apart from the exchange with counsel to which the applicant referred, there was also the following observation by his Honour Bennett DCJ when sentencing the applicant:

Crennan J set out the relevant principles as follows:

In this case no report was provided or sought nor was a certificate sought. What is relied upon is a somewhat testy exchange between his Honour and the Crown at the end of the trial and a very general observation made by his Honour in relation to the complainant’s credibility and reliability in the course of the sentence judgment. As Crennan J pointed out it would be wrong to substitute the opinion of the judge for that of the jury and less weight will be given to a trial judge’s report in circumstances where the judge’s opinion appears to be based almost entirely upon the assessment of evidence which an appellate court is obliged to undertake for itself. Moreover, the comment by his Honour was expressed in very general terms and his reasoning was not exposed.

In my opinion, this Court should not take into account the comments by his Honour to which the applicant made reference. It is necessary for the Court to reach its own conclusions based on its assessment of the evidence.

The complainant’s description of the offending was sufficiently precise to make out the offence. During the interview with Ms Payne, the complainant wrote (on the note marked “E”) that the applicant had put his penis on her “back”. She then marked (on the diagram “C”) where the applicant had put his penis and then described that structure by reference to it being used to defecate. Significantly, she volunteered the use of the word “bum” (Q/A262 – 265).

The fact of actual penetration of the anus by the applicant received substantial support from the evidence of Dr Houston. The effect of the doctor’s evidence will be discussed in more detail later but the presence of two fissures was “entirely consistent with” and indicative of the occurrence of penile/anal penetration which had occurred within the 4-5 days preceding the medical examination.

The applicant’s criticism of Q268 (“And, tell me, was it outside your bum, inside your bum or something else?”) is not made out. It is not correct to say that the form of Q268 was such that it only allowed (in practical terms) for two alternatives. A third alternative was not foreclosed and on other occasions in the statement the complainant did not accept suggested answers but made her own response. The form of Q268 permitted the complainant to answer in an unfettered way by reference to the three specified alternatives, i.e. “on”, “in” or any other response to the question - including by responding that she did not know what had occurred or that there had been an attempt at penile/anal penetration. The question clearly left open to the complainant the opportunity to provide any other response she might wish regarding what had happened, including an attempt or rubbing of the penis upon the buttocks/anus which would be conduct sufficient to amount only to an indecent assault.

The applicant’s reliance on “common sense” and “the absence of any expression of pain or discomfort” is not made out.

It is correct that in the statement, the complainant did not tell Ms Payne anything more than that it felt “bad”. N in her evidence, however, said that the complainant had originally told her that she wanted to scream but that the applicant had placed his hand over her mouth and told her that if she did scream, he would tell her sister/aunt when she returned from Africa that the complainant had been doing bad things (T.66.05 - .16)

At T.76.10 N said:

At T.87.9 F gave evidence to similar effect:

It is obvious from her statement and her evidence at trial that there was a great reluctance on the complainant’s part to describe in any detail what happened. This was equally consistent with a cultural or personal reluctance as with unreliability, which was the interpretation sought to be placed on it by the applicant. It is clear from her narrative that she deliberately avoided any detailed description of what had happened. Early in her statement she was asked “Can you tell me about it” to which she responded “No” (Q/A55). On many occasions she used the response “It’s hard to explain it” or “It’s too hard to explain it” to avoid going into any detail. The jury saw and heard these responses and was in the best position to asses the genuineness of them.

It is also important to remember that not only was the complainant aged 12 but her knowledge of both written and spoken English was marginal, as both her oral evidence and written evidence make clear.

This submission is not made out.

The answer at Q/A272 is fully consistent with the background to the incident. Having regard to the complainant’s history of not being believed by the applicant and by other household members, some of whom apparently beat her in the time leading up to the incident, the remark “I believe you everything you say” attributed to the applicant is understandable. Given what was occurring, the remark is consistent with an attempt on his part to placate, re-assure or at least secure the acquiescence of the complainant to what was happening. It fits in with an attempt by the applicant to ingratiate himself with her as a person whom she could trust and who had her interests at heart.

The answer at Q/A145 relied upon by the applicant, was where he was said to have whispered “I love … your sister R”. From the context it would seem that these words were spoken during (or immediately before or after) the anal penetration. The words can be reconciled with an attempt by the applicant to secure the acquiescence of the complainant by indicating that the sexual activity then occurring should not be thought by her to indicate that he did not also love her sister/aunt and that the offence was in some way a betrayal by him of R.

The third answer upon which the applicant relied is Q/A194 where he is said to have whispered “I love your sister so much but she’s rude and she doesn’t like me”. These words also appear to have been spoken during or immediately before or after the anal penetration. The remark suggests that not only did her sister/aunt not reciprocate the love which the applicant claimed he had for her but that she had been rude and hurt him by making it clear that she did not like him.

Far from suggesting unreliability, these words fit with the factual background so far as we know it.

Having regard to the circumstances in which they were spoken, all these remarks share the common theme of being designed to placate, re-assure and/or secure the acquiescence of the complainant to the sexual activity which was occurring.

The applicant submitted that the reliability of the complainant was adversely affected because it was not until Q/A117 in the interview that she referred to a sexual assault by him and even then it had to be elicited from her with considerable difficulty. The applicant submitted that an inference should be drawn that the failure to mention the incident earlier in the statement meant that it was not at the forefront of the complainant’s mind and therefore probably did not occur.

An initial problem with the submission is that it does not have regard to the totality of the complainant’s statement. Her reluctance to describe or discuss the incident and her attempts to avoid such discussion are patent and consistent. That same reluctance emerged when Ms Byrne was attempting to elicit details from her on 16 and 17 August 2012. The only time the complainant appears to have been prepared to talk freely about what occurred was when she was talking to N and F using the Krio language.

What is important is that the complainant raised these issues at an early point in time. She told N and F the following day. She eventually disclosed in part what had happened to Ms Byrne that same day. She appeared upset and distressed and was avoiding eye contact. What she said about other matters in her statement were all part of her attempts to avoid discussing this unpleasant topic. The content of the statement makes this clear, as does the evidence from Ms Byrne as to her demeanour.

Far from placing doubt on the complainant’s reliability and veracity, I am of the opinion that the statement and the evidence of Ms Byrne provide substantial support for her evidence. Even without specific evidence on the topic, it is apparent that there were personal, religious or cultural reasons perhaps also including guilt, embarrassment and a lack of trust that the family would provide appropriate support, which account for her extreme reluctance to freely articulate and discuss the full details of a sexual assault such as that which occurred in this case.

The applicant submitted that a fair reading of Dr Houston’s evidence was to the effect that the fissures were equally consistent with both anal penetration by a penis and the passing of a hard stool. I disagree. In my opinion the evidence of Dr Houston is very much the other way and provides powerful support for the Crown case.

It was fundamental to the applicant’s approach to the evidence of Dr Houston that her evidence be capable of establishing an hypothesis consistent with innocence, i.e. the passing of a hard stool by the complainant as a result of her being constipated. There is not a single piece of evidence to establish that proposition. There is no evidence that the complainant was constipated during the four to five days before she was examined by Dr Houston. On the contrary, to the extent that there is any evidence on the subject, it is to the effect that she was not constipated at the time that she was examined and by inference for at least some time before the examination (which would account for the findings which Dr Houston made).

Her evidence made clear what she thought was the most likely explanation for what she found on examination. Not surprisingly, she was not prepared to say that it was absolutely certain that anal penetration had occurred. Nevertheless, it is clear that her opinion was that such penetration had occurred.

What Dr Houston said was:

Dr Houston unqualifiedly rejected the propositions that anal fissures such as those which had been observed on the complainant could have been caused by a child suffering from diarrhoea or with such “poor toileting habits” that there was thereby a “hygiene issue”. The effect of the evidence of Dr Houston is that she did not reject constipation as a theoretical cause of the anal fissures but in her opinion the most likely cause was external anal penetration.

The applicant submitted that the evidence of him leaving the house when the police arrived was ambiguous at best. He submitted that there was a perfectly reasonable explanation for what he did, given his tragic background before he came to Australia, i.e. fear and panic when he realised the police wished to speak to him.

From a factual point of view, there would appear to be clear evidence from Mohamed and T that on Friday night, 17 August 2012, the applicant had been at the premises when the police arrived and that by the time the police entered, he had left. That was to be contrasted with what the applicant said in his ERISP to the effect that he had eaten some food at the premises but had left before the police arrived.

I agree with the applicant’s submission that of itself the fact that he left when the police arrived is not capable of establishing consciousness of guilt. At most that fact if established to the jury’s satisfaction could only be used in conjunction with other evidence in a “strand of a rope” approach.

The applicant submitted that the complainant had a motive to exaggerate and lie because she disliked living in the house with him and T. In support the applicant relied upon her complaints about how she was treated, that she missed F and N and her wish to move in with them.

This together with the cross-examination of N and F forms the basis of the applicant’s submission that the accusation by the complainant was deliberately fabricated by her, N and F to provide a pretext for the complainant leaving the Bankstown premises and moving in with them. The applicant relied upon the cross-examination of N as providing evidence to that effect.

There appear to be express admissions by N to that effect in cross-examination. On a proper reading of that evidence, however, it is clear that this evidence should not be taken at face value. N did not use an interpreter when giving her evidence and it is apparent that she did not fully understand the effect of the questions to which she gave an affirmative answer. A more reasonable interpretation of the evidence is that the discussion between her and F concerning the sexual assault on the complainant, only occurred after the complainant had told them what had happened. The following four questions and answers at T.75.25 make that clear:

I do not read that evidence as having the effect contended for by the applicant. This is particularly so given the convoluted nature of the final question in the sequence. The better and more likely interpretation of the evidence is that it related to a discussion which took place after the complainant had told N and F about the offence. That conclusion is confirmed by the evidence of F who, with the assistance of an interpreter, rejected out of hand similar questions in cross-examination. That evidence does not leave me with a doubt as to the complainant’s reliability and veracity.

If the complainant had the motive sought to be imputed to her by the applicant, she chose a strange way of achieving her purpose. Had she had such a motive, one would have expected her to have lost no time in making a complaint against the applicant. On the contrary, her extreme reluctance to make a complaint and to provide intimate details tends strongly against her having such a motive.

The applicant’s submission was that the evidence of the complainant that she had been asleep during the incident but still remembered what happened (T.36 - T.38) cast doubt upon her reliability.

If the complainant’s responses are taken literally, the evidence is difficult to understand. Unfortunately what the complainant meant by being asleep was never properly explored or explained. A more likely explanation of what she meant was that she had been asleep when the applicant entered her room, got into her bed and removed her clothes and commenced the sexual encounter. She may well have been half asleep, or at least not entirely awake, during the offence and that this was what she was trying to convey.

Such an interpretation of necessity involves some speculation as to what precisely the complainant meant in her evidence. What is important is that at no time did the complainant resile from her primary position that the applicant had entered her room and sexually assaulted her, nor did she accept that she was mistaken or telling lies as to what happened. On the contrary, even after cross-examination that elicited responses that she had been asleep, the complainant rejected the assertion that the applicant had not sexually assaulted her (T.41.29 – 41.34, 42.26 – 42.31).

The jury were fully aware of the apparent inconsistency in the complainant saying she was asleep but also saying that she knew what was happening and what the applicant was doing. This was stressed, not only by defence counsel in her address, but also by the trial judge in his summing up. Even allowing for that apparent discrepancy in the complainant’s responses, on the whole of the evidence I have not concluded that it would be dangerous in all the circumstances to allow the verdict of guilty to stand. Given the nature of the offending, the applicant’s prior good character does not dissuade me from that conclusion.

Despite difficulties in explaining some of the evidence, none of the submissions by the applicant as to the unreliability of the complainant have been made out. On the contrary, a proper reading of the relevant evidence, particularly the medical evidence, strongly supports the complainant. It follows that I am satisfied that it was open to the jury to be satisfied beyond a reasonable doubt as to the guilt of the applicant.

This ground of appeal has not been made out.

The applicant was interviewed by Detective Neagle from 3.30am until 5am on the morning of Saturday, 18 August 2012. The recorded interview was played to the jury and the applicant did not give evidence. Included in the recorded interview was Q/A633 which was in the following terms:

After the record of interview was played, the trial judge questioned why Q/A633 was allowed to be heard by the jury. This was described as an “oversight” by counsel for the defence. The following exchange took place in the absence of the jury:

No application to discharge the jury was made on behalf of the applicant following that exchange or at all.

The trial judge was sufficiently concerned about Q/A633 that he specifically referred to it in his summing up as follows:

The applicant submitted that the question was highly prejudicial and referred to uncharged conduct which was not led from the complainant and was not alleged at all. The applicant submitted that insofar as the question asserted that the police officer had been told something despite the applicant’s denial, it was unfairly prejudicial and grounds for a discharge of the jury. The applicant submitted that it could only have led the jury to speculate as to the background to the question. The applicant submitted that the reference to “oversight” by the defence counsel was a concession of error.

The applicant submitted that once the error was conceded by defence counsel, the next appropriate step should have been an application to discharge the jury. He submitted that the failure to apply for a discharge could not be characterised as a forensic decision to his advantage. Alternatively, if there were a decision not to apply for a discharge (because for example the complainant appeared to have been sufficiently discredited), then the decision was erroneous.

Since this point was not taken at trial, the applicant accepted that leave was required pursuant to r 4 of the Criminal Appeal Rules. He submitted that leave should be granted in this case because a miscarriage of justice occurred.

It is accepted that the failure to remove Q/A633 from the applicant’s statement was an oversight. Its potential effect on the jury, however, has been significantly overstated in submissions. There was already a similar issue in play.

At Q/A50 – 51 of the complainant’s statement was as follows:

This was taken up by counsel for the applicant at trial when cross-examining the complainant:

Not only was no objection taken by the applicant to that issue being raised at trial, but it was counsel for the applicant who raised the matter again during cross-examination.

In addition, his Honour gave a direction in the course of his summing up in the strongest terms to the effect that Q/A633 in the applicant’s record of interview was valueless and should be ignored by the jury. There is no basis for supposing that the jury did not follow that direction. To submit otherwise involves nothing more than speculation.

Counsel for the applicant at trial was in a far better position than this Court to assess the atmosphere of the trial. The fact that she did not make an application to discharge the jury allows an inference that in her opinion such prejudice as there was, did not justify such an application. In the absence of any evidence to the contrary, this Court can infer that the decision not to apply for a discharge of the jury was a considered forensic one. This is particularly so when the matter had specifically been drawn to counsel’s attention by the trial judge.

In the circumstances of this case, no miscarriage of justice took place. This ground of appeal has not been made out. In those circumstances, I would refuse leave under rule 4 of the Criminal Appeal Rules.

The orders which I propose are:

HARRISON J: In considering this appeal this Court is required to make its own independent assessment of the evidence in the trial and to determine whether upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The Chief Judge has thoroughly considered that evidence in conformity with the test for which M v The Queen is authority. I respectfully adopt his Honour’s analysis and agree with his reasons for concluding that the appeal should be dismissed.

It is very often difficult in cases of alleged child sexual assault, although by no means limited exclusively to them, that the Crown case depends almost entirely upon the evidence of a single witness, of tender years, sometimes from a different country, with inadequate or limited English and subject to often quite arcane religious, cultural and social mores enforced within the family but which are not generally influential or understood in Australia. These matters, or a combination of some of them, can in many circumstances confront those of us uninstructed in or unfamiliar with such differences in a way that significantly influences our perception of the evidence that such a person gives of the events that are critical to proof of the Crown case.

In the present case it appears reasonable to observe that the complainant was embarrassed by references to her own genital anatomy or that of the appellant and was otherwise disinclined to speak of it without prompting or the use of non-anatomical descriptions or terms. Some of her evidence was also afflicted with the logical difficulty that part of the account she gave included a reference to events that occurred when she said she was asleep when it seems clear that she was intending to refer either to pretending to be asleep or simply to having her eyes closed.

These and other similar matters were legitimately available to be, and were, exploited by counsel for the accused at the trial and were also quite properly emphasised by his counsel in this Court. However, as the analysis by the Chief Judge makes plain, these arguable imperfections in the complainant's evidence and the way it was delivered are insufficient to raise a reasonable doubt about the appellant’s guilt. The vagueness of the complainant’s description of what she said occurred, the associated absence of any complaints of pain and the (on one view) curious words that she ascribed to the appellant at the time of the assault, as well as the absence of any contemporaneous complaint, are all colourable circumstances. None can be said either alone or in combination logically or inexorably to cause this Court to have a doubt which the jury ought also to have experienced. In my opinion, any suggestion that the complainant’s evidence lacks credibility is more than adequately met or explained by the manner in which it was given, especially having regard to her particular personal and cultural characteristics. This is a case in which in my view the jury’s advantage in seeing and hearing the complainant’s evidence is more than capable of resolving any doubt that the appellant contends this Court should itself be experiencing.

I am of the view, based upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

R A HULME J: I am grateful for the detailed review and analysis of the evidence provided by Hoeben CJ at CL. His Honour's conclusions accord with my own and I agree with the orders he proposes.

I am also grateful for and agree with the additional observations of Harrison J.