Parkinson v R

HOEBEN CJ at CL: I agree with Button J.

PRICE J: I agree with Button J.

BUTTON J: On 12 December 2014, Darren James Parkinson (the applicant) was found guilty by a jury in the District Court of New South Wales at Newcastle of a number of offences of child sexual assault. He was subsequently sentenced to imprisonment by her Honour Judge Syme. There is no application for leave to appeal against that sentence. He has notified and pressed two grounds of appeal against conviction.

One of them asserts a misdirection in the summing-up. Because no redirection was sought by defence counsel at trial, reliance upon the ground requires leave, pursuant to r 4 of the Criminal Appeal Rules (NSW).

The other is based upon contentions of fact – namely, that the verdicts are unreasonable and unable to be supported, not only in light of the evidence as a whole, but also in light of a number of verdicts of acquittal that the jury returned at the same time – and therefore also requires a grant of leave.

In order to explain the bases of the ground of appeal founded on questions of fact, and my resolution of it, it will be necessary for me to quote from, and to summarise, the evidence in the trial at length.

On 8 December 2014, the applicant was arraigned before her Honour and a jury panel on an indictment containing the following counts.

Count one averred that, between 1 December 2012 and 31 December 2012, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act 1900 (NSW)).

Count two averred that, on or about 12 January 2013, the applicant provided the complainant, a child then under the age of 14 years, with an intoxicating substance with the intention of making it easier for him to procure her for unlawful sexual activity (s 66EB(3) of the Crimes Act).

Count three averred that, on or about 12 January 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 61M(2) of the Crimes Act).

Count four averred that, on or about 12 January 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 61N(1) of the Crimes Act).

Count five averred that, on or about 8 March 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).

Count six averred that, on or about 8 March 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 61N(1) of the Crimes Act).

Count seven averred that, on or about 21 April 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).

Count eight averred that, on or about 21 April 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).

Count nine averred that, on or about 29 April 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 13 years (s 66C(1) of the Crimes Act).

Count ten averred that, on or about 29 April 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).

Count eleven averred that, on or about 29 April 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 66N(1) of the Crimes Act).

Count twelve also averred that, on or about 29 April 2013, the applicant incited the complainant, a person then under the age of 16 years, to commit an act of indecency upon him (s 66N(1) of the Crimes Act).

Count thirteen averred that, between 10 June 2013 and 30 June 2013, the applicant had sexual intercourse (by way of her performing oral sex upon him) with the complainant, a child then aged 14 years (s 66C(3) of the Crimes Act).

Count fourteen averred that, on or about 29 September 2013, the applicant had sexual intercourse (by way of digital/vaginal penetration) with the complainant, a child then aged 14 years (s 66C(3) of the Crimes Act).

Count fifteen averred that, on or about 29 September 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).

Finally, count sixteen also averred that, on or about 29 September 2013, the applicant indecently assaulted the complainant, a person then under the age of 16 years (s 66M(2) of the Crimes Act).

At the end of the trial, the jury returned verdicts of guilty on counts three, five, seven, eight, ten, and fifteen. The jury returned verdicts of not guilty on counts one, two, four, six, nine, eleven, twelve, thirteen, and fourteen.

Before turning to a detailed analysis of the evidence placed before the jury with regard to each count (including those counts upon which the applicant was acquitted), it is convenient to provide an overview of the evidence.

The complainant, aged between 13 and 14 years at the time of the offences, and 15 years at the time of the trial, was the daughter of a woman who was friendly with the female partner of the applicant. Each family had children in the household. The two families socialised together, and on occasion the family of the complainant stayed at the home of the applicant. Indeed, on occasion, the applicant, a man then aged about 50 years, slept on a lounge with the complainant, a girl then aged 13 or 14 years.

On Christmas Day 2012, the complainant received an iPod as a Christmas present. Thereafter she made a number of entries in that device that were in the nature of reasonably contemporaneous electronic diary entries. On occasions, she and young friends made entries in the device by way of a “conversation” between the two of them; for example, when they wished to communicate surreptitiously in a classroom, they did so by typing into the device in turn whilst hiding it under a desk.

Between January 2013 and April 2013, the complainant made a number of entries in the iPod that strongly suggested on their face that she had had sexual contact with the applicant shortly before the making of each entry.

On 3 October 2013, the mother of the complainant discovered the entries on the iPod. She confronted the complainant. The complainant remonstrated with her mother for invading her privacy. On 5 October 2013, the mother of the complainant brought the matter to the attention of the police.

On 8 October 2013, the complainant sent a Facebook message to the applicant, which became trial exhibit 3. It strongly suggested that she had deep romantic feelings for him.

Thereafter, on three separate occasions, the complainant engaged in recorded interviews with the police: on 11 November 2013; on 25 November 2013; and on 9 January 2014. Those interviews constituted, in due course, the bulk of her examination-in-chief in the trial.

At the trial, the complainant gave supplementary oral evidence-in-chief on 8 December 2014, and was thereafter cross-examined by counsel then appearing for the applicant. The case advanced at trial by defence counsel was that the contents of the diary were fantasies, and furthermore that, as a result of a combination of her mental and emotional conditions with prescribed medications, the complainant was prone to hallucinations.

Other witnesses gave evidence in the prosecution case, including the mother of the complainant, the partner of the applicant, the police officer in charge of the investigation, and a close friend of the family of the applicant. Still and all, the iPod entries and the evidence of the complainant that they were (to a large although not complete degree) accurate, formed the centrepiece of the Crown case.

The applicant gave evidence in the defence case. He denied committing any sexual offence against the complainant. He also raised character by way of leading evidence that he had never been convicted of a crime in his life.

To conclude this brief thumbnail sketch, it was accepted by both parties on appeal that there had been a significant misapprehension about the evidence at the time of the trial. In short, a document tendered in the Crown case derived from the digital interrogation of the iPod showed the dates and times at which diary entries had been made. Although it was assumed by both parties at the trial that those times reflected the time in New South Wales, in fact they reflected Coordinated Universal Time (UTC), which used to be referred to as Greenwich Mean Time. In other words, although the point was never made to the jury, one needs to add on to the times recorded in the diary a period of something in the order of ten or eleven hours (depending on whether Daylight Saving Time was in operation) to obtain the time in New South Wales.

The following grounds of appeal were notified and pressed at the hearing:

I now provide a detailed summary of what was said by the complainant about each individual count. Generally, I shall recount the statements given in chronological form, quoting (verbatim) first the iPod entry if any; thereafter moving through the three interviews; and concluding with what was said by the complainant in her oral evidence-in-chief and in her cross-examination. I shall also emphasise by italics the portions that are significant to my determinations, for the reasons that I shall explain later in this judgment.

It is convenient to group the counts in accordance with whether or not they were said by the complainant to be part of a single incident that included other counts.

This count was not said to be part of an incident that founded other counts.

It will be recalled that the jury returned a verdict of not guilty on this count.

The complainant made no entry in her iPod in relation to this count.

In the first interview, the complainant said the following about this count:

In the second interview, the complainant said the following relevant to count one:

There was no evidence with regard to this count in the third interview.

The complainant did not say anything about the first count in her oral examination-in-chief.

In cross-examination, the complainant was asked about what she had said in the first interview about the first count. In response to a question suggesting the complainant was deliberately evasive in her interview, she replied that she did not “know what comes out of her mouth when I don’t take my medication but I know that this happened” (09/12/14 trial transcript (TT) 64.4 - 64.6).

The discrepancy between questions and answers 565 and 566 and question and answer 579 (recorded in the trial transcript as 759) in the first interview was also raised in cross-examination. The complainant maintained that she did not make up the incident (09/12/14 TT 64.35 - 65.4).

These counts arose from the one incident that was said to have taken place around 12 January 2013.

It will be recalled that the applicant was found guilty of count 3, but not guilty of count 2 and count 4.

The relevant iPod entries are as follows:

The complainant did not discuss these counts in the first interview.

In the second interview, the complainant said the following:

The complainant did not give evidence in support of these counts in the third interview.

These counts were not specifically discussed in the examination-in-chief or cross-examination of the complainant at the trial.

These counts arose from the one incident said to have taken place around 8 March 2013.

It will be recalled that the applicant was found guilty of count 5, but not guilty of count 6.

The relevant iPod entries are as follows:

The complainant did not give evidence in support of these counts in the first interview.

In the second interview, the complainant said the following:

In the third interview, the complainant said the following about these two counts:

These counts were not discussed in any detail in the oral evidence-in-chief or cross-examination of the complainant at the trial.

These counts arose from the one incident said to have occurred around 21 April 2013.

It will be recalled that the applicant was found guilty on both count 7 and count 8.

The relevant iPod entries are as follows:

The complainant did not say anything about these counts in the first interview.

In the second interview, the complainant said the following:

The complainant did not give specific evidence about these counts in the third interview.

These counts were not discussed in the evidence-in-chief or cross-examination of the complainant at the trial.

It is unclear on the evidence whether these counts arise from one incident or two separate incidents on the same day, on or about 29 April 2013.

It will be recalled that the applicant was found guilty of count 10, but not guilty of counts 9, 11 and 12.

The relevant iPod entries are as follows:

The complainant did not give evidence of these counts in the first interview.

In the second interview, the complainant said the following:

The complainant did not say anything about these counts in the third interview.

These counts were not discussed in the oral examination-in-chief or cross-examination of the complainant at the trial.

This count stood alone.

It will be recalled that the applicant was found not guilty of this count.

There were no iPod entries with regard to this count.

In the first interview, the complainant said the following:

In the second interview, the complainant said the following:

In the third interview, the complainant said the following:

The complainant did not give any oral evidence-in-chief relevant to this count.

In cross-examination, the complainant accepted the (incorrect) proposition that she had made no mention of being made to perform fellatio on the applicant (09/12/14 TT 55.21-55.36). In fact, as I have shown, there is evidence of that nature in the first interview, and counsel asked questions about portions of the first interview dealing with this count in cross-examination.

The complainant was asked about the number of times she claimed that the act of fellatio had occurred, in light of the discrepancy between her answers in the first interview, in which the complainant alleged that it occurred 5 or 6 times (09/12/14 TT 65.43-65.49); the second interview, in which the complainant alleged that it occurred only on one occasion (09/12/14 TT 66.1-66.33); and the third interview, in which the complainant alleged that it happened on three occasions (09/12/14 TT 66.35-67.28). In cross-examination the complainant gave evidence that “it did happen three times” (09/12/14 TT 67.36-66.38).

The complainant was also asked in cross-examination about the evidence she gave in her first interview as to why she stopped performing oral sex on the applicant, as well as whom and what she saw at that time (09/12/14 TT 70.14-73.10). The focus of the cross-examination was upon her evidence that she had seen another person through a keyhole the diameter of a pen, and heard that person walk past the room.

These counts arise from the one incident, said to have occurred on or about 29 September 2013.

It will be recalled that the applicant was found not guilty of count 14 (digital penetration of the complainant), guilty of count 15 (touching the complainant’s breasts), and not guilty of count 16 (kissing the complainant on the lips).

There were no iPod entries in relation to these counts (the complainant received a new iPod on or about 7 June 2013, which was not available at the trial).

In the first interview, the complainant said the following:

The complainant did not provide evidence in relation to these counts in either the second or third interview.

During cross-examination of the complainant about these counts, the Crown prosecutor conceded that there was no iPod entry relating to them. It was also put to the complainant in cross-examination that what she had said in the third interview about these counts was not consistent with what she said about them in the first interview.

That concludes my summary of the evidence specific to each individual count. I now turn to discuss the evidence adduced generally in support of sexual contact between the complainant and the applicant. Again, I shall emphasize by way of italics those portions of the evidence that are significant to my determinations.

As I have said, the mother of the complainant gave evidence in the trial about her discovery of the entries on the iPod, and of her subsequent conversations with the complainant. At 10/12/14 TT 12.30-13.20, she said the following:

As I have said, part of the Crown case was a Facebook message sent by the complainant to the applicant on 8 October 2013 after the police had become involved. That message read as follows:

Other evidence relevant to all of the counts was as follows.

The complainant’s mother and the complainant herself gave evidence that the complainant had been hospitalised in the Nexus Unit (an inpatient psychiatric unit) at John Hunter Hospital Newcastle on three occasions in 2013.

The complainant suffered from a form of depressive disorder, engaged in self-harm, and was prescribed Fluoxetine. It was agreed between the parties at trial that a side effect of that drug can be hallucinations in a very small percentage of patients.

As I have shown, in the first interview the complainant spoke of being on medication and writing things on her iPod that did not happen. As well as that, the complainant said in cross-examination that she understood what hallucinations were, and had indeed been suffering from hallucinations (9/12/14 TT 28.11-28.49).

It was put to the complainant in cross-examination that her allegations were fantasies, and that she had made up her evidence to the effect that the iPod entries were (generally) true because she did not want to tell her mother the truth; namely, that the entries were untrue. Initially the complainant agreed with this proposition; however clarification by her Honour showed that the complainant did not understand the word “fantasy”, which was an important part of the questioning. Once the word was explained, the complainant denied that the iPod entries were fantasies (9/12/14 TT44-48).

Turning to the evidence of the applicant, as I have said he confirmed that he had never been convicted of a crime in his life. He denied all allegations that he had engaged in any behaviour of a sexual nature with the complainant. He also denied that he had ever provided the complainant with alcohol.

In cross-examination, he gave evidence that he would sometimes be alone with the complainant (10/12/14 TT40.48-40.50). He was close to her, and sometimes gave her “male advice”: 10/12/14 TT41.15-41.33. He also gave the following evidence (at 10/12/14 TT42.10-42.20):

I now turn to set out the direction that forms the basis of the second ground of appeal. I also set out some of the context, with the precise direction that founds the ground bolded by me:

It is convenient to deal with this ground first.

The basis of the ground was explained by senior counsel for the applicant as follows.

He did not submit that the iPod entries were inadmissible evidence. Nor did he submit that, if the complainant had said something about a count in her evidence-in-chief (whether by way of one or more of the recorded interviews, or orally before the jury), then that evidence could not be “supported” by an iPod entry, if any, about the same count.

But if the evidence-in-chief given by the complainant was nothing more than confirmation that the iPod entry made by the complainant was true and correct, then, senior counsel submitted, it was an error for her Honour to have told the jury that that evidence-in-chief could be bolstered by the iPod entry. That would constitute, he submitted, the form of circular reasoning colloquially known as “bootstrapping”.

He submitted that the evidence in support of counts three, five, seven, eight, and ten fell into the category of featuring an iPod entry but no real examination-in-chief, and are therefore affected by the misdirection.

In response, the Crown accepted that, if it were the case that the evidence-in-chief founding a count on the indictment was merely confirmation of the correctness of the iPod entry, then the iPod entry could not support the evidence-in-chief. But it was submitted that her Honour had not asked the jury to approach the matter in that way, and the jury would not have understood her Honour as having done so.

Separately, it was submitted by the Crown that the particular impugned direction must be read in context. That context included the reference by her Honour in the preceding paragraph to a written document of the Crown, which had been provided to the jury at the trial, and a copy of which was provided to us at the hearing of the appeal. That document provided a summary of the evidence upon which the Crown relied in support of each count. With regard to those counts in which there was an iPod entry, that was set out in its entirety. With regard to those incidents in which there was no iPod entry, a summary of the evidence-in-chief was provided.

In other words, the Crown submitted, viewed in the context of the reference made by her Honour (moments before giving the impugned direction) to a document that clearly set out each of the counts, grouped them into incidents, and set out whether there was evidence-in-chief or an iPod entry that formed the basis of the Crown allegation, it could not be the case that the jury somehow used the direction to engage in illogical bootstrapping.

Separately, the Crown submitted that the direction, when seen in context, was not erroneous. That is because the direction made clear to the jury that it was only if, with regard to any particular count, there was both an iPod entry and evidence-in-chief that went beyond the iPod entry, that the former could support the latter. In other words, it was said that the jury would not have understood mere confirmation of the correctness of an iPod entry as having been a “version” given by the complainant in her evidence.

Turning to my determination, I accept the general proposition of the applicant that a prior representation of a witness cannot be used to corroborate or support subsequent evidence from that witness, if the subsequent evidence is nothing more than an assertion that the prior representation is correct. That would indeed be bootstrapping.

Here, however, I do not consider that her Honour was saying anything that had that flavour. Nor do I consider that the jury would have understood her Honour to have been doing so.

Seen in context, I consider that the direction was to the effect, and would have been understood by the jury as being to the effect, that, if there were an iPod entry, it could be used to support subsequent substantive evidence from the complainant about an incident. That is my reading of the portion of the direction that reads “you can use the notes as some evidence independent of the evidence given to you about these incidents by the complainant in the witness box”. That is also my reading of the reference by her Honour to the jury being entitled to use the diary entries “as evidence of the truth of what was said by the complainant in her evidence in the witness box or in those three interviews”.

Secondly, I consider that the fact that her Honour had, a very short time before, spoken to the jury of the document that set out clearly whether, with regard to each count, the Crown was relying upon an iPod entry, or substantive evidence-in-chief, or both, bolsters my interpretation of what her Honour was saying, and how the jury would have understood it.

Thirdly, the fact that defence counsel at trial did not raise any concern about the direction (with the result, as I have said, that r 4 of the Criminal Appeal Rules applies to this ground) supports the proposition that that is how the direction was understood by those who were present in the courtroom. To express that concept another way, if defence counsel had interpreted what her Honour was saying as illogical bootstrapping that was strongly adverse to the applicant with regard to some counts, one would have expected him to have complained about it and sought a re-direction.

In short, although I accept the submission made by senior counsel for the applicant as a general proposition, in the particular circumstances of this trial and this summing-up, I do not consider that the impugned direction has occasioned a miscarriage of justice.

For those reasons, I would not grant leave to argue this ground.

Senior counsel for the applicant explained at the hearing of the appeal that the ground asserting that the verdicts of guilty are unreasonable or unable to be supported has two separate bases. The first is the proposition that the verdicts of guilty are unable to be reconciled rationally with the verdicts of not guilty. The second is the proposition that, when one considers the evidence in the trial in its entirety, each of the verdicts of guilty is unreasonable or unable to be supported.

It is convenient to consider each of the bases of this ground separately.

Senior counsel submitted that there is no rational basis upon which the jury could have drawn the distinctions it did between the counts and their verdicts. It was said that each of the counts was founded upon the evidence of the one complainant; that there was no evidence emanating from a source other than the complainant that could support the conviction counts but not the acquittal counts; and that there was no other basis upon which the jury could have drawn a distinction between the counts. It was said that, in those circumstances, the convictions founded upon the verdicts of guilty must be quashed.

Senior counsel for the applicant invited attention in particular to counts 7 and 9, each of which averred digital/vaginal penetration. Count 7 resulted in a verdict of guilty, and count 9 resulted in a verdict of not guilty. He asked rhetorically: what possible basis was there in the evidence for the jury to draw a distinction, by way of a verdict of guilty and a verdict of not guilty, between those two particular counts?

In response, the Crown submitted that there were indeed points of distinction within the evidence, and indeed within the nature of the counts themselves, that permitted the jury to differentiate in the way that it did. That submission was developed by way of a detailed analysis.

Turning to my determination of this basis of ground one, I accept the validity of the analysis provided by the Crown, and substantially adopt it. To my mind, if one works one’s way carefully through the evidence and the counts, one can see that, although at first blush the submission made on behalf of the applicant is attractive, there was indeed a rational basis for the discernment made by the jury: see generally MacKenzie v the Queen [1996] HCA 35; (1996) 190 CLR 348. I proceed to engage in that analysis.

It will be recalled that count one, an allegation of digital/vaginal penetration, resulted in a verdict of not guilty. As can be seen from my summary of the evidence above, this count did not feature an iPod entry. That was a basis upon which the jury could draw a sharp and simple distinction with other counts upon which the jury returned a verdict of guilty.

Quite apart from that, my extended extract from the first interview shows that the evidence of the complainant as to whether or not there actually had been penetration of her genitalia was by no means clear. It would not have been surprising if the jury was not satisfied beyond reasonable doubt that there had been penetration founding this count.

Count two was allegedly providing a child with an intoxicating substance in order to procure unlawful sexual activity. It also resulted in a verdict of acquittal. There was a perfectly rational explanation for that verdict.

Neither the iPod entries; nor the verbal response of the complainant when her mother discovered those entries; nor the Facebook message, support the proposition that the applicant incited or forced or procured the complainant to engage in sexual contact with him. To the contrary, it was well open to the jury to find that the complainant purported to “consent” to the sexual contact with the applicant; of course, that provided no defence whatsoever to the counts that averred sexual contact with a person under the age of 16 years. But to my mind, the acquittal on count two can readily be explained on the basis that the jury were not satisfied beyond reasonable doubt that the applicant did anything with intention to “procure” sexual contact between himself and the complainant.

Count three was said to have occurred on the same occasion as count two. It alleged aggravated indecent assault, not digital/vaginal penetration. It resulted in a verdict of guilty. It was supported by the iPod entry of 5:11 AM UTC on 14 January 2013. Without recounting it again, the detail of that iPod entry provided a sound basis for the jury being satisfied beyond reasonable doubt that the applicant touched the complainant on the outside of her vagina.

Count four averred that the applicant had incited the complainant to commit a sexual act with him. The jury returned a verdict of not guilty. For the reasons that I have given in my analysis of count two, that verdict of acquittal was quite open in the context of convictions on other counts. On the evidence in the trial, it was quite rational for the jury not to be satisfied beyond reasonable doubt that the applicant incited the complainant to engage in sexual contact with him.

Count five alleged sexual intercourse by way of digital/vaginal penetration. It was founded on the iPod entry of 11:14 PM UTC on 9 March 2013, which I have extracted above at [57]. The jury returned a verdict of guilty, thereby demonstrating that it had found beyond reasonable doubt that there had indeed been penetration as alleged. I consider that there is force in the submission of the Crown that the complainant, in that entry, provided graphic details about the offence, including her emotional and physiological reaction to penetration. In those circumstances, the verdict of guilty can be rationally distinguished from verdicts of not guilty on other counts, including other counts averring digital/vaginal penetration.

Count six alleged that the applicant incited an act of indecency. It resulted in a verdict of not guilty. It required the jury to be satisfied beyond reasonable doubt that the applicant had incited the complainant to engage in sexual contact with him. I consider that it is open to the same analysis that I provided with regard to count two and count four. That analysis provides a sound rational basis for the verdict of acquittal in the context of convictions.

Count seven alleged sexual intercourse by way of digital/vaginal penetration. It was founded upon the iPod entry of 12:49 PM UTC on 21 April 2013, which I have extracted above at [64]. It was also founded upon what the complainant said in her very first interview with the police; again, I have extracted the relevant portion above. The jury returned a verdict of guilty on count seven.

Again, in light of the way that the complainant described in the iPod entry her emotional and physiological reaction to the sexual offence that was being committed against her, it was well open to the jury to be satisfied beyond reasonable doubt that there had indeed been penetration to some degree of her genitalia. Furthermore, I consider that the particularity of the iPod entry with regard to this count provides a rational point of distinction with those counts averring digital/vaginal penetration and with regard to which the jury returned a verdict of not guilty.

Count eight alleged aggravated indecent assault by way of the applicant touching the breasts of the complainant. It was founded upon the same iPod entry, along with what was said in the first interview. It resulted in a verdict of guilty. Because of the structure of the sexual offences in the Crimes Act, any consent to an indecent assault that the complainant may have purported to have given constituted, of course, no defence to the offence, in light of her age. But that was a different matter from the question of the jury being satisfied beyond reasonable doubt that the applicant had incited the complainant with regard to any count, or procured her to commit the act that founded any count.

Again, the level of detail and repetition with regard to the offence committed by the applicant provides a rational basis for the distinction drawn by the jury between this count and counts upon which a verdict of not guilty was returned.

Count nine averred sexual intercourse by way of digital/vaginal penetration. It was based upon an iPod entry of 12:58 AM on 30 April 2013, which I have extracted above at [71], along with what was said in the first interview. It resulted in a verdict of not guilty.

I accept the submission of the Crown that the evidence in support of count 7 was more detailed than the evidence in support of count 9. The evidence of the complainant in relation to count 9 did not go beyond her indicating that she was standing up and the applicant started to “finger” her. The complainant was not asked to expand upon or to provide a definition of what such activity involved. I consider that there was a rational basis in the evidence – that is, the particularity of the iPod entries with regard to count seven – that founded the verdict of guilty of counts seven and a verdict of not guilty on count nine.

Count 10 averred aggravated indecent assault. It was based upon an iPod entry of 12:56 AM on 30 April 2013, which I have extracted above at [71], along with what was said by the complainant in the first recorded interview. It resulted in a verdict of guilty. That verdict was supported by a detailed electronic diary entry, along with a detailed description in the first complaint made to the police. On that basis, the verdict of guilty is not irrationally inconsistent with any of the verdicts of acquittal.

Count 11 averred that the applicant incited the complainant to commit an act of indecency. It was founded upon the same iPod entry, and resulted in a verdict of acquittal. For the reasons that I have explained above with regard to other counts founded upon incitement or procurement, that verdict of acquittal was not inconsistent with other verdicts of guilty.

Count 12 alleged that the applicant incited an act of indecency on the part of the complainant. It was derived from the iPod entry of 12:58 AM on 30 April 2013, along with the contents of the first interview. It resulted in a verdict of not guilty. For reasons given previously, the fact that the jury acquitted on a count, an essential element of which was incitement, does not demonstrate any inconsistency with the counts upon which a verdict of guilty was returned.

Count 13 averred sexual intercourse between the applicant and the complainant, by way of her performing oral sex upon him. The jury returned a verdict of not guilty on this count. It was not the subject of any iPod entry at all. It is also the case that, as I have shown in my detailed collation of the evidence in support of this count, the complainant gave inconsistent evidence about how many times she had performed oral sex upon the applicant; I shall not repeat those variations. She also gave at one stage a version that was open to serious question, in that it featured the proposition that she was able to see a person through a keyhole. In light of the absence of a contemporaneous iPod entry, the diverging evidence as to how many times this particular sexual contact had allegedly occurred, and the assertion of being able to see through a keyhole, the verdict of not guilty is not inconsistent with any verdict of guilty returned on other counts.

Count 14 alleged sexual intercourse by way of digital/vaginal penetration. That was said to have occurred at about 4:00 AM one morning in September 2013. The jury returned a verdict of not guilty on that count. The complainant had made no iPod entry about it, but discussed it in her first interview. In that interview, she had given neither detailed evidence about penetration, nor evidence of her emotional or physiological response to it. That verdict of not guilty is not inconsistent with the verdicts of guilty with regard to other counts averring digital vaginal penetration, or any other verdicts of guilty. That is because those verdicts of guilty are founded either upon iPod entries, or upon graphic descriptions, or other evidence.

Count 15 averred an aggravated indecent assault by way of the applicant touching the breasts of the complainant. That was said to be after a motion picture had been watched on television, and both the applicant and the complainant slept on a lounge. It was not founded upon an iPod entry, but rather upon what the complainant had said in her first interview with police. It resulted in a verdict of guilty.

It was open to the jury to be satisfied that the applicant touched the complainant on her breasts, whilst at the same time not being satisfied beyond reasonable doubt that he had digitally penetrated her, and not being satisfied that the alleged kiss was indecent (that allegation is analysed immediately below).

Finally, count 16 averred an aggravated indecent assault, by way of the applicant kissing the complainant on her lips, again in September 2013. It was not the subject of an iPod entry, but had been discussed by the complainant in her first interview. The jury returned a verdict of not guilty.

I consider that that verdict can be rationally explained in a way consistent with the verdicts of guilty on other counts; namely, by way of the jury not being satisfied beyond reasonable doubt that it was contrary to community standards of decency for the applicant to kiss the 14-year-old complainant, who was “consenting” to that conduct, briefly on the lips. That basis of differentiation on the part of the jury is perhaps surprising; nevertheless, I consider that it is a rational one, especially bearing in mind the criminal onus and standard of proof.

In short, I consider that a detailed analysis of the counts, the verdicts, and the evidence demonstrates that there was a rational basis for differentiation with regard to each and every verdict of guilty and not guilty. Far from the jury simply disregarding its duty by returning verdicts capriciously or in order to give effect to an irrational compromise, I consider that analysis shows that there were indeed bases for the process of subtle and careful discernment in which I believe the jury engaged. For that reason, I consider that this basis of ground one is not persuasive.

I turn to consider the second basis of ground one; namely, the submission that the evidence as a whole was so lacking in cogency and persuasiveness that the verdicts of guilty cannot be maintained.

Senior counsel for the applicant submitted that there were a number of aspects of the evidence that would lead us to regard the verdicts of guilty as unreasonable or unable to be supported, and to quash the convictions. He made it clear that the submission was not dependent upon success with regard to the allegedly inconsistent verdicts. The following aspects of the evidence were emphasised.

First, whether one looked to the iPod entries, the Facebook post, the things said to the mother of the complainant, the interviews with police, or the evidence of the complainant in court, the fact is that the Crown case emanated entirely from one person.

Secondly, the complainant had suffered from mental and emotional problems sufficient for her to be an inpatient at a psychiatric clinic in a hospital.

Thirdly, she had been taking medication which, in a very small percentage of persons, can induce hallucinations.

Fourthly, during one interview with the police, she said that “Because I’ve got like a depressive disorder so, I see things”, “And I hear things…”, and “…that’s why I writ stuff [sic]” (IV3 Q&A 126-128).

During cross-examination, she seemingly accepted that she suffered from “hallucinations” (9/12/14 TT28.14-28.49).

Fifthly, the iPod entries were a significant, if not central part of the Crown case. In those entries, the complainant recorded more than once that the applicant had had penile/vaginal sex with her from behind. There was nothing on its face to distinguish that written claim from the other claims of sexual crimes against the applicant. And yet, when interviewed by police, and when questioned on oath, the complainant firmly maintained the position that that claim was untrue. Furthermore, she was unable to provide any explanation as to why she had recorded something in her iPod diary that she subsequently stated was completely false.

Sixthly, the quality of the evidence taken as a whole, and including the evidence with regard to counts upon which there were acquittals returned, was concerning.

For example, as I have shown above, the complainant gave very inconsistent evidence as to how many times she had allegedly performed oral sex upon the applicant.

Separately, the evidence about the final incident that reflected counts 14, 15 and 16 was confused to the point of being very difficult to follow in terms of timing and circumstances.

As well as that, the iPod entry with regard to the presence of the son of the partner of the applicant was said by the complainant to be flatly wrong: her firm position in cross-examination was that that young person was simply not present at any relevant state.

With regard to the first count, the complainant told police that after it occurred she had made an iPod entry about it. In fact, there was none.

Seventhly, the complainant asserted in her evidence that when the offences occurred she was shocked, frightened, and on occasion frozen with fear. And yet the iPod entries do not suggest that at all; quite the contrary.

Eighthly, the applicant gave evidence, subjected himself to cross-examination, and raised character. There was nothing to suggest any previous criminality on his part, and certainly no suggestion of a sexual interest in children.

In short it was said that, leaving aside the question of the rational reconciliation of the verdicts of guilty and not guilty, the state of the evidence is such that this Court would come to the view that the verdicts of guilty are unreasonable.

The Crown accepted that the evidence emanates from one person, and that no doubt the jury needed to reflect upon that evidence with great care. It was said, however, that it was ultimately open to the jury to return the verdicts of guilty that it did. The following particular points were made.

First, one has to approach criticisms of the quality of the evidence of the complainant with an appreciation that the Crown case was that the complainant was a young girl who had been physically and emotionally taken advantage of by a much older man who was also a family friend. At the time she was mentally and emotionally fragile. On three separate occasions, she was taken in detail by police to entries in her iPod that she had never expected anyone to discover, and that were private details of her sexual contact with another person. After the contents of the diary were revealed, the complainant sent a message to the applicant that strongly suggested that she believed that she had romantic feelings for him, and that she regretted the revelation of what had occurred between them. Many of the criticisms of her evidence (whether given by way of interview or in the witness box) made on behalf of the applicant can be explained by reflection on that context.

Secondly, the Crown did not put forward on the appeal a hypothesis with regard to the claim made in the iPod of sex from behind said to support the credibility of the complainant. Still and all, it was said that her readiness to admit that it was false bolstered her credibility with regard to the allegations that were maintained.

Thirdly, as I have said, the Crown accepted that its case was founded on the evidence of one person. Nevertheless, it invited attention to the undisputed evidence that a middle-aged man would sleep on a lounge whilst a young girl would sleep on a lounge that was, at the least, part of the same lounge suite, whilst his romantic partner was sleeping alone in the same premises.

Fourthly, the point was made that the jury was in a position to undertake a collective assessment of the credibility of the complainant and of the applicant. It was said that, even bearing in mind that much (but not all) of the evidence-in-chief of the complainant was recorded, none of her oral evidence-in-chief or her cross-examination or re-examination was available in that form. Nor, of course, was the evidence of the other Crown witnesses, nor the evidence of the applicant. It was said that great weight should be given by us to the assessment of those matters by the jury.

Fifthly, in short it was accepted that this Court must make its own assessment of the evidence as a whole. But it was said that we would ultimately find that the verdicts were not unreasonable.

Although it was not the subject of controversy before us, and although the test to be applied is derived from a well-known decision of the High Court of Australia of over two decades ago, I think it appropriate to refer briefly to my understanding of the applicable test.

It was most recently reiterated by a plurality of the High Court of Australia in Filippou v The Queen [2015] HCA 29 as follows (in the context of an appeal from a trial by judge alone):

Subsequently to the delivery of the judgment in Filippou v The Queen, in Glover v R; Stuart v R [2015] NSWCCA 285, McCallum J considered what was said in M v The Queen about how a Court of Criminal Appeal should approach this ground of appeal. Her Honour reflected on a possible tension between, on the one hand, this Court considering whether the jury must have had a reasonable doubt (in a sense, an error-based appeal), and, on the other hand, members of this Court reflecting upon whether they are satisfied beyond reasonable doubt of the guilt of an applicant (in a sense, a de novo appeal).

I think it worthwhile to extract the entirety of what her Honour said (without demur on the part of Basten JA, and with the agreement of R A Hulme J) about this question:

I respectfully agree with the entirety of what McCallum J has said in those paragraphs. In particular, I do not interpret what was said in M v The Queen and very many subsequent decisions of the High Court as meaning that I am to undertake a de novo process whereby the Crown must prove its case all over again. Rather, the question is whether, bearing in mind all of the advantages that the jury enjoyed, and the fact that it is the time-honoured tribunal of fact with regard to proof beyond reasonable doubt of serious offences, the applicant has demonstrated that, on the evidence, the jury must have experienced a reasonable doubt.

All of the points made by senior counsel for the applicant have sound force, and require serious reflection. In the ultimate, however, I am not satisfied that the applicant has made good this ground on the second basis. I say that for the following reasons.

First, the graphic, detailed, and intimate entries in the private iPod diary of a young girl constituted compelling evidence against the applicant.

Secondly, the fact that the complainant never expected those entries to be seen by a person in authority, and reacted angrily when her mother located them, adds probative weight to them. In other words, there could be no suggestion that the entries were made in order to inculpate the applicant falsely, for some reason or another. In fact, she wished very much to keep them secret, and was upset when her mother discovered them.

Thirdly, the entries about sexual contact between the complainant and the applicant are scattered throughout a much larger body of entries that are about any number of other topics. They certainly show that the complainant was suffering from emotional and perhaps mental difficulties. But a careful reading of the entirety of the iPod diary shows no entry inherently suggestive of delusions or irrationality.

Fourthly, the Facebook post – sent after discovery of the entries by the mother of the complainant, but before the intense involvement of the police – strongly supports the proposition that there had been an intimate and purportedly romantic relationship between the complainant and the applicant.

Fifthly, it is true that there are discrepancies and confusions in the evidence of the sexual contact. But that is to be expected with regard to a young girl who, with regard to a large number of incidents of sexual contact, was interviewed three times, on 11 November 2013, 25 November 2013, and 9 January 2014, and gave evidence-in-chief, was cross-examined and re-examined in December 2014.

Sixthly, it is true that at one stage in cross-examination the complainant agreed that she had been hallucinating. But at a later stage she denied that proposition, and firmly maintained that the vast majority of the iPod entries were true: see 9/12/14 TT28.14-28.49. There was also a crossed wire with regard to the meaning of the word “fantasy” in cross-examination. Taken as a whole, the cross-examination of the complainant showed that she was maintaining before the jury that everything in the iPod entries (except the claim of sex from behind) was correct.

Seventhly, the situation of a young girl being repeatedly asked to elaborate upon intimate and graphic diary entries detailing her sexual contact with a much older man by police officers in recorded interviews, and thereafter by lawyers in court, inevitably gave rise to embarrassment and shame on her part. And, in the unusual circumstances of this case, those consequences were far more pronounced than in the “usual” child sexual assault trial (in which the complainant alleges that he or she did not enjoy the sexual contact in any way whatsoever). Those emotional consequences surely played a role in the deficiencies in the evidence of the complainant and the jury surely assessed them.

Eighthly, it was quintessentially a matter for the jury to determine whether the good character of the applicant and his sworn evidence caused them to have a reasonable doubt with regard to the counts that resulted in a verdict of guilty.

Ninthly, it is true that the position of the complainant changed from proclaimed love for the applicant and enjoyment of their sexual contact (at the time of the iPod entries and the Facebook message) to hatred for him, and to a claim (at the stage of the interviews and the trial) that, at the time of the sexual offences, she was fearful and oppressed. But the jury was entitled to reflect upon the degree to which that change of position damages the credibility of the complainant, as have I. I think that one would expect such a change to be adopted by a young girl, in the unusual circumstances of this matter.

Tenthly, the withdrawal of the claim in the diary that the applicant had sexual intercourse from behind with the complainant, and the lack of any explanation whatsoever for the original making of the claim, is a very significant aspect of the evidence. It has caused me to reflect at length. Ultimately, however, I consider that it was the task of the jury to reflect upon possible explanations for a state of affairs whereby a young girl refers in a private diary to penile/vaginal intercourse in perhaps crude terms (“doggie style”); expresses in the diary her purported enjoyment of the sexual contact generally; thereafter sends a message to the applicant expressing her regret for the discovery of the diary entries by her mother, and her “love” for him; insists to the police that the man whom she had “loved” had not “raped” her; withdraws the particular claim and maintains that withdrawal; and, finally, is incapable of providing an explanation for the making of the original claim.

Eleventhly, and finally, one knows from experience as counsel and judge that transcripts of criminal trials are a very ineffective record of what actually occurred at the trial in the presence of the jury, in terms of capturing the demeanour of witnesses and the prevailing atmosphere. The undoubted advantages that the jury enjoyed in assessing the evidence in the trial over me deserve to be fully respected.

In short, the Crown case had undoubted weaknesses; apart from anything else, the fact that the applicant was acquitted on a large number of counts shows that. But I am not persuaded that the Crown case was so weak that the jury must have entertained a reasonable doubt with regard to the counts upon which verdicts of guilty were returned. In particular, I consider that the jury was entitled to be satisfied beyond reasonable doubt that the contents of the iPod diary were neither fantasies nor hallucinations, whether medication-induced or otherwise.

It follows that I do not consider that the second basis of ground one has been established.

Whether one considers each basis of ground one individually, or their combined force, I do not consider that the ground has been established.

No ground having been established, I consider that the appeal should be dismissed.

I propose the following orders: