PH v R

1. [1]

   JOHNSON J: I have had the advantage of considering the judgment of Davies J. In approaching the sole ground of appeal which asserts that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence, I have considered the entirety of the evidence adduced at the trial of the applicant. Having done so, I have concluded that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the two offences charged against him. I agree with the reasons and proposed orders of Davies J.

2. [2]

   DAVIES J: On 26 June 2015 the applicant was convicted by a jury of two counts of aggravated indecent assault of a child. The offences occurred on the same day on a date between 1 June 2013 and 16 September 2013. The complainant was the niece of the applicant.

3. [3]

   On 18 September 2015 Judge Baly SC sentenced the applicant to a term of imprisonment of 18 months on each count but suspended the sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentences have now expired. The applicant is referred to by initials in this judgment as identification of him would tend to identify the complainant: s 578A Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW).

4. [4]

   The applicant seeks leave to appeal on one ground only, namely, that the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence.

The facts

1. [5]

   The complainant, then aged 11 years, was staying overnight at the house of her aunt, the applicant's wife, in Yagoona. The complainant slept in her aunt's bed. The applicant, then aged 56 years, was an interstate truck driver. He arrived home early in the morning and slept on a couch in the lounge room.

2. [6]

   The complainant said the applicant woke her later that morning after her aunt had left for work. He jumped on the bed and started playing a game 'Call of Duty' (also referred to as 'COD' in the evidence) on the PlayStation.

3. [7]

   She said that the applicant started a game of tickling, and squeezed and held her breasts under her t-shirt with both hands (Count 1) and then touched her in the groin area with his left hand, under her pyjama pants and underpants (Count 2). She resisted the touching, and the actions ceased.

4. [8]

   She got off the bed and went to the computer in that room. She said the applicant hugged her when she was sitting at the computer, asked her what she was playing and gave her a kiss on the cheek.

5. [9]

   She said she went to the bathroom because she was scared. Later she went back into the bedroom and onto the computer. The applicant was playing the PlayStation.

6. [10]

   Later that day the complainant and the applicant walked to nearby shops. The complainant did not complain to her aunt when her aunt returned from work or to her parents. The adult son of her aunt and the applicant, was at the unit in his own room but the complainant did not see him that day.

7. [11]

   There was evidence of complaint made by the complainant to a cousin slightly older than her the day after the relevant events. The cousin JB gave evidence. He was 13 at the time of the events and 15 at the time of the trial He placed the disclosure on a Friday in July or August, after he and the complainant had gone ice skating, as they regularly did.

8. [12]

   JB said the complainant told him that the applicant had started tickling her and touching her in the wrong places, on her breasts and "down there", she felt scared and didn't know what to do. He said she told him that she didn't want to be mean to her uncle, so she didn't want to yell at him or push him off or punch him or anything in case it was an accident if he didn't notice he was touching her or not. She also said things like "I can't believe he did that to me, 'cause my own uncle, it's just sick".

9. [13]

   Both the complainant and the cousin were interviewed by police in 2013. Audio recordings of those interviews were played to the jury, and each gave evidence (remotely).

10. [14]

    The applicant’s account of what happened may be summarised as follows:

11. [15]

    The applicant agreed that he had touched the complainant in the places and on the occasion identified by the complainant, but said to police and in his evidence before the jury that the touching had been accidental.

12. [16]

    He said that when he woke up she was playing on the computer. They talked about what was happening that day, he made coffee and began watching a movie. She was nagging him to take her to the shops with their dog. He told her to wait as he wanted to watch the movie.

13. [17]

    He said that while he was lying on the bed, and the complainant was standing next to him to his right, he grabbed her around the waist with both hands, lifted her up and across his body and dropped her to his left on the bed, in doing so his hands slipped up her torso, underneath her armpits, and came in contact with her chest. She laughed at the surprise of this.

14. [18]

    He then started tickling her, she was prodding him, she was rolling away then rolling towards him, he was tickling her tummy and around her ribs. None of this took very long but at one point he had his left arm under her back and was tickling her with his right hand when she pulled her knees up to her chest (the foetal position) and the applicant's hand slipped down towards her groin area underneath her pants for a second or two.

15. [19]

    The applicant denied the complainant's account of the relevant events. When interviewed the applicant said he'd never wrestled and tickled the complainant before.

16. [20]

    The applicant's wife made him aware of the complainant's allegation and he presented at Bankstown Police Station wanting to give his version of events, before he had to leave for a week or so on an interstate trip.

Submissions

1. [21]

   The applicant submitted that five matters taken together demonstrated that the jury’s verdict was unreasonable. Those matters were:

2. [22]

   The applicant submitted that it was not sufficient for verdicts of guilty that the jury accepted the complainant as a truthful witness. For the jury properly to convict the applicant it had to be satisfied beyond reasonable doubt that his version of events could not possibly be true.

3. [23]

   The applicant submitted that the evidence of the complainant’s cousin JB was decisive. He was the first person to whom the complainant made complaint. JB told the interviewing police that the complainant had said, after telling him about what happened, that she did not know what to do “just in case it was an accident” and that the applicant “didn’t notice he was touching her or not”. The applicant said that provided strong support for his version of events.

4. [24]

   The applicant submitted that in cross-examination the complainant agreed with substantial aspects of the applicant’s version of events and in that way abandoned or contradicted aspects of her own account. The applicant submitted that the complainant also contradicted the order of the touching of her breasts and groin area. Initially she did not refer to touching in the groin area but when she later made the allegation she said that occurred after the applicant touched her breasts. In her evidence at the trial she said he first touched her groin area and subsequently touched her breasts.

5. [25]

   The applicant pointed to what were said to be certain implausible aspects of the complainant’s evidence, particularly her returning to the room where the events took place notwithstanding her asserted fear of the applicant. She also said that he had tickled her for some 40 minutes. There were other inconsistencies in relation to her stated desire to the applicant to go to the shops.

6. [26]

   The applicant submitted that the case did not involve immediate complaint, particularly to her aunt with whom she had a good relationship at the time. Nor did she use her mobile phone to contact her mother or father. Further, she continued to visit the applicant’s apartment after the incident.

7. [27]

   Because there was no video (as opposed to audio) recording of the complainant’s interview with the police the applicant submitted that the jury was in no more advantageous position than this Court to determine the reasonableness of the verdict although the applicant accepted that the jury had the advantage of observing the complainant give evidence at the trial.

8. [28]

   The Crown submitted that the issues now raised by the applicant were raised by defence counsel at the trial in his address to the jury. Those matters included the implausibility of the complainant remaining in the bedroom after what had occurred, the change in the order of the touching as told by the complainant to the police and, subsequently, the agreement in cross-examination by the complainant with a number of aspects of the applicant’s version of events, and the fact that JB said in his evidence that the complainant raised the possibility that the touching may have been accidental.

9. [29]

   The Crown submitted that there was no material inconsistency in the order of the touching events. What was significant was that two different touchings occurred. It was likely that what the complainant said closer to the events was the more accurate memory.

10. [30]

    The Crown submitted that although the jury did not see a video of the complainant and JB when they were initially interviewed, they had the advantage of seeing them give evidence in Court and being cross-examined.

11. [31]

    The Crown submitted that the jury must have accepted the complainant’s version of events and rejected the applicant’s version. It was open to the jury to conclude that the applicant’s version was implausible.

12. [32]

    The Crown submitted that there were adequate explanations for what were said to be the implausible events. As for returning to the bedroom, there was abundant unchallenged evidence that the complainant was in no position to leave the unit on her own. Her unchallenged evidence was that she did not know the way to her own house from the unit. Further, the only person there at the time was the applicant’s adult son who, the applicant agreed, was a somewhat hermit-like person. Further, the jury had evidence from which they could conclude that the complainant did not have above average levels of comprehension and articulation. The diagrams drawn during the complainant’s interview indicated poor spelling.

13. [33]

    The Crown submitted that the lack of immediate complaint was well addressed by the evidence of the complainant’s unfortunate family circumstances particularly regarding her own parents. Although the complainant had her own phone she understood both her mother and aunt to be at work. There was also evidence that her mother was objectively uncaring.

Legal principles

1. [34]

   The approach to be taken by this Court when considering a ground that a verdict is unreasonable is set out in SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 as follows:

2. [35]

   In W v R [2014] NSWCCA 110 this Court (Bathurst CJ, Hoeben CJ at CL and Bellew J agreeing), having quoted what was said in SKA above, went on to say:

3. [36]

   In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the joint judgment said of a judge-alone trial where it was asserted on appeal that the verdict was unreasonable at [56]:

4. [37]

   Of the five matters put forward by the applicant the three significant matters for consideration concerned the evidence of JB, the acceptance by the complainant in cross-examination of a number of aspects of the applicant’s account of events, and two matters otherwise throwing doubt on the complainant’s reliability, those being that she could not remember the words she had used to JB and the fact that she suggested the order of events in terms of the touching was different from that which she had initially stated.

5. [38]

   The first two matters, that the applicant consistently denied that he deliberately touched her genital areas and that he was a person of good character, must of course be taken into account when assessing whether the verdict was unreasonable. However, they are entirely subsidiary in the sense that those matters were put to the jury as a basis for the jury to accept the applicant’s account of the events but ultimately the jury did not accept the applicant’s account.

(a) The evidence of JB

1. [39]

   JB was interviewed on 8 November 2013. He recalled that the complainant had spoken to him about the incident with his grandfather in July or August 2013. He said that September 26 was his birthday and he remembered that she did not tell him during that month.

2. [40]

   Relevantly, he said this:

3. [41]

   When he was cross-examined at the trial the following evidence was given:

4. [42]

   Debate then ensued about whether the cross-examiner had accurately put what was recorded in the transcript. The judge allowed the answer to remain and said that the Crown could re-examine on it. In re-examination the Crown prosecutor merely obtained agreement from JB that the recording of the interview was more accurate than his memory at the trial.

5. [43]

   The complainant was subsequently recalled to ask her further questions about speaking to JB. The following evidence was given:

6. [44]

   The complainant in her record of interview said this in relation to telling JB about what happened:

7. [45]

   Although the applicant submitted that the complainant’s possible belief that the applicant’s touching her may have been an accident provided significant support for his account of the events, it is difficult to see why that is so. There was no issue in the case that the applicant had touched her breasts nor that his hand had gone beneath her clothing into the groin area. The question the jury had to determine was whether that was accidental or intentional. That determination had to be made objectively although the jury clearly had to take into account the applicant’s evidence in that regard.

8. [46]

   It is not clear, however, how the belief of the complainant could be a relevant consideration. It could only have been relevant if the issue was whether or not the applicant had touched her in those places. If that had been the issue and she had had some doubt about whether there had been a touching, such doubt would have provided strong support for a defence on that basis. But where the physical act was not in doubt her belief in whether it was deliberate or not is simply not relevant. That would involve her endeavouring to infer the applicant’s intention. Such evidence would be inadmissible. She could only give evidence of what happened, and it was for the jury to decide, taking into account her description of the events together with the applicant’s evidence, whether the touching was intentional.

9. [47]

   In any event, if that evidence of the complainant is to be taken into account, the jury would also have needed to take into account what JB asserted the complainant said in the answer to question 155 where he reported the complainant as saying:

10. [48]

    The jury also had to decide if they accepted JB’s evidence asserting that the complainant had a doubt about whether it was an accident or not. The complainant denied that she said that to him. She agreed that she said that she did not know what to do because he was her uncle but not that it was an accident in her own mind.

11. [49]

    In the submissions, counsel for the applicant made much of the fact that JB was a Crown witness and ought to be regarded as reliable. However, in this case, as in many others, there was disagreement amongst witnesses called by the Crown and who were obliged to be called by the Crown. The jury had to determine, where there was a conflict, whose evidence should be accepted.

12. [50]

    In my opinion, JB’s evidence does not provide support for the applicant’s account of events.

(b) The complainant’s evidence

1. [51]

   The account given by the complainant in her record of interview on 18 October 2015 was as follows:

2. [52]

   She expanded on this in some later answers as follows:

3. [53]

   The evidence that the complainant gave in Court when cross-examined was relevantly this:

4. [54]

   In re-examination the following evidence was given:

(c) The applicant’s evidence

1. [55]

   As noted earlier, the applicant presented himself at Bankstown Police Station after his wife made him aware of the allegations. The applicant spoke to Detective Senior Constable Adam Hunt who made a note in his police notebook of what the applicant said. Detective Hunt gave evidence of what he recorded in his notebook as follows:

2. [56]

   Detective Hunt also recorded the description of the hand movements that the applicant gave in these terms:

3. [57]

   The applicant took part in an ERISP on 5 December 2013. What Detective Hunt had recorded the applicant as saying and his description of the hand movements was read to the applicant who agreed with it.

4. [58]

   Having described how he picked the complainant up and lifted her onto the left side of the bed, during which time her shirt went up and he had his hands on her chest for two to three seconds, the interview continued in this way:

5. [59]

   The applicant gave evidence. That evidence was consistent with what he had said in his ERISP. The only further matter of any relevance was that the applicant said that he thought that the complainant was 12 or 13 years of age.

Assessment of the complainant’s evidence

1. [60]

   It may be accepted that at one point in the cross-examination the complainant said that the applicant put his hand near her groin (she actually used the word “grind”) and then moved it up her top. To the next question she did not agree that the only time the applicant had his hands near her breast or chest was when he lifted her across his body and his hand slipped up there. The difficulty about the latter question was, as with a number of other questions asked, there were two questions asked in one. The question asked whether “His hands were near your breasts or your chest”. The applicant had himself said that he was trying to tickle her around the ribcage area which, given the dynamics of a tickling situation, was likely to mean that his hands were near her chest or breasts. That question and answer do not provide clear evidence of a different order of events.

2. [61]

   However, even if it is accepted that the complainant provided some answers suggesting that the touching of the two body parts was in the reverse order, when her evidence is viewed as a whole including the matters she disclosed in her police interview, it seems clear that the events happened as she first said. Moreover, that evidence is consistent with the applicant’s own evidence which was that he accidentally touched her breasts when he lifted her over the top of him to the left side of the bed and subsequently touched her in the groin area when she was rolling to and from him on the bed.

3. [62]

   The situation is not one where the applicant had always maintained one order of events with the complainant saying the opposite but in cross-examination the complainant agreed with the applicant’s evidence. Here, both had in their original interviews said the same thing, the applicant maintained that position in evidence, the complainant maintained that position until this point in the cross-examination where she appeared to become a little confused. In my opinion, her answers relied on by the applicant to show unreliability are of little or no consequence.

4. [63]

   The other particular matter relied upon by the applicant that is said to cast doubt on the complainant’s reliability is that she could not remember the words she had used when she told JB about what happened. The submission of the applicant was that if the complainant could not remember the words she used to tell JB in 2013 it was unreasonable for her two years later at the trial to be denying something he had asserted she told him on the night following the events.

5. [64]

   A few things should be said about that. First, she was asked by the interviewer “do you remember the words that you used when you told him that?” Like many witnesses, she remembered what she told him as the next question and answer make clear:

6. [65]

   Secondly, witnesses and people generally can frequently say that they cannot remember a particular conversation but when asked if they said a particular thing can reliably say they did or they didn’t as the case may be.

7. [66]

   This evidence was given when the complainant was recalled after JB’s evidence. She was further cross-examined and the following evidence was given:

8. [67]

   Although initially the complainant could not remember giving JB two reasons why she did not know what to do, when prompted, she remembered one reason but denied that she provided the second reason put to her. There is no reason to think that this evidence was unreliable just because she had not been able to remember the details of the conversation. In my opinion, her inability initially to remember the reasons she gave can scarcely be said to impact on her reliability. She was being asked about the conversation with JB almost two years later and that conversation might be thought to be peripheral to the incident itself involving the applicant.

9. [68]

   The matter of the complainant’s acceptance of a number of aspects of the applicant’s evidence requires a consideration of the manner in she was cross-examined. She denied that she was awake when the applicant came into her room. She denied being on the computer when he came into her room. She said that she was asleep. She maintained that he was playing Call of Duty, and not a film, before the tickling game commenced. It should be noted in that regard that JB volunteered in his interview that the applicant plays Call of Duty. All of that was consistent with the interview.

10. [69]

    She was then asked about what the applicant was wearing followed by this question:

11. [70]

    It is difficult to ascertain from simply reading the transcript what the applicant was agreeing to. The question was a double question, and despite the trial judge having just corrected the cross-examiner for asking questions on the assumption the applicant was watching a film when the complainant had denied that, the question (and others) contained the same assumption. Certainly, the only question asked was if she remembered asking him to take her to the shops. What had been put to her earlier in the question was a suggestion which she was not asked to agree to. The jury was in a more advantageous position than this Court in understanding what the applicant was agreeing to.

12. [71]

    She agreed in a number of questions and answers that she was keen to be taken to the shops. She agreed that she was hassling him to take her. She was then asked another double question to which she assented. That question was:

13. [72]

    Again, and bearing in mind that this was a 13 year old girl being cross-examined, it is not clear again from the transcript whether she was agreeing to the applicant grabbing her around the waist and lifting her up or whether she was agreeing to that action having taken place immediately after she had the conversation with him about attending the shops. Whilst an adult might be expected to connect all of what was put to them it is more difficult for this Court than it would have been for the jury to perceive what the complainant was agreeing to.

Was the verdict unreasonable?

1. [73]

   However, it is not necessary to resolve this issue by an analysis of the particular questions asked and whether one event in the chain preceded or was followed by another. Two things are clear. The first is that the cross-examiner asked specific questions about particular aspects of what happened so that his criticism of her, that she did not mention when she gave her evidence particular things such as that she went up to the bathroom and then went back in to the room where he was still playing the game, was unfair. The Crown prosecutor made a similar point in a rather belated objection which the trial judge said could be dealt with by re-examination.

2. [74]

   The second thing that is clear is that the precise course of events, whether they occurred as the applicant alleged or as the complainant alleged, do not alter the fact that the playing of the tickling game resulted in him placing his hands in two different places on her body where they should not have been. That it happened is not in dispute. The jury had to decide if the touching was accidental as the applicant asserted and in the manner he explained the touching.

3. [75]

   It may be accepted that the verdict cannot stand if the applicant’s account is reasonably possibly correct. In my opinion the following matters do not cause me to have a doubt about the correctness of the verdict.

4. [76]

   First, the jury clearly did not accept the applicant’s account of the events.

5. [77]

   Secondly, apart from the slight confusion about the order of events the complainant’s evidence was consistent from the time of her interview. Significantly, it was not suggested to the complainant in cross-examination that the applicant did not squeeze her breasts nor that his hands only touched them momentarily as he lifted her, nor that he did not say “Ssh (sic), don’t worry about it” after his hands touched her breasts, although the applicant denied saying these words in his own evidence. The jury may also have considered that the applicant’s explanation of lifting the complainant under the armpits might not have been the same as what happened when the complainant said that he squeezed her breasts.

6. [78]

   Thirdly, her agreement in cross-examination to a number of things put to her did not mean that she abandoned or contradicted her own earlier evidence. This evidence merely supplemented her evidence or filled in some details which she had forgotten. When account is taken of the aspects of her evidence from which she did not deviate (in particular, the matters in [68] above and the assertion that her breasts were squeezed), and of the applicant's acceptance that he did touch her in the two areas concerned, it is far from clear how the cross-examination diminished the weight or significance of the essential parts of her evidence.

7. [79]

   As mentioned earlier in a slightly different context, this is not a case where the complainant said that the applicant touched her breasts and groin area but the applicant denied it. In such a case the reliability of her evidence would be a significant matter. The point at which the reliability of her evidence is of any significance concerns only the touching of her breasts. She claims the applicant squeezed them for a few seconds. He accepts that he touched them more fleetingly as he lifted her across him onto the bed. As noted above, the complainant was not challenged about the assertion of squeezing the breasts nor, more significantly of whispering to her not to worry about it after it happened. The jury could comfortably accept that those things happened as she said, notwithstanding the applicant’s denials. The jury might also have expected that if the touching of the breast was accidental the applicant might, instead of saying, “Ssh (sic), don’t worry about it”, have apologised and thereafter have left her alone. Such a conclusion would not be contrary to the coincidence direction the trial judge gave because it says nothing about the second count charged.

8. [80]

   There was no factual dispute about the touching of the groin area except the applicant’s assertion that the complainant folded her legs up which she denied. Her agreement with other things put in cross-examination was, in those circumstances, inconsequential.

9. [81]

   Fourthly, not only did the complainant tell her cousin about it the next day but she did that in response to a request by him to tell him what was wrong because she seemed down and didn’t want to talk to him or play the game with him. To the extent that the applicant seeks to rely on the evidence of JB about possible “accident”, this evidence of her demeanour strongly suggests that she perceived something untoward had occurred.

10. [82]

    Fifthly, the jury was entitled to take into account that on the applicant’s own evidence he instigated a tickling game with a girl thought by him to be 12 or 13 years of age and who was not a direct relative in circumstances where nothing like that had previously occurred. That involved him lifting her up to put her on the bed next to him and then trying to grab her when she rolled towards him and away from him on the bed. Further the tickling involved him aiming to tickle her near her rib cage. The jury was also entitled to take account of the fact that when he made his initial statement to Detective Hunt the applicant made no mention at all of any tickling game. The clear impression given in that statement was that there were two momentary contacts with the complainant’s breast and groin area as the applicant attempted to stop her unwanted attentions.

11. [83]

    Sixthly, the applicant did not give any satisfactory explanation for how his hand found its way under her underpants nor why he left it there for either 2 or 3 seconds, even accepting that most people estimate time badly. Had the touching been accidental the jury may well have wondered why he had not said that he removed his hand immediately particularly when it was inside he underpants. Although he could not explain how his hand ended up under her clothing, he said that it happened when she had drawn her legs up into what might be called the foetal position. That she did so was denied by the complainant at all times. If, as seems likely, the jury accepted that she did not draw her feet up, there was no explanation at all of how the applicant’s hand went down below her waist and under both her pants and underpants.

12. [84]

    Finally, the so-called implausible behaviour of the complainant afterwards of going back into the room or of not telling any adult including her mother and her aunt takes no account of what by now must be well-known behaviour of even some adults but certainly of children when they have been sexually assaulted. Children are frequently scared that they have done wrong or that they will be punished for what has happened because they see the matter as their fault. That was borne out in the present case by the complainant’s own evidence as follows:

13. [85]

    The evidence was that there were problems with the complainant’s parents’ care of her to the extent that the month after she reported these events FACS had decided she should no longer live with her parents. Further, she said that she did not leave the flat after these events because she did not know the way home from the applicant’s flat.

14. [86]

    The matters identified by the applicant do not lead to the view that the jury must have had a doubt about his guilt. The jury were told both by the applicant’s counsel and the trial judge that the applicant was a person of good character which could be used by them in relation to his credibility and the likelihood of his having committed the offences. They were also told that he had consistently denied that the touching was other than accidental. Those would be more significant matters if there was some real doubt about the Crown’s case and the complainant’s evidence in particular. The jury, no doubt, considered those two matters, but they must be regarded as subsidiary in the light of the matters discussed above. Those matters demonstrate that there was abundant evidence to support the verdict and that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the offences.

Conclusion

1. [87]

   In my opinion the following orders should be made:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [88]

   LONERGAN J: I agree with Davies J and his reasons and analysis. I have independently assessed the whole of the evidence to determine whether verdicts of guilty were unreasonable or cannot be supported having regard to the evidence. I have concluded that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the two offences charged.