BM v R [2017] NSWCCA 133

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BM v R [2017] NSWCCA 133 Hearing dates: 1 May 2017 Decision date: 19 June 2017 Before: Basten JA at [1]; Adamson J at [40]; Campbell J at [52] Decision: (1) Refuse the applicant leave to appeal with respect to grounds (1) and (2).

(2) Grant the applicant leave to appeal with respect to ground (3).

(3) Dismiss the appeal. Catchwords: CRIME – appeal – leave to appeal against conviction – applicant convicted of indecent assault, acts of indecency and sexual intercourse with a child – whether trial judge misdirected jury in focussing on accused's evidence and shifted evidentiary onus onto accused – whether trial judge misdirected jury as to significance of evidence of witness contradicting evidence of complainant and erred in formulation of Markuleski direction – whether verdicts unsafe and unsupportable on the evidence under Criminal Appeal Act 1912 (NSW) s 6(1) Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW) ss 61E, 61J, 66A, 578A Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 38, 164 Cases Cited: Abbey v R [2017] NSWCCA 109 AL v R [2017] NSWCCA 34 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 MWJ v R [2005] HCA 74; 80 ALJR 329 ND v R [2017] NSWCCA 70 R v Johnston (1998) 45 NSWLR 362 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Apostilides (1984) 154 CLR 563 Category: Principal judgment Parties: BM (Applicant) Regina (Respondent) Representation: Counsel: Mr S Loomes (Applicant) Ms N Williams (Respondent)

Solicitors: Stidwill Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/356008 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 April 2016 Before: Charteris DCJ File Number(s): 2014/356008

Judgment 1. BASTEN JA: On 15 February 2016 the Director of Public Prosecutions presented an indictment against the applicant containing four counts, namely (1) a count of indecent assault, (2) and (3) counts alleging acts of indecency and (4) one count of sexual intercourse. In each case the victim was a complainant, known as "MY", who was at all stages between the ages of 6 and 9 years, but under 10 years. 2. The accused was the de facto partner of the complainant's aunt. Although there is no legal constraint on the disclosure of his identity, there is a statutory prohibition on the publication of information or other material that identifies or is likely to lead to the identification of the complainant, who was a child when the offences were committed. [1] To prevent inadvertent contravention of that prohibition, steps have been taken to avoid referring to individuals by name and to avoid referring with particularity to the properties where the conduct complained of occurred.

Background 1. So far as the locations are concerned, at the time of the offending, the complainant lived with her parents and a brother on a station in north-west New South Wales. Her grandfather operated a nearby station. 2. The complainant was born in August 1982. The first two counts were alleged to have occurred in 1988 or 1989, when the complainant was aged between 5 and 7 years. The first two counts concerned events which occurred whilst the complainant's aunt and the applicant were staying at the grandfather's property. The first count involved an indecent assault within the terms of s 61E(1) of the Crimes Act 1900 (NSW) (as then in force), which the complainant said occurred when the applicant took her for a walk to the vicinity of two household dams. The dams were connected by a concrete pipe or culvert. The area was not visible from the house, due to the height of the dam wall and the trees between the dam and the house. The complainant said that the applicant placed her hand on his penis and she masturbated him to ejaculation. There was no dispute that, if the conduct thus described took place, it constituted the relevant offence. 3. Count 2 involved similar conduct; the complainant said it occurred on the same visit by the applicant, but the incident took place on the veranda of the residence on the property. The complainant said that the applicant exposed his penis and the complainant rubbed his penis until he ejaculated. The charge with respect to that conduct was laid under s 61E(2), and involved an act of indecency with a person under 16 years of age. Again, there was no dispute that if the conduct occurred as alleged, it constituted the relevant offence. 4. Counts 3 and 4 related to events which occurred on a separate visit by the applicant and occurred on the property on which the complainant lived with her parents. The complainant described one event (count 3) as having occurred near the household dam on that property, there being a large dam and a small feeder dam, with a culvert or pipe running between them. The complainant gave evidence that she again rubbed his penis, but was not able to say whether or not he ejaculated on that occasion. Count 3 was also a charge laid under s 61E(2) of the Crimes Act. 5. Count 4 occurred in her parents' bedroom, on the occasion of the same visit by the applicant and the complainant's aunt. She described sitting on a chair in the bedroom whilst the applicant kneeled in front of her and licked her vagina. The definition of "sexual intercourse" included cunnilingus. The applicant was charged with an offence of sexual intercourse with a person under the age of 10 years, as identified in s 66A of the Crimes Act. 6. There was no person other than the applicant and the complainant present whilst the acts of masturbation occurred. However, in relation to count 4, the complainant described her aunt coming into the room whilst the applicant was performing oral sex and saying, "What are you doing?". According to the complainant, the applicant responded "Nothing", whereupon the aunt had an expression on her face described by the complainant as "mortified", but she turned and left the room. The applicant continued, according to the complainant's account, to perform oral sex on her. 7. Apart from some brief and uncontroversial evidence from the police officer in charge of the investigation, only three persons gave evidence at the trial. These were the complainant, the applicant and the aunt, the last of whom gave evidence in the prosecution case, but denied having been present at, or witnessed anything like, the conduct described by the complainant. 8. The trial was not an extended affair. The evidence was completed within two days and the submissions and summing up followed on the morning of the third day. The jury retired a few minutes before 1pm and returned with a verdict shortly after 4pm. The applicant was convicted on all four counts. 9. The jury having returned its verdicts on 17 February 2016, the applicant was convicted and sentenced on 14 April 2016 to a period of imprisonment for 5 years 9 months, with a non-parole period of 2 years 3 months, to date from 17 February 2016, when he was taken into custody. The non-parole period will expire on 16 May 2018.

Grounds of appeal 1. A notice of appeal containing three grounds was filed on 25 January 2017. The first two grounds alleged misdirection of the jury in specific passages of the summing up, which were particularised and which will be identified below. Ground 3 alleged that the verdicts were "unsafe and [un]satisfactory due to the combination of factors including the delayed complaint, the inability of the complainant to recall any significant circumstances surrounding the alleged counts, the inadvertent misdirection by the learned trial judge skewing the onus on to the accused, the contradictory evidence of [the aunt] whom the complainant alleged was an eye witness to Count 4." This ground invoked the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), namely that the verdicts were unreasonable and unsupportable on the evidence. 2. Counsel for the applicant at the trial not having taken issue with any aspect of the directions given by the judge in his summing up, nor sought any further directions, the applicant, as was conceded, required leave under r 4 of the Criminal Appeal Rules (NSW) to pursue grounds (1) and (2). For the reasons explained below, leave should be refused in respect of each ground. Further, as will also be explained below, the applicant failed to establish that the verdicts were unreasonable or could not be supported having regard to the evidence; accordingly, ground (3) was not made good. Ground (3) not involving "a question of law alone" within s 5(1)(a) of the Criminal Appeal Act, the applicant required leave to appeal against his convictions on that ground. There should be a grant of leave in this respect, but the appeal must be dismissed.

Misdirection as to the evidence of the accused 1. The first ground alleged that the trial judge, in focusing upon the evidence given by the accused, had placed "an evidentiary onus" on the accused. That, it was submitted, undercut the otherwise correct directions that the onus was borne by the prosecution to establish each element of each charge beyond reasonable doubt. 2. Before referring to the passages relied upon in this regard, it is convenient to note, without setting out the details, that the trial judge was meticulous in stating, in his introductory remarks before the evidence commenced, in introducing counsels' submissions and on numerous occasions in the summing up, that the burden of proof lay on the prosecution in respect of each element, which had to be proved beyond reasonable doubt. Further, the jury were given a document setting out each count on a separate page, each being followed by a short summary of the prosecution allegation and a statement of the elements of the charge, which commenced with the following proposition (with emphasis in the original document): "Prosecution must prove beyond reasonable doubt each of the following essential elements:" 1. Two of the three brief passages with respect to which complaint was made were contained on pp 23 and 24 of a 33 page summing up. They occurred in the course of a summary of the evidence of the accused. The particular sentences to which objection was taken cannot be isolated from their context or purpose. Set out in context, they were the passages italicised in the following extract: "Members of the jury, the accused gave evidence before you. Under our system an accused is not obliged to give evidence. Every citizen has the right to silence in a courtroom. A jury is directed that if an accused does not give evidence that no adverse inference can be drawn against an accused who does not give evidence before the jury. In this case the accused has chosen to give evidence before you. If, having considered the accused's evidence and the submissions of each counsel in relation to it and the other evidence, you accept the accused's evidence, then of course you must acquit him of each of the charges and bring in a verdict of not guilty, because his evidence was he did not do those things. If you accept him then of course you will return a verdict of not guilty on each count. However, if after giving consideration to the accused's evidence, and the other evidence in the case, you do not positively accept his evidence as being reliable, but that his evidence leaves you nevertheless with a reasonable doubt as to whether the prosecution has made out its case in respect of any essential matter which it must prove, then you are bound in law to bring in a verdict of not guilty. In other words, under our system it is not the position that you have to believe the accused's evidence and that he is telling the truth before he is entitled to be acquitted. If you form the view that you cannot positively accept the evidence, you still consider as to whether it leaves you with a reasonable doubt. As I have previously emphasised to you however, through the whole case, the position is always the same: the prosecution must establish the guilt of the accused beyond reasonable doubt. It is not for the accused to prove that his evidence is reliable. It is for the prosecution to prove that you would not rely on his denials." 1. Finally, the particulars of ground (1) referred to the following passage at p 32 of the summing up, and particularly the part italicised. The passage was the final paragraph in a summary of the address to the jury by counsel for the accused: "He [counsel] used the expression 'It is not a two horse race,' members of the jury, – I think what he was referring to there was that you consider the accused's evidence; if you accept it when he says he did not do it, then obviously he is to be found not guilty. If you are not satisfied you can accept it, you still take into account his evidence and determine whether it causes in your mind a reasonable doubt to be raised." 1. These complaints may be disposed of shortly. First, a reading of the whole of the summing up could have left the jury in no doubt as to the burden of proof borne by the prosecution. Secondly, it would have been remiss in the extreme for the trial judge not to refer to the evidence of the accused and to explain to the jury that even if they were not affirmatively satisfied that it was reliable or truthful, they might nevertheless give it sufficient weight to raise a reasonable doubt as to the credibility or reliability of the complainant. That is precisely what the first set of directions did. 2. It would also have been remiss of the trial judge not to refer to the address given by the accused's own counsel. In so doing, he repeated, somewhat more briefly, the same point which had been made by counsel. It cannot reasonably be said that these passages deflected the jury, inadvertently or otherwise, from a proper understanding of the function of the prosecutor or of their task in assessing the evidence. 3. Thirdly, if that may have been the effect of these passages, on an issue central to a trial which depended on acceptance of the complainant's evidence, that consequence must have been apparent to counsel conducting the trial on behalf of the accused. The very fact that no further direction or redirection was sought confirms that the directions did not raise any concern that they might have been misapprehended. Some potential misdirections can give rise to difficult forensic decisions for counsel appearing at trial. A misdirection of the kind asserted here does not fall into that category. Accordingly, one can be confident that no further direction was required. There is no reason to grant leave under r 4 to pursue this ground.

Misdirection – aunt's evidence 1. The thrust of this ground was not easy to discern from its particularisation, or from the written submissions. The first passage relied upon occurred in the course of giving some general directions as to the manner of drawing appropriate inferences from other established facts. [2] The judge continued: "Members of the jury, as you heard in the submissions from counsel for the parties, the complainant has given evidence of what she said the accused did to her at certain times. The accused has testified that he did not do so. The only evidence that he did those things comes from the complainant. Where the prosecution has to prove a case beyond reasonable doubt and the only evidence on that topic comes from the complainant, then obviously you will examine her evidence very carefully and decide whether you can be satisfied of its reliability beyond reasonable doubt on the essential elements of one or all of the charges as you consider them separately. So if the proof has to be beyond reasonable doubt, and there is only [the complainant's] evidence about a particular event occurring, as a matter of logic you have to be satisfied beyond reasonable doubt that her evidence is reliable when she is giving testimony about the essential elements of the charges." 1. This was a standard form of warning given in such a case. It was unexceptionable in its terms. The complaint appears to have been that it should have been repeated or otherwise directed specifically to the circumstances of count 4 because it was not only the accused, but also the aunt, who denied particulars of the complainant's account. 2. The evidence of the aunt was addressed in the following passage: [3] "[The aunt] gave evidence. That is no doubt fresh in your minds. She denied that there was any event where she walked in on the accused who was engaged in oral sex with the complainant, her niece. You will recall that her evidence was that had she seen such a thing, then the relationship would have been over. It is a matter for you as to the weight you give to her evidence, and indeed all of the evidence." 1. In the course of submissions in this Court, it became apparent that the thrust of this ground related to an issue often identified with the judgment of this Court in R v Markuleski. [4] The issue was the capacity of a jury, which entertains a reasonable doubt as to the truthfulness or reliability of the complainant in relation to one count, to take that doubt into account in assessing the truthfulness or reliability of the complainant's evidence with respect to other counts. However, such a direction is not mandatory and may be confusing or even counterproductive in some circumstances. Thus, in any case where there is more than one count on an indictment, the jury will be directed to consider each count carefully and separately from the others. That occurred in the present case. In directing that a doubt entertained in respect of one count may support a doubt with respect to other counts tends to undermine that direction. Further, such a direction may, in some cases, be understood to operate in either direction, so that confidence in the reliability of a complainant's evidence in respect of one count, may remove an element of uncertainty with respect to another count or counts. That is not to say that it should not be given, but rather that the judge may need to inquire whether the defence supports such a direction. There will often be a forensic decision to be made in seeking a direction, or a further direction, along these lines. Quite precise wording may need to be considered. 2. Indeed, as the applicant acknowledged, the trial judge advised counsel in advance that he intended to give "the Markuleski direction" [5] and he did so, without demur, in the following terms: [6] "You consider each of the charges separately. But if you were to find the accused not guilty on any particular count, then you continue to deliberate and consider your verdicts on the remaining counts. If you decided that you could not find the accused guilty on a particular count, and particularly if that raises doubts about the reliability of [the complainant's] evidence, you would have to consider how your conclusion that her reliability was not established in regard to one of the counts affects you in deciding the other counts in the indictment. In other words, if you were to make a finding that you were not satisfied that the complainant was reliable in count 1, when you consider the other counts you take into account when you assess her reliability on those other counts that you have already found that she was not reliable in relation to another count." 1. The applicant's complaint is not as to what that direction said, but as to what it did not say. In short, it did not refer specifically to the possibility that they might discount the reliability of the complainant on count 4, because of the aunt's evidence. However, on one view, it was beneficial to the applicant not to have the direction given in that form, but in the abstract form in which it was given. Thus, if the aunt's evidence had caused the jury to doubt the reliability of the complainant's evidence with respect to count 4, it may have been that unique feature of count 4 which might lead them not to discount other evidence where there was no such contradiction by a third party. 2. How the jury assessed the aunt's evidence is impossible to know, except by inference from the outcome. Clearly she was a person who might have wished to protect her lifelong partner. The critical question and answer arose in her examination-in-chief, she being called by the prosecution: [7] "Q. Did you see any sexual contact between [the accused] and your niece, … during the late eighties, early nineties? A. Definitely not. That's the most disgusting thing I've heard of. We would have been back to Sydney and [the accused] and I would have been separated. I wouldn't be supporting him today." 1. There must have been a forensic decision to be made in the present case as to whether to seek any further direction. If the aunt's denial were disbelieved, that might have given significant support to the complainant's claims, as her account provided a basis for contradiction by a third party which could well have been omitted by someone telling less than the whole truth. 2. Counsel for the accused expressly addressed the jury on the basis that a doubt they held with respect to count 4 as a result of the aunt's evidence "would impact upon your assessment of her [the complainant's] reliability and credibility in relation to counts 1 to 3." [8] In other words, the particular way in which counsel sought to rely upon such a direction was at the forefront of his mind, minutes before the judge commenced his summing up. There is no reason to suppose that the absence of an application for a further direction was inadvertent or due to counsel not having identified the point in issue. In any event, the direction in fact given was appropriate in its terms. 3. These circumstances do not warrant a grant of leave under r 4 with respect to ground 2.

Whether verdicts unsafe and unsatisfactory 1. The approach required of an appellate court when called upon to consider a ground of appeal formulated in accordance with the first limb of s 6(1) of the Criminal Appeal Act does not require restatement. However, the application of the section in different circumstances can give rise to difficulties of various kinds. Counsel for the applicant urged upon the Court the need to approach this case with a heightened level of scrutiny because of the difficulty faced by the accused in defending the allegations and because objective features tended to cast doubt upon the veracity and reliability of the complainant. These factors, it was submitted, were sufficient to lead this Court to have a reasonable doubt as to whether the conduct complained of actually occurred. That was a doubt which could not be satisfactorily resolved by the advantages of a jury in observing and hearing the witnesses give evidence. [9] 2. Ground (3) went beyond the identification of a general complaint to identify four particular factors, namely (a) the delayed complaint, (b) the inability of the complainant to recall any significant circumstances surrounding the alleged offences, (c) the inadvertent misdirection by the learned trial judge skewing the onus onto the accused, and (d) the contradictory evidence of [the aunt] whom the complainant said was an eye-witness to count 4. 3. The third matter can be put to one side; for reasons already explained, there was no misdirection. 4. The fourth matter can also be disposed of briefly. Although the aunt denied in emphatic terms that she had seen any conduct of the kind alleged by the complainant, [10] her evidence might have been discounted by the jury, in the same way that the evidence of the applicant must have been discounted, namely that each was protective of the applicant's interests. Although the express denials by the aunt (and the applicant) might have provided a basis for the jury to entertain a reasonable doubt as to the honesty and reliability of the complainant, the assessment of the veracity and reliability of the aunt and the applicant were very much matters within the province and function of the jury, which are not capable of adequate assessment by this Court. [11] In short, a bare reading of the transcript gives little hint as to why the jury clearly believed the complainant and disbelieved the aunt and the applicant. 5. There is more substance to be found in the reliance upon the delayed complaint, accepting that that phrase is intended to cover the lapse of time since the events complained of occurred, and the inability of the complainant to recall surrounding circumstances. 6. The judge gave clear and valuable directions to the jury as to how they might deal with these matters and the difficulties which both circumstances created for the accused. There is no reason to doubt that the jury would have understood these directions and taken them into account. In many respects, it may be said that the summing up was a model of clarity and gave every possible warning to the jury as to the need for careful scrutiny of the evidence and the reasons for taking such an approach. 7. The difficulty faced by the applicant in the present case is that there are no clear objective indicators which demonstrate a basis for doubt, which the jury ought to have experienced, as to the account given by the complainant. For example, there were no suggestions of prior inconsistencies in her account, nor were there inconsistencies within her evidence. That she did not recall any circumstances surrounding the events she described may well have weighed heavily in her favour with the jury, as the prosecutor suggested in his address. It was open to the jury to find it plausible that events which would have been traumatic for a young girl would have stayed in her mind, whilst other events could not be recalled. Further, the jury may well have reasoned that if the accounts were fabricated, she might well have added verisimilitude by including further detail. 8. An extraneous factor which may cast doubt on the account given by a complainant is the existence of a motive to harm the accused. There was no evidence of any such motive in the present case, other than any motive which may have arisen from the ongoing effects of the traumatic events. The jury were directed in emphatic terms that they should not reason to acceptance of the complainant's evidence by asking, "Why would the complainant construct this account?" and gain confidence from their inability to identify an answer. However, the exercise to be undertaken by this Court is somewhat different. The convictions, which were unanimous and covered all four charges, demonstrated that the jury accepted the complainant and her evidence as truthful and accurate, without entertaining any reasonable doubt. The question for this Court is whether any of the factors relied upon by the applicant, whether in the ground of appeal or in the submissions, was apt to raise a reasonable doubt in the mind of someone who had not seen the complainant give evidence. It is beyond dispute that, if the complainant's account were to be believed, the verdicts were reasonable and were supported by the evidence. There was no other basis for identifying a miscarriage of justice. I am not able to entertain a doubt as to the correctness of the jury's verdicts; accordingly, I would reject this ground. In reaching this conclusion I agree with the further observations of Adamson J at [42]-[51] below. 9. The foregoing considerations are sufficient to demonstrate that the ground was arguable, and the applicant should have leave to rely upon the ground. Nevertheless, the appeal must be dismissed. 10. ADAMSON J: I have had the benefit of reading the draft reasons of Basten JA. I agree with the orders proposed and with his Honour's reasons. I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree for the reasons given by Basten JA that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the counts on the indictment. The jury had the advantage of seeing and hearing the evidence of the applicant, the applicant's partner (the aunt) and the complainant. The guilty verdicts indicated that the jury accepted the complainant's evidence, which it was entitled to do. 11. I have also had the opportunity to read the reasons of Campbell J in draft and note his Honour's observations about the length of the delay and what his Honour regarded as the implausibility of the Crown case in light of the aunt's evidence. 12. Experience has shown that common assumptions about how offenders and their familiars conduct themselves, including those made by judges, may be revealed to be incorrect or misplaced. The so-called collective wisdom of judges has, at times, reflected limitations in judicial perception and experience. In R v Johnston (1998) 45 NSWLR 362 at 367, Spigelman CJ said of prior authorities which had placed emphasis on the lateness of complaint in an assessment of the complainant's credibility: "There is no doubt that the criminal courts do have a body of experience thatis not shared by the ordinary juror. For many years it was thought that practice with respect to warnings about complainants in sexual assault cases reflected such superior experience. It is now clear that the practice in fact reflected the limitations on the experience of judges, who were almost invariably male." 1. Criminal responsibility is to be judged by the evidence and not by reference to assumptions, particularly those which experience has revealed to be out-dated or wrong. Whether a complainant is telling the truth is not to be determined by the age of the complainant at the time of the relevant events or the time that has elapsed between the events and their report. Whether a wife or female partner of an alleged perpetrator is to be believed when she denies the complainant's version of the offending conduct, or otherwise corroborates the accused's case or evidence, cannot be determined as a matter of common experience or by reference to any general rule, assumption or stereotype. 2. The present case is by no means exceptional, much less implausible. This Court regularly sees instances where a jury has convicted a male perpetrator of sexual assault of a girl on the basis of the evidence of a complainant in circumstances where the accused has denied any wrongdoing and his version is corroborated by his wife or girlfriend: for a recent example see ND v R [2017] NSWCCA 70 at [60] per Hoeben CJ at CL; Walton and R A Hulme JJ agreeing. It is also the experience of this Court that a complainant may report sexual assault to an adult woman who is in a relationship with the alleged perpetrator only to have her side with the perpetrator and refuse to believe the complainant, including where the adult woman is the complainant's natural mother: Abbey v R [2017] NSWCCA 109 at [41]-[48] per Leeming JA, Adamson and Wilson JJ agreeing. It is not atypical for such crimes to be committed in the family home when other adults are present on the premises. 3. A Crown case based on the uncorroborated testimony of a complainant ought not, in my view, be described as a "comparatively weak Crown case". Parliament has expressly removed the requirement under the common law that a trial judge warn a jury of the danger of convicting on uncorroborated evidence: s 164 of the Evidence Act 1995 (NSW); see also AL v R [2017] NSWCCA 34 at [69], Leeming JA, Schmidt and Wilson JJ. Sexual assaults are almost invariably committed without witnesses. Where there is a witness to some aspect of the conduct, it is not uncommon for the reliability of the witness's evidence to be compromised by his or her relationship with the alleged perpetrator. 4. In the present case the Crown was obliged to call the aunt as part of its duty to ensure a fair trial and to give the applicant the opportunity to cross-examine her notwithstanding the fact that the Crown case was that the aunt's evidence was unreliable: The Queen v Apostilides (1984) 154 CLR 563 at 575-576. In its opening, the Crown foreshadowed the complainant's evidence that the aunt came upon them in the bedroom when sexual contact was occurring. The Crown told the jury in opening that it expected that the aunt would give evidence that she did not see any sexual contact between the applicant and the complainant. In the course of the aunt's evidence in chief, the Crown sought leave, which was not opposed, to put leading questions to the aunt pursuant to s 38 of the Evidence Act. The following passage comprises the examination of the aunt on the topic: "Q. I suggest to you that at a time before [the complainant] turned ten there was an occasion when she was in her parents' bedroom sitting on a chair, and [the applicant] was positioned in front of her crotch and you came to the door and saw some sexual contact occurring there. That happened didn't it? A. It did not. Q. I would suggest to you that you asked [the applicant] what was he doing? A. I did not. Q. [The applicant] said, 'Nothing,' used those words, 'Nothing'? A. I didn't ask him anything. Q. You then walked away? A. Didn't happen." 1. The aunt was cross-examined about this incident as follows: "Q. I know you've already been asked about this incident that you're alleged to have witnessed, which we've heard your answers, but would you be prepared to lie under oath for your husband about such things? A. No, I would not. Q. Had you seen such an event do you believe you'd remember it? A. Of course. Q. Have you ever seen your husband behave inappropriately towards females or specifically children? A. Never." 1. The procedure adopted by the Crown conformed to the approach sanctioned by this Court in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 where a conviction on a charge of having sexual intercourse in circumstances of aggravation (that the complainant was at the time under the age of sixteen years and under the authority of the appellant) without consent under s 61J of the Crimes Act 1900 (NSW) was quashed and a new trial ordered. In R v Kneebone, the Crown's decision not to call the appellant's wife in its case on the ground that she was unreliable (as she supported the appellant's case, rather than the Crown case which was based on the complainant's evidence) was held to have resulted in a miscarriage of justice. On the complainant's account, her mother had come into the room where the alleged sexual assault was occurring and had spoken to her and the appellant. This Court said (Smart J, Spigelman CJ agreeing) at [107]: "Pre-eminently, this is a case where the jury should assess the complainant, the appellant and the mother." 1. I regard the present case as one in which it was for the jury to assess the evidence of the complainant, the applicant and the aunt. Its verdicts reflected that assessment. 2. Unlike Campbell J, I am unable to discern any difficulty with the jury's verdict arising from the circumstance that the Crown did not put to the aunt that she was deliberately giving false evidence. It was not necessary for the Crown to put this proposition to the aunt since it had already made it clear that the aunt's evidence was inconsistent with the Crown case. Indeed it is questionable whether it would have been proper for it to do so. That the wife or partner of an accused has deliberately given false evidence is only one of the available possibilities to explain why a jury might regard such testimony as unreliable. Sometimes the truth that a husband or partner has sexually abused a child is too painful for a wife or partner to bear and what the eyes have perceived must be rejected, whether consciously or otherwise, as a matter of self-preservation. Denial by suppressing (usually at an unconscious level) a painful or unacceptable experience is a well-known psychological phenomenon. It does not imply dishonesty. 3. In cases such as the present, the question whether the complainant's evidence ought be accepted was a matter for the jury. This Court is in no position to resolve in favour of the applicant any doubt which it might entertain as a result of reading the transcript, when the doubt could have been, and in this case was, resolved by the jury which had the advantage of seeing and hearing the witnesses give evidence: M v The Queen (1994) 181 CLR 487 at 493-494; approved in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]. I do not mean to suggest by this observation that I have any doubt about the applicant's guilt of the offences of which he was convicted by the jury. 4. CAMPBELL J: I have had the considerable advantage of reading the judgment of Basten JA in draft. I agree with his Honour for the reasons he gives that leave under Rule 4 Criminal Appeal Rules to pursue grounds 1 and 2 should be refused. 5. I have formed a different view about ground 3. I would grant the applicant leave to appeal on ground 3, allow the appeal against conviction and quash the conviction. In my opinion, the verdict of the jury for each of the four counts "should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" in accordance with s 6(1) Criminal Appeal Act 1912 (NSW). 6. Given Basten JA's comprehensive reasons, it is sufficient for me to explain only briefly my reasons for coming to a different opinion following my own independent assessment of the evidence. 7. I acknowledge that the starting point is recognition of the fundamental importance of the consideration "that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of hearing and seeing the witnesses": SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [13]. Moreover, the jury has had the advantage of exposure to the atmosphere in which the trial was conducted. Seeing and hearing the witnesses and sensing the atmosphere of the trial are, of course, advantages which cannot be recreated in the Court of Criminal Appeal. Moreover, the evidence of the complainant, if accepted by the jury, as it clearly was, is evidence upon which the jury might convict in conformity with the law: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 – 493. I have made full allowance for these advantages. I am left however, with the conviction that "there is a significant possibility that an innocent person has been convicted": M v The Queen at 494. 8. My primary reason for reaching this conclusion is that I find the complainant's evidence about the circumstances of the offending the subject of count 4, that is, the performance of oral sex by the applicant upon her, completely unconvincing to the point of implausibility. This is not to say that it is implausible that adults sexually abuse children in this way. Regrettably, it is the experience of the courts that offending of this nature is of a certain prevalence in the community, and not only in public, religious or charitable institutions. However, naturally, an awareness of that prevalence provides no evidence of guilt in a given case. 9. Acknowledging the force of the collective judgment of a jury of twelve based upon the experience of life and human affairs of each of them, I find the complainant's evidence of what she said happened upon the alleged discovery of the count 4 offending by the aunt completely implausible. That conclusion leads me to doubt her account in relation to each of counts 1, 2 and 3, which I have considered separately. 10. The complainant's evidence of the fourth count was in the following terms (WB 119.5-11): I was in … my bedroom … and I remember [the applicant] guiding me – taking me to my parents' bedroom and I sat down on this really old chair – on mum's room – in my parent's room. It's my mum's chair but it was, I think, her grandmother's chair and I remember [the applicant] performed oral sex on me. She said that the applicant was holding her on her buttocks into his face. While this was occurring she said that the aunt entered the bedroom saying to the applicant, "What are you doing?" (WB 119.50) and the applicant replied, "Nothing" (WB 120.3). The complainant said that the aunt looked "mortified" (WB 120.16) and left the room with the applicant carrying on as before. 1. In cross-examination the complainant said that the aunt had not "raised her voice" (WB 155.14). From the time of the aunt's entry into the room the complainant "first felt like it was wrong" (WB 156.28). 2. The applicant denied each instance of alleged offending. He said "I would never do anything to a child, never" (WB 179.5). In relation to the fourth count he said he had never been into the complainant's parents' bedroom (WB 185.21) saying "I wouldn't do that". When asked about whether he had performed cunnilingus on the complainant in her parent's bedroom he said, "I would never do that" (WB 185.34). He denied the other details including the entry of the aunt. When asked whether he "in any way, shape or form molest[ed] or interfere[d] with [the complainant]" he answered "absolutely not" (WB 187.3). In cross-examination, when the allegations forming count 4 were put to him, the applicant answered "most definitely not" (WB 191.41). 3. As Basten JA has pointed out, the aunt was called in the prosecution case. She said she had read through the statements in the prosecution brief and when asked why she replied (WB 162.20-33): A. Why wouldn't I? [The applicant] and I have lived together for 35 years. He knows what I do so I know what he does. Q. In reading that material did you become aware that there was something it is alleged that you saw? A. Correct. Q. Did you see any sexual contact between [the applicant] and [the complainant] during the late eighties, early nineties? A. Definitely not. That's the most disgusting thing I've heard of. We would have been back to Sydney and [the applicant] and I would have been separated. I wouldn't be supporting him today. 1. With leave, which was unopposed, the Crown Prosecutor cross-examined the aunt pursuant to the provisions of s 38 Evidence Act 1995 (NSW) on that evidence. The allegations in the fourth count were broken down in detail and put separately to the aunt in clear and firm terms. She denied witnessing the things that were put to her (WB 163.3-20).The prosecutor did not put to the aunt that she was giving false testimony to protect the applicant. 2. In answer to other questions she said that she could not recall being aware of the applicant and the complainant ever being alone together, but accepted it possibly could have occurred (WB 164.15). When cross-examined by the applicant's counsel, she said she would not be prepared to lie under oath for the applicant (WB 166.5) and she had never seen him "behave inappropriately towards females or specifically children" (WB 166.10-12). 3. In assessing this evidence, I have borne in mind that at the time the offences were said to have occurred the complainant was under 10 years of age and when she gave evidence she was 33. There were four trips by the aunt and the applicant to the properties where the offending was said to have occurred, the last of which occurred in December 1993. There was no allegation of any offending on either the third or fourth visits. The complainant and the applicant had not seen each other since the last visit. The applicant had no criminal record and on the evidence, at best would have had very limited opportunity to spend time alone with the complainant (which he denied in any event). 4. The complainant made no complaint to any one until she had made a statement to police on 28 June 2013, more than 20 years after the alleged offending occurred (WB 120.38). She was unable to explain the delay (WB121.10). Those circumstances, of course, are not very unusual in this category of case, but they remain relevant for a number of reasons including that after a delay of more than 20 years "the fairness of the trial had necessarily been impaired", as the learned trial judge appropriately and correctly directed the jury: Longman v The Queen (1989) 168 CLR 79 at 91. 5. As not uncommonly occurs, investigating police obtained authority to lawfully intercept and record a telephone conversation between the complainant and the applicant which took place on 3 August 2014 before the applicant was first spoken to by police. The purpose of initiating such a call is to record any unguarded, and legally unprotected admissions, that a person of interest in a historic child sex abuse case may make when first confronted with the allegations by the victim. In this case, the applicant vehemently denied the allegations (WB 120.45-121.5; 169.23-40). 6. This was a comparatively weak Crown case and I find it unlikely in the extreme that a person in the position of the aunt coming upon the offence she is alleged to have witnessed would have failed to put a stop to it, or could have forgotten it. As I have said, it was not suggested to the aunt by the learned Crown Prosecutor when cross-examining by leave that she was giving deliberately false evidence. In closing address the Crown prosecutor reminded the jury that the aunt contradicted the complainant's account and said, "You would need to reject [the aunt's] evidence to find that offence proven" (WB 212.25). He simply called in aid "the cogency, the truthfulness of [the complainant's] evidence" as the reason why the jury would reject the aunt's account. But that simply re-stated the central issue, that is, whether the jury was satisfied beyond reasonable doubt that the complainant's account was truthful. As part of their decision-making process the jury had to grapple with the contradicting evidence. For what it's worth, when summarising the aunt's evidence in his reasons for sentence, the experienced trial judge allowed himself to remark (WB 51): She was cross-examined by the Crown in a gentle fashion….There was nothing about [the aunt's] demeanour through all her evidence, that caused me any concern or was noteworthy. She seemed to give her evidence in a straightforward fashion. His Honour added that this of course was a matter for the jury. One may observe, however, if that was the view of an experienced judge, it might have been one the jury would be expected to share. 1. While a jury is entitled to prefer the evidence of one witness over another – and clearly the jury has here preferred the evidence of the complainant to that of the aunt – my review of the evidence at trial raises a real question about the rational basis for that preference here. It is clear that it was not open to the jury in this case to reason that the aunt must have been giving false evidence to protect the applicant for that serious misconduct was never affirmatively put to the aunt to provide her with the opportunity to answer it, and the jury with the advantage of considering her response to such a charge. As the principle was expressed in MWJ v R [2005] HCA 74; 80 ALJR 329 at [39] by Gummow, Kirby and Callinan JJ, "[a tribunal of fact] should in general abstain from making adverse findings about parties and witnesses" where there has been no cross-examination of witnesses to contest their evidence. Where the jury is unable to choose between competing accounts rationally that is usually because the prosecution have not discharged the exacting onus of proof lying upon it. 2. It also strikes me as unlikely in the extreme that the applicant would perpetrate this offence in his hosts' bedroom, particularly in circumstances where there were other persons, including the aunt, in the home. The evidence does not suggest that he is such a bold rogue. 3. Notwithstanding the advantages enjoyed by the jury, my independent assessment of the evidence leaves me with a doubt about the applicant's guilt on count 4 and "there is a significant possibility that an innocent person has been convicted": M v The Queen at 494. 4. As I am not satisfied beyond reasonable doubt of the reliability of the complainant's evidence with respect to count 4, I doubt the reliability of her evidence generally, notwithstanding the need to consider each count separately. Indeed, it is appropriate that I take the doubts I entertain about the complainant's evidence of count 4 into account in assessing the reliability of her evidence generally: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186] – [191]. 5. As is clear from Basten JA's judgment, counts 1, 2 and 3 are concerned with instances of the applicant allegedly having procured the complainant to masturbate him, on counts 1 and 2 to the point of ejaculation. Counts 1 and 3 were said to have occurred in very similar circumstances and in a similar locale on each of two adjoining properties respectively. On these occasions the complainant and applicant were said to have been alone in a place relatively remote and not visible from the homestead on the respective properties. The locale in each case is said to have been a dam. Despite the striking similarity of the gravamen of the alleged offending, the complainant's account in respect of each of these instances is marked by a poverty of surrounding detail of the kind frequently offered to provide context and coherence to such an account. There is no evidence of cultivation, or grooming, of the complainant by the applicant; or anything which might suggest any sexual interest on the part of the applicant in the complainant, or young girls generally. This is a case where, if accepted, the offending on the part of the applicant, a person of otherwise good character, came completely out of the blue. This is a consideration that causes me to feel very uneasy about the safety of the convictions. 6. In the case of count 2, the offending was said to have occurred on the enclosed veranda used as a bedroom in the home on one of the properties. This bedroom was occupied by the applicant and the aunt during their visit. The applicant was said to be lying on the bed with his penis exposed (she recalled he was wearing red underwear). The complainant touched the applicant's penis and commenced to rub it until he ejaculated. She remembers (WB 114.1): … I was on top of him and I remember I said, "Let's do it" or – yeah, "Let's do it", he said something like, "I'll break you", or "It'll break you" and – yeah. Q. Can you remember how that incident ended? A. No. Q. Do you remember whether it was day or night? A. It was day. Q. Are you able to say whether there were other people in the homestead? A. Yes, there were. Q. Do you know where they were? A. No. When cross-examined (WB 144.50) the complainant remembered hearing other people in the house, she had no idea how many and at a "rough guess" she thought they were in the kitchen, but, "I don't know" (WB 145.6). She was asked the following questions (WB 153.19-25): Q. You say you remember saying the words, "Let's do it". Do you know what you meant by those words? A. No. I mean I – Q. Did you mean by those words you were suggesting that you and he have sex? A. I don't know. 1. As I have said, despite the different property, the circumstances of counts 1 and 3 were said to be almost identical. The only difference was in respect of count 1, the first offence in the point of time, where the applicant placed the complainant's hand on his penis. For counts 2 and 3, she placed her own hand on his exposed penis. 2. Other evidence indicated that when he visited the properties, the applicant assisted with fencing and stock. The farmers of each property would have lunch together, which lunch was prepared by the aunt. The properties were in a reasonably remote location in north-western New South Wales. The complainant would occasionally visit the property where counts 1 and 2 were said to have occurred on her own, riding her motorised trike. But it seems to me that there was extremely limited opportunity for the type of offending alleged to have occurred, especially during daylight hours. I find it implausible that the offending alleged in count 2 would have occurred when other people were known to be home, and in the veranda-bedroom the applicant shared with the aunt. 3. The doubt I have in relation to count 4, together with these other circumstances to which I have referred, cause me to doubt the reliability of the complainant's account in relation to each of the other alleged offences. I have considered whether what I have referred to as the poverty of detail in the complainant's account might be explained by the consideration that a young child would recall the traumatic incidents and not the surrounding detail. Acknowledging this possibility, the doubt remains. In the circumstances of this case, my doubt is not assuaged by a consideration of the forensic advantages enjoyed by the jury. 4. Given my conclusions no question arises or can arise about the application of the proviso. 5. I would grant leave to appeal on this ground, allow the appeal, and quash the convictions in respect of each count. As mine is a minority opinion, it is unnecessary to cast any proposed orders with appropriate formality.

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Endnotes 1. Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A. 2. Summing up, p 16. 3. Summing up, p 29. 4. (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [187]-[191] (Spigelman CJ). 5. Tcpt, 17/02/16, p 125(16). 6. Summing up, pp 22-23. 7. Tcpt 16/02/16, p 82(30). 8. Tcpt 17/02/16, p 139(37). 9. M v The Queen (1994) 181 CLR 487 at 494. 10. See [27] above. 11. M at 493 and 494; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2017