A E v The Queen [2011] VSCA 168

Court of Appeal (Vic)|2011-06-10|Before: Buchanan JA

R v AE (Unreported, County Court of Victoria, Judge Hannan, 7 April 2009)

CRIMINAL LAW - Sexual offences against a child - Lies by the accused - Trial judge failed to give the jury the warnings referred to in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 and - Conflict between the evidence of the complainant and the account given by the accused - Trial judge made it clear to the jury that the prosecution was required to prove its case beyond reasonable doubt and it was not a question of whose evidence was to be preferred - Verdict not unsafe or unsatisfactory.

2 On 3 February 2009, a County Court jury found the applicant guilty on two counts of sexual penetration of a child under the age of ten years, one count of sexual penetration of a child over the age of 16 years and two counts of an indecent act with a child under the age of 16 years. On 7 April 2009, the applicant was sentenced as follows:

Sexual penetration of a child under the age of 10 years

Sexual penetration of a child under the age of 16 years

3 The total effective sentence was six years' imprisonment. A minimum of four years' imprisonment was fixed before the applicant became eligible to apply for parole. For counts 3, 4 and 5 the applicant was declared to be a serious sexual offender.

4 The applicant seeks leave to appeal against his conviction and sentence.

5 These offences were alleged to have occurred in 2001 and between 2002 and 2005. At the time of the alleged offences, the applicant was effectively in the position of being the complainant's uncle. The complainant also

had a sister. The parents of the complainant travelled overseas on business from time to time and, when they were overseas, the complainant's maternal grandmother cared for the children. The complainant's aunt, who was involved in a relationship with the applicant, also assisted in looking after the children and moved into the house at Sydenham. As I noted, above, the five counts on the presentment concerned incidents that the Crown alleged occurred in 2001, 2002 and 2005. I will deal with the detail of the allegations below but they variously involved allegations that the applicant had both digitally penetrated the complainant's vagina and also that he had licked her in that part of her body.

6 Ground 1 in the applicant's Notice of Appeal is in the following terms:

The learned judge erred:

(a) in failing to give any directions to the jury on alleged lies by the applicant going to either credit or consciousness of guilt;

(b) in repeating in her charge without such directions, the prosecutor's argument in his final address that "the accused's denials of ever ... being alone with [the complainant] in the car, are an example of him lying. He just does not want the police to know that, or place himself anywhere near an incident of this type'.

7 The issue raised by this ground of appeal particularly concerns counts 3 and 4 on the presentment, though it is said that there is a consequence for all counts. The evidence put before the jury by the complainant was that the incident the subject of those counts occurred some three or four years earlier, while she was staying at her grandmother's place. The particular incident involved the applicant also being at those premises and telling the complainant's grandmother that he was going to a petrol station and asking the complainant to go with him. The complainant described the conversation about whether or not she would go and that she did go with him. She said that, having wished to sit in the back of the car, she was told to sit in the front seat. Instead of going to the petrol station they went to a car park where she alleged that the applicant pulled down her pants and started putting his finger inside her vagina. She also said that the applicant licked her vagina. After they returned home following that incident, he is alleged to have told her not to tell anyone about what had happened.

8 In the course of a record of interview with the applicant conducted on 27 March 2007, the applicant was asked[1] whether he had ever been in a car by himself with the complainant. In answer to that question he said 'Not that I know, no.' Asked again whether he had been in a car alone with the complainant, he said possibly when he picked up children from one house to take them to the other or going from a unit to where the complainant's mother now resides. He then gave a series of other situations where he might have picked up the complainant in his car, but seemed to add that other children would have been in the car at the time. Later,[2] he said that he could not recall that he had at any time had the complainant in his vehicle by himself. He also added that he could not recall taking her in the car to get petrol. The allegations in relation to counts 3 and 4 were put to him and he denied that the offences occurred.

9 In the course of his final address, the prosecutor at the trial dealt with this matter by making the following submission to the jury:

Now, the second piece of evidence that you heard about that issue today is in the record of interview. The accused is asked about it and he denies ever having gone in the car. He did not want to admit of any possible circumstance that might set out something consistent with what [the complainant] was saying about what happened to her.

What I say to you is he lied to the police about that. Just because he answers a question you don't have to believe him. It is my submission to you, and it's a matter for you entirely as to whether you find any favour in it, but he lied straight out about that. That is something you ought to be sure of. He didn't want to place himself anywhere near the incident of the type that [the complainant] had described.

10 Responding to that submission, counsel for the applicant turned to what was said in the record of interview and referred to parts of it in his address to the jury. He quoted the relevant sections of the record of interview and then made comments as follows:

Have you ever taken [the complainant] in your car at all? -

This is the questioner.

"I can recall you said you have in the past?". "Yeah".

"But at no time you had her by yourself at all?" "Not that I can recall no".

Not an absolute denial, not going out of his way to "oh no, no no, never, never, never, never".

"Okay. Okay, there's allegations been made against you that you've taken [the complainant] for a drive in the car?"

"Yeah".

"Under the pretence of getting - going for petrol does that ring any bells for you at all?"

"False".

"Yeah. Have you ever taken [the complainant] in a car to get petrol?".

"Not that I can recall, no".

Now, the operative word in the question before it at [question] 107, is "under the pretence of going for petrol" and he says "false".

"Have you ever taken her in a car to get petrol?"

"Not that I recall, no".

It's not an absolute denial at all, Mr Darcy, it's qualified, "no I can't recall it, no" but it allows for the possibility, that answer doesn't it, that such an occasion might have occurred; ordinary English use of words.

11 This issue was referred to by the trial judge in delivering her summary of counsel's addresses towards the end of her charge in which she said:

The prosecution say that the accused's denials of every [sic] being alone with the car, are an example of him lying. He just does not want the police to know that, or to place himself anywhere near an incident of this type.

12 On behalf of the applicant, it was submitted that the trial judge should have given a direction to the jury of the kind regularly referred to as an Edwards direction[3] or a direction of the kind contemplated in Zoneff.[4] It was submitted that there is a 'grave risk' that the jury would have concluded that the applicant lied about ever being alone with the complainant in the car and then, uninstructed, used that lie as evidence of guilt. The risk of a miscarriage of justice is described on behalf of the applicant in these submissions as 'manifest'.

13 It is true, as the submission on behalf of the respondent notes, that the prosecutor during the trial did not seek to rely on the lie alleged to have been told by the applicant as being one that could be treated as an implied admission of guilt within the meaning of Edwards v R. It is submitted on behalf of the respondent that the lie that was said to have been told was nothing more than an attempt by the applicant to distance himself from all aspects of the complainant's account. That, it is argued, is evident from the fact that in the course of his final address counsel for the applicant sought to illustrate that the lie, if it be a lie, did not have the effect of distancing the applicant in the way that had been suggested.

14 Surprisingly, there was no discussion between counsel and the trial judge as to whether or not there was any risk that the jury would use the evidence of the alleged lie as evidence of guilt and whether the Zoneff warning should be given. It is sufficient to observe that if, during a final address on behalf of the prosecution, counsel refer to, and appear to rely on, a lie said to have been told by an accused person, it would be prudent for any trial judge to enquire as to the use the prosecutor asserts the jury can make of such a lie. A discussion would then follow as to what direction the jury should be given. It is, of course, much more satisfactory for these matters to be finalised before counsel's addresses commence.

15 In the making of a decision as to whether or not to give such a warning, the High Court made clear in Dhanhoa v R[5] that:

It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.

16 As McHugh and Gummow JJ pointed out in Dhanhoa,[6] in that case the prosecution had made no attempt 'to run a case of consciousness of guilt'. At no stage of the cross-examination did the prosecutor expressly suggest that the lies which were said to have been told to the police were told were because he had a consciousness of guilt and on that basis the trial judge did not give the Edwards direction.

17 Whilst McHugh and Gummow JJ concluded that it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility. Their Honours went on to say:[7]

However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that a failure to direct the jury "may have affected the verdict". We do not think he has done so.

18 In this case, in my opinion, there was a reasonable possibility that the jury may have misused this evidence in the absence of a proper direction. This was a case, as becomes apparent in relation to grounds 2 and 4 of this appeal, where the only evidence came from the complainant and from the record of interview of the accused in which this alleged lie was said to be contained. Apart from that, this lie, said to be told in order to distance the applicant from the complainant, was effectively the only other piece of relevant evidence and may have carried the impression of being independent and supportive of the Crown case. Thus, whilst the terms of the alleged lie may not have been highly probative, the fact of it could well have been so regarded by the jury and treated as significant.

19 There is, in my opinion, much more than a slender possibility that such a risk arose in this case. The problem could easily have been solved by the trial judge seeking clarification from the prosecutor that the lie to which he had referred was only relied on as going to the credit of what was contained in the record of interview of the applicant. In her directions, the jury could then have been cautioned in accordance with what is generally referred to as the Zoneff direction, to which I have earlier referred. In the absence of such a direction, there is a significant risk that if the jury considered the applicant had lied in order to distance himself from any potentially incriminating circumstance with the complainant, they may have concluded that the only reason he would have done that was because he was guilty of the offences with which he was charged.

20 Counsel for the applicant at trial did not raise the matter with the trial judge after counsel's addresses. It may be that occurred for reasons of the kind referred to by McHugh and Gummow JJ in Dhanhoa:[8]

... to have given a direction about lies - to have given an Edwards direction - might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.

21 However, given that in his address counsel sought to deal with the matter, it seems to be more likely that the failure to raise it with the trial judge was an oversight rather than a deliberate, forensic decision. Whether that be so or not, as counsel for the applicant rightly submitted in argument before us, such a decision is not a bar to the success of this ground. In my opinion the trial judge should have followed the course I have outlined and her Honour's failure to do so means that this ground must succeed.

The learned judge erred:

(a) in failing to give a "Liberato" direction to the jury, including directions to the effect that it is not a question of which account to believe or accept, that they could acquit even if they did not accept the accused's account, and that they could not convict unless they accepted the complainant's account beyond reasonable doubt, which in turn could not occur unless inter alia they rejected the accused's denial beyond reasonable doubt;

(b) in repeating in her charge, without such directions, the prosecutor's argument in his final address that "in relation to the accused's interview it is up to you whether you accept the denials that the prosecutor says to you, you should not accept the denials".

23 It is submitted on behalf of the applicant that this case was the 'type of case' in which a direction pursuant to Liberato v R[9] should have been given.

24 Counsel for the applicant concedes that directions were given which were correct on the onus of the standard of proof during the charge but were, as he puts it, undermined by her Honour's summary of the prosecutor's final address.

25 In the prosecutor's final address, he made only one reference to the record of interview with the accused and it is the same reference that I have discussed above in relation to ground 1 in this appeal. In that submission, he urged the jury to conclude that in the answers to the record of interview to which he referred, the applicant was deliberately lying.

26 In relation to that argument and the reference to the record of interview, the trial judge said to the jury[10] as follows:

He says in relation to the accused's interview, it is up to you whether you accept the denials but the prosecutor says to you, you should not accept the denials. He says if you believe [the complainant] beyond reasonable doubt, you should convict in relation to these matters.

27 I do note that in the final address on behalf of the applicant, his counsel correctly said to the jury that:[11]

... it's not about do you accept his answers in the record of interview - that's not what it's about.

Unfortunately, that aspect of counsel's final address did not find its way into her Honour's charge. It would have been preferable if it had and had received her Honour's judicial imprimatur.

28 The argument is that the jury would have commenced their deliberations with the impression that it was a question of whose version to believe and that a failure to accept the denials of the applicant amounted to an acceptance of the complainant's evidence beyond reasonable doubt.

29 In order to analyse whether or not that argument has any merit, one needs to examine the charge as a whole. At the commencement of her directions[12] her Honour said:

The complainant is clearly the crucial witness in this case from the prosecution perspective. She is the only one to give evidence saying that these events happened. You could not convict the accused of any count on the presentment unless you were satisfied, beyond reasonable doubt, that the evidence of [the complainant] in relation to each count, considered separately, was truthful and reliable and of course, that all the elements of whichever count you were considering have been established, to your satisfaction by the prosecution, beyond reasonable doubt.

30 Subsequently, on several occasions in giving the usual directions, her Honour referred to the need to be satisfied beyond reasonable doubt that the prosecution had proved each of the elements of the offence. Indeed, by my count there were some 35 occasions during the course of the charge when the trial judge referred in one form or another to the requirement on the prosecution to prove its case beyond reasonable doubt. I refer to that because in the judgment of Brennan J in Liberato,[13] his Honour said the following:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed?

31 Pausing at that point, at no stage did her Honour pose that question to the jury but rather, emphasised throughout the onus and standard of proof on the prosecution. Brennan J continued:

... But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to reasonable doubt as to that issue.[14]

32 In relation to those observations by Brennan J, it is worth noting again that in the course of her directions to the jury on the onus and standard of proof in this case, the trial judge told the jury that they were required to be satisfied beyond reasonable doubt the complainant's evidence was 'truthful and reliable'.

33 Therefore, to the extent that the judgment of Brennan J is the judgment which best identifies the test the principle for which stems from Liberato, it is to be noted that in this case the trial judge did not pose the question which creates the need for the direction and substantially complied with his Honour's requirements in the course of her charge.

34 I therefore reject the submission that the jury would have gone into the jury room thinking that the question for them to determine was which version was to be believed. They were clearly told and would have clearly understood that they could not bring in a verdict of guilty on any of the counts unless they were satisfied that the prosecution had proved its case beyond reasonable doubt and that in particular they were satisfied the evidence of the complainant was truthful and reliable.

35 Counsel for the respondent points appropriately to the statement of this Court in R v KDY[15] where Redlich JA observed:[16]

A jury must be left in no doubt that where there is a conflict between prosecution witnesses and the accused, the question is whether the prosecution proved its case beyond reasonable doubt and not whose evidence is to be preferred. Hence to determine whether the impugned response to the jury question constituted a misdirection, it is necessary to consider it within the context of the charge as a whole. It is also relevant to take into account that trial counsel who was experienced and competent took no objection to his Honour's answer to the jury question or to any other aspect of the charge.

36 Applying Redlich JA's test to this case, in my opinion the jury would have been left in no doubt as to the onus and standard of proof that was to apply.

38 Ground 3 asserts that an aggregate of the errors or defects identified in grounds 1 and 2 caused the trial to miscarry.[17] In view of my conclusion as to ground 1, this ground does not require any further consideration.

39 This ground asserts that the verdicts are unreasonable and cannot be supported having regard to the evidence. As is well known, the means by which a ground of appeal of this type is to be approached was described by the High Court in M v The Queen.[18] More recently in SKA v The Queen,[19] the approach outlined in M v The Queen has been reinforced as correct and distinguished from the incorrect approach of the NSW Court of Criminal Appeal as follows:

The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence.[20]

To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged.[21]

On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.[22]

40 It is thus necessary to consider the evidence in some detail concentrating, of course, on the evidence of the complainant and record of interview of the applicant.

41 The complainant's evidence came from a VATE recording of 21 March 2007 and then by a further recording of her evidence and cross examination at a special hearing on 29 April 2008 before a judge of the County Court. Counsel before us agreed that it would be appropriate for the Court to watch the VATE tape and the recording of the special hearing. Counsel for the respondent later informed us that only the VATE tape could be found. That is unfortunate given that there was a video record of this short trial and that the credibility of the complainant was a significant issue. However there was nothing further that could be done about it. I have watched the VATE tape.

42 In the answers she gave in that interview, the complainant said she was then 13 years. Asked whether she knew why she was being questioned she said it was about what her '...uncle done to me'. She explained that he touched and licked her vagina. She then gave a description of how that happened saying it occurred when the applicant picked her up when she was wearing a skirt. She also said that one of the occasions was when they went to a petrol station and he pretended to get lost and, in the front seat, pulled down her pants and both penetrated and licked her vagina. At the conclusion of that incident he told her not to tell anyone. This incident occurred three or four years before the interview. She identified the time by recalling that her parents, who are now separated, were still together at the time.

43 The questioner then continued to ask questions about this incident, which was at the basis of counts 3 and 4, and asked for more detail. She said the incident occurred in the afternoon of the day it occurred and she related the discussion about whether she should go with the applicant in the car. She said she agreed to go because she trusted the applicant although she claimed that he had been touching her sexually for some time. Her grandmother gave evidence that she was present on this occasion and she saw the applicant leave with the complainant. She said she did not want to let her go but she wanted to go. The complainant said she wanted to sit in the back seat but the applicant told her to sit in the front. She thought she wearing jeans and a T-shirt.

44 The complainant then described the incident with the applicant pulling down her pants and inserting his finger into her vagina that, she said, was there for a few minutes and caused her pain after which he then licked her. After asking whether she did not like it and moving back into the driver's seat, the applicant then drove the complainant back to her grandmother.

45 The first time the complainant raised this incident with anyone was when she told her friend and that occurred on New Years' Eve 2006.

46 The next matters she was asked about were those that were the basis for counts 1 and 2. She described them happening about five or six years earlier and said they occurred when the applicant picked her up when she was wearing a skirt and then digitally penetrated her. The idea of picking her up was to help look at a pot plant hanging on a veranda. She said that at the time her parents were in Hong Kong. She described being in a sitting position on his shoulders and her legs were on one shoulder. She claimed that the applicant would have done this about 20 times. She said no one saw because he did it when no one was around.

47 The complainant said the result was that she was frightened and confused and when it was over, the applicant acted as though nothing had happened. She then described that during the period these incidents were occurring, there were in the order of 30 separate occasions on which the applicant did such things to her.

48 She said that on one specific occasion she was in her room and the applicant picked her up on to his shoulders because there was a puppet hanging down and again digitally penetrated her vagina. That, she said, occurred while her parents were in Hong Kong. She said she thought she was showing the applicant the puppet on the ceiling. She was little at the time and quite light and he again put her on his shoulder. She said she would have been facing away from him and believed she had been wearing a skirt. She said she was not sure who else was in the house but no-one else was in the room with them.

49 Finally, she described an incident which is at the basis of count 5 which was when she was at the home of the applicant and the complainant's aunt. She described the applicant coming into a room where she was watching television and after tickling her stomach, attempting to pull down her pants. She yelled for him to stop and then he walked off. She said she was not sure whether her parents were still together when this incident occurred.

50 She said she told her friend and one of the teachers at school because they asked her how things were going and it just 'came into [her] head and [she] just had to tell someone'. She said she had 'wagged' school and the teacher asked her if everything was okay.

51 The complainant was cross examined at the special hearing on 29 April 2008. She was then 14 years' old. The judge formed the view that she should be sworn and she was. She accepted that she had made up stories in the past but when cross examined about a claim she had made that her father had assaulted her, which it was suggested to her was false, she said she was not inventing that allegation.

52 When she was cross examined about the very first time any incident occurred, she said that the applicant picked her up but she was not sure how he put her on his shoulder. That answer was later wrongly translated by counsel into her being unsure about whether he put her on his shoulder as opposed to how he did it. However, it is true that she had difficulty being precise about how the incident occurred. She said they were not under the veranda but at the side of it because that is where the plants were hanging. She agreed that by 2003-2004, such incidents had occurred as many as 20 times but she had tried to convince herself that such things were right. She said that there were no marks, scratches or bleeding as a result.

53 The complainant accepted that by the time the incident in the car occurred, she did not trust the applicant but agreed she had earlier said in the VATE tape that she 'still trusted him in a way'. She also accepted that her grandmother had said that there was no point in her going. She said the applicant was in the driver's seat and leaned over to her to do what he did.

54 As to the incident where she was picked up in her room, she accepted that she had taken the applicant into her room and when asked why she would do such a thing given that by now there was a history of such incidents that she did not like, she said she did not know. She said she asked him to take a puppet down from the ceiling but instead he picked her up. She said she did not think she resisted being picked up.

55 In relation to the very last incident at the house occupied by her aunt and the applicant, the complainant said she did not complain to her aunt about the attempt the complainant had made to touch her or yell loud enough for anyone else to hear her.

56 The witness was then cross examined about matters that went to her credit including:

(d) she denied that in the past she had been disciplined by the applicant;

(e) she denied that she was making these allegations for the purpose of getting attention;

(f) she accepted that she might have said that she was traumatised sufficiently by the incident in the car with the applicant that she had trouble sitting in the front seat of any car afterwards;

(g) that she accepted that she was at the home of the applicant for sleep-overs in 2006 as a result of domestic disputes in her home; and

(h) she did not tell anyone about these incidents at the time because she felt she would have got into trouble for it.

57 In his record of interview, the applicant said that he had not been alone with the complainant at premises at Taylor's Lakes and thought he had never been alone with her at all. Asked whether he had been alone with the complainant in a vehicle he said 'Not that I know of, no.' He said there had never been any sexual contact between him and the complainant and he had no problems with her. He said their relationship was good. Faced with the allegations that he had penetrated the complainant digitally, he said that was false. The applicant did not give evidence on his trial.

58 Having reviewed the relevant evidence, it is now necessary to deal with the matters that were put to us on behalf of the applicant as requiring this ground to be upheld. Before doing so, I observe that in my opinion the complainant was relatively consistent and believable and, to my observation, appeared to be telling the truth during the VATE.

59 The matters that were put by the applicant in support of this ground were, as follows:

(a) there was an absence of recent complaint despite opportunities to complain and the infliction of pain. The observation is correct but was explained by the complainant on the basis that she feared if she did complain, she would be in trouble for doing so.

(b) second, we were reminded there was a long delay in complaining and when made was to a teacher who was dealing with the complainant for wagging school. She accepted that occurred but asserted that the trouble she was in for missing school did not end. I rather took the teacher's enquiry as described by the complainant to be one about her welfare rather one of discipline.

(d) the complainant's evidence was uncorroborated. These are all matters that often arise in such cases but of themselves do not make verdict unsafe.

(e) the fifth, sixth and seventh matters all concerned the assertion that the allegations were inherently improbable. I disagree. The complainant's description of what occurred had its areas for analysis and, perhaps, criticism but I would not regard her descriptions as inherently improbable.

(f) the next matter concerned a claimed lack of detail in the account given by the complainant. It is sufficient to say that although there were some details that were lacking that was not a pattern that flowed through all of her description. She was able to give several details about locations, things she saw and perceived at particular times, which hand was used by the applicant to penetrate her, conversations that occurred at or after particular incidents, the detail of the very first incident as location and circumstances, particular clothing that she wore and the conduct of the applicant after these incidents had occurred.

(g) the next matter concerned the allegation she made against her father for assaulting her. Whilst that was claimed to be a false allegation, the falsity of it was not accepted by the complainant.

(h) finally, the applicant made a record of interview containing firm denials.

60 In my opinion, having reviewed the evidence, I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of these offences. It would have been an advantage to have seen the video recording of the special hearing during which the evidence given by the complainant was tested

by cross examination but, nonetheless, I am satisfied that this ground should fail.

61 In the result, given that I am of the view that the appeal should be allowed on ground 1, I would order that the convictions and sentences be set aside and a new trial of the applicant be held.

62 I agree with Lasry AJA that ground 1 upon which this appeal proceeded should be upheld and that ground 2 should be rejected, for the reasons his Honour has expressed. With respect to ground 4, I too have viewed a copy of the electronic recording of the complainant's evidence in chief and have read the transcript of her cross-examination. I agree with Lasry AJA's assessment of her evidence and his analysis of the transcript of her cross-examination.

63 The complainant appeared to me to give her evidence as one would expect of a 13-year-old girl describing very unpleasant events of which she was the victim. She neither over-elaborated those events, nor did she fail to provide sufficient detail. The effect of her evidence overall was convincing. I agree with Lasry AJA's view of the criticism of that evidence made by counsel for the applicant before this Court. Ground 4 should be rejected.

64 I agree that the applicant should be granted a new trial on ground 1.

[6] Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1, 17.

[8] Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1, 19.

[9] [1985] HCA 66; (1985) 159 CLR 507 and in particular 515.

[11] Extract of counsel's addresses at 14.

[13] Liberato v R [1985] HCA 66; (1985) 159 CLR 507, 515.

[14] Liberato v R [1985] HCA 66; (1985) 159 CLR 507, 515.

[20] SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 [20].

At a glance

Court

Decision date

Before

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Judgment (114 paragraphs)

Parties

Cases Cited (6)