Adams v R [2018] NSWCCA 303 | Case summary

Adams v R [2018] NSWCCA 303 | Case summary | Zoe

[4]

Summary of the Crown case

On 29 and 30 January 2013, the applicant was employed as a carer on a casual basis at a crisis centre for high needs young people ("the Centre"). He was employed by an agency and had completed three previous shifts there. Two carers were rostered for each night shift. One carer had an active role and the other a passive role. In the latter role the carer was permitted to sleep unless awoken to assist the other. On the shift in question the applicant was in the active role. Each child or resident of the Centre had his or her own room. At the relevant time, the complainant was residing at the Centre. As I have said, she was 14 years of age. It is relevant to record that she suffered from a Mild to Moderate Intellectual Disability.
The Crown case was that in the early hours of 30 January 2013, after the other carer, Simranjit Singh ("Prince"), had gone to bed for the evening, the applicant walked into the complainant's bedroom where she was sleeping, woke her and told her to follow him into the communal lounge room. Once the complainant was seated on the lounge, the complainant alleges the applicant touched her on her legs and asked her if she was "getting horny" (CB 426 - 427, 429). The complainant attempted to move away from the applicant and told the applicant to "stop" several times (CB 426). The applicant ignored this and proceeded to touch the complainant's breasts, albeit "only for a couple of seconds" (CB 426, 432). This conduct constituted Count 1 on the indictment.
Although not accepted by the jury beyond reasonable doubt, it was also the Crown's case at trial that: the applicant told the complainant to place his electric toothbrush on her vagina which she refused. The applicant disregarded this refusal and placed the toothbrush over her vulva outside of her pyjamas (Count 2). The applicant then had the complainant follow him to a shed on the property, where he placed his fingers inside her underpants and proceeded to digitally penetrate her vagina (Count 3). They returned to the Centre where the applicant asked the complainant to come with him to his staff bedroom, there it was alleged the applicant licked and sucked the complainant's breasts (Count 4).
At about 3:00am, after these assaults, the complainant asked the applicant for the Centre's telephone to phone a friend. The applicant allowed the use of the phone but told the complainant that what had just happened was their secret and she was not to tell anybody. The complainant agreed and then the applicant provided the telephone to her. The complainant called the Support Manager of the Centre, Ms Roberta King, and told her that she needed her help. Next, the complainant telephoned '000' to report the incident to police.
The complainant then woke Prince up and complained to him. Prince initially doubted the occurrence but appreciated the gravity of the allegation and waited with the complainant outside the Centre for the police to arrive.

[7]

The evidence of the complainant

The applicant was not competent to give sworn evidence because of her intellectual disability. After complying with s 13(5) Evidence Act 1995 (NSW) ("Evidence Act") the trial judge held that the complainant was competent to give unsworn evidence only. The complainant's evidence-in-chief was given in camera by playing the audio-visual recording of her police interview of 31 January 2013. She was then cross-examined and gave evidence from a remote location by CCTV. This procedure complied with the provisions of Part 5, Criminal Procedure Act.
On 31 January 2013 at 4:41pm, Snr Cst Leah Moran conducted a Child Interview with the complainant. The complainant's account here was that the applicant woke her by calling her by name repeatedly and saying, "[w]ake up. Come to the office" (CB 425). She said she went to the office with him and they looked through files on the computer. They then moved to the lounge room. The complainant sat on the lounge and the applicant sat next to her. She said: "he started touchin' my legs. And then I moved, like, a little bit away from him and then he came closer and started doing it again and I said, Can you stop, and he's, like, Why, babe, and then I'm, like, Can you just stop." [sic] "And then I turned the TV on and then I started watching TV and then he, like, came around, kneeled on the ground and then started touching my boobs. And then he was, like, every, like, 10 seconds he would go to the hallway, yeah, where the hallway ended, and started looking around if anyone was coming. And then he said, Let's go to the shed, and I said, No, but there was no other way out 'cause I wanted to run away, get away from him, so I just went out with, out the side, like, the back door, and then he just took my hand and took me up to the shed. And then we were in the shed. I was, like, in the corner and he was, like, keep on looking around if anyone was coming, and then he put his hand down my pants and started touching me there down below. And then we heard, like rattling, he heard rattling in a bush and then he said, We should go in now, and I'm, like, Yeah. And when he was, like, walking off I picked up a metal stick and was gunna hit him with it, but then he told me to put it down so I put it down 'cause I was scared of him. And then I went inside with him and he took me in the staff, staff sleepover room, where the staff sleep. And then he pushed me on the, his bed, the staffs' bed, and started licking my boobs. And then I got up and I said, Can we go out, and he's, like, No, not yet, until you make my dick hard, and then I said, No. And then after that I said, I think someone's coming, like, to scare him so he would let me out, and then he opened the door and I went into my room, like, at the front door, and locked it and then he didn't, he didn't knock, he just came in again and said, sat on my bed and then he started saying to me, Oh, are you horny yet, and all this stuff. And then I just said, Can you stop talking dirty to me." (CB 426)
The complainant confirmed that the applicant started by touching her legs (CB 429). She demonstrated he was touching both of her legs up high (CB 431). She said she turned the TV on and 'The Love Boat' was on (it was an agreed fact that 'The Love Boat' was broadcast that night). It was while that show was on that the applicant touched the complainant's breasts, "…for a couple of seconds" (CB 431, 432). The complainant said she was then wearing "West Tigers shorts" and a "pink Sponge Bob pyjama top with a red jumper over it" (CB 433).
The complainant could not say which hand the applicant put down her pants after they went to the shed (CB 434). She said she was wearing underpants under her shorts and the applicant put his hand under her underpants (CB 447). She said he put his hands "not [on] the top of my vagina, but in it" (CB 448) and that "[h]e was moving his hand up and down" (CB 448). However, she could not say how long his "hands" were down her pants for.
She added that when they had been in the lounge room the applicant took an electric toothbrush from his pocket (CB 450). He turned it on and it vibrated. This was after he had touched her breasts (CB 450). The applicant put the vibrating end of the toothbrush on top of her clothes over her vagina (CB 450). She was unable to say how the vibrating sensation made her feel (CB 451). The applicant then put the toothbrush back in his pocket (CB 452).
When they returned from the shed, the complainant said that the applicant took her into the staff sleepover room, laid her down on the bed and licked her breasts (CB 434). After this they went back to the lounge room and the complainant asked the applicant for, and the applicant gave her the telephone. She said she wanted to ring a friend but she rang Ms King (see below) and the police (CB 434 - 435).
The complainant also asserted that the applicant showed her his Facebook page which contained a picture of a girl about her age in a bikini. She said the applicant made lewd comments about the girl (CB 452 - 453).
In cross-examination, the complainant said that the applicant put his hand down her shirt from behind her. This was different from what she said in her interview. She could not remember which hand he used or whether he touched one or both of her breasts (CB 816.5 - 816.15T). When they were in the shed, she said "he put his hands down my pants and started touching my vagina" (CB 817.30T). (Emphasis added.) When they had returned to the house from the shed, the complainant said that the applicant sucked rather than licked her breasts (CB 820.5T). The complainant stated it was then that the incident with the toothbrush occurred in the lounge room not previously (CB 820.30T). But she was unable to say which pocket the applicant retrieved the toothbrush came from. She said that he told her "to put it down [her] pants, on [her] vagina" (CB 821.20T). She also said that he told her to put it underneath her clothes and that she complied (CB 821.40T). These details, of course, contradict the order and detail of the toothbrush incident (Count 2) as given in the recorded interview.
She agreed with the cross-examiner that the account she gave to Snr Cst Donnelly was accurate (see below) (CB 831.25 - 834.20T). She agreed that Snr Cst Donnelly asked her whether she had washed and that she had said "no" (CB 836.15T). The complainant also remembered complaining at the Child Protection Unit at Westmead Children's Hospital ("the Hospital") that the applicant had touched her on her "boobs and vagina" (CB 838). He touched her on her breasts beneath her clothing with "his hands" (CB 838.35T). She also agreed that she had told Dr Reeta Singh, who examined her at the hospital, that the applicant had put the vibrating electric toothbrush on her vagina in the shed (CB 839.15T).
The complainant also agreed that she had embellished the account of what happened in the staffroom when they returned from the shed by asserting "[h]e was licking my boobs, saying that he was going to suck my tits till they go blue and he kept asking if I was horny" (CB 841.20T).
She agreed that she was having her period at the time and was wearing a sanitary pad at the time (CB 843.35T). She had told Dr Singh that her period had commenced a few days previously.
After the complainant returned to the Centre from the Hospital she had a second conversation with Ms King. On this occasion she added that the applicant had exposed his penis to her (CB 847.30 - 847.45T). She said this happened when they were in the lounge room for the second time. She agreed that that was the first time she had mentioned that matter to anyone and that she did not mention it to the police in her subsequently recorded interview. It was put to her that there had been many times when she was living at the Centre that she had lied (CB 869.20T). She agreed that one of the carers had spoken to her about "telling lies" (CB 860.30T).
She was cross-examined about an incident on a previous day when she alleged that the applicant hugged her and kissed her on the neck in the swimming pool (CB 863T). Evidence of these uncharged acts had been admitted to provide context. She agreed that she had told the applicant "[y]ou're cool, you're the best" (CB 830T) on the day they had been in the pool. She said she had complained about this misconduct to Prince (CB 868.5T). A line of cross-examination suggested that that matter did not occur and there had been no complaint about it. It was put to her that the pool incident did not occur and that she had never been in the pool alone with the applicant. It was suggested that on the only occasion on which the applicant had been in the pool with her was when they were also in the company of other residents. The complainant adhered to her evidence (CB 872.5 - 872.25T).
She agreed that she had been on medication for anxiety and depression with a history of self-harm when the offences allegedly occurred. The self-harm continued while she was living at the Centre (CB 894.25T). The cross-examiner also sought to demonstrate that the complainant's recollection for the chronology of the events, and in particular the timing of the alleged offences, was internally inconsistent. She was also cross-examined about the various inconsistencies in the different accounts she had given to different people. This included the differing accounts about the use of the toothbrush and the inconsistency between her experiencing her period and the absence of blood on the toothbrush (CB 903.15T).
The complainant eventually agreed that she made no complaint to her mother or to any staff member about the pool incident as she had previously claimed (CB 905.15 - 905.35T). She also agreed that she was in fact awake and not asleep when she heard footsteps walking passed her door. She initiated contact with the applicant when she called out to him (CB 908.35 - 908.40T).
The complainant seemed to agree with a series of propositions put in cross-examination which accounted for the time between her becoming aware of the applicant's presence until she woke up Prince which did not involve any improper conduct by the applicant (CB 911.15 - 917.35T). During this passage she agreed that she had been handling the applicant's phone and had it in her possession "for a while" (CB 916.50T). She may have used it to make a telephone call because she claimed to have "called up some friends" (CB 917.25T) who were apparently coming over in a car to bash Prince. She agreed that after this conversation she knocked on Prince's door and he got up (CB 917.45T). If this was accurate there would have been no opportunity for any of the alleged offending to occur. Moreover, handling the phone provided one, or possibly many, explanations for the presence of the applicant's DNA on her person. However, when she was challenged that the alleged offending did not occur, she insisted that those events had occurred (CB 918.50 - 922.10T)
During the course of the cross-examination the complainant: said to the cross-examiner "…you can believe what you want to believe" (CB 918.5T); asked for the cross-examination to end (CB 919.30T); complained that she was getting anxious in the remote witness room (CB 919.30T); said the cross-examiner was confusing her (CB 907.5T); and asked for a break (CB 909.15T).

[10]

Police arrive at the Centre

Snr Cst Donnelly was the first police officer to attend the Centre at approximately 4:45am on 30 January 2013. Upon arrival he spoke to Prince who then introduced him to the complainant. The complainant had swollen eyes as if she had been crying and Snr Cst Donnelly observed her to be scared and nervous.
Snr Cst Donnelly recorded the complainant's version of events in his police notebook (CB 1274.30T). It is worth setting out the whole of the complainant's account: "[a]bout 1am on 30 January 2013, Tony Adams came into my room using a key. He said '[complainant], [complainant], [complainant]' until I woke up. I saw Tony standing beside my bed. He was wearing a T-shirt and shorts. He said '[c]ome into the office'. He showed me photos on the computers. Tony said "[c]ome into the lounge room". I sat on the lounge and Tony sat beside me. Tony put his hand on my leg and said 'I want to lick your pussy. I want to suck your tits until they turn blue'. I said 'Yuk, can we not talk about that?' Tony said '[w]e better not do it here. I don't want to get caught again. Come to the shed.' Tony checked to see if Prince was up. He said '[i]t's all clear.' Tony walked to the shed and I followed him because I was scared of what he will do if I said '[n]o'. In the shed Tony put his hand inside my shorts and underwear. He started sucking and licking my neck. He put his fingers in my vagina for a couple of seconds. He kept looking back to the house to see if anyone was coming. Tony said '[w]e better head back. I don't want to get caught'. I went into my room and locked the door. When Tony was touching me I said '[s]top' a few times. Tony came into my room using his key. Tony sat on the edge of my bed, I was lying in bed. He said '[a]re you horny yet?' I said '[c]an you stop talking about this?' He said '[w]hy?' I said '[c]ause I said'. He said '[c]ome in to where the staff sleep'. I said '[n]o'. I tried to run to get Prince but he blocked me. I followed him to his room because I was scared not to. He said '[c]an you lie on the bed, on my bed?' I lay on his bed. He lifted my top up and started licking my breasts. He said '[w]e better get out before Prince comes.' I went into the office, I rang Roberta the manager and told her. I rang the police. I woke Prince up and told him." There are obvious inconsistencies between this version and the version given by the complainant in her interview with police. There is no mention of the matters constituting Counts 1 and 2.
After taking the complainant's statement, Snr Cst Donnelly asked the complainant to go to her room to remove and bag her clothes for evidence. The complainant complied. Snr Cst Donnelly asked the complainant if she had showered or changed clothes after the alleged assaults, to which she responded, "[n]o" (CB 1275.45T). In evidence, Snr Cst Donnelly said he did not see the complainant shower; he was not aware of the complainant showering; and, from this, he formed and remained of the belief that she had not had a shower (CB 1288.30 - 1288.40T).
At trial Snr Cst Donnelly gave evidence of the complainant walking him through the Centre to the areas where she alleged the assaults occurred. The complainant was then conveyed by ambulance to the Hospital.
Snr Cst Donnelly also spoke to the applicant after appropriate identification and caution. He recorded the applicant's account in his notebook which was as follows (at CB 1277.40 - 1278.25T): "I said '[w]hat time did you start working at this house?' [the applicant] said '[a]bout a quarter to midnight.' I checked the office and wiped down the kitchen. I walked around. About 12.30am I was walking outside [complainant]'s room. Her bedroom door was open. [The complainant] called out '[i]s that you Tony?' I said 'Yeah, what's going on?' I walked into the room. [The complainant] was in bed. I said '[w]hat happened to your hand?' She had a bandage on it. She said 'I hurt it.' She said '[h]ow long are you working here?'. I said '[O]ff and on'. I got up and went out of her room. [The complainant] got up. She was wearing shorts and a top. She followed me into the kitchen. We had a conversation for a while. She said she had been up for two days in a row and she wasn't tired. She said 'I want to go for a drive.' I said 'I don't know about that.' She said '[c]an we go for a walk?' I said '[n]o probably not.' We went into the lounge room and sat on the lounge talking. I said 'I'm going to make some lunch for David'. [The complainant] followed me into the kitchen, I made lunch and went into the office. She followed me in. We looked at a few things on the computer. I said '[y]ou should probably go to bed'. She would not go. We sat in the lounge room. We had a conversation about Jade and her boyfriend. [The complainant] convinced me to go for a walk down the driveway. She kept asking if we could go for a drive. I said '[w]e should get back to the house; what if Prince gets up'. We returned to the house. I said 'I will sit here and talk to you if you can't sleep'. We talked again. … I went into the office and she followed me. She gestured like she was going to go to bed. I said that's a good idea. [The complainant] went back into her bedroom. After 15 minutes [she] came back and said 'I rang some friends. They're coming over to get Prince'. She knocked on Prince's door and spoke to him. Prince got up and spoke to her. Prince said to me '[d]o you know if she called the police'."

[11]

Electronically Recorded Interview of a Suspected Person ("ERISP")

On 6 March 2013, police conducted an ERISP with the applicant. The audio visual recording of that interview was introduced into evidence while Snr Cst Donnelly was giving evidence, although he was not one of the police officers who conducted the interview. The applicant told police that he had made some notes about the night/morning in question and used these notes as a reference in the ERISP.
During the ERISP the applicant explained he worked at the Centre on 18, 19, 24 and 29 to 30 January 2013. The applicant told police that his co-workers at the Centre encouraged him to spend time with the complainant because she seemed to behave well with him. He recalled the sequence of events on the evening of 29 January to the early hours of 30 January 2013. The applicant explained the complainant called out for him from her bedroom and he responded and entered her room. They had a brief conversation and then she said she was not tired and was getting out of bed. The complainant mentioned she would like to have Prince fired because he made her feel uncomfortable.
After she got up, the complainant proposed placing a fish in Prince's bed. The applicant rejected this idea and then the complainant suggested they go for a drive. The applicant also rejected this request. The complainant then asked if they could go for a short walk on the driveway of the Centre. The applicant agreed to this. When they arrived back at the Centre the applicant attempted to occupy himself with paperwork. The complainant asked if she could use Facebook and the applicant agreed. After accessing Facebook the complainant told the applicant she would go to bed.
Later the complainant ran into the applicant's room saying she had called the police and that some guys that she knew were going to bash up Prince.
The applicant denied touching the complainant in any indecent manner.
Snr Cst Donnelly also gave evidence that the applicant had no prior criminal record (CB 1285.15T).

[12]

Examination at the Hospital

The complainant was taken to hospital by ambulance where she was medically examined by Dr Singh and Dr Susan Marks. As required by the Child Sexual Assault Medical Protocol Dr Singh made notes as she examined the complainant. Dr Singh asked the complainant "[w]here did the man touch you?" and in response to this question, the complainant pointed at her nipples (CB 252.15 - 1042.45T). Dr Singh took swabs from where the complainant indicated the applicant had touched her. Swabs were taken from the complainant's breasts and her genitalia. These swabs, along with the complainant's underwear, were placed in sealed bags and labelled for testing.
In cross-examination, Dr Singh confirmed the complainant's hymen was intact and there was no acute injury to the genitals (CB 1053.15T). This evidence was particularly relevant to Count 3, which involved an allegation of digital penetration. The expert regarded her findings on clinical examination as "neutral" so far as proof of that matter was concerned (CB 1053.40T). However, Dr Singh confirmed that she received no history or complaint from the complainant of digital penetration (CB 147.15, 1051.25T).
As I indicated above when dealing with Snr Cst Donnelly's evidence, an issue arose at the trial after Dr Singh gave evidence in relation to whether the complainant had washed after the alleged incident, before being taken to the Hospital. This was particularly relevant to the use to which the DNA results obtained from the breast swabs could be put at the trial. Those results did not support the presence of saliva. It will be recalled that Count 4 involved the allegation that the applicant licked or sucked the complainant's breasts.
A Forensic and Analytical Science Service ("FASS") Biologist, the Manager of the DNA Unit NSW Forensic Analytical Science Service, Mr Clayton Walton, analysed the swabs obtained at the Hospital. During his evidence it became apparent that he had had access to the material compiled at the Hospital while Dr Singh was examining the complainant, part of which was the Sexual Assault Information Kit ("SAIK"). This document did not find its way into evidence, but Mr Walton was questioned about it by the Crown Prosecutor without objection. He said that boxes adjacent to both of the words "showered" and "bathed" had been ticked. His evidence was if the complainant had washed this may have affected the results obtained from the breast swabs, possibly explaining the absence of saliva. It is to be borne in mind that Counts 1 and 4 both involved alleged indecent assaults on the complainant's breasts. The expert evidence discussed below explained that saliva is very rich in DNA. Therefore, licking or sucking is likely to leave a large deposit of DNA and evidence of a protein named alpha amylase (CB 1315.10 - 1315.15T).
In this context, it is surprising that Dr Singh was not asked questions about the compilation of the SAIK document and the history she actually received in relation to the topic of washing, if any. Clearly a positive record of both showering and bathing may contain an immediate ambiguity. Having said this, it is clear that the jury rejected the "evidence" that the complainant washed given the not guilty verdict on Count 4.

[15]

DNA evidence

Mr Walton's certificate of expert opinion was admitted as Ex "P". Ex "P" recorded the results of samples obtained from the complainant at the hospital on the 30 January 2013. These samples were taken from nine locations of the complainant's body and clothing available but DNA testing was carried out only on three of those nine categories. Mr Walton explained why this was so in his evidence-in-chief which I will discuss further below. The categories were ordered in Ex "P" as follows: 1(a) a control sample obtained from the complainant; 1(b) a high vaginal swab; 1(c) a low vaginal swab; 1(d) vulva swabs; 1(e) clitoris head swabs; 1(f) right breast swabs; 1(g) left breast swabs; 1(h) the complainant's underpants; and 1(l) the sanitary pad taken from the complainant. The categories used for DNA analysis were the vulva swabs and the right and left breast swabs.
Although much was made of this in the closing address of defence counsel at trial, Mr Walton explained why the underpants and sanitary pad were not tested. He said this (at CB 1301.30T): "Usually we will progress through items with the most important items based on the information we're provided in the case, being done first and then as we obtain results we may or may not, depending on all the information we have, go through all the items that we receive so that in this case, because of the information and because we'd already obtained [results] from the breast swabs we didn't carry out any testing on the underpants or sanitary pa[d], which are 1(h) and 1[(l)]. Additionally sanitary pads are rarely examined unless [it is] absolutely necessary because they're not very useful sources of obtaining results with our test methods."
DNA testing was not carried out on the high vaginal swab (1(b)). In the case of alleged digital penetration "it is highly unlikely that any DNA would be able to reach into the high vaginal" [sic] region (CB 1302.5T). That makes sense, of course, but Mr Walton said the same was true of the low vaginal swab (1(c)), which does not seem so self-evident.
In relation to the vulva swabs (1(d)), semen was not detected unsurprisingly having regard to the nature of the allegations. DNA testing was carried out using a Y-filer system. This system is used to identify whether a Y chromosome is present on the intimate areas of a female. This approach is adopted in preference to DNA testing because in this anatomical region the amount of female DNA is likely to be "… very, very high and it would sometimes swamp any male DNA that's present" (CB 1302.15T). No male DNA was detected using this methodology.
When asked about why no DNA testing was carried out on the clitoris swabs, "Mr Walton said it did not fall into the same category as the vaginal swabs because "it can be exposed to surface[s] and [it is] possible to have male DNA present on it but since we had done the testing on 1(f) and 1(g), we at that point in time stopped doing any further testing on 1(e)" (CB 1302.35T). I must say, I find this a surprising response. The allegations in relation to Count 1, for instance, were that the applicant touched the complainant's breasts and genitalia. And, of course, in relation to Count 3 the allegation was one of digital penetration. It will be recalled that 1(f) and 1(g) were the breast swabs. To state that no further testing was done on 1(e) because they found DNA on the swabs taken from the complainant's breasts is at best mystifying.
Testing of the right breast detected DNA from two individuals. Mr Walton identified the two individuals as the applicant, who contributed the major component, and the complainant, who contributed the minor component. Testing of the left breast also detected DNA from two individuals, the applicant being the major contributor again. The minor component was at a low level and further analysis was not considered justified. Importantly for Count 4, these results did not reveal any positive finding of saliva on either breast.
Mr Walton acknowledged, although the major component of DNA on each breast matched the applicant, there were also traces of another person's DNA, however, this was unable to be tested because the sample was too weak. Mr Walton determined the likelihood of the right breast major component's match occurring randomly in the population as being "one in 3 point [four] billion…individuals…" (CB 1302.50T). And the left breast, one in 53 million (CB 1304.45T). The difference in these results was explained by either the latter sample being weaker or the testing being less effective or the sample having degraded (CB 1304.40T). However, he did not say which explanation was applicable here. In lay terms, the statistics essentially mean that this profile is quite rare.
Saliva is normally easily detected by DNA testing because of the presence of alpha amylase. This protein was not detected on the swab taken from either breast. Mr Walton said that the test to detect saliva ran, and performed, as he expected it to (CB 1306.15T). The Crown Prosecutor explored with Mr Walton various explanations which may explain why the test for saliva may have produced a false negative as there is no evidence that any of those possible conditions applied. The possibility that was relied upon was that the complainant washed the saliva off so that only a residue of DNA remained.
Mr Walton explained that DNA deposited on the complainant by a person licking and sucking her breasts could have been washed or diluted if the complainant showered, and the alpha amylase could have washed away. As discussed above, he referred to Dr Singh's SAIK notes which were not in evidence. He dealt with other possibilities. There could have been a deposit of skin cells "from someone touching the [complainant's] breast" (CB 1309.5T). Obviously, this would not involve saliva and would not assist in proof of Count 4. Mr Walton also explained that it was possible that DNA was deposited on the complainant's breasts by way of secondary transfer. After discussing the mechanism of secondary transfer in detail and the factors which are capable of affecting how much DNA may be deposited, Mr Walton concluded his examination-in-chief saying (at CB 1310.25 - 1310.30T): "[r]eally I can't, in taking all those factors into account, say which method - which scenario is the most likely. Directly transfer is usually the most likely just because it's the easiest. There's only one transfer event so there's less factors affecting it. Whether that transfer is skin cells or saliva, in this particular case, I can't say. The possibility of saliva being on there and then washed off, leaving only a little DNA is possible, as is direct skin cell transfer and even though it may be less likely, secondary transfer is still a possibility. I just can't say how likely any of them are over the other." [sic]
In cross-examination, Mr Walton confirmed that there was not a lot of DNA recovered. He said that it was sufficient to determine a profile. It was not in the large amount that he would expect from a swab containing saliva (CB 1311.20T). Had there been licking or sucking of the breasts and the complainant had not showered, the results could be affected by "a lot of factors… but generally [he] would have expected to have detected alpha amylase and therefore saliva, yes" (CB 1311.25T).
Mr Walton said that other possible factors could account for the degradation of saliva (apart from washing apparently). These included the possibility that the sample had been mishandled at the laboratory. However, this was a very remote possibility only (CB 1314.20T).
Where the process of deposit of DNA is by secondary transfer, there is likely to be a dilution effect, that is to say the amount present is reduced because some of the deposit will remain on the intermediary person or object (CB 1316.35T). Mr Walton agreed that the total amount of DNA was "not [a] huge amount" (CB 1316.35T). His results were consistent with a small residue of DNA after bathing, but it was "also possible" that "it [was] a small amount because it [was] a secondary transfer" (CB 1316.40 - 1316.45T).
In re-examination, Mr Walton said that his results do not "relate to the likelihood of how the DNA got there or anything else. It's just about the likelihood of the profile existing in the population" (CB 1317.35T). (Emphasis added.)
It is important to emphasise that the only suggestion that the applicant had either bathed or showered after the alleged assaults arose out of Mr Walton's hearsay account of what was in the SAIK medical notes. And the notes themselves were not tendered. I repeat, nor was Dr Singh asked any question about that issue when she was called to give evidence. There was no attempt to explain the ambiguity between bathing and showering.

[18]

Witnesses recalled

Later in the trial documents were produced under subpoena relating to incidents at the Centre involving the complainant. Defence counsel sought to have the complainant recalled for the purpose of cross-examination on the documents which course the trial judge was prepared to allow. However, the Crown was unable to secure her attendance due to a marked deterioration in her mental condition.
Evidence was given on the voir dire by Ms Tamara Wilks, a registered nurse employed by a local health district as a mental health case manager. She said that she had been the complainant's support person during her evidence. She said that the stress of the court case caused the complainant to become aggressive and to commit acts of self-harm. She gave evidence that the complainant was not fit to be further cross-examined. In her opinion it would provoke a crisis in her mental condition.
After further investigation the following fact was agreed and provided to the jury as an exhibit: "[o]n 3 November 2016, Dr Terry Thompson provided a report regarding [the complainant] that included the following observation and opinion: "Recently with the Court case pending [the complainant's] self-harm had escalated had escalated and she has had frequent days in hospital. In my opinion [the complainant] is mentally unable to cope with going to Court … and the Court proceedings should continue without her presence. Her prognosis mentally is poor and will not improve in the short or medium term"."
An application for a permanent stay of proceedings due to the unavailability of the complainant was refused. The learned trial judge permitted the evidence relevant to the complainant's credibility to be led and indicated that she would provide the jury with a direction as to the disadvantage suffered by the applicant by being unable to cross-examine the complainant directly about the matters.
Ms King, Ms Ngatai and Prince were recalled to give further evidence about the matters disclosed by the documents. This further evidence occupied a full three days at the trial. It is not necessary to summarise the whole of this oral evidence, which was given by reference to the incident reports.
The learned trial judge did not allow all of the matters arising out of the documents to be put before the jury for reasons she gave on 2 November 2016 (CB 1254T). A summary of the matters permitted to be established in evidence as relevant to the complainant's mental state and her reliability as a witness are as follows: 1. On 30 December 2012, the complainant wrote on a note to staff threatening self-harm, and complained that her father had tied her hands and feet together and put her in a car boot. She also complained that her father would make her mother choose objects to bash her with; 2. On the evening of 6 and 7 January 2013, the complainant punched another resident, refused to accept correction from staff, absconded from the Centre and had to be found and brought back. She continued to carry on during the night, climbing on furniture. The complainant swallowed a tablet, ambulance and police were called and she was taken to hospital; 3. On 16 January 2013, the complainant abused staff and other residents in the pool. She was non-compliant with directions; she claimed to have attempted self-harm by taking "a lot of medication". She locked herself in the storeroom under the house, obtained a plastic bag and threatened to kill herself. When the ambulance arrived, the complainant tied the plastic bag around her head. She refused to go with the paramedics ambulance officers, became abusive and threatened to call police. She tried to run away and had to be restrained; 4. On 20 January 2013, the complainant took the house phone without permission and called the Child Protection Helpline complaining she had cut her legs and wrists and had been bleeding for 40 minutes. Staff had been unaware of this matter, due to other duties, until ambulance and police arrived. The complainant was located under the house with minor lacerations only. She was taken to hospital for observation. After her return, she was in a bad mood and poured maple syrup over another person's bed. When spoken to by staff she was abusive; 5. On 21 January 2013, the complainant had an issue with another resident in the pool and threatened self-harm. She obtained a knife and was alleged to have threatened other residents before holding the knife to her own throat. Eventually, staff were able to disarm her but she obtained another knife from the dishwasher. Ambulance and police were called. It was necessary for the police to put her forcibly in the ambulance because she was trying to jump out; 6. On 22 January 2013, she was swearing and rubbing cream on furniture. She had an argument with another resident in the pool and threw that resident's belongings around. She took another resident's phone. She "trashed" her room and threatened other residents. Ms King was unable to calm her. The complainant was taken for a drive in an attempt to settle her mood. Her moods were highly elevated. She was emotional and crying. She was described as being very upset and angry. Her emotions were said to be out of control; 7. On 23 January 2013, she was making threats to other residents, "mostly in jest". Minor threats were made to staff, but these were not acted upon. She then attempted to escape the Centre by climbing out the bathroom window. She wanted to fight other residents. She was taken for a drive to calm her down. 8. On 24 January 2013, she threw a drawer through a window in her room. She put her head threw the broken pane of glass and said she would cut it off. She was allowed to call her mother but she was crying and asking her mother to pick her up from the Centre. She was moved to another room for the night due to the broken window being unsafe. She made herself throw up in a cup and threw it at another resident. She was yelling abuse and broke another resident's sunglasses. Police were called to the Centre because of her behaviour. Police said they would have to take her to a detention centre but she calmed down and became quiet. She was later taken by ambulance to Westmead Children's Hospital. 9. On 28 January 2013, she was verbally abusive and very aggressive. She was taken on an outing by staff and remained well behaved. When she returned to the Centre she was aggressive towards other residents and staff, throwing things. She had apparently knocked a hole in her bedroom wall. A knife and razor were removed from her room. She was hitting walls and slamming doors. She was defiant to staff, not following directions. She went to her room and emerged smiling having cut her forearms. An ambulance was called and she was taken to hospital.
When the complainant's mother was re-called she gave evidence that, from about the age of 13, the complainant became more difficult to manage, increasingly violent, destructive and abusive at times (CB 1479.40 - 1480.5T). She used to call police and for ambulances to be taken to hospital (CB 1480.10T). The complainant was being seen by a psychiatrist and was diagnosed with an intellectual disability (CB 1481.5 - 1481.35T). She admitted that the allegation that her father had tied her feet and hands together and put the complainant in the boot of the car was not true. The complainant's mother also said that the story about her choosing objects for the complainant's father to bash the complainant with was also false (CB 1483.10 - 1483.20T). The complainant, when living at home, had also made untrue allegations that her mother was physically violent towards her (CB 1485.15T). On one occasion when she was living at home, the complainant had brandished a knife during a violent incident (CB 1488.35T).
The only complaints that the complainant made to her mother on 30 January 2013 were of the applicant touching her breast and vagina and kissing her on the neck (CB 1493.40 - 1496.30T). The complainant did not say anything about the applicant using a vibrating toothbrush, exposing himself to her, asking her if she was horny, putting his fingers inside her vagina or assaulting her in the staff bedroom. The complainant's mother said there were occasions after 30 January 2013 when police had been called by or about the complainant.

[19]

Arguments of counsel at the trial

As will be obvious from the summary of the evidence I have provided above, the central issue at the trial was whether the jury could be satisfied beyond reasonable doubt that the complainant was a reliable witness. The Crown Prosecutor said to the jury (CB 1535.10T): "[o]ne of the things you may have to consider as judges of the facts is whether [the complainant] is a reliable witness, whether [the complainant] is a truthful witness, and I will start my submissions to you now within those boundaries. Is [the complainant] reliable as to what she said occurred to her in the early hours of 30 January 2013." The Crown reminded the jury of the evidence of Dr Pullman that the complainant was a 14 year old girl with an intellectual disability involving significant cognitive issues according to Dr Pullman's neuropsychological testing. The Crown invited the jury to consider whether given Dr Pullman's evidence "you may not be surprised if there weren't some gaps and inconsistencies in what a person in the position of [the complainant] was when she was giving her various versions" (CB 1538.45T).
The Crown Prosecutor said: "[a]gain … I put my cards on the table at the start, I don't know, but it may well be suggested to you by the defence that there are just too many inconsistencies in the version given by [the complainant] for her evidence to be reliable and truthful. The Crown case is this, taking what [the complainant] has said to others in isolation and whether there's any inconsistences or not, and what those inconsistences might be, or gaps might be, you might think is not the whole story, is not the complete issue as far as this case is concerned. It's not the whole picture" (CB 1546.45 - 1547.5T).
In a conventional way, the Crown sought to demonstrate the reliability of the complainant's evidence by reference to, he submitted, its internal consistency, its consistency with objectively established facts as to the localities where the offending was alleged to have occurred, the evidence of the complaint, and importantly the DNA evidence.
Having reviewed the evidence, the Crown said (at CB 1554.45): "[y]ou might think together that all that evidence, that all those issues, that all those core consistent issues are in some ways tied to the DNA evidence. Now, count 4 directly is, you might think, it's a matter for you, that in the issue of credit, in the issue of truth, in the issue of reliability, the DNA evidence has a role to play not just in count 4, but as far as the impact as the whole of [the complainant's] version. No issue in this trial, no issue, DNA evidence on each breast as provided by Mr Walton. No saliva was found." The Crown referred to three possibilities: (1) there's no saliva; (2) saliva below detectable level; and (3) there might have been a process issue (CB 1555.5T). The Crown acknowledged that the expert's evidence was that because saliva is rich in DNA a much stronger result would have been expected had the complainant's breast been licked or sucked. Clearly, the process issue did not assist the Crown case bearing in mind the burden and standard of proof.
Counsel then sought to persuade the jury that the complainant did in fact wash before leaving the Centre for hospital. I interpolate that this of course depended upon the hearsay evidence of the contents of the check list in the SAIK that both bathing and showering had been ticked as yes. I repeat, the SAIK was not in evidence nor was any question asked of Dr Singh about these matters as might have been expected. I also point out that, certainly, so far as Count 4 was concerned, proof of dilution of the applicant's DNA deposited by licking or sucking was essential if the jury was to use the DNA results as evidence of guilt on Count 4.
The Crown concluded by saying (at CB 1556.5T): "[a]t the end of the day you might think it's appropriate to take all the evidence into account, consider what [the complainant] has said, consider what other evidence that you think, or you conclude that what she says about what happened on that night is truthful, that she's reliable in regards to what she says the accused did to her on that night, about the central issues in counts 1 to 4, if you're satisfied [to that] degree and beyond reasonable doubt, return a verdict of guilty in relation to each of those counts."
Defence counsel pointed out that, notwithstanding the complainant's cognitive impairments, Dr Pullman's evidence was that the complainant would have a capacity to remember the circumstances of the various assaults making up each of the four counts (CB 1558.15 - 1558.20T). The point of that argument was that the jury could not use the complainants intellectual disability as a means of rationalising the obvious inconsistencies as the Crown had invited them to do. Counsel took the jury through all of the inconsistencies in the various accounts offered as complaint evidence. Counsel argued that the cognitive and behavioural problems associated with the complainants intellectual disability gave rise to a need for the jury "to look so much more carefully at her evidence and whether it can be accepted" (CB 1556.20T). Counsel made it clear that she was not suggesting that the complainant was a liar. Rather, she asked the jury to consider the reliability of her complaints in the context of her behavioural issues and the apparently false complaints she made about various matters demonstrated by the records kept at the Centre.
Counsel then turned to the DNA evidence. Counsel accepted that DNA consistent with the accused in a very small quantity was found on the breasts of the complainant. She submitted it was equally important that no trace of saliva was found (CB 1582.30T). Counsel acknowledged the evidence Mr Walton gave about the contents of the SAIK. She said, "[t]hat's two boxes that are ticked" to emphasise the ambiguity. She invited the jury to look at the evidence "in front of you" (CB 1582.45T) and, by reference to the direct testimony of Snr Cst Donnelly, to find that the complainant had not washed.
She returned to the DNA evidence (CB 1583.30T) by saying: "[b]ut there was another explanation that was given and that's secondary transfer. You might recall Mr Walton giving evidence about the two different ways that secondary transfer can occur, but that secondary transfer will also produce a diluted, and that's not reduced by liquid, a smaller diluted quantity of DNA. If secondary transfer occurs you're not going to find any saliva either you might think." Counsel highlighted that Mr Walton could not exclude secondary transfer as a reasonable possibility. Importantly, counsel pointed out the evidence that the complainant was handling the applicant's phone on the night and that she had touched objects touched by the applicant in the office. Because the evidence of DNA on the complainant's breasts could be accounted for either by direct transfer or secondary transfer counsel said "it's neutral. It could be either way" (CB 1583.50T).
Counsel concluded with the following argument (CB 1586.5T): "[c]an you accept beyond a reasonable doubt the evidence of the complainant? Can you accept that the complainant's evidence, and it really is a matter where the complainant's evidence … is fundamental to each of the counts on the indictment, can you accept what she says beyond a reasonable doubt? Can you accept that she is a witness whose evidence is reliable, particularly bearing in mind everything that was going on with [the complainant's] state of mind back in January of 2013?" Clearly, a fundamental issue left by the parties for the decision of the jury at the trial was whether the jury could accept the complainant's evidence as reliable in respect of each count beyond reasonable doubt.

[20]

The Judge's directions

After dealing with general directions, including as to the onus and standard of proof in a conventional matter, the learned trial judge reminded the jury of the factual basis for each count of indecent assault as follows: "[f]or count 1, the indecent act alleged is the touching of [the complainant's] legs and breasts by the accused when they were in the lounge [room] together. For count 2, the indecent act alleged is the accused holding an electric toothbrush which was switched on, with the end of the electric toothbrush touching [the complainant's] vagina on the outside of her clothing. For count 4, the indecent act alleged is the licking and sucking of [the complainant's] breasts by the accused when they were in the staff sleepover room together". She returned (CB 15) to Count 3 and its alternative, and explained its elements in a manner which has not been in any way impugned on appeal.
Her Honour stressed the importance of giving separate consideration to each of the individual counts and said the following (CB 24): "… you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts, if there is a logical reason for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts."
Her Honour then turned to the expert evidence. She reminded the jury that the absence of any positive clinical findings on examination by Dr Singh was "not consistent, it is not inconsistent, it is neutral" (CB 25). Her Honour directed the jury that the results of the physical examination "can neither confirm nor deny the allegations" (CB 25). I must say I find this a troubling direction in the context of a criminal trial which is both adversarial and accusatorial. Evidence which is "neutral" does not tend to prove the accused's guilt. To that extent evidence which is "neutral" does not assist the Crown. Although, one may accept the force of evidence that positive clinical findings are not necessarily to be expected.
Since writing [100] above, N Adams J has reminded me of Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74 at [297], R v RTB [2002] NSWCCA 104 ("R v RTB") at [22]-[24], R v Dann [2000] NSWCCA 185 at [16]-[17]. Those cases are concerned with the vice of using an absence of positive clinical findings as evidence bolstering a complainant's credit contrary to s 102 Evidence Act because the expert evidence is led to the effect that the absence of such findings is not inconsistent with the particular sexual activity forming the basis of the complainant's complaint. In R v RTB (at [24]) the Court said that the expert could give evidence in the "form at the absence of a physical indicator is neutral". However, on my reading of them, the thrust of each of the cases is that the calling of inconclusive medical evidence is undesirable and should be avoided if defence counsel will agree to make no comment on the Crown's failure to call the doctor. But my point is different. Even if inconclusive evidence is called, a question arises about the use the jury may properly make of it. For the reasons I have given, I think it undesirable for the judge to direct the jury as the learned trial judge did here. For my part, I think it is undesirable to describe that evidence as "neutral".
Her Honour then turned to the evidence of Mr Walton. She said (CB 25): "I am going to take the evidence out of turn because Clayton Walton's evidence relates to that of Dr Singh. Clayton Walton was the DNA expert. He gave evidence about the analysis of the DNA sample taken from the accused, and the comparison with the DNA results for the swabs taken from [the complainant] by Dr Singh. You have a copy of Mr Walton's findings in this matter, which is exhibit P, and you will recall the evidence and the cross-examination as to the ways in which DNA can be transferred, and the absence of identifiable saliva."
Her Honour dealt at some length with the possible significance of evidence of the complaint, pointing out that if the jury accepted this evidence, it may make the complainant's evidence more believable than if she had not raised the allegations as she did (CB 31). However, she reminded the jury that repetition does not render the false true: "[a] false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions" [sic] (CB 32). Her Honour also gave a full and favourable direction on the disadvantage the applicant may have suffered because of the unavailability of the complainant to be cross-examined on the incident reports from the Centre. She pointed out that a number of the complaints raised by the complainant were, on the evidence of other witnesses, false. Because the complainant was not available for further cross-examination, her Honour told the jury that the applicant had been put into a situation of significant disadvantage. She warned the jury that before they could convict the applicant, it was necessary for them to "give the prosecution case the most careful scrutiny" (CB 35).
The learned trial judge also gave a full and appropriate good character direction.
Her Honour then thoroughly reviewed the arguments of counsel during which she returned to the DNA evidence (CB 43 - 44). Her Honour said: "[w]ith regard to the DNA evidence the Crown submitted that the DNA evidence strongly supports the version of [the complainant] directly regarding count 4, but generally as to her version of events on the night. The DNA result is consistent with the accused being the primary contributor to DNA on both the left and right breasts. You were reminded that there is the unchallenged evidence that Dr Singh recorded in the sexual assault investigation kit that [the complainant] had showered or bathed. You were reminded that [the complainant] was out of Senior Constable Donnelly's sight for maybe 15 minutes that evening when she changed clothes. In relation to the DNA analysis re saliva content, you were reminded that that is more consistent with showering, and then you have the showering and the fact that DNA remains on both breasts. The Crown submitted taking all the evidence into account you would be satisfied of [the complainant] being reliable, and having been satisfied when you take a holistic approach to all of the evidence, you would be satisfied of the accused's guilt beyond reasonable doubt."
Her Honour reminded the jury of the inconsistencies highlighted by counsel for the defence. Her Honour also pointed out the difficulty presented by the complainant's clothing having been destroyed by the police and not tested.
The learned trial judge recorded the arguments of counsel I have summarised above in relation to the DNA results. She accurately summarised counsel's arguments on the improbability of the complainant having showered, given the limited opportunity and the evidence of Snr Cst Donnelly.
Her Honour also said (at CB 53): "[y]ou were reminded of what [counsel] said was the expert evidence regarding the diluted quality of the DNA evidence on the breasts, and that there was no saliva found. Counsel reminded you that there was another explanation for the presence of DNA on the breasts, which was secondary transfer, that a secondary transfer of DNA can produce a diluted quantity of DNA, and she reminded you that the use of diluted does not mean that it has had water added, it is just a lesser quantity." She then referred to the evidence of the complainant handling objects either belonging to or also handled by the applicant as a method of secondary transfer of DNA. Her Honour said (at CB 54): "… counsel submitted that the DNA evidence was neutral because it could be … either way".

[21]

Ground 1 - Submissions

The analysis of the evidence appearing above has been written bearing in mind the substance of the submissions of counsel for the applicant, Ms Doosey (who did not appear at the trial). I will not recapitulate those matters here. The substantial ground advanced by counsel was that the verdicts are irrationally inconsistent. She argued that the only explanation for the verdicts is misuse by the jury of, or mistake in relation to, the DNA evidence. Counsel argued that that evidence did not have the capacity to prove Count 1. By this counsel meant, as I understood it, that the DNA evidence was admitted in relation to Count 4 and its relevance was restricted to the question of whether the jury was satisfied that the explanation for the "diluted" quantity of DNA on the complainant's breasts was showering or bathing removing all trace of any saliva from licking or sucking. As it was obvious that the jury had rejected Count 4, the relevance of the DNA evidence was spent. And that evidence should not have been employed to prove Count 1.
Another aspect of Ms Doosey's argument was that "the Jury improperly rejected the evidence of the Crown Expert Witness [Mr Walton] in relation to the lack of significance of the DNA evidence" (Applicant's Amended Written Submissions at 2). By this I understood counsel to argue that given that the evidence of Mr Walton about secondary transfer being an explanation for the presence of traces of the applicant's DNA on the complainant's breasts, the jury were bound to have a reasonable doubt. Counsel emphasised those passages in Mr Walton's evidence where he was not able to say which of the various possibilities in relation to the presence of DNA: deposit by saliva then washed off; direct skin transfer; and secondary transfer, was the more likely explanation than another. She stressed his acceptance that secondary transfer was an equally possible explanation for the small amount of DNA detected.
The Crown argued that the applicant's submissions were based upon two misconceptions. The first was that the jury necessarily formed an adverse view of the complainant's credit. The second was that the Crown had restricted its reliance on DNA evidence solely for Count 4. In written submissions the Crown took the Court to the authorities referred to below. The Crown emphasised the evidence of Mr Walton. Even if the DNA test results did not support deposit by saliva they did support direct skin cell transfer by touching. This latter method was consistent with the Crown case in relation to Count 1.

[22]

Applicable Principles

When a Court of Criminal Appeal is considering whether a jury's verdict is unreasonable and cannot be supported by the evidence, it approaches its task in accordance with the principles established in M v The Queen (1994) 181 CLR 484; [1994] HCA 63 ("M v The Queen"). The test was expressed by the plurality in M v The Queen (at 493) in these terms: "[w]here, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
How this test applies in cases where it is argued that unreasonableness is demonstrated by inconsistent jury verdicts has been the subject of separate discussion in many cases of authority. In MacKenzie v The Queen (1996) 190 CLR 348 ("MacKenzie v The Queen") at 366 - 368 Gaudron, Gummow and Kirby JJ discussed a number of principles that guide the Court in deciding such cases. Questions relating to legal inconsistency and the separate trial of co-offenders can be put aside for present purposes. The relevant principles include: 1. The test remains one of unreasonableness, the applicant must satisfy the Court that the two (or more) verdicts cannot stand together in the sense that no reasonable jury who had applied their minds properly to the facts in a case could have arrived at the conclusion (R v Stone, Court of Criminal Appeal (Eng), 13 December 1954, Devlin J, unrep). 2. The primacy of the jury's position as the constitutional tribunal to decide questions of guilt and innocence in criminal trials means "if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted" (MacKenzie v The Queen at 367). 3. "If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court to substitute its own opinion of the facts for one which was open to the jury." Here open does not mean legally open. It means open in the sense explained in M v The Queen (MacKenzie v The Queen at 367). 4. Notwithstanding the aforegoing rules of appellate constraint there will be "a residue of cases … where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" or confusion in the minds of the jury, misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law (MacKenzie v The Queen at 368). 5. "It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice" that the relevant conviction will be set aside (MacKenzie v The Queen at 368).
More or less particular considerations have developed in applying these principles in sexual assault cases. Hoeben CJ at CL (with whom Johnson and Latham JJ agreed) in MG v R [2017] NSWCCA 14 ("MG v R") emphasised that these principles are particularly important where, as in the case at hand, the verdicts are said to be inconsistent. Having reviewed the relevant authorities (at [82] and [89]) his Honour's concluded (at [88]): "[t]he test is one of logic and reasonableness. The applicant must satisfy the Court that the verdicts cannot stand together, i.e. that no reasonable jury who applied their minds properly to the facts in the case could have arrived at that conclusion. If there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted."
It is important to briefly consider some of the authorities underpinning his Honour's conclusion. I think it apposite to set out in full the familiar passage from the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ("MFA v The Queen") at [34]: "[s]ince the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Second, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Third, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed." (Footnotes omitted.) (See also: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290)
In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Simpson J (with whom McClellan CJ at CL (with additional reasons) and Latham J agreed) said at [130]: "[b]efore… an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then … [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12] has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility." (Citations omitted.) As Hoeben CJ at CL said at [87] of MG v R these authorities warn "against assuming too readily that a difference in verdicts returned inevitably demonstrates a want of credibility in the complainant or central witness".

[23]

Ground 1 - Application of principles

This case falls into that, perhaps uncommon, category where it can be confidently said that there is no rational explanation for the acquittals other than doubts about the complainant's credibility in the sense of the reliability of her account. She was not said to be a deliberate liar. In coming to this conclusion I have borne in mind the consideration that the jury has had the benefit of having seen and heard the witnesses and in particular the complainant. I have also borne in mind the caution expressed in MFA v The Queen (at [34]) that a verdict of not guilty especially in trials for a sexual offence "…does not necessarily imply that a complainant has been disbelieved". I have considered whether it may be said that the jury accepted the complainant's version in relation to Count 1 only because they may have considered that it was supported by the presence of the applicant's DNA on each of the complainant's breasts. As the learned trial judge pointed out there was no question that the DNA was the applicant's. The question was how it came to be there.
I should then turn to the arguments concerning the DNA evidence. At the outset, Ms Doosey's argument that the DNA was admitted for a limited purpose only in relation to Count 4 must be rejected. Certainly, at trial, the Crown sought to persuade the jury that the DNA represented a mere residuum after alpha amylase was washed off by the complainant showering or bathing. But the passage I have set out at [110] above from the Crown closing address makes clear that the Crown relied upon the DNA evidence generally, not just in relation to Count 4. The Crown Prosecutor said "the DNA evidence has a role to play not just in Count 4, but as far as the impact of the whole of [the complainant's] version" (CB 154.50T). That there was a focus on Count 4 in this regard, which was a more serious allegation than Count 1, does not detract from the consideration, for which no citation of authority is required, once evidence is in, it is in for all purposes. And, of course, direct transfer, including by touching, was one of three possible means by which the applicant's DNA could have been deposited on the complainant's breasts, bearing in mind Mr Walton's evidence that the statistics associated with the results (1 in 3.4 billion, [65] above) do not "relate to the likelihood of how the DNA got there" ([71] above).
Having reviewed the complainant's evidence for myself, I am persuaded that there are real difficulties with being satisfied beyond reasonable doubt that her evidence was reliable. These difficulties include her intellectual disability. It did not of itself make her evidence unreliable. But its effect upon her behaviour and her tendency to make false complaints were such as to call her reliability into question. Moreover, as I have attempted to demonstrate, there were very significant inconsistencies in the various accounts, or complaints, that she gave to various people, including in the immediate aftermath of the alleged offending. The inconsistent versions included differing accounts given to Ms King, Snr Cst Donnelly, Dr Singh and during the JIRT interview. It should not be overlooked that she continued to embellish, or amplify, her account after the JIRT interview, including in the subsequent complaint to Ms King that the applicant had exposed himself to her. As the judge directed the jury, evidence of a complaint can enhance the credibility and therefore reliability of what might appear to be allegations which, on their face, seem dubious. In this case, however, the inconsistency and variation of her complaint detracts from her believability. The complainant was subjected to a long cross-examination, which must have been trying for her, especially given her disability, which itself threw up a number of inconsistencies. I am not criticising trial counsel. From the transcript one may glean that she was attempting to be sensitive. And the judge was vigilant.
It is instructive to consider Count 4 again involving the allegation of the applicant licking and or sucking the complainant's breast. As I have pointed out, the Crown attempted to corroborate the complainant's evidence about that matter by the DNA evidence coupled with the hypothesis that evidence of saliva was probably washed off. The jury did not accept that evidence. They were alive to the issue about the complainant washing. They clearly did not accept that that occurred, notwithstanding the trial judge's erroneous direction that the evidence of washing was unchallenged. In truth, there was no evidence of washing other than Mr Walton's hearsay account of the ambiguous entry in the untendered SAIK medical notes. Notwithstanding that the DNA evidence was urged upon the jury as corroboration of the complainant's version of Count 4, the jury rejected that count. They must be taken to have rejected the complainant's evidence in that regard.
They must also be taken to have rejected the complainant's evidence about the occurrence of Count 3 (and its alternative) involving digital penetration of the complainant's vagina, which was said to have occurred in the shed. They may have been influenced by the considerations: that the complainant was menstruating and wearing a pad at the time; that DNA testing of the applicant's genitalia including her vulva failed to show the presence of any Y-chromosome; and the inconsistent pattern of complaint.
It must also be taken that the jury rejected the complainant's account of indecent assault that is the application of a vibrating toothbrush on her vagina in an attempt to stimulate her. There were several and obvious inconsistences in her evidence including as to time and place, and whether the toothbrush was applied on the outside or the inside of her clothing. The jury may well have doubted the probability that the applicant would have been carrying the toothbrush in the pocket of his board shorts.
Given these considerations, I am satisfied that the only rational explanation for the acquittals is the rejection of the reliability of the complainant's account.
I am conscious that the learned trial judge carefully directed the jury that each count needed to be considered separately. Her Honour also appropriately directed the jury that, if they rejected the complainant's evidence in respect of one count, they would need to consider the significance of that decision for the remaining counts. Naturally, the jury were entitled to accept only part of the complainant's evidence. Given the obvious difficulties which affected all of the complainant's evidence equally, I am of the view that it was not open to the jury to accept her evidence in relation to Count 1, when they had rejected her evidence in relation to Counts 2, 3 and 4. That is to say, I have a doubt about the reliability of the complainant's evidence. I am of the view that it was unreasonable and illogical for the jury to have accepted the complainant's evidence in relation to Count 1.
Was it then open to the jury to convict on the basis of the DNA evidence alone? To pose the question another way, did the DNA evidence render the complainant's account in relation to Count 1 acceptable when otherwise it was not? I am satisfied that it did not.
It is important to bear in mind that the particulars in relation to Count 1 involved an allegation of touching not only of the breasts, but also of the complainant's legs, according to her indication on the recorded interview, high on her thigh. This was how that count was left for the consideration of the jury (CB 15). The complainant's evidence in her recorded interview was of touching commencing with the legs and then moving to the breasts. The evidence of complaint to Ms King in relation to Count 1 was of the applicant trying to put his hand on the complainant's thigh and leg. The complaint to her mother was, somewhat inconsistently, of him playing with the complainant's breasts "and down below". The complaint to Ms Ngatai was of the applicant touching her breasts and vagina in the lounge room. And the complaint at the Hospital was of the applicant touching her "boobs and vagina" (CB 838). These are very significant inconsistencies. There is a great difference between touching the leg and touching the vagina.
Manifestly, the DNA evidence does not support the case as Count 1 was left with the jury. At best it would have supported part of that case only if the jury was satisfied beyond reasonable doubt that the traces of DNA detected by Mr Walton were deposited by direct skin contact, that is to say, by the applicant touching the complainant on her breasts underneath her clothing. I am satisfied that the DNA evidence of itself in the context of the whole of the evidence was not capable of establishing that fact beyond reasonable doubt.
Of the three possible modes by which the appellant's DNA could have been deposited on the complainant's breasts we can put to one side completely the hypothesis that the test results indicated a residue of DNA after saliva had been washed off. The jury rejected that hypothesis completely. This then leaves direct transfer, or secondary transfer. I repeat, as Mr Walton pointed out, his results said nothing about the relative likelihood of one means of deposit over the other. Given the many imponderables, he explained in his evidence, generally direct transfer might be more likely because it is a simpler or easier process. But secondary transfer could not be excluded as a reasonable possibility for the reasons he fully rehearsed. And there was a proper evidential foundation in the present case supporting the hypothesis of secondary transfer. The complainant had handled the applicant's mobile telephone and other objects touched by him during the night of 29 to 30 January 2013 because it was common ground they had spent time together including at the computer when she got up. Not only was this reasonable hypothesis consistent with innocence not excluded beyond reasonable doubt, but it had an affirmative foundation in undisputed evidence: Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779.
Obviously, the DNA evidence was at best circumstantial evidence of contact between the applicant and the complainant's breasts by one means or the other. With respect to the learned trial judge, the jury were not instructed that they could only convict on the basis of the DNA evidence if they were satisfied beyond reasonable doubt that the applicant's touching of the complainant's breasts was the only rational inference that could be drawn from the whole of the circumstances actually established to the jury's satisfaction by evidence they accepted. The jury could not be satisfied beyond reasonable doubt on the DNA evidence that the applicant was guilty of Count 1 as charged unless no explanation other than that the applicant touched the complainant's breasts and legs was reasonably compatible with the whole of the circumstances established to their satisfaction.
With respect, given the potential significance of the DNA evidence in the trial and the issues surrounding it, the learned trial judge's directions to the jury concerning the use that could be made of it were inadequate. It was not sufficient for her Honour to have said, in her summary of the evidence, no more than: "[y]ou have a copy of Mr Walton's findings in this matter, which is exhibit P, and you will recall the evidence and the cross-examination as to the ways in which DNA can be transferred, and the absence of identifiable saliva." (CB 25) Her Honour really needed to exert her authority as the trial judge by positively identifying the issue for resolution arising out of the DNA evidence. This would have included explaining the relevance of the DNA evidence to each of the counts. So far as Count 1 was concerned, this would have required her Honour to explain the significance of the difference between direct transfer and secondary transfer and how Mr Walton's concessions in relation to secondary transfer interacted with the requirement that the Crown prove the guilt of the accused for each count, including Count 1, beyond reasonable doubt. With respect, it was not sufficient for her Honour to approach it merely by summarising later in her summing up the arguments of counsel (the Crown at CB 43; the defence at CB 53). By approaching it in this way, her Honour failed to engage with the issue thrown up by the different arguments for the benefit of the jury.
Moreover, in her summary, the trial judge dealt with the DNA evidence in relation to Count 4 only and not Count 1. She also said, with respect, erroneously, "there is the unchallenged evidence of Dr Singh recorded in the sexual investigation kit that [the complainant] had showered or bathed" (CB 43). This was not correct. Dr Singh did not give that evidence. And I will say again, the SAIK was not in evidence. The only "evidence" about that matter was the second hand hearsay introduced by Mr Walton. This was at best an assumption that he had made for the purpose of expressing part of his opinion. That assumption was not made good by other admissible evidence.
In summarising the Crown's argument her Honour said (at CB 44T): "[i]n relation to the DNA analysis re saliva content, you are reminded that that is more consistent with showering, and then you have the showering and the fact that DNA remains on both breasts". This was erroneous. Mr Walton's evidence was not that it was "more consistent with showering". (Emphasis added.) That the DNA was a residue of saliva after showering was but one of three hypotheses he referred to, none of which he was in a position to positively propound or exclude, other than to say all were possible.
Her Honour did, when summarising defence counsel's arguments, refer to secondary transfer and summarise what counsel had said about the evidential foundations for the way in which the secondary transfer of DNA could have occurred (CB 53). But again, this mere recitation of counsel's arguments did not provide the jury with any guidance as to how that issue might be resolved especially as it related to Count 1 and by reference to the burden and standard of proof.
I am also of the view that referring to expert evidence as "neutral" is at best unfortunate in the context of a criminal trial. I accept that defence counsel below, in her closing address, described the DNA evidence as "neutral". I repeat, a criminal trial is an accusatorial and adversarial process. To the extent to which it is accusatorial it is for the Crown to prove the essential elements of the offence to establish the guilt of the accused beyond reasonable doubt. The true significance in such a context of evidence being "neutral" is that the facts established by that evidence do not tend to prove that the accused is guilty. Use of the expression "neutral" suggests that the evidence may merely be put to one side. Rather, the jury should be instructed, given that the evidence has been led as relevant, that evidence having that quality of "neutrality" is not evidence which tends to prove that the accused is guilty as charged. And to that extent, it may be weighed in the accused's favour.
I am satisfied that the jury's verdict finding the accused guilty on Count 1 was unreasonable and against the weight of the evidence. I would quash the conviction and direct the entry of an acquittal on Count 1.

[24]

Ground 2

Ground 2 consists of 14 sub-grounds, many of which are inter-related. Given my conclusion on Ground 1, I propose to deal with these matters with as much brevity as duty will permit.
Ms Doosey acknowledged that each of these sub-grounds ran into the difficulty of compliance with Rule 4 Criminal Appeal Rules 1912 (NSW). Counsel sought the necessary leave. Rule 4 is in the following terms: No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal. Each of the 14 sub-grounds is concerned with a "direction, omission to direct or decision as the admission or rejection of evidence".
In Greenhalgh v R [2017] NSWCCA 94 Basten JA said (at [14]): "If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive." In the same case, N Adams J (at [47]) by reference to other authorities which need not be restated here expressed the test for the grant of leave when no objection was made at trial in terms that the applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [20] - [21]; ARS v R [2011] NSWCCA 266 at [147]; Obeid v R [2017] NSWCCA 221 at [24]. I will follow this approach in dealing with the various grounds.
With no disrespect to Ms Doosey, I agree with the observations of the Crown that a ground which has as many as 14 sub-grounds does have all of the hallmarks of the classic "armchair appeal": see R v Fowler (2003) 151 A Crim R 166 at [38]. Nonetheless, this Court is required to review the material. However, as there is an overlap between many of the grounds, I propose to group related grounds together.

[25]

Sub-grounds 2.1, 2.2, 2.3, 2.4, 2.8 and 2.9

All of these grounds relate to aspects of the admission, use, and the failure of counsel to object to aspects, of the DNA evidence. I have dealt with this topic when dealing with Ground 1. I accept that the learned trial judge's directions in respect of the significance of the DNA evidence, the use to which it could properly be put and practical guidance as to what it did and did not prove were inadequate R v GK (2001) 53 NSWLR 317; [2001] NSWCCA 413 ("R v GK") at [29] ff. I would grant leave in respect of Grounds 2.2 and 2.3 and I would uphold these grounds. Given my earlier findings in relation to this aspect, I would not apply the proviso. It was not inevitable that the applicant would be convicted.
To the extent to which the grounds that I have identified rely upon the failure of defence counsel to seek directions or further directions in relation to the DNA evidence, I think it sufficient to say, as Mason P said in R v GK at [31]: "[t]he judge presiding over a criminal trial may … have to ensure thatcareful directions and warnings are given to ensure that the jury understands its role and understands exactly what the scientific evidence does and does not tend to prove." This duty may transcend the obligations of counsel and in the circumstances of the case it is unnecessary to analyse counsel's conduct in the light of the test established in R v Birks (1990) 19 NSWLR 677 ("R v Birks") at 785, by Gleeson CJ. I think it unnecessary to resolve the question of whether the conduct of counsel contributed to a miscarriage of justice.
Ground 2.1 asserted that the DNA evidence was not sufficiently probative and should have been excluded. Ground 2.8 complains of the failure by defence counsel to seek the exclusion of the DNA evidence. I am not satisfied that the DNA evidence ran afoul of s 137 Evidence Act. Although it may be that the jury misunderstood the significance of the DNA evidence, this is different from the danger of unfair prejudice to the defendant. With careful directions and warnings there was no risk at the point of admission that the evidence would be misused by the jury in some unfair way. I am satisfied that the DNA evidence had appropriate probative value. The problem arose in this trial in terms of the use to which it could properly be put. As Mason P pointed out In R v GK at [37]: "[t]he admissibility of evidence is not in an inverse ratio to its probative effect." And his Honour added at [39]: "… if relevant DNA statistical evidence is tendered through a witness of due expertise then its probative weight cannot itself be a ground for withholding it from the jury. Indeed its very significant probative weight is a factor in favour of admission notwithstanding the capacity of extremely high odds to carry a prejudicial overlay." Given these considerations, there could be no error on the part of counsel in failing to seek the exclusion of the evidence.

[30]

Sub-ground 2.12, 2.13 and 2.14

These sub-grounds relate to the evidence of Dr Pullman. Sub-grounds 2.12 and 2.13 assert that Dr Pullman's evidence usurped the jury's function to decide questions of witness credibility, particularly the reliability of the complainant's evidence. I have described above what use the Crown and defence counsel respectively sought to make of Dr Pullman's evidence. It is true that each of them sought to gain some mileage in relation to the reliability issue from Dr Pullman's evidence. In no way did Dr Pullman seek to usurp the function of the jury. In an entirely conventional way she described her clinical and neuropsychological findings, discussed in general terms the nature of the complainant's intellectual disability and how that unfortunate condition affects her memory. All of this was within her expertise and properly admitted: s 108C Evidence Act.
Moreover, as I have attempted to make clear, in the unusual circumstances of this case, it is apparent that the jury did not find the complainant a reliable witness. No question of loss of a chance of acquittal arises in relation to these grounds and I would refuse leave.
Sub-ground 2.14 asserts that Dr Pullman's evidence was without adequate foundation and should have been excluded. Dr Pullman pointed out in her evidence that she had not been provided with full access to medical records. She made clear what material was available to her and what assumptions she made on the basis of that material for the purpose of expressing her opinions. That there may have been other material, even a wealth of other material, available which may have been relevant to the validity of the opinions expressed by Dr Pullman, in and of itself, did not render her evidence inadmissible. Rather the jury were directed that it was a matter for them to decide whether the assumptions made by Dr Pullman were sufficiently like the facts as they found them to be, based on evidence they actually accepted, to render her opinions acceptable. I would refuse leave in respect of this sub-ground.

[31]

Ground 3

Ground 3 is that the trial judge erred in excluding evidence of "false complaints" by reference to the exclusionary rule established by s 293(3) Criminal Procedure Act. The section is set out below. It is necessary to set out some of the detail relating to this ground. However, I will say again that given my decision on Ground 1, it may be sufficient for me to deal with the matter as succinctly as the circumstances permit.
Prior to the commencement of the trial, defence counsel sought a ruling under s 293(7) or s 192A Evidence Act, concerning the admissibility of evidence by way of cross-examination of the complainant and, if necessary, leading contradictory evidence of a number of incidents between March 2012 and February 2013 which were said to be false complaints of sexual or indecent assault. It is unnecessary to consider them in full detail. They were with respect carefully set out in the learned trial judge's judgment of 12 October 2016 (CB 756 - 766). In summary, they are as follows: 1. 30 March 2012 - complaint by the complainant to ambulance officers that her father had touched her on the breasts on two separate occasions. On the first occasion she woke to find him touching her breast and on the second, he was touching her breast and thigh. She was interviewed by JIRT who determined there was insufficient evidence of the commission of an offence; 2. 13 November 2012 - complaint to a policeman of a person chasing her around the house. Her Honour put this to one side as it not seem to be of a sexual nature; 3. 21 November 2012 - complaint by the complainant to the Child Protection Helpline about her father allegedly pulling her hair and punching her. She said that her father was encouraged by her mother. She claimed to have been locked out of the house and said that her father had touched her on her thigh near her vagina on the previous evening. She also complained that her mother showed her father a video that the mother had recorded of the complainant while she was in the shower. No police action was taken; 4. 31 December 2012 - the complainant was living in the Centre and said she had had sex with a 24 year old male who had given her pot and taken nude photographs of her. (Dr Singh's evidence of the complainant's hymen being intact should be borne in mind here.) She also complained of her father giving her alcohol and sexually assaulting her. She said that her father had sex with her while her mother was out. No police action was taken. 5. 14 November 2012 - the complainant said older males had given her cannabis, called her a hot chick and said they wanted to get her pregnant. No police action was taken. 6. 1 January 2013 - the complainant complained that another resident had penile-vaginal intercourse with her under the house and had sucked her breasts in the shed. She was taken to the Child Protection Unit, but declined to be interviewed by JIRT. 7. 14 January 2013 - the complainant claimed to police that she had had unprotected sex with another resident. The house manager advised that at no time did the complainant have an opportunity to have sex either male resident on the premises. 8. 1 February 2013 - the complainant re-presented to the Child Protection Unit complaining a male had given her crystal methamphetamine (also known as 'ice') two days previously and had unprotected sex with her. One should note that two days previously would have been 29 January 2013. 9. 1 February 2013 - as part of the same report the complainant claimed to have been hitchhiking with another girl when an adult male picked them, took them to his unit and digitally penetrated both girls while kissing and licking them.
Defence counsel below had submitted that the sole purpose of the proposed evidence and cross-examination was to demonstrate that the complaints were false. It was submitted the cross-examination was not about sexual activity or the lack thereof per se. However, it was conceded that the decision of M v R (1993) 67 A Crim R 549 ("M v R") "would bring such a line of cross-examination within the ambit of s 293" (CB 525). Counsel reserved the right to argue that M v R was wrongly decided. Given that the District Court was bound by the decision, attempts were made to bring the evidence within the exception to the exclusionary rule established by s 293(4) or alternatively s 293(6). Reliance was placed on JWM v R [2014] NSWCCA 248 ("JWM v R") at [47].
After a careful review of the authorities including R v Taylor (2009) 78 NSWLR 198; [2009] NSWCCA 180 ("R v Taylor"); GP v R [2016] NSWCCA 150 ("GP v R"); Clark v R [2008] NSWCCA 122; (2008) 185 A Crim R 1; GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150 ("GEH v R") at [82] - [83] and Doyle v R; R v Doyle [2014] NSWCCA 4 ("Doyle v R; R v Doyle") at 237, her Honour ruled that other than (h) and (i) none of the incidents were sufficiently temporal for the first limb of s 293(4)(a) and continued (CB 766T): "I am not satisfied that any of the incidents relied upon come within the second limb of s 293(4). A proclivity to lie, confabulate, to make false or unsubstantiated allegations of a sexual nature did not form part of a connected set of circumstances in which the alleged prescribed offence was committed. What the complainant said on other occasions is not part of a narrative of events that led to the offence. It is not part of the immediate aftermath. It does not provide a piece of the jigsaw puzzle concerning the set of circumstances in which the offence was said to have been committed. Effectively, the defence is seeking to have admitted evidence of the nature that has been held for many years to be inadmissible pursuant to the legislation. What counsel for the accused is seeking to establish is that [the complainant] was "a sexual fantasist" who was "all too willing to make allegations". That is precisely the type of evidence that has been held to be excluded by the legislation [since M v R]."
Both at trial and in this Court, the applicant accepted that evidence of a false complaint of sexual assault was caught by the exclusionary rule established by s 293(3). This is because such a matter is evidence that discloses or implies that the complainant has a lack of sexual experience or has not taken part in any sexual activity. That proposition, established by M v R, is too firmly entrenched to be called into question before a three-judge bench of this Court.
Both below and in this Court, the applicant argued that the evidence was within the exception created by s 293(4)(a) Criminal Procedure Act. That is to say, it was argued that the false complaint evidence was evidence of the complainant's lack of sexual experience or lack of sexual activity taken part in by the complainant at about the time of the commission of the alleged offences and that the events, or non-events rather, the subject of the false complaints, formed part of a connected set of circumstances in which the alleged offending was committed. It was implicit that the probative value of the false complaint evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
It was said that the learned trial judge's error was to treat the false sexual complaint evidence as a distinct excluded category, rather than determining its admissibility according to the language of the statute. It was further contended that her Honour fell into error in her approach to the requirement of relative contemporaneity connoted by the phrase "at about the time of" in sub-paragraph (i)(a). Further, it was said that her Honour fell into error by treating each instance of false sexual complaint as discreet, rather than considering whether the pattern of them formed part of a connected set of circumstances in which the alleged offending was said to have occurred.
The Crown argued that the trial judge's approach was entirely orthodox. It was wrong to say that her Honour had approached the matter as though there were a universal prohibition on the admission of false sexual complaint evidence. Rather her Honour approached the question of admissibility in accordance with the language of the section and the authorities to which she had referred. In that context, her Honour was correct to conclude that the temporal requirement of sub-paragraph (9)(ii) had not been met and that the matters relied upon did not form part of a connected set of circumstances together with the alleged offending. Emphasis was laid upon her Honour's adoption of the language of Beech-Jones J from GEH v R at [82], that the making of the false statements were not part of the narrative of events that led to the offence nor were they part of the immediate aftermath, or a piece of the jigsaw puzzle concerning the set of circumstances in which the offence was said to have been committed.

[32]

Decision on Ground 3

Given my decision on Ground 1 which would lead to the quashing of the conviction and the entry of an acquittal of the applicant, I am conscious that if this question of admissibility of evidence were to be decided in favour of the applicant at best he would be entitled to a re-trial. I also bear in mind that the learned trial judge did allow evidence of non-sexual aberrant behaviour and non-sexual false complaints to be given which was highly relevant to the question of the complainant's reliability as a witness. I have decided that there is no rational explanation for the acquittals other than that the jury were not persuaded beyond reasonable doubt that the complainant was a reliable witness and that that doubt ought to have carried over into the jury's assessment of the complainant's reliability on Count 1, notwithstanding the DNA evidence. All of this indicates that there may well be little utility in me deciding Ground 3. Nonetheless, I have come to the conclusion that error has been demonstrated for the reasons which follow. Given my decision on Ground 1, no question of the application of the proviso arises and the Crown do not suggest otherwise.
So far as is relevant to s 293 Criminal Procedure Act is in the following terms: 293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. ……………. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. (9) (Repealed)
M v R does not create a prohibition on the admissibility of false sexual complaint evidence. Nor am I persuaded that the learned trial judge decided otherwise. I accept the Crown's submissions in this regard. M v R decides that false sexual complaint evidence is caught by the exclusionary rule of evidence established by s 293(3). To be admitted such evidence has to qualify as an exception to the exclusionary rule in terms of the statute under s 293(4) or, perhaps, (6). On the other hand, I am persuaded that her Honour took an erroneous approach in relation to the question of temporality raised by sub-paragraph (i) and also to the connected set of circumstances (or relationship) question posed by sub-paragraph (ii).
I should point out that her Honour's decision was a careful one and identified the relevant law correctly, by reference to which she directed herself. The error, with respect, was in the application of those principles to the circumstances of the case which were not in dispute. Her Honour acknowledged by reference to R v Taylor at [36] and the authorities cited there that the section should be construed broadly in the interests of the liberty of the accused. However, there are limits to this approach given that the section: "clearly strikes a balance between competing interests being, on the one hand, the interest of preventing distressing and humiliating cross-examination of sexual assault victims about their prior sexual history and, on the other, the interests of permitting an accused person to cross-examine the victims about defined aspects of their sexual history in circumstances prescribed within the exceptions contained in s 293": GP v R at [40]. Manifestly, to bring the false complaint evidence within the s 293(a) exception, both limbs of s 293(4)(a)(i) and (ii) must be satisfied and the probative value of the evidence must outweigh the distress, humiliation or embarrassment that the complainant might suffer.
It is also does well to bear in mind as the applicant pointed out in written submissions (at 37), that in R v Morgan (1993) 30 NSWLR 543 at 544 Gleeson CJ said: "[s]ince the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion), no narrow approach be taken to that part of the statutory provision which permits its reception."
Hall J pointed out in JWM v R at [47]: "[t]he exception created by s 293(4) applies where the complainant's sexual experience is so intrinsically involved, both temporally and factually, in the circumstances of the offence that to exclude that evidence would lead to an unfair distortion of the facts."
The two most significant cases for present purposes seem to me to be GEH v R and Doyle v R; R v Doyle. In the former case, Basten JA said the word "events" in sub-paragraph (ii) must extend to non-events, given that events is a reference to, inter alia, sexual activity or lack of sexual activity taken part in by the complainant as referred to in sub-paragraph (i) (at GEH v R [11]).
I have referred earlier to Beech-Jones J's amplification of the meaning of a connected set of circumstances (GEH v R at [82]) in subparagraph (ii). His Honour also said at [83]: "[i]n those cases… where evidence was found to fall within this exception, the evidence was of some "event" that had relevance beyond what it might reveal about the complainant's credit. They concerned an event that was in each case found to be so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed." (Emphasis added.) His Honour further said at [84]: "[f]or the sake of completeness I should add that evidence that a complainant has given an inconsistent version of the events the subject of the offence would in my view fall within s 293(4). The evidence of the uttering of the statement would clearly be evidence "of" sexual experience or lack of it at the time of the alleged offence as well as evidence "of" events that are connected to the set of circumstances that give rise to the offence, being the offence itself. The same reasoning applies to evidence of complaint made by a victim of a sexual offence."
In Doyle v R; R v Doyle, Bathurst CJ (Price and Campbell JJ agreeing) said at [237]: "I do not think the fact that the statement could be used in some way to test the credit of DL affects the position. Two alternatives were suggested by the appellant. He suggested that if the statement were true it would suggest that DL was transferring his anger against Mr Bonica to the appellant. Alternatively, if it were false, it could demonstrate that DL had a predilection for making false complaints. Either way the relevant event itself, being the alleged assault by Mr Bonica, did not form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. Although the complaint against Mr Bonica might go to the credit of DL, it was not so connected to the commission of the offences alleged that it bore on the objective likelihood of their commission." (Emphasis added.)
However, the Chief Justice, with respect, should not be taken as excluding all evidence of false sexual complaints coming within the s 293(4) exception. The fundamental problem was that the allegation concerning Mr Bonica occurred about 24 months after the last offence alleged against the appellant. Nether limb of s 293(a) could satisfied in those circumstances.
In GEH v R at [13] Basten JA said: "[a]lthough the two limbs of the exception in para (a) are differently worded and are cumulative, it may in some circumstances be helpful to read the temporal element ("at or about the time of") and the relationship element ("form part of a connected set of circumstances") together. Each phrase reflects elements of the other, particularly if the broader temporal element "about the time of" is the critical element." If, as must be accepted, evidence of false sexual complaints is evidence of a lack of sexual experience or activity within the exclusionary rule established by s 293(3), so too, it must be capable of falling within the exception in s 293(4)(a) provided both conditions in sub-paragraphs (i) and (ii) are satisfied, and subject to the balancing exercise required by the concluding words of s 293(4) favouring the admission of the evidence.
In my judgment evidence demonstrating that a complainant had a predilection for making false complaints about sexual experience "at about the time of" the alleged offence is evidence of a lack of sexual activity taken part in by the complainant at that time and therefore covered by sub-paragraph (i). Likewise, evidence of a series of false sexual complaints at about that time is capable of being evidence of non-events which form "part of a connected set of circumstances" in which the alleged offence was committed in the sense discussed by Beech-Jones J in GEH v R. By this I mean that such a series of non-events may be so connected to the circumstances of the alleged offence that they bear on the objective likelihood of the offence having been committed. And it must be accepted that evidence that the complainant at about the time of the alleged offence was a serial propounder of false sexual complaints may be powerful evidence well outweighing any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
I accept that her Honour erred in evaluating the temporal element by considering the temporal relationship between each incident and the alleged offending separately. This is made manifest in her contingent findings about whether any of the incidents meet the second "relationship requirement". As Basten JA pointed out in GEH v R it is permissible to read both elements together because "each phrase reflects elements of the other" (at [13]). Where, as here, a series of false complaints straddle the date of the alleged offending, covering a period commencing 10 months before the alleged offending and concluding 2 days later, it does not strain the language of the section to treat the continuum which they represent (that is "a connected set of circumstances") as having occurred at or about the time of the alleged offending.
Her Honour found the complaint which was made on 1 February 2013 satisfied the temporal requirement. However, her Honour overlooked that complaint in fact covered two complaints. One said to have occurred on or about 29 January 2013, the day before the night of the alleged offending and another two days later on the 1 February 2013, the day after the recorded interview. These particular matters enjoyed a very close temporal relationship and were said by defence counsel to be non-events that were alleged to form part of a connected set of circumstances in which the alleged offending was committed. It is not clear why her Honour was not satisfied that these two non-events did not form part of the connected set of circumstances in which the alleged prescribed event was committed. They represented complaints of three sets of offending of a sexual nature having occurred in a four day period. They must have bore upon the question of the likelihood of the alleged offences having been committed.
In my judgment, the whole series of false complaints were capable of establishing a predilection (or in other words a tendency) to make false complaints of indecent and sexual assault which bore on the objective likelihood on the commission of the alleged offences. That is to say they extended beyond mere questions of credit and into the substantial question of the likelihood of the commission of the alleged offences.
What distinguishes this case from GEH v R and Doyle v R; R v Doyle is that those cases were concerned with one or two allegedly false complaints made relatively remotely in time to the alleged offending. The putative false complaints were caught by the s 293(3) exclusionary rule and satisfied neither the temporal nor the relationship requirements of s 293(4)(a), to adopt the taxonomy of Basten JA. The evidence in this case satisfied both as I have attempted to show.
I am of the view that the evidence was admissible and that her Honour erred in rejecting it. Its rejection in my judgment deprived the applicant of a fair chance of acquittal on Count 1.

[33]

Sentence appeal

As in my view, the applicant is entitled to an acquittal, it is not necessary for me to consider the sentence appeal, however, I think it appropriate to do so. On 26 May 2017, the applicant was sentenced to a term of full-time imprisonment, having a non-parole period of one year and seven months, commencing on 25 May 2017 and expiring on 24 December 2018 and an additional term of 11 months. The total sentence was one of 2 years and 6 months. Her Honour directed release of the offender at the expiration of the non-parole period. The applicant was released to appeals bail on 13 December 2017.
The learned sentencing judge sentenced the applicant on the basis of facts found by her that he went to the complainant's bedroom, suggested to her that they go to the communal lounge area, sat on the couch beside her, started to touch her on the legs and asked if "she was getting horny". When she moved away the applicant came closer and commenced touching her again. Despite the complainant asking him to stop, the offender continued and touched the complainant on her breasts underneath her clothing for a couple of seconds. The victim suffered from the significant condition of a mild to moderate intellectual disability.
Her Honour assessed the offence's objective seriousness as well within the mid-range. The factors that led her to this view included the consideration that the applicant had abused a position of trust and authority. Her Honour regarded this as a significant aggravating feature. Her Honour also had regard to the vulnerability of the complainant which was exacerbated by her cognitive disability and the fact that the offending occurred in her home as she was then a resident of the Centre.
So far as subjective features were concerned, her Honour found that the applicant was aged 55 years and had no prior convictions. He was a father of three children, although living separately from his wife. The applicant had one son who suffered muscular dystrophy and another who had mental health issues. The applicant was the principal carer of his disabled son.
The applicant was raised in a loving and supportive family and had remained in employment of various types over the years. He enjoyed the support of his wife. Although they lived separately and apart they did not regard their marriage as having broken down.
Her Honour took into account the hardship to the offender's family, but did not regard it as exceptional. A psychologist was unable to diagnose a psychological disorder, but did accept that the applicant was suffering from reactive anxiety and depressive symptoms. The applicant continued to regard himself as having been unjustly accused. Nonetheless, her Honour regarded the risk of reoffending as low and the prospects of rehabilitation as reasonable, particularly in the light of his age and lack of prior criminal history. She was concerned that the applicant was engaging in a degree of "victim blaming" but stopped short of making such a finding. Given the nature of the offending, her Honour did not regard his prior good character as a mitigating circumstance.
Notwithstanding a Victim Impact Statement from the complainant's mother, her Honour was not prepared to find that the complainant suffered the degree of harm attributed to her (as stated by her mother) as a result of the offending, given the compelling evidence of significant mental health issues and her intellectual disability over many years. Her Honour did not find the deterioration of the complainant's condition during the trial as a circumstance of aggravation.
She regarded the offending as one of child abuse about which the community was rightly seriously concerned. Circumstances demanded an appropriate punishment, having regard to the need for general deterrence and community protection. Her Honour regarded the matter as calling for severe punishment, which must include a term of full-time custody.

[35]

Orders

For these reasons it is sufficient to propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal allowed. 3. Conviction and sentence on Count 1 quashed. 4. Enter verdict of acquittal on Count 1.
N ADAMS J: I have had the advantage of reading in draft the judgment of Campbell J. I agree with his Honour that the appeal should be allowed, that the conviction on count 1 should be quashed and that an order of acquittal should be entered for the reasons provided by his Honour. With respect to Ground 1 of the appeal, I am persuaded that there is no rational explanation for the acquittals other than that the jury had doubts as to the complainant's credibility. In those circumstances, I am satisfied that the jury ought to have also entertained a reasonable doubt as to the applicant's guilt on count 1.
To the extent that it is necessary for me to do so, given the orders proposed, I also agree with his Honour's conclusions regarding Ground 2 of the appeal. I wish, however, to make some additional observations concerning Ground 3 and the operation of s 293 of the Criminal Procedure Act 1986 (NSW).
In M v R (1993) 67 A Crim R 549 ("M v R"), this Court held that evidence of allegedly false allegations of sexual assault by the complainant fall within s 293 of the Criminal Procedure Act. The appellant in M v R had been convicted of a number of sexual offences against three young girls, including "T". At the trial, the appellant sought to elicit evidence that during or shortly before the period during which the charged offences were alleged to have occurred, T claimed that male members of her own family were having sexual intercourse with her. The defence case was that these claims were untrue. That evidence was excluded by the trial judge. On appeal, it was argued that the evidence did not invoke the prohibitions of s 409B of the Crimes Act 1900 (NSW) (now s 293 of the Criminal Procedure Act) as the questions were not directed to T's sexual experience but were relevant to establishing that she was a "sexual fantasiser" at the relevant time.
Justice Allen (with whom Gleeson CJ and Meagher JA agreed), held that the proscription in s 409B(3) was not only directed to sexual experience but to lack of sexual experience, finding (at 554): "A finding, however, that she fantasised about having had intercourse with members of her family (that is, not to put too fine a point upon it, that she lied about having had that sexual experience) necessarily would have established more than doubt as to her unreliability as a witness. It would have established that she had not had that particular sexual experience. The proscription in subs (3) is directed not only to sexual experience but also to lack of sexual experience. It is directed not only to the having taken part in sexual activity but also to not having taken part in the activity."
Counsel for the appellant in M v R did not suggest that any of the specified exceptions set out in s 409B(3) applied (at 555). Instead, submissions were made that an implied exception was to be read into s 409B(3) with the effect that the proscription does not apply in circumstances where the evidence demonstrates that the complainant has made false allegations of sexual misconduct such that her evidence in respect of the accused was unreliable. In describing the thrust of the appellant's submissions in this regard, his Honour said (at 555): "…It would be, it was put, a gross injustice so to deprive an accused of the chance to prove the unreliability of the complainant in relation to sexual allegations. The Court should be astute, it was urged, to construe the section in such a way as to avoid such an injustice."
Justice Allen rejected this contention, holding that the only exceptions that applied were those relevantly set out in the provision. His Honour stated (at 558): "What was said in Parliament undoubtedly supports what, in my judgment, is manifest from the structure of the section itself. It enacts a blanket prohibition. To that prohibition the only exceptions are those specifically stated. There is not any judicial discretion, arising from considerations of justice as perceived by the court in any individual case, to proceed on the basis that some further exception can be read into the section by implication."
As a matter of statutory construction, it is undoubtedly correct that evidence of a previous complaint of sexual assault falls within the terms of s 293(2) and (3). If the allegation is true then the evidence discloses or implies that the complainant has sexual experience and taken part in sexual activity. If the complaint is false, it is evidence that discloses or implies that the complainant has or may have a lack of sexual experience and has not or may not have taken part in any sexual activity. As the High Court held in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 in relation to the predecessor of s 293 (s 409B(3) of the Crimes Act), the evidence of prior sexual activity or experience prohibited by the provision refers to both consensual and non-consensual sexual activity.
Before turning to consider the statutory exceptions in s 293(4) of the Criminal Procedure Act, it is necessary to first have regard to whether the evidence of the previous complaints by the complainant passes the threshold test of admissibility: relevance. The need to first consider the question of relevance in any s 293 application was considered by this Court in Burton v R (2013) 237 A Crim R 238; [2013] NSWCCA 335 ("Burton v R"). Burton v R was an appeal brought by the Crown under s 5F of the Criminal Appeal Act 1912 (NSW) against certain pre-trial evidentiary rulings. The Crown case was that the complainant had fallen asleep on the respondent's yacht and woke up to him performing cunnilingus on her. He was charged with sexual assault.
The trial judge in Burton v R ruled that evidence to be given by a witness who was a friend of both the complainant and the respondent was admissible. His evidence was that, earlier in the night of the offence and whilst at Kings Cross, the complainant had exhibited sexual interest in a man that she met at a bar. That man did not reciprocate those feelings. Later in the evening, when the complainant saw that man at a "gentleman's club" with "a couple of hostesses", she said to the witness, "[w]hy would he go with them when he could had had me for free?" The trial judge ruled that this was admissible.
Simpson J (as her Honour then was), with whom RA Hulme J and Barr J agreed, held at [62] that the starting point for determining the admissibility of evidence is relevance under s 56 of the Evidence Act 1995 (NSW). In holding that the evidence was irrelevant, her Honour stated: "That the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent."
Her Honour then went on to find that s 293 did not arise for consideration because the evidence was not relevant (at [73]-[74]): "[73] Section 293 is applicable to evidence that otherwise would be admissible and of probative value: R v Morgan (1993) NSWLR 543, per Gleeson CJ at 544. However, since s 293(4)(a) was the basis upon which his Honour determined to admit the evidence, it is necessary to deal with the relevant findings of fact and conclusions. [74] Since I have concluded that the evidence was not relevant and therefore had no probative value, s 293 was not engaged…"
The evidence of previous complaints of sexual assault by the complainant would only be relevant if they are in fact false complaints. It is difficult to see how evidence that a complainant had been sexually assaulted prior to the subject complaint could ever rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. On the assumption that the evidence was capable of establishing that the complainant had made previous false complaints, I shall proceed on the basis that the evidence is relevant.
In circumstances where the evidence of the previous complaints of sexual assault by the complainant were inadmissible by virtue of s 293(2) and (3) of the Criminal Procedure Act, the question before the trial judge was whether the proposed evidence fell into any of the exceptions provided in s 293(4). It was common ground before her Honour that the only exception that could apply was that under s 293(4)(a), which provides that: "Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, …" (emphasis added)
Turning first to s 293(4)(a)(i), I am satisfied that the evidence that the complainant had made other complaints of sexual assault in the period leading up to the subject offence, including only days beforehand, is evidence of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, "about the time" of the commission of the index offence. The evidence in GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150 ("GEH v R") caught by s 293 was of one complaint of a subsequent sexual relationship many months after the alleged offences. As Basten JA stated in that matter at [10], that complaint: "must have occurred some 15 months after the events constituted by the first count on the indictment and eight months after the events the subject of the second count. They did not self-evidently satisfy the temporal element".
By contrast with the facts in GEH v R, the evidence in the present appeal, as set out by Campbell J at [154] of his Honour's judgment, falls into a different category. Of the nine complaints made by the complainant in the ten-month period prior to the index offence, seven of them took place in the three month period leading up to and after the complaint was made in relation to the index offence. One of the complaints pertained to an alleged event only two days before the subject allegation. On the facts of this matter, the relevant temporal element was satisfied.
Turning then to s 293(4)(a)(ii), the question is whether the evidence of the previous complaints, taken together, is evidence of "events" that are alleged to form part of a "connected set of circumstances" in which the "alleged prescribed sexual offence was committed".
In GEH v R, Beech-Jones J held at [81] that evidence that the complainant did not have sex with a particular person was "clearly not evidence of an 'event'." His Honour went on at [82] to state that even if a more favourable approach is to be taken: "…the only relevant 'event' it could be considered evidence 'of' is the making of a false accusation against an older male in whose house KN was living. The making of that false statement, if that is what occurred, does not 'form part of a connected set of circumstances' in which the subject offences took place. It is not part of the narrative of events that lead to the offence nor is it part of the immediate aftermath. It does not provide a piece of any jigsaw puzzle concerning the 'set of circumstances' in which the offence was said to have been committed."
The above passage was relied upon by the trial judge in determining that the evidence of the other complaints did not fall within the exception provided in s 293(4)(a).
In GEH v R, Beech-Jones J went on to state at [83] that: "…the making of an allegedly false accusation against another older male might have impacted on KN's credit but it did not reveal an 'event' that was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having occurred."
I make two observations about this statement by his Honour. First, as Basten JA held in GEH v R at [11], the relevant "event" must be taken to include a "non-event" given the references in s 293(4)(a)(i) to the "lack of" sexual activity or sexual experience. On this basis, the relevant "non-event" would be the fact that no sexual assault had in fact taken place regarding each of the prior complaints. Second, if the relevant event was taken to mean the making of the complaint itself then, if the complaint was false, that was also a relevant event. As McHugh J observed in Palmer v R (1998) 193 CLR 1; [1998] HCA 2 at [51]: "The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly."
I am thus satisfied that the making of the false statement is capable of being an event (or a "non-event") and that it was relevant to a fact in issue, namely, whether the subject complaint was also false.
The remaining question is whether the other complaints form part of a "connected set of circumstances" in which the alleged prescribed sexual offence was committed. Although I am satisfied that the connected set of circumstances was capable of establishing that the subject complaint was just one in a series of false complaints that the applicant had made at about the time of the subject allegation, I believe that it strains the language of s 293(4)(a)(ii) to conclude that the previous complaints form part of the connected set of circumstances "in which the alleged prescribed sexual offence was committed". The words "was committed" mean that the events need to pertain to the circumstances of the alleged offence and not part of the complainant's general conduct in the period surrounding the relevant events.
In addition to the need for the evidence to satisfy s 293(4)(a) of the Criminal Procedure Act, the tail of s 293(4) provides that the trial judge would have to find that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. It is neither necessary nor possible to make this evaluative judgment for the purposes of this decision.
Even if the trial judge had ruled that the evidence was admissible under s 293, that does not mean that the evidence would necessarily have been admitted at trial. Such a finding would only have meant that the evidence was not inadmissible. The relevant provisions of the Evidence Act would still be applicable. The reason that I raise this issue is that, had the evidence been admitted at the applicant's trial, what would no doubt have been proposed is that counsel for the applicant would have put to the complainant that each of the other allegations was false. If she denied that to be the case, the applicant would then have sought leave under s 106(1) of the Evidence Act to adduce evidence to prove the falsity of each individual complaint.
Justice Campbell has set out some of the evidence that could have been led to establish that the other complaints were false. That evidence includes the fact that the complainant had an intact hymen and that, in relation to the allegation she could have had sexual intercourse with another resident, there was evidence from a youth worker that there was no opportunity for this to have occurred. Although there was also evidence that police had taken no action in relation to any of the complaints, that evidence would not have been relevant to establish the falsity of the allegations.
A possible result of the admission of this evidence at the trial is that there would have been seven "trials within the trial" which would have subjected the complainant, who had an intellectual disability, to excessive cross-examination. As it was, she refused to come back to court prior to her cross-examination being concluded. It may have been that the trial judge would have been invited to limit or exclude the evidence in some way in these circumstances in any event.

Adams v R

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