AWK v Tasmania [2024] TASCCA 5

"All right. Now you go over to the mattress. When you got there, what did [the appellant] do?......He had - he'd said - he pulled his pants down around his ankles. He wasn't wearing any shoes. He was wearing his work pants and pretty sure his hi-vis shirt. He'd pulled his pants down and, like, laid down on the mattress, and I just, like, kneeled down in between his legs and I - no. No, no. No. He - he had asked me to take my pants off, or take them down. I had done that, and I had laid down on the mattress, and he'd started to lick my vagina."

She was asked whether the appellant "took his pants down to his ankles", and she replied that was her mistake, saying, "I had got it muddled up. It was me, not him".

1. She was asked to start again, and she reiterated that once they got to the mattress, "he had asked me to take my pants down and to lay down on the mattress", and she did that. Her evidence was that the appellant licked her vagina and put his tongue inside, and that "he was also putting his finger inside as well." She said he was "putting it in and out" and that he did that for about a minute or two before he stopped and said, "okay, now you can do the same to me." She stood up and put her pants back on. He took his pants down to his ankles and laid down on the mattress, and the complainant started to suck his penis. She said while she was sucking his penis, he was sitting up a bit and using his elbows to hold himself up, and that she was in between his legs and his penis became erect in her mouth. She did that for "about two to three minutes", before he asked her to remove her head and he started to masturbate then ejaculated. His shirt was pulled up and he ejaculated onto his stomach. Then he wiped it off with his shirt, stood up and pulled his pants up, and said she was "done". The complainant gave evidence that that was the first occasion he had used his fingers in that way.
2. In cross-examination, the complainant agreed that, of all the incidents, this was one she remembered the least. She was asked:

"Would you agree that you're not really sure of the sequence of events?......Yeah, I'm unsure of, like, the times and stuff."

And she agreed that in giving her evidence initially, she could not remember the "order", but now she could remember. She agreed that in a document that was prepared when she met with the prosecutors, she described a different sequence: the appellant pulled down his pants, she sat between his legs and sucked his penis, he masturbated until he ejaculated before he said to her, "Let me do the same thing you just did to me", and that was when she pulled her pants down and he licked her vagina and placed one finger inside.

"I want to suggest to you as I did a moment ago that you are very confused about this incident?......Yes.

And you have no real memory of any sequence?......Yeah, I can't remember what order it went in.

As far as you can recall, there was only ever one incident on the mattress - ?......Yes.

I want to suggest to you that the reason that you can't recall the sequence is because this incident didn't happen?......It did."

1. She was then asked whether she had an actual memory of seeing his penis when he pulled his pants down and whether it was erect, or whether that was a guess at what she thought happened, and she replied:

"... A guess. I don't remember these incidents very much because of how often it happened, all of them kind of blurred together."

1. The learned trial judge directed the jury that penetration of her mouth by his penis would amount to the unlawful sexual act of rape; penetration of her vagina by his tongue would amount to the unlawful sexual act of rape; and the licking of her vagina, but not penetration, if satisfied it occurred in circumstances of indecency, would amount to the unlawful sexual act of indecent assault.

Asserted difficulties in relation to occasion five

1. The appellant's counsel relied on the confusion evident in the complainant's evidence regarding this occasion and reiterated the point she made to the jury in her closing address, namely that her confused evidence revealed the complainant was lying, and that her inability to give a consistent account was indicative of fabrication. If borne out, this point would have implications for the veracity of the complainant's evidence generally.
2. On the transcript, confusion is plainly evident, but not that the complainant was lying and had fabricated her evidence. Clearly, her memory of this occasion was poor, and she had difficulty recalling the sequence of events. This, however, is not a case where the "inadequacy" in her evidence demonstrated she was not honest. The jury would have had an advantage in seeing and hearing her evidence, and may well have concluded that they were not satisfied beyond reasonable doubt of the reliability of her recall of this occasion, but not made any adverse findings about her honesty.
3. In addition to this inadequacy in her evidence, the appellant raised "inconsistencies" with the evidence of the complainant's mother. The complainant gave evidence that there was a plain single bed mattress in the dining area. Her mother's evidence was that there was a king bed mattress with bedding on it in the living area for six months to a year while the main bedroom was renovated. Further, she could not recall a single bed mattress in the lounge area.
4. This evidence is not the sort of inconsistency, such as it is, that would give rise to a reasonable doubt about the honesty of the complainant, or her reliability generally beyond her evidence of this occasion.
5. Improbabilities were asserted to be in the complainant's account with reference to her mother's evidence. First, it was said that her mother did not have a memory of the appellant and the complainant spending one-on-one time together. Relevantly, however, there was evidence that the complainant's mother regularly went out and played darts every Tuesday night. She also went out to her friend's, and went with her friend shopping or on outings and, sometimes, she would take the children. She went horse-riding on the weekends and during school holidays, leaving the children with the appellant. She had no memory of only the complainant being left behind, but she did not suggest this did not occur.
6. The second improbability in the complainant's account was said to be that the appellant was, according to the complainant, wearing a high-vis shirt, when her mother's evidence was that he would change out of his work clothes when he got home. Her evidence, however, was that this depended, and he would "probably" take them off, "depending how hot it was or whatever".
7. It can be seen that the evidence of the complainant's mother on these two points is generalised, impressionistic, and vague, and should not be regarded as inconsistent with the complainant's evidence.
8. The appellant's submissions were that there were further improbabilities associated with the complainant's account of digital penetration in that she made no complaint of feeling any pain at all and it was probable that, given her age and small stature, she would have felt pain. It was suggested, as a "possibility", that her hymen may have been ruptured, and yet there was no suggestion in her evidence of bleeding.
9. The complainant gave evidence of a feeling that something was in her vagina, "but I didn't like the feeling. I just wanted it to be over and done with." The proposition that if her account was true, she would have suffered pain or bleeding was said to be, and can be put no higher than, a possibility or probability, and is a speculative basis for an assessment of her honesty and reliability.
10. The transcript of the complainant's evidence shows she had a poor memory of aspects of this occasion. The jury may well have found this occasion not proved because of that poor recall and concerns about the reliability of her recall regarding this incident. Even if they did so find, however, that does not have any adverse implications for her reliability generally. A reasonable jury may well have found her to be an honest witness in the account she gave and in the concessions she made about her poor memory. The difficulties associated with her poor memory of this occasion, therefore, do not assist the appellant's case on appeal.
11. As a final argument on this occasion, it was contended that for this particular not to be proved, the jury must have rejected tendency as a pathway to conviction. This argument was raised in relation to other occasions as well and as I said at [132], the jury need not have rejected the tendency evidence for the jury to have entertained a reasonable doubt with respect to this occasion. In light of the reliance on this argument I add the following.
12. The argument is not logically correct. The jury may well have found the appellant had a tendency to sexually assault the complainant and yet not been satisfied of the reliability of the complainant's evidence in relation to this occasion. Tendency evidence is no more than a piece of evidence that may establish the appellant had a tendency. It could not establish that a particular act occurred. In order for the jury to find this occasion proved, therefore, the jury would need to be satisfied beyond reasonable doubt of the honesty and the reliability of the complainant's evidence with respect to this specific occasion.
13. I find the evidence on the trial with respect to this occasion does not contain inadequacies or inconsistencies of the kind that ought to have caused the jury to have a reasonable doubt about the evidence given on the trial by the complainant beyond this occasion, and more specifically, occasions one and seven.

1. The complainant gave evidence of an occasion which happened while she was waiting for her father to come and pick her up. She was looking out a window watching the road he would travel on to come to the house. The appellant was in the hallway with a purple suitcase that belonged to her mother and which her mother used for work. The evidence was that the complainant's mother would host parties and sell "sex toys". He called her into the hallway and opened the suitcase, showed her what it contained, and told her how they worked, referring to "dildos" and "vibrators". She said:

"Can you tell us about how you found out about what these things were used for?......[The appellant] was telling me. He would, like, hold them up and tell me how they were used, like, 'Oh, with this one, you put it in your vagina and with this little bit here on the end, it would, like, vibrate, like, vibrate so you would put it on, like, the outside of your vagina.'"

"....'You use one' and he grabbed one of the vibrators. He said, 'Put this down your pants' and so he turned it on and he had put it in my hand and I had put it down my pants before had stood up and walked off leaving, like, the suitcase there, and I had walked back over to the window looking out of it to wait and see if I can see Dad."

1. She said she put the vibrator inside her underpants so it was touching her vagina but not inside her vagina. Meanwhile, the appellant pottered around the house for a little bit and then stood and stared at her, and tried to make conversation by asking her what she was going to do at her dad's. She was asked how the vibrator made her feel, and she replied,

"I didn't like it, I didn't like it at all, I wanted it out...I even said to him, like, 'Can I turn it off and get it out,' but he didn't say anything, he just like ignored it. It made me feel horrible, I didn't like it. It felt weird and made me feel weird."

"Now when did that stop?......It - it - when he had asked me to take my pants down so I took it out and turned it off and handed it to him and took my pants and undies down. But then he turned it back on and put it back up against my vagina before he licked and kissed it. He was like - he was putting the vibrator in my vagina and was like holding it there as he like licked my vagina, and like he - he would like take the vibrator out but still keep it like pressed up against, like, my vagina before he would, like, put his tongue in."

1. She said she was standing up with her legs open a bit and looking out the window. He was on his knees and leaning on one of his hands underneath her. He put the vibrator on her vagina and also in her vagina, and was pulling it out and putting it back in. He was licking and kissing her vagina "on the top bit" and also the "middle bit", and his tongue went inside her vagina. She gave evidence:

"Can you remember...how this finished?......He had just, like, stopped it - I think I had asked him to stop because I didn't like it. I was just getting fed up with it. I was getting bored. And also, you know, dad coming and stuff. I wanted to make sure I was, like, 100 per cent ready so he had said, 'Okay', and, like, I pulled my pants up and he goes, 'Oh, you have to do the same to me, though.'"

1. The complainant explained what then happened. The appellant undid his pants, pulled them down to his ankles, and sat down on the ground, and she knelt in between his legs and put his penis in her mouth. She said she started to move her head up and down, so it was going in and out of her mouth. His penis was not erect when he pulled his pants down, but it became erect when she put it in her mouth. She was asked how long she had his penis in her mouth. She said only about a minute or two before they heard her dad's car coming and she stood up, ran to her room, grabbed her bag, and ran outside to him. She said she did not remember if the appellant ejaculated.
2. The learned trial judge directed the jury that if they were satisfied the acts occurred, then the penetration of her vagina by the vibrator would be an act of rape; the penetration of her vagina by his tongue would be an act of rape; the licking of her vagina with his tongue, absent penetration, if it occurred in circumstances the jury found to be indecent, would be an act of indecent assault; and the penetration of her mouth by his penis would be an act of rape.

Asserted difficulties specific to occasion six

1. It is submitted for the appellant that the complainant's father gave evidence relevant to an assessment of the complainant. He gave evidence both the complainant and her brother were happy to come on visits with him and happy to go home again afterwards. He had no concerns about the complainant's behaviour while she was living in Collinsvale, and it was not until after she returned from Queensland and lived with him and started high school that there were difficulties with her behaviour. While this submission was made, the significance of these points was not developed. The implication that her response, in terms of her behaviour generally at the time of the alleged abuse and that she was "happy to go home", was improbable if her account is true, is speculative, and there was no evidence to support the improbability of her response.
2. This Court is conscious, too, that the response of children who are the subject of sexual abuse, both in terms of accommodating that abuse and not telling anyone about it, particularly when the abuser lives in the family home, is a matter of specialised knowledge and expert opinion. Invitations to the jury to speculate may have been more advantageous to the defence than calling expert evidence on this point.
3. It is submitted for the defence that the complainant's evidence was inconsistent with evidence given by her father as to the time he would collect her. The complainant's evidence that the occasion happened around midday, and that that was roughly the time she would normally be expecting her father, was noted.
4. The evidence of the timing of collection was not the same as her father's evidence on this topic. He gave evidence he would often pick up his daughter after school at 4:00 pm or 4:30 pm. He would also collect them in the school holidays, and he found it hard to remember what time, but "of an afternoon I think", although this depended on when his shift finished. It was open to a jury to find that the difference in the evidence was not of any significance to their assessment of the honesty and reliability of the complainant's evidence generally.
5. The evidence of the complainant was that for this visit, she went on her own, and her brother did not go with her. This evidence is said to be improbable given that neither parent had a recall of the complainant going without her brother. There was, however, other relevant evidence on this point. The complainant's father gave evidence in cross-examination that most times, the complainant's brother went too, but when he was in high school, there might have been a couple of times when he did not go, though he usually did. He said her brother might have been starting high school while they were living at Collinsvale. The complainant's mother gave evidence that he was going to high school in the time they were living at Collinsvale. The evidence, therefore, does not demonstrate it was improbable that there was an occasion when the complainant went on her own to visit her father.
6. The complainant's evidence is said to be at odds with matters regarding the suitcase of sex toys. It was pointed out that the complainant gave evidence that the suitcase was purple, while her mother gave evidence the suitcase was "like a black-grey colour". It was open to a jury to regard this difference in description of colour as immaterial in their assessment of the complainant's evidence.
7. There are said to be other differences in the complainant's evidence and her mother's evidence about the suitcase: where it was stored, and its contents.
8. The complainant denied finding the suitcase prior to being shown it by the appellant and first seeing it in the hallway. The complainant's mother gave evidence there was no lock on the suitcase which seemed to be relied upon as leaving open the possibility that the complainant could have seen the contents some other time other than when she was with the appellant.
9. Her mother gave evidence that she kept the suitcase in the boot of her car or in the lounge room. In cross-examination of the complainant it was suggested that she had found the suitcase in her mother's bedroom. The complainant gave evidence in reply that she did not go through her mother's bedroom at Collinsvale and her mother had told her (without any reference to when) that the suitcase was on the very top shelf, in which case she would not have been able to access it. There are no material differences in the evidence regarding where the suitcase was stored.
10. The descriptions of the contents of the suitcase are also said to be at odds. The complainant gave evidence of her observations at the time of occasion six. She said the accused opened the suitcase and it contained vibrators and dildos, four different sets of cards, and four sets of dice. She gave evidence that the accused went through them, showing her various ones and how they worked. She said there were probably about six to ten vibrators in there. She described a "dildo" that was also in the suitcase and said there were about four or five of them.
11. The complainant's mother gave evidence of what was in the suitcase: namely, a basic kit, including a strap-on penis. She recalled the kit included various items, and described four of them, which she could remember, but that there were other things, too. There were also cards and dice.
12. The descriptions are broadly consistent.
13. It was noted in submissions for the appellant that the complainant's mother's evidence was that she kept the batteries separate, yet on the complainant's account, there was no mention of batteries being put into the vibrator that she was given by the accused. This may not have been observed by the complainant, or she may have forgotten this detail, or the battery may have already been inside the item. It was open to the jury to regard this as a matter of no significance.
14. It is said that the complainant's mother gave no evidence of a silver bullet vibrator that the complainant described. Her mother described four that she could specifically recall, but her evidence was that there were other items. There is no inconsistency in this respect.
15. It is submitted that the complainant's evidence at trial differed from her account in a statement when she recently spoke to the prosecutors. Her statement said, "He didn't put his tongue inside my vagina this time." In cross-examination, the complainant agreed, but said she remembered saying to the prosecutors he put his tongue in. Again in cross-examination, she agreed that she made a statement to police in which she said, "he did not put his tongue inside". She said that she later realised there was a mistake in the police statement.
16. Her statement to police also differed in that her evidence was that the appellant was pulling the vibrator out of her vagina and putting it back in, while in her statement she said he put the vibrator into her vagina and was just holding it there, and wasn't pushing it in or pulling it out. She did not dispute that statement.
17. She also agreed in cross-examination that the statement made to the prosecutor did not include the accused's penis being in her mouth and, according to the statement, the incident concluded when she heard her father's car while the accused was kissing and licking her vagina. In response to that questioning, she said she had remembered more since giving the statement. She was asked about her second police interview when she spoke about this occasion and had not mentioned that he had his penis in her mouth. Her evidence was that she did not remember much about her police interviews, but she seemed to acquiesce with the questioning about what she omitted from her second interview.
18. The complainant was also asked about her police statement and telling police he had ejaculated, while her evidence was that she could not recall. She also agreed her police statement was not correct in that it said her father knocked on the door. The complainant agreed he did not ever come to the door.
19. It is apparent from the complainant's evidence that she has given inconsistent accounts about this occasion and the differences are about central matters regarding the appellant's sexual acts.
20. It is argued the inconsistencies were a factor the jury could use to conclude the account was a fabrication. While the inconsistencies were about significant matters, it was open to the jury, subject to any observations they made, having seen and heard the complainant, to regard her as a candid and open witness about these matters.
21. It was reasonably open to the jury to regard these differences as raising questions about the reliability of her memory of this incident. That is not to suggest that a jury acting reasonably had to take that view. Certainly, the implication of the differences warranted careful consideration, but was a matter for the jury. The jury may have regarded the inconsistencies as bearing on the complainant's reliability regarding this occasion and as demonstrating poor memory and/or confusion. Importantly, however, these differences are not such that they should have been regarded as undermining her honesty or as having implications for her reliability generally or specifically in relation to occasions one and seven.
22. The submission is made that:

"[158] It was suggested to the jury that there was an implausibility in the account of the complainant being told to put a vibrator down her pants and there then being a general conversation with her about contact with her father and horse riding."

It was open to the jury to find this conversation with the appellant was not improbable, and that in speaking of such everyday matters, he may have been giving his perverse conduct an air of normality.

1. The nature of what was alleged was criticised as physically impossible. In particular, there was reliance on the complainant's age, as she was only eight, and on her being small for her age in relation to her evidence of a vibrator being pushed in and out of her vagina, which it was contended would have been very painful if it happened, and yet there was no mention by the complainant in her evidence of pain or bleeding.
2. Relevantly, the evidence about the vibrator used was that it was about the size of a shotgun bullet. The complainant was asked whether that was 4-5 cm and she said it was a bit smaller than that. The jury may have accepted the defence contention that the complainant's account was physically impossible or the jury may have doubted the account given by the complainant was reliable, noting her statement to the prosecutor that the vibrator was not inserted into her vagina. Regardless, this point does not necessarily have implications for the jury's assessment of the complainant's veracity overall, or specifically with respect to occasions one and seven.
3. It was submitted on appeal that there were factors indicative of fabrication by the complainant. First, her evidence that she was "getting bored", described in the defence closing address to the jury as "unbelievable" and "bizarre" if her account was true and the appellant was assaulting her with the vibrator, as she described. Her evidence is set out above at [155] and it was not merely that she was getting bored, but that she didn't like it and was getting fed up with it and bored. The jury may well have regarded that as an honest account and not as indicative of fabrication.
4. A second factor is her evidence that the accused's penis was not erect by the time he pulled his pants down and asked the complainant to "do the same to him". As for whether the appellant's penis was erect, it is not necessary to consider the improbability of that. It was open to the jury to regard that as a mistake and not a fabrication. The jury were entitled to view that evidence in the context of what she said had happened to her on this occasion, the number of sexual acts and the nature of them, and assuming her account is true that this occasion was one of many involving the penetration of her mouth by his penis. It was entirely open to a jury acting reasonably to regard these factors as not indicative of fabrication.

1. The complainant's evidence was that occasion seven was the last time something sexual happened with the appellant. It occurred about a month before her mother's relationship with the appellant ended, and when her mother, brother, and sister were not at home.
2. The complainant gave evidence that the appellant was at home "packing stuff" and taking boxes from the house to the shed, and then on the couch in the lounge room on the computer. He was playing a game where you build a village and an army, and you have to protect the village or destroy other villages. She thought it was a "cool game" and looked fun. The appellant said to her, "if you come down to the shed and help me down in the shed you can have a go." Because he did not refer to doing "the usual", she thought he meant to help him move boxes or pack stuff away. She agreed to help him, and they walked down to the shed, through the carport, and turned right. In the same area the car seats were, there was now a couch. The appellant pulled his pants down, sat on the couch, and said, "We're going to do the usual." He was wearing his work pants and his steel cap shoes. His penis was not erect.
3. The complainant got in between his legs, knelt onto her knees, put his penis in her mouth, and started to move her head up and down. She was asked how long she did that for and she replied, "two to three minutes". The complainant thought he was watching porn on his phone. She could not see the phone screen, but she thought she heard what sounded like a female's moan.
4. She was asked what happened next, and the complainant replied:

"... He told me to move my head, so I did, I stood up and took a step back - actually I think I remember going over and messing around with the pool table, and he had started to masturbate before - he masturbated for about thirty seconds before he had ejaculated onto his stomach and he had his shirt pulled up before he wiped himself down with a paper towel thing."

"Now once he cleaned himself up what was the next thing that [the appellant] did?......He said, 'Okay, you're good to go, I will come up and set up the game for you,' and so we had walked up - back up to the house, and he had set up a game for me - the game for me."

1. The learned trial judge directed the jury that if they were satisfied beyond reasonable doubt that that incident occurred, the unlawful sexual act committed would be one of rape because it involved the penetration of her mouth with his penis.

Asserted difficulties in relation to occasion seven

1. It is suggested there is a stark contrast between the complainant's account, describing the accused as "having been packing stuff", and the evidence of her mother. It was submitted that, according to her mother, the appellant was not packing boxes and he was not moving things out as the relationship was ending. In fact, the break-up came as a surprise to him in that the complainant's mother told him on 13 April 2015 that the relationship was over, and he left that day.
2. This is not a wholly accurate summary of the complainant's mother's evidence. She told him on 13 April that the relationship was over, and he moved out, and she gave evidence that she had tried to break it off with him a matter of weeks beforehand. When asked whether he was spending time packing or boxing up his things prior to the ending of the relationship, she replied:

"Yeah, no he hadn't moved anything out or anything like that, no.

1. The evidence given by the complainant relevant to this point was:

"What was [the appellant] doing?......I think he was like packing stuff. I remember him - just seeing him taking like boxes up and down from the shed up to the house - well, from the house down to the shed, but at this point he was sitting down on the couch on his computer."

Later, in cross-examination, she gave evidence that she remembered him walking with boxes from the house to the shed. When asked whether it was more than one trip, she replied, "yeah, it was a couple of trips".

1. An inconsistency is not borne out by a comparison of the evidence given by the complainant and by her mother. The complainant's evidence that the appellant made a couple of trips taking boxes from the house down to the shed does not indicate what boxes or why and, significantly, does not necessarily mean he was packing up his property to move out. In short, the complainant's evidence is not inconsistent with her mother's evidence about the accused's conduct in the period before the break-up of the relationship.
2. There is said to be a further difference between the complainant's evidence that her mother and the accused were arguing a lot before the end of their relationship, and her mother's evidence that the couple were not communicating, describing their relationship as trying to keep the peace such that it would not have been obvious to the children that they were in "dire straits".
3. It was reasonably open to a jury to regard this difference as insignificant and accounted for by their different perspectives.
4. It is contended for the appellant that there is an unbelievable aspect of the complainant's account about the game the appellant was playing on his laptop before they went to the shed. It is submitted "the game being played appeared to be 'The Sims' that [the complainant's mother] gave evidence about. The game was played on the laptop and there is no other game [the complainant] mentions playing on the laptop. If the game was The Sims, then the evidence from [the complainant's mother] was that this was a game that the complainant played and had started playing in Springfield Ave."
5. It is further submitted that:

"On the complainant's account of this particular ... this was the first time she had seen the game. This becomes unbelievable if [the complainant mother's] evidence is accepted."

1. The tenuous foundation for this submission is evident from the summary of it. The complainant's mother did not give evidence that 'The Sims' was the only game on the laptop, and in fact, she was not asked whether it was. More specifically, she did not suggest it was the only game on the laptop at the time of the seventh occasion. Thus, the complainant's account is not unbelievable if the complainant's mother's evidence is accepted on this point.
2. It was submitted for the appellant that a surprising element about the complainant's evidence with respect to this occasion is why they would go to the shed when, on the complainant's account, no one was home and there seemed to be little need to leave the house. This is a matter concerning the preference of an individual, namely the appellant, on a particular day. It was entirely open to the jury to regard this as unsurprising.
3. It is said that an "unusual" aspect of the complainant's account of this occasion is that while the appellant was "finishing", she went over to the pool table and was "messing around" with it. This is said to have an element of "unbelievability" in that the complainant was too short to be doing any messing about with the pool table and was not allowed to use it without supervision.
4. The evidence relied on here about the pool table was from the complainant's mother, and it is set out below because it illustrates how the evidence, in its detail, does not support the submission:

"Yep. Okay. Now - but [the complainant's brother] and [the complainant] knew that they weren't allowed to use it. Is that right?......Especially not without someone being there. They would have, like, played on it, not saying they didn't. But someone - I reckon someone would have had to be around.

Yep. And you'd be wanting to make sure that someone was around to - so that they didn't wreck the - ?......Cloth.

The cloth. Just in terms of the height of the table, the eight-ball table, how high would it have come up to on you?......I don't know, standard height, what, here somewhere.

Yep. So would that mean that when [the complainant] was about eight years old, she'd only just be - ?......Yeah.

Yeah. So there's no way in the world she could have, even at that age, really actually played on it, because she just would never have - ?......Not properly. No.

No, she would never have been able to actually reach to even shoot a ball or anything like that?......She would have had a crack. She'll have a crack at anything.

Yep. But she'd need to be on her tiptoes, basically, I suppose, and - yeah?......I suppose so, yeah.

And if she was just standing flat, she'd only be just looking up onto it?......Kind of, yeah."

This evidence of the complainant's mother does not suggest the complainant's evidence of "going over and messing around with the pool table" is "unbelievable" or "unusual".

1. It was submitted that, given the rejection of the complainant's evidence regarding occasions two to six, it is difficult to see how a conviction in relation to occasion seven was reached. I repeat here that the jury's verdict does not necessarily indicate the jurors rejected the complainant's evidence on occasions two to six. They may simply have held a reasonable doubt about the complainant's evidence regarding those occasions which did not cast doubt on occasions one and seven.
2. In conclusion with respect to the points raised on behalf of the appellant in relation to this occasion, the complainant's evidence does not contain inconsistencies with her mother's evidence or improbabilities in light of her mother's evidence.
3. Beyond the points made during submissions, I have assessed the complainant's evidence generally regarding this occasion. During cross-examination, she was asked about the first interview she had with the police and she agreed that she was asked to recall the last time something happened. It was suggested to her that she told police that, in addition to him making her suck his penis, "...he did the same to me". She told police that by her "part", she meant her vagina. Subsequently, in her short, written police statement she reiterated that "...he sucked on my part," and, "he also put his tongue inside my part". Cross-examination highlighted that, in her evidence now, the only allegation she makes with respect to the seventh occasion as the last occasion is that he placed his penis in her mouth, and she had to suck his penis.
4. The fact that the additional allegations were not recounted by the complainant in her evidence was not a matter that the jury, in acting reasonably, ought to have regarded as detracting from the veracity of her sworn evidence. It would be open to the jury to regard her sworn evidence as an account of the details which she could remember at the time she gave her evidence, and the fact that she did not adhere to the original allegations may well have suggested to the jury that it was an honest and reliable account of what she could, at that time, recall.
5. I have considered the nature and quality of the complainant's evidence and it was reasonably open to the jury to find the complainant was an honest and reliable witness regarding occasion seven. Her account of the occasion referred to details which are discrete to this occasion, such as the game the appellant was playing, what she heard on the phone, her conduct in "messing around" with the pool table after the sexual abuse, and the appellant setting up the game afterwards. It was open to the jury to attach some significance to the fact that it was the last occasion of abuse and remembered by the complainant as such, and therefore distinct from other occasions, and also that it was remembered by her as a distinct occasion in her first interview with police.

Asserted difficulties with the complainant's evidence generally

1. It is submitted that aside from these various difficulties with the complainant's evidence regarding the individual occasions, there is evidence that undermines her credibility generally. There were many points made in support of the overall contention that there were difficulties with the complainant's evidence, or that her evidence was deficient. I have considered all of the arguments and I address below those points which, at least on their face, warrant attention. Others are so blatantly subjective or argumentative, or entirely consistent with the complainant's account being true that they do not need to be addressed. For example, it is pointed out that the complainant held an animosity towards the appellant, that the alleged conduct involved a risk of detection, that the complainant's mother did not have any suspicions about the appellant abusing the complainant at the relevant time, that she trusted him to care for the children, and that the complainant was a clever child which manifested in ways such as being able to get around "safety locks or security devices on electronic devices". I turn now to consider those contentions which, at least on their face, warrant attention.

1. It is contended there was evidence which demonstrates the complainant was clever at lying and telling a story that would have others feeling sorry for her. It is submitted that an illustration of her capacity to make up false accounts is an incident involving her school lunches and hampers from her school.
2. This repeated a point made to the jury that "[the complainant] has a track record for making things up at times that work to her advantage". The jury were given the same example about the school food hampers, which was described as a "serious lie". It was suggested that the disclosure of the allegation made to her teacher on 22 August 2019 may be the same pattern of behaviour but more elaborate.
3. On close inspection of the evidence at the trial, this matter is in fact the only illustration and example of a lie told by the complainant.
4. The complainant's mother gave the evidence that is relied upon by the appellant about the school lunches and food hampers. The complainant's mother was asked a very general question about any difficulties her daughter had at school after they moved to Collinsvale, and she said there was the "throwing away her school lunch incidents". She was asked about this:

"Okay. All right. Now, the throwing away lunch, can you tell the jury about that?......So, the school contacted me and asked me if wanted these food hampers, they started off at ten dollars or something, and I said, 'No, no, it's fine, give it to someone who needs them,' and then kept forcing these things on me, so much so, I said no, they would just bring them up and say 'Don't pay for them,' okay, cool, whatever. And then one day I got a phone call from them apologising how they'd forced these boxes onto me because they'd caught [the complainant] throwing her lunch and recess into the bin. She'd gone to school all these times before and said that we had no food at home.

Okay. So, she'd gone to school, thrown out her lunch, and then told her teacher, I take it, that - ?......Teacher, lunch lady, whatever.

And so therefore the school was trying to provide you with food?......Yes."

1. Presumably, the lie is what the complainant had said to the "lunch lady" or teachers at school. This evidence is at least third hand and, elicited in the way it was, was incapable of grounding a reliable inference about what the complainant said at school which resulted in boxes of food being delivered. Furthermore, the complainant was not asked any questions about this incident.
2. As third hand evidence, relied upon for the exclusive purpose of attacking the credit of the complainant (ss 101A and 103 of the Evidence Act 2001), there are issues about its admissibility. There is also the matter of the unfairness of the defence using this evidence to support its proposition that the complainant is a liar and has a track record of being a liar, yet not having cross-examined the complainant about it (Browne v Dunn (1893) 6 R 67 (HL)). Ultimately, it is unclear why this Court should attribute any weight to this evidence, let alone regard it as providing a proper foundation for the appellant's contention that this was an illustration of the complainant lying for her own advantage.
3. In any event, whether such a lie told by a seven or eight-year-old carries any significance in determining the complainant's credibility is a classic jury question, and one where they could draw on their own life experiences; since time immemorial school children have thrown out their packed lunches and told lies about it. It would be open to a reasonable jury to regard any lie told by the complainant at school about a lack of food at home as completely immaterial to their assessment of her credibility.

1. It is argued for the appellant that there are two inconsistencies between the complainant's evidence and the evidence of her mother concerning the family dogs; the first concerns which two dogs lived with the family and the appellant at Collinsvale; and the second concerns when one of the dogs died in relation to the timing of the disclosure made by the complainant.
2. Assuming the complainant's mother's evidence is correct, then the complainant had a faulty memory about whether Tank was one of the family's two dogs during the period the appellant was in a relationship with her mother, or whether he was purchased later.
3. Again, assuming the complainant's mother's evidence is correct, then the complainant's account in her evidence-in-chief was incorrect in suggesting the family dog, Tank, had died close in time to the making of her complaint. Later, in cross-examination, the complainant said that at the time of her disclosure, it was another dog, Zeus, who had just died, and that evidence was not shown to be inconsistent with her mother's evidence.
4. Significance is attached to these matters by the defence, but the jury need not have shared that view. A faulty memory about these matters is not, as the defence would have it, a revealing flaw in terms of the complainant's veracity and credibility.
5. As for the circumstances that existed at the time she made her complaint, and which dog had just died, the jury were entitled to take the view that a mistake made about such a matter did not cast doubt on her evidence about her complaint as a genuine disclosure, or her evidence about the acts of abuse six years before. It may be noted there was no challenge to other evidence given by the complainant about the circumstances in which she made her complaint being chaotic and emotional, and capable of providing an explanation for the timing of the complaint; namely, breaking up with her boyfriend and getting into a "fist fight" earlier that morning.
6. Ultimately, these points do not advance the appellant's argument on appeal. The complainant was recounting matters of context to the making of her complaint, involving chaotic circumstances and a time detached from the abuse some six years beforehand. The jury had the advantage of hearing and seeing the complainant give her evidence. It was reasonably open to the jury, therefore, to conclude that if the complainant's memory was faulty about the dogs, as asserted, it was not of any significance in assessing her credibility and honesty.

1. It is submitted that the complainant's evidence about the various occasions shared common details, such as:
   • Many of the incidents happened at midday;
   • The complainant sucked his penis for "two -three minutes";
   • The appellant masturbated for 30 seconds;
   • The first three allegations happened two weeks apart from each other; and
   • The appellant was described as wearing work clothes.

1. As I understand the point being made, it is, in essence, that the formulaic nature of the complainant's evidence suggests it is not based on her memory.

1. In relation to the first occasion, the complainant's evidence was as follows:

"All right. Now, do you remember what time of day it was?......Probably about midday. I just remember it's still being daylight."

1. In relation to the second occasion, the evidence from the complainant was as follows:

"All right. Now, do you remember what time of day it was?......Midday."

In cross-examination, she was asked about a document that she "worked on with the prosecutors", in which she said that it was in the afternoon, and when she was asked what she meant by that, she replied, "Like, 3:00". Then, she was challenged about the fact that earlier she said the time of day was "midday", and she replied, "yes, that would - because I just remember seeing daylight."

"All right. And do you recall or do you remember what time you went out to [the appellant's] parents' place?......It must've been about 12 o'clock, so about midday."

"Do you remember roughly what time of day it was?......About - in - between midday and afternoon."

1. In relation to the fifth occasion, the complainant gave evidence that she remembered it was dark, and when asked what time of day it was, she replied "it was in the evening".
2. In relation to the sixth occasion, the complainant gave evidence that she was waiting for her father, and it was during the day. In cross-examination, she said her father "usually always roughly came around 12-ish".
3. In relation to the seventh occasion, the complainant was asked about the document she prepared with the prosecutor in which she indicated it was about midday that the incident started, and she replied, "Yeah, like, during the day." Later, she said she remembered it being daylight, but did not remember seeing "shadows or anything like that".
4. There was evidence from the complainant in re-examination which was on point:

"... when you say the word afternoon, what do you mean?......Oh, like, 2.00, 3.00. Two, 3 o'clock, yeah.

Okay. And are there any other times that, if I said to you, 12 o'clock, is that afternoon or not?......It's midday to me

What about 4 o'clock?......Four o'clock's coming onto evening.

So you're use - is it fair to say that - can I ask you, your use of the word, 'Afternoon', is a reference to a particular period in the day. Midday's 12?......Yep.

But if we get around to 4 o'clock, that's coming onto evening?......Yep.

Would you still think it was afternoon or not?......Yeah, only up until about 4.30-ish, and 4.30ish, to me, is, like, evening, because in daylight savings, when - I can't remember which one is which, which one gets darker earlier, but whichever one it is, it starts to get dark around 5 o'clock, 6 o'clock.

All right. So when it starts to get dark, do you start to think of that as evening?......Yeah.

Thinking back to when you were seven or eight and all of these occasions were occurring, did you wear a watch at that time?......No.

Do you recall if there were any clocks in the house that you took particular notice of?......I didn't know how to read clocks back then.

Or it might've been tea time, or some other event happening?......I would usually be able to tell an estimate about what time it was during the day, like, with shadows.

So your memory of times and the words you've used is not particularly based on any actual knowledge of the time?......Yep."

1. It can be seen that it was not the complainant's evidence that midday was the only time of the day the events happened. Her evidence reveals "midday" to be a mere estimate and a reference to the middle of the day, rather than a time. The lack of precision attaching to the descriptor "midday" is apparent from her evidence. It needs to be understood that her evidence was based on her memory of her experience years before as a child of approximately eight years of age, who did not have a watch, could not read the time, and based on matters such as whether it was daylight and whether there were shadows. I conclude her evidence in this respect was not formulaic.

1. The complainant gave evidence that with respect to occasion seven, she sucked the appellant's penis for "two - three minutes", while with respect to occasions one, two, three, and five she sucked his penis for "about two - three minutes" (emphasis added). The effect of her evidence was that the timeframe she gave was an estimate only. With respect to four occasions, the complainant's evidence was that, even as a range, it was an approximation only. It was thus open to the jury to regard it as reliable evidence of her perception. It was also open to the jury to find there was a routine quality to the appellant's sexual acts and what he required her to do, including the approximate time he spent doing those sexual acts.

1. In relation to five of the occasions, the complainant described the appellant masturbating for 30 seconds. In relation to the first, second, fourth, and seventh occasion, she gave evidence he masturbated for "about 30 seconds" before ejaculating. In relation to the fifth occasion, she was asked in cross-examination about a document she made with the prosecutor in which she said he started to masturbate until he ejaculated and that took about 30 seconds, and she agreed that was right. Again, her evidence made it clear that this was an approximation, and evidence of her perception as a child without reference to a watch or timepiece. It is not improbable that there was a routine quality to this aspect of the accused's conduct, noting the routine nature of his conduct generally.

1. The criticism was made that the complainant gave evidence that occasions one and two, two and three, and three and four were two weeks apart. Plainly, this evidence was based on the complainant's perception as a child of approximately eight years of age and was an estimate only. For example, she was asked in relation to the third occasion about the time that lapsed after the earlier occasions:

Are you able to estimate how long?.......Probably only a couple of weeks.

1. She gave evidence that the time that lapsed after the third occasion, but before the fourth, was "a week or two." Then she was asked:

"Is that just a guess or is it something you remember?.......It's just a guess. It wasn't long after."

During cross-examination, when speaking about her evidence of the time that lapsed between the occasions, the complainant said, "these are estimates. I'm not actually sure on how long after each other".

1. The evidence is obviously nothing more than estimates or guesses at best and, as such, they are inherently unreliable. It is unfair to treat them as something more than that and then argue they are wanting.

1. The appellant relies upon the complainant's evidence about what the appellant would routinely wear. It was submitted that the complainant always described him as being in his work trousers when the offending occurred, and that this was inconsistent with her mother's evidence. The evidence given by her mother, however, was not in specific terms and did not demonstrate the complainant's evidence as to what the appellant wore was wrong. I must add that even if it did demonstrate he would routinely get changed after work, it was open to the jury to regard this as immaterial.

1. An aspect of the complainant's evidence said to be concerning and important from a defence perspective concerned a discovery made by her mother that her daughter had been communicating with and sending intimate photographs to a man with grey hair online. It was submitted that the point of importance and concern was that the complainant had no recall of doing that. It was submitted that this lack of recall called into question the reliability of the complainant's memory and the jury were asked to consider whether she was a reliable historian.
2. As context for this contention, the complainant gave evidence that she started watching pornography after the appellant gave her the idea and she saw the name of the website the appellant used; from that website, she went to other websites and dating websites, and signed up to them and talked to people. There is no dispute that such photographs were discovered on the complainant's phone. It was contended on behalf of the State at the trial, and open to the jury to regard this conduct of accessing pornography and sending photographs was entirely consistent with the truthfulness of the complainant's evidence and with her having been corrupted and disturbed by the appellant's abuse of her.
3. The appellant's point on appeal is that, having sent the photographs, years later she did not recall doing so. She recalled talking to a man with grey hair on a chat line and having conversations with people of a sexual nature and sometimes receiving photographs, but did not remember sending naked photographs of herself to anyone. She remembered when she was about eight, her mother borrowing her phone and talking to her about sexually related notifications that were being sent to her phone.
4. It is a jury question whether this matter of detail that, as a young child of eight, she remembered conversations of a sexual nature with a person or people online but not sending intimate photographs raises concerns about her honesty and reliability. It was open for the jury to conclude that if her account was true, given what had happened to her, the photographs might have paled into insignificance, especially if she was not alert to the wrongfulness of such conduct.

1. The appellant's submissions before this Court repeated points made to the jury in the defence closing address which can be described generally as what is missing in her account. The point was made that if the complainant was recounting a real experience, then there are matters that you would expect her to tell the Court about, but which were not included in her evidence. Examples relied upon before this Court included the matter of the complainant not recalling putting her shoes on when she went down to the shed in relation to occasions one, two and seven and not mentioning the appellant unlocking the shed. Also relied upon was the lack of reference in the complainant's account to what was described as "anything sensory".

1. The appellant submitted the evidence of the complainant was deficient as it lacked reference to "anything sensory" and there was no evidence from the complainant that she experienced pain or had any recall of specific smells. A point made about the smell of the particular room in the shed where occasion one is said to have occurred is considered above at [75]. The lack of any reference to pain has been discussed above in relation to those incidents where it may have relevance.
2. It was submitted the lack of evidence from the complainant is in stark contrast to the evidence given by her mother, who described the appellant as "smelly and dirty". She also gave evidence that he did not shower, and he was working with asphalt so smelt of that and body odour.
3. The complainant gave evidence the appellant was dirty, saying he would come home from work with a dirty face and hands. She also gave evidence his nickname was Dirt.
4. The appellant's point was that the complainant did not refer to the appellant being smelly. This was a point also made to the jury in the defence closing address. It is not apparent, however, that it should be regarded as a deficiency in the complainant's evidence. Disposing of this so-called deficiency is the fact that the complainant was not asked a single question during her evidence about whether the appellant was smelly. It cannot be said that she had no memory of a detail if she was not asked about it. It should also be remembered the complainant was 15 years of age at the time she gave evidence, and she was giving evidence about events that had occurred seven to eight years beforehand.
5. Without speculating, it would seem feasible that, in any event, what a person remembers about smell may depend on a multiplicity of factors, such as whether a person was accustomed to the smell. Regardless of this point, a reasonable jury may have regarded this matter as not significant and not a deficiency in her evidence.

1. The complainant's mother gave evidence that after her relationship with the appellant ended, she allowed the appellant to look after the children Tuesday nights when she went to darts and over the weekend every fortnight. This occurred on multiple occasions before the appellant objected to having the complainant and her brother stay. It was submitted as relevant that during this time after the appellant moves out of the home at Collinsvale, there are no allegations of abuse made by the complainant, despite the opportunity the circumstances presented.
2. It is submitted on the appellant's behalf that the ceasing of allegations despite continued contact was powerful evidence of the allegations having been fabricated as "abusers don't stop abusing".
3. It was similarly pointed out that when the family were living in Glenorchy, there were no allegations of abuse made during that period, either.
4. This contention does not point to a deficiency or inadequacy in the complainant's evidence, and the absence of allegations outside the indictment period is entirely consistent with the complainant giving a truthful account. In order for the jury to convict the appellant, it was not necessary for the jury to determine what the reason or reasons for ceasing his abuse may have been, and there may have been any number of reasons, such as that the appellant considered he was in a more vulnerable position as he was no longer the partner of the complainant's mother.

The complainant's description of the appellant as the disciplinarian

1. The appellant's submissions referred to the evidence given by the complainant's mother that she was the main disciplinarian in the family and the appellant simply followed her lead. It was contended that this evidence did not align with the complainant's evidence, which was that the appellant was the disciplinarian. It is submitted that this aspect of her evidence is an example of the skill the complainant used to garner sympathy, and that in her evidence, she developed the picture of the mean, domineering step-father, but this did not hold up to scrutiny once her mother gave evidence.
2. The complainant gave evidence that before moving to Collinsvale, it was just her mother who would discipline her, but then after they moved to Collinsvale, the appellant took over this role. She gave evidence that she and her brother were always in trouble and the appellant, "... would ground us, send us to our room or put us up against the wall, which involved sitting down facing the wall and you would have to stay like that". She recalled a few times when her mother let her come off the wall whilst he was gone, then when he came up the driveway, she would send the complainant back to the wall. She also recalled times when she was disciplined by the appellant and her mother would just sit there and not intervene.
3. The complainant's mother gave evidence that throughout her relationship with the appellant, she was the main disciplinarian of the children. She used forms of discipline such as "putting the children up against the wall", sending them to their room, and taking away devices. She instituted these forms of discipline and the appellant "picked up on them". She recalled getting "stuck at him for being so severe with the way he's punished them, because it didn't warrant it." If she thought he was "over the top", she would not say to the kids, "Don't listen to him", rather, she would talk to him and say he was unfair. She gave evidence that she could not recall saying to one of the children to "come off the wall", but she did not state that it did not happen.
4. This is not a case where the differences, such as they are, between the complainant and her mother reveal the complainant was incorrect or lying. The complainant's mother, in giving evidence, spoke in terms of generalities of disciplining the children throughout the course of her relationship with the appellant, and her expectations of how she would have responded, but not about specific instances. Her evidence suggested there were times when he was "severe" and "over the top", which is consistent with the complainant's evidence. She did not give evidence that excluded the possibility that what the complainant recounted was true. It was open to the jury, therefore, to regard any differences in the evidence as explained by differences in the viewpoints or perspectives of the complainant and her mother.

1. It was submitted for the appellant that there was no opportunity for the sexual abuse to have occurred two to three times a week. It is pointed out that the complainant's mother spent time at home as did the complainant's grandmother, and her two siblings were also in the house. Further, there was reliance on the complainant's evidence that she was "outside most of the time" and had horses, which she liked. It was submitted that this lack of opportunity was a factor the jury must have accepted to some extent, given the appellant was acquitted of the primary charge.
2. I will consider the latter point first. The fact that the jury were not satisfied beyond reasonable doubt of the primary charge does not speak to whether the jury accepted the complainant's evidence of the frequency of sexual abuse. As has been explained, in order for the jury to have found the appellant guilty of the primary charge, the jury had to be satisfied beyond reasonable doubt of at least three specific occasions. The jury may have accepted the complainant's evidence as to how often the abuse generally happened, but not have been satisfied beyond reasonable doubt of three occasions. The jury were so directed in clear and careful terms. Illustrating the clarity of the direction and the fallacy in the argument is the following aspect of the learned trial judge's summing up:

"Finding the accused did have the tendency, the Crown alleges, is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. Ultimately, you must decide whether the specific occasions the State rely upon have been proven.

So, for example, if you were satisfied that generally the accused had a tendency to ask [the complainant] to go to the shed and do the usual and watch pornography while he inserted his penis into her mouth, you could not substitute your satisfaction about that general behaviour in proving that occasion 7, in fact, occurred. So you cannot substitute satisfaction about general evidence with satisfaction about a specific occasion occurring. If you are satisfied the accused has the tendency, you can determine - you can use it in determining whether it makes it more likely occasion 7 occurred, but you must, nevertheless, be satisfied beyond reasonable doubt that the specific occasion, in fact, occurred and has been proven."

1. I have referred to the evidence the complainant gave about the frequency of the occasions where she was subject to the appellant's sexual abuse. Her evidence was not, as stated by the appellant's counsel, that it happened two to three times per week, but rather that it was, "once or twice a week, maybe even three times a week". Her evidence indicates a fluctuation from week to week, which may have reflected the opportunities the appellant had.
2. The evidence does not suggest the appellant would not have had the opportunity to abuse the complainant, once, twice, or up to three times a week. If the complainant's evidence is true, it would suggest the appellant took risks and abused the complainant when her siblings were at home. The fact that many of the general occasions happened in the shed, provided him with an opportunity to abuse the complainant away from her siblings.
3. It would have been open to the jury to find the evidence of the complainant's mother suggested the appellant had opportunities when she was not at home, and the complainant's grandmother was either not at home or not in the vicinity. Relevantly, the evidence of the complainant's mother was that her mother lived with them at Collinsvale for a period of less than five months, and maybe only two months. The evidence was that the family unit moved into the house at Collinsvale on 30 November 2013 and the appellant moved out on 13 April 2015. The complainant's evidence that she enjoyed being outdoors does not suggest a lack of opportunity.
4. I find it was reasonably open to the jury to have accepted the complainant's evidence about the frequency of abuse.

1. It was highlighted that there are aspects of the circumstances in which the complaint was made which cast doubt upon the complainant's honesty and reason for making the complaint, and each of these aspects are considered in turn.
2. It was said the complaint was made at a time when she was potentially in trouble - she had been in a fight and was worried about being suspended. Her evidence, however, did not suggest the prospect of being suspended was particularly troubling for her. She said that at this time, when she was in grade seven, she had quite a few fist-fights and had been suspended for fighting on other occasions. There was evidence which explained why she made her disclosure on that particular day. She was having a bad day, which does not seem to be in dispute, and at about that time, there had been some contact from the appellant. She agreed during cross-examination that she told the police in her first interview that the appellant had called her mother and that "brought everything back to mind". She also agreed that there had been some contact from the appellant, either a phone call or message, and that this contact triggered memories, and it was after that that she made the complaint. There were multiple factors which, according to the evidence, led to the complainant disclosing the appellant's conduct to her teacher and psychologist when she did, and which are consistent with a truthful disclosure.
3. The school psychologist gave evidence that "apparently" the complainant told her teacher that her dog had died the night before. This was said to be inconsistent with her mother's evidence about when Tank had been shot. The evidence from the complainant's mother is dealt with above at [216]. As noted, her mother's evidence is not inconsistent with the proposition that one of the family dogs had died close in time to the day when the complainant made her disclosure.
4. It was said that the complainant in her evidence described herself as "bawling her eyes out", yet that was not so. The teacher described the complainant as very withdrawn but not crying. It would be open to the jury to regard the complainant's evidence that she was crying when she spoke to her teacher as not correct. Whether she was crying at that time, or just very withdrawn, however, is not a material fact upon which the jury had to make a finding. It would be open to a jury to regard a mistake on this point as inconsequential, and to consider that a finding on that would not advance their consideration of the honesty or reliability of the complainant.
5. Similarly, if the complainant made a mistake in her evidence, as contended, that a third person was present when she made her disclosure, then it would be open to a jury to regard that as neither here nor there.
6. It was submitted that the evidence given by the teacher that the complainant mentioned that she was concerned for her younger sister who was 12 months old makes no sense at all as her sister was living in Queensland and not having contact with the appellant. This contention presupposes that the complainant was concerned for her little sister being abused at the time of her disclosure when, in fact, the complainant may have been referring to a concern she held at the time she was being abused.
7. It was said there was very little detail in the complaint. This conduct in giving limited detail is entirely consistent with a genuine complaint, and there is nothing suspicious about a young teenager wishing to tell someone what happened to them in general terms but not wishing to disclose the details and the extensive nature of the abuse. There is nothing inherently suspect about a limited disclosure. The extent of disclosures made by complainants is individual to the complainants; there is no text-book response to being sexually abused.
8. It was said that in the first interview, the police were only told of allegations of three occasions which were later expanded upon by the complainant. At the time of the first interview, the complainant was 13 years of age and the topics she spoke about and the occasions she described may have been guided by the questioning. The appellant's counsel cross-examined her about the interview, and it is apparent that the complainant only mentioned three occasions, but it is not known whether she was asked if there were any others.
9. The submissions on appeal also highlighted the complainant's evidence about why she did not tell her mother about the appellant's sexual conduct. There was reference to evidence that after the complainant disclosed the appellant's conduct, the complainant had a conversation with her mother, during which her mother asked her daughter why she had not told her at the time. There was evidence that she replied she thought her mother "was head over heels in love with [the appellant]". It is submitted this does not make sense given the complainant's evidence about her mother and the appellant arguing, and comments she heard her mother make to her friends that were critical of the appellant. It was entirely open to the jury, however, to regard her stated reason as not unbelievable given the complainant was aged seven to eight years of age at the time of the abuse. It is possible it may have been her belief as a 13-year-old as to why she did not tell her mother when, in fact, she lacked the insight to determine why she did not tell.
10. Finally, the appeal submissions referenced contentions that were made before the jury that if the allegations were true, the complainant was the type of child who would have made a contemporaneous complaint to her mother. I assume this contention was repeated on appeal for the purpose of identifying an inadequacy in the evidence, and as a factor adversely bearing upon an assessment of the complainant's credibility.
11. The contentions, however, are nothing short of pure conjecture. The response of children to being sexually abused is an area of "specialised knowledge", such that a suitably qualified expert could be called to give evidence of their opinion on the topic (s 79 of the Evidence Act 2001). The research supports the proposition that the responses of children to being sexually abused including matters such as whether they acquiesce and whether they disclose that abuse may be counter-intuitive and not necessarily what might be expected. On appeal, and in the absence of an expert opinion on this topic of specialised knowledge, I consider it inappropriate to give any credence to such contentions which, really, are no more than subjective views and, as I have said, conjecture.
12. At trial, this was a jury question, and it was entirely open to the jury to regard the complainant's failure to disclose the appellant's conduct to her mother close in time to the offending as unsurprising and not as undermining the complainant's credibility.
13. The complainant gave evidence on a related topic of why she acquiesced to the abuse and did not resist the appellant. The jury may have regarded the evidence she gave on this topic as revealing about her circumstances as a young child and the appellant's role in the family. She agreed in cross-examination that she was an argumentative child and had physical fights with her brother. She was asked questions about her response during the sexual abuse and, in particular, during the times that his penis was in her mouth and why she did not move away or stop what she was doing. Her evidence on this point was as follows:

"I want to suggest that if this had happened, you would have pulled away and stopped doing what he told you to do because - especially if you were having trouble breathing?........Back then I didn't really know what was right or wrong, or anything like that, so because it was a whole completely different experience, I would not have known at all how he would have reacted if I had have done, or what he would have done if I had have pulled away.

I want to suggest that given the type of child that you were, if a man who you hated put his penis in your mouth and you didn't like it, you would have made it abundantly clear that that was the case?........Yes, I would've done, but I didn't for some odd reason.

I want to suggest that the reason that you didn't do it is because this didn't happen?........No, it did, and the reason why I didn't argue was because I hated him and I was argumentative, but at the end of the day, he was still someone who was disciplining me, so I still had to have some sort of respect towards him."

1. Acknowledging the jury had the advantage of seeing and hearing her testimony, it appears from the transcript that the complainant's account was a genuine account of her understanding as a 15-year-old with respect to why she acquiesced to abuse when she was seven to eight years of age. She mentions that she regarded her response as "odd", which is consistent, perhaps, with not having a full understanding herself of why she responded as she did, which seems both candid and credible.

1. I have had regard to the points relating to any inconsistencies, deficiencies, or inadequacies in the complainant's evidence that have some validity at face value. Mostly, the matters raised have been found not to amount to deficiencies, inadequacies, or inconsistencies, or if they did, it was reasonably open to a jury to regard them as inconsequential. Where there is merit in the points made about inadequacies in the complainant's evidence, they are confined to certain occasions and do not have implications for the verdict with respect to occasions one and seven. In their cumulative effect, viewing them in the context of the evidence as a whole, it was open to the jury, approaching the matter rationally, to be satisfied beyond reasonable doubt of the appellant's guilt.

1. In light of the way the appeal has been argued and some of the criticisms of the complainant's evidence, it is appropriate to add some final remarks.
2. As previously observed, the submissions on the veracity and reliability of the complainant repeated many points made to the jury in the defence closing address. As discussed, in many instances, so-called deficiencies or inconsistencies in the complainant's evidence were matters that a reasonable jury may have regarded as not detracting from the complainant's veracity or credibility.
3. At times, there was an invitation to the jury to speculate about matters on which there is a body of knowledge and research. I have already mentioned the matter of why the complainant did not make a contemporaneous disclosure. Additionally, the contentions concerned notions about what the complainant would remember if she had been subject to the incident of abuse alleged. There were contentions propounded on behalf of the appellant that if her account was true, then realistically the jury could expect that the complainant would not forget or make a mistake about certain details, often matters of context peripheral to the sexual conduct. These same contentions were then pressed before this Court on appeal. This approach can be seen in a number of the submissions made, such as in relation to occasion one, two and seven and how the complainant did not have a memory of putting on her shoes before going to the shed where the alleged abuse occurred, her failure to mention the lock on the shed, and her lack of evidence about sensory perceptions such as pain and smell.
4. The nature and operation of human memory is an area of extensive scientific psychological research: Goodman-Delahunty, J, Nolan, M A, & Van Gijn-Grosvenor, E L (2017). Empirical guidance on the effects of child sexual abuse on memory and complainants' evidence. Royal Commission into Institutional Responses to Child Sexual Abuse. Furthermore, scientific findings do not align, at least in some key respects, with "common sense" notions held within the community about memory. Memory is not like a video tape which accurately records all details of a particular event in sequence and which can then be played back years later.
5. While defence counsel may be given considerable latitude by a trial judge in a closing address, on appeal, counsel can expect the Court to be cautious about such contentions and to resist invitations to speculate and to fill gaps in the evidence with counsel's version of common sense or intuition. Counsel should expect the Court to be conscious that memory is a field of expertise and specialised knowledge, to be alert to the risk or reality of counsel propounding erroneous beliefs about memory, and to be aware that there was no expert opinion before the jury to support defence contentions made about memory. This observation, of course, applies with equal force to the State and contentions it may make if it is suggested that matters of specialist knowledge are matters upon which the jury or the Court on appeal may speculate.

1. As demonstrated, on a close view of the evidence, assertions of inconsistency between the complainant's evidence and her mother's evidence were not substantiated, and there were a considerable number of points made which the jury were entitled to regard as insubstantial.
2. The multiplicity of points and contentions regarding the evidence does not reveal any deficiencies or inadequacies that should have impacted upon a jury's assessment of the complainant's honesty. There were some valid points about the reliability of her evidence with respect to certain occasions, but ultimately, there was not a verdict of guilty with respect to those occasions. Moreover, that evidence was not the kind that cast a shadow on the reliability of the evidence the complainant gave with respect to the occasions that did result in a guilty verdict.
3. Having regard to the points made, in my view, the evidence was sufficient in nature and quality to satisfy the jury beyond reasonable doubt about the accused's guilt in relation to occasions one and seven, which resulted in a verdict of guilty. In reaching that conclusion about the sufficiency and quality of the evidence, I have undertaken an independent assessment of the entirety of the evidence and I am not left with a reasonable doubt as to the guilt of the appellant. It was plainly open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant with respect to occasions one and seven.

"The verdict of the jury of not guilty to the charge of persistent sexual abuse of a child, but guilty to 2 counts of rape in the alternative was factually inconsistent, particularly in light of:

1. The term "factually inconsistent" has a particular meaning derived from the High Court case of MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 per the joint judgment of Gaudron, Gummow and Kirby JJ at 366. Verdicts which are factually inconsistent are to be contrasted with cases of legal or technical inconsistency where, on the face of the court's record, there are two verdicts which cannot stand together. Assertions of factual inconsistency are demonstrated by reference to the evidence. The test cited by the High Court judgment from Devlin J in R v Stone (13 December 1954) is:

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion ..."

In this case, it is argued for the appellant that the acquittal of the principal charge cannot stand with the finding of guilt with respect to occasions one and seven.

1. If doubt is cast upon a verdict in a particular case because it logically cannot stand with another verdict, an appellate court must determine whether it should intervene. It must decide whether the conviction, based upon the impugned verdict, is unsafe or unsatisfactory: MacKenzie at 365.
2. The judgment in MacKenzie identified guiding propositions at (355-368), including the respect for the function the law assigns to juries which has led to the courts repeatedly expressing reluctance to accept a submission that verdicts are inconsistent. At 367, the judgment, in part, stated:

"Thus, 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. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries." (Footnotes omitted.)

1. After referring to the ameliorative role of the jury and the comments of King CJ in R v Kirkman (1987) 44 SASR 591, the judgment referred to a residue of cases where the ground may be borne out:

"Nevertheless, a residue of cases will remain 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. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. 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. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'." (Footnotes omitted.)

1. Applying these principles to the case at hand, the verdicts are not at all inconsistent, let alone so as to render the resulting convictions of the appellant unsafe or unsatisfactory. In essence, this is a case where the jury appears to have "simply followed the judge's instruction to consider separately the case presented by the prosecution" and the need for satisfaction beyond reasonable doubt with respect to each occasion. My reasons for that conclusion are as follows.
2. The appellant argued:
   • The flaws that existed regarding particulars two to six were equally present in particulars one and seven;
   • All occasions relied upon the acceptance of the complainant's evidence for a conviction;
   • The complainant's evidence as to occasions two to six must have been rejected by the jury for the verdict that was entered;
   • The jury must have rejected any suggestion of tendency reasoning as, once it is accepted that tendency was rejected, it then becomes difficult to logically provide a pathway to conviction for particulars one and seven;
   • The evidence for particulars one and seven did not differ substantially to particular two, where no conviction was proved; and
   • The verdict returned is an affront to logic and common sense.
3. It has been revealed in the above consideration of each occasion with respect to ground one, that it is not the case that "all flaws regarding occasions two to six were equally present in particulars one and seven". As discussed above, there were discrete issues; for example, in relation to occasion five, the complainant expressed confusion about what in fact happened and in what order.
4. The submission is correct insofar as the point that all occasions relied upon the acceptance of the complainant's evidence for a finding of guilt. As noted above, the jury were given a direction in terms that they could not find the accused guilty unless they were satisfied beyond reasonable doubt of the complainant's honesty and reliability.
5. It is not correct, however, that the verdicts reveal the complainant's evidence on occasions two to six must have been "rejected" by the jury. As already mentioned, the verdicts are entirely consistent with a finding by the jury that the complainant was an honest witness across her evidence but, given some aspects of her evidence, the jury were not able to find all seven occasions proved beyond reasonable doubt.
6. At the risk of stating the obvious, I add the following remarks. The submission on appeal fails to take into account the nature of the jury's function, and the onus and standard of proof. The jury are not presented with an all or nothing choice. It is not a case of acceptance of a witness's evidence and satisfaction beyond reasonable doubt of the honesty and reliability of a witness's evidence on the one hand, or rejection of a witness's evidence on the other.
7. In this case, the jury may have been satisfied of the complainant's honesty beyond reasonable doubt, and satisfied that she was generally reliable, but left with a reasonable doubt about the reliability of her evidence with respect to occasions two to six. Put simply, rejection of the complainant's evidence is not an essential step in the pathway to an acquittal.
8. It was submitted that the verdicts reveal the jury must have rejected the tendency evidence. It will be remembered that there were two categories of tendency evidence: first, the evidence of the other specific occasions; and second, the general evidence of the appellant's sexual behaviour that is not the subject of a specified occasion. In relation to the first category, it was inherent in the verdict that the jury was not satisfied beyond reasonable doubt that any of those specific occasions, apart from one and seven, happened. That proposition is incontrovertible.
9. In relation to the second category, it was submitted the verdicts reveal the evidence must have been rejected by the jury. Here, there was heavy reliance by the appellant on the sentencing remarks by the learned trial judge and her Honour's findings about the tendency evidence. Her Honour referred to the evidence that the appellant had sexually abused her on occasions other than the seven specified occasions. As noted above, this evidence was as follows:
   • "After occasion 1 we did it a few more times in the little room before moving to the shed".
   • "It happened once, twice - sometimes even three times per week - in the shed... he would put his penis in my mouth and be watching pornography on his phone. It would usually start by him saying 'Let's do the usual'."
10. The jury were instructed they could use the evidence as context evidence, that is, as part of the complainant's narrative, and were further instructed they were entitled to use the evidence as part of a tendency reasoning process. The instruction given to the jury regarding the tendency reasoning process that was open to them reflected the tendency notice, and the jury were directed in the following terms:

"The Crown says this conduct reveals the appellant had a tendency to sexually assault [the complainant] when her mother was away from the residence and in circumstances where he would often be watching pornographic videos."

1. The learned judge in her sentencing remarks made findings of fact about this evidence. Her Honour stated:

"In my view, given the way the trial was conducted, it is difficult to see how the jury could have been satisfied the accused had the asserted tendency, namely a tendency to sexually assault the complainant when her mother was away from the residence and in circumstances where he would often be watching pornographic videos, and not have been satisfied beyond reasonable doubt that more than two occasions had been proven. I do not consider it is consistent with the jury verdict to sentence on the basis the asserted tendency has been proven.

The State argue that the complainant's evidence in respect to occasion seven, which she said involved the defendant pulling his pants down, sitting on the couch and saying, 'We're going to do the usual' makes no sense unless there had been intervening sexual assaults directed at the complainant which would explain her understanding of the instruction 'We're going to do the usual'. I acknowledge there is some merit in that submission, but it is difficult to rationalise how the jury, if they accepted there was intervening sexual behaviours, could not have been satisfied beyond reasonable doubt that at least one other of the identified occasions had been proven beyond reasonable doubt, given the particularity of those occasions, and the jury's entitlement to rely on tendency reasoning. Having regard to the jury's verdict I intend to proceed on the basis that the two counts of rape were isolated acts, constituted by the conduct described by the complainant. Her evidence satisfies me that at the relevant time, [the appellant] was acting in a parental role in respect to her. He was her mother's partner and was living with the complainant in the family home. He was the father of the complainant's sister."

1. It must be remembered that the learned trial judge was engaged in the task of making findings of fact for the specific purpose of sentencing. Whether there were unspecified occasions of sexual conduct, also described as "intervening behaviours", is an aggravating factor extraneous to the two specified occasions the appellant was charged with and found guilty of, and so, in order for this factor to be taken into account, the learned sentencing judge would herself need to be satisfied of those unspecified occasions beyond reasonable doubt: R v Olbrich [1999] HCA 54, 199 CLR 270. The sentencing comments were made to reveal the trial judge's process of synthesising the verdicts and the evidence and determining the facts beyond reasonable doubt.
2. It may be noted her Honour's reasoning was not based on any adverse observations she made about the complainant's veracity or her evidence regarding the specific occasions or the "intervening behaviours", but rather, the difficulty her Honour had in rationalising the evidence of "intervening behaviours" with the verdicts, that is, the jury not being satisfied beyond reasonable doubt of more than two occasions.
3. In light of these matters, the sentencing comments are of limited assistance in the entirely different task faced by this Court in ascertaining whether there was a logical and common-sense pathway to conviction. The jury did not receive any directions which reflected the sentencing remarks and, of course, were not constrained by her Honour's reasoning in their consideration of the evidence. I consider it would have been open for the jury to both accept the intervening sexual behaviours, but not be satisfied beyond reasonable doubt of the identified occasions two to six because of discrete factors regarding the complainant's evidence with respect to each of those occasions. I put to one side the remarks for the purpose of this appeal and, because it was open to the jury to do so, I take into account the tendency evidence of unspecified occasions.
4. It was argued that the evidence on occasions one and seven did not differ substantially from occasion two to support the proposition that the verdicts could not be reconciled. Occasion two was the only other specific occasion that occurred in a shed at the Collinsvale property. There were however matters of detail in relation to occasion two, which were different to occasions one and seven, that the jury may have considered had a bearing on whether they were satisfied beyond reasonable doubt as to the complainant's reliability with respect to this occasion. For example, there was some uncertainty in the complainant's evidence about whether she had been to school that day, she said she was unsure and could not remember what happened on that day. She agreed however that she had talked to the prosecutor to prepare a document and that she told them she thought she had been to school that day. In her evidence, she was asked whether the appellant had been at work and she said, "No, I don't. I don't reckon he did, no." By contrast, in her statement, she said the appellant was dirty as he had been to work but he had washed his hands. The jury might have regarded these differences between her evidence and her statement as immaterial, or they may have had a bearing on the jury's conclusion with respect to that occasion.
5. In cross-examination, the complainant agreed this second occasion was an occasion mentioned in her first police interview. It was suggested to her that she told police when stating what happened in the shed, the appellant "walked into and he laid down", while it was now her evidence that he was seated on a car seat. She agreed this was "because I remember a lot more." The jury may have considered that evidence raised a reasonable doubt.
6. There is another reason why the jury may have been satisfied of occasions one and seven, but not occasion two when the evidence was that it occurred in similar circumstances. According to the complainant's evidence, there were a number of incidents of similar abuse between the first and second occasion and after the second occasion. The jury may not have been satisfied beyond reasonable doubt that the complainant was recounting the second specific occasion relied upon by the State and not confusing it with one or more of the non-specific occasions. The learned trial judge directed the jury it was essential to a finding of guilt that the jury were satisfied beyond reasonable doubt of at least three specific occasions and that they must not substitute the conduct of the accused on some occasion other than the seven specific occasions the State rely upon to prove a particular occasion occurred: see above at [256].
7. After summarising the Crown and defence contentions in relation to the tendency evidence, her Honour added:

"Now ultimately, proof of the asserted tendency relies upon you accepting the evidence of [the complainant] beyond reasonable doubt. And I remind you about what I have already said to you about scrutinising her evidence with care."

1. It is worth noting the jury returned with a question with respect to the terminology, "exact circumstances" in par 2.5 of the memorandum that her Honour provided to the jury. That paragraph stated:

"2.5 It is not necessary for the Crown to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of them were committed. But the jury must be satisfied beyond reasonable doubt that the individual unlawful sexual act was committed."

1. In answering the jury's question, the learned trial judge stated:

"What is important is that you are able to identify the specific occasion as opposed to it being a general assertion that things happened. So, for example, occasion 2. She references it happening on a car seat. You wouldn't have to be satisfied that it was a particular type of car seat; you would have to be satisfied that the evidence establishes that that identifiable occasion occurred and that that was an occasion that occurred as opposed to just a general assertion that, 'we used to go down to the shed and he would make me suck his penis'.

So, do you understand that that needs to be your focus? You need to be able to identify the specified occasions and your satisfaction as to three specified occasions must relate to three of the identified occasions that the State have relied upon. So, at least 3 out of the 7. So it comes back to what I told you before, you cannot substitute general evidence to satisfy you about specific occasions that are alleged. So, little things like type of car seat, colour of a couch, those sorts of things, they are the type of exact circumstances that the State don't have to identify, but what they must do is lead sufficient evidence that satisfies you that an identifiable occasion occurred."

1. In relation to occasion two, it is entirely possible that the jury accepted the complainant as an honest and reliable witness generally, but could not be satisfied beyond reasonable doubt that, in her evidence, she was referencing the specific occasion rather than the usual incidents that were non-specific. It must be remembered that the complainant was recounting what happened to her when she was seven or eight years of age, approximately seven years before she gave evidence.
2. In my view, there is a logical and rational pathway open to the jury which explains the verdicts of not guilty of the principal charge and guilty of rape in relation to occasions one and seven.
3. Occasions one and seven were the first and last occasions, and the jury may have regarded those as holding a distinctive place in the complainant's memory. She agreed that she referred to three occasions in her first police interview. It was reasonably open to the jury to regard the occasions she did not mention in her first police interview as being less reliable than those that she did. The evidence was that she specifically referred to the first and last occasion and one time "in the middle". The evidence she gave suggests occasions three, four, five and six were not specifically referred to by the complainant in her first police interview.
4. In terms of the sequence of occasions, the complainant was confident about the first and last occasion but that, in relation to the other specific occasions: "The order's a bit jumbled", and she agreed the occasions in between might have happened in a different order. When cross-examined about occasion five, she stated the frequency of the incidents has made it difficult to remember: see above at par [138]. The jury may have regarded this evidence as detracting from the reliability of the complainant's evidence regarding occasions two-six.
5. The jury may have found the tendency evidence of the general occasions or intervening behaviours held more weight or significance for occasions one and seven than some of the other occasions. The jury were directed the evidence could be used as tendency reasoning in that the appellant had a tendency to sexually assault the complainant when her mother was away from the home and in circumstances where he would often be watching pornographic videos. Occasion seven had both hallmarks of this tendency, while occasions one, four, five and six did not involve the watching of pornography, and occasion three did not occur at Collinsvale when the complainant's mother was away from the residence. Additionally, and relevant to the support provided by the tendency evidence to occasions one and seven, all of the general occasions were said to have happened in the shed where only occasions one, two and seven occurred.
6. As noted, the jury may not have been satisfied beyond reasonable doubt that occasion two was not confused with other similar occasions which happened in the shed.

1. It is for these reasons I conclude the verdicts are not "an affront to logic and common sense". The verdicts of not guilty of the principal charge and guilty with respect to occasions one and seven are not inconsistent and, in fact, they reflect the evidence and factual findings open to the jury and the directions of law given by the trial judge.

1. For the reasons I have expressed, neither ground of appeal succeeds. I would dismiss the appeal.

1. I agree that leave should be granted and the appeal dismissed for the reasons given by Wood J. To those reasons I would add general observations concerning one aspect of the appeal and submissions.
2. This appeal, and many of the submissions advanced by the appellant, reflect and seek to perpetuate outdated concepts and myths surrounding the conduct to be "expected" of child complainants in sexual assault cases. Similarly they seek to perpetuate such concepts and myths about the evidence of child complainants, often given many years after the events. The submissions also overlook the risk-taking behaviour of sexual predators commonly the subject of evidence in the criminal courts.
3. I agree with the observations of Wood J concerning submissions amounting to speculation as to memories and behaviours "expected" of child complainants. As her Honour has noted, there exists extensive research in this area. In addition to research, there is a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts to which I have referred.