AZ v R

Judgment

1. WHITE JA: This is an application for leave to appeal against convictions on charges of child sexual assault and indecency. The name of the applicant is a pseudonym to protect the identity of the complainant and the complainant's younger brother.
2. On 7 March 2017 the applicant was convicted by a jury on ten counts (out of 11). He was given an aggregate sentence of 13 years' imprisonment with a non-parole period of nine years. The sole ground of appeal is that the verdicts of the jury on the ten counts on which the applicant was convicted were unreasonable and not supported by the evidence and occasioned to him a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
3. Section 5(1)(b) of the Criminal Appeal Act provides that a person convicted on indictment may appeal to this Court with leave against the person's conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal. Section 6(1) provides that such an appeal shall be allowed if the Court is of the opinion that: "... the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, ... or that on any other ground whatsoever there was a miscarriage of justice ...".
4. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the Court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 493). The plurality said: "But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 621]. It was with those considerations in mind that some members of this Court [See Whitehorn v The Queen (1983) 152 CLR at 660, 687; Chamberlain v The Queen [No. 2] (1984) 153 CLR at 532-534] have thought it necessary to qualify the statement by Barwick CJ in Ratten v The Queen [(1974) 131 CLR at 516] that: 'It is the reasonable doubt in the mind of the court which is the operative factor'. Barwick CJ went on to say: 'It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.'" (at 493-494)
5. The plurality added (at 494-495): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury[']s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444]. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462]. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
6. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the "authoritative guidance" given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is "the constitutional tribunal for deciding issues of fact", the "abiding importance of the role of the jury as representative of the community in that respect", and that the setting aside of a jury's verdict "... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial", and that "... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury" (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that: "... the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (at [66])

The Charges

1. The applicant was described as the best friend of the complainant's mother. The applicant and the complainant's mother had met in 2011 and they became close, but platonic, friends. The complainant's mother had two children, namely the complainant who was seven years old as at 2 March 2015 (being the last date of the alleged offences), and his younger half-brother, who was, at that time, four years of age. The children called the applicant "uncle". He often looked after them when the complainant's mother was working, including, on occasion, overnight. The Crown accepts that there was no suggestion that the applicant deliberately inveigled his way into the family for the purpose of gaining access to the children. It is not disputed that at relevant times the children were under his authority when he allegedly committed the offences.
2. In these reasons I will call the complainant "Thomas" (a pseudonym) and I will call his younger brother "Christopher" (also a pseudonym).
3. The Crown's case depended upon Thomas' evidence. Christopher, who was only four at the time of the alleged offences, was not called as a witness. The applicant does not suggest that he should have been called. There was no corroboration of Thomas' complaints. Nor could any corroboration be expected from Christopher given his age. Because the applicant was a frequent visitor to the children's house and sometimes stayed overnight in the bed of the complainant's mother (where the offences the subject of counts 4-11 were said to have occurred), the presence of the applicant's DNA was a neutral factor. Although the Crown's case was that the applicant on 2 March 2015 masturbated himself, masturbated Thomas and made Thomas masturbate the applicant, it was not the Crown's case that the applicant ejaculated on 2 March 2015, although other "context evidence" of sexual contact between the applicant and Thomas was adduced in which Thomas gave evidence consistent with the applicant's having ejaculated. There was no forensic evidence to support or contradict Thomas' evidence.
4. The applicant was charged with 11 offences. The first three offences were alleged to have taken place at Emerton Pool.
5. The first count on the indictment was that between 1 June 2014 and 31 December 2014 at Emerton the applicant assaulted Thomas, a person then under the age of 16 years, namely seven years, and at the time of such assault did commit an act of indecency upon him contrary to s 61M(2) of the Crimes Act 1900 (NSW). The act relied upon was that the applicant touched Thomas' penis.
6. The second count was that between 1 June and 31 December 2014 at Emerton the applicant assaulted Christopher, a person then under the age of 16 years, namely four years, and at the time of such assault did commit an act of indecency on him. Again, the offence charged was an offence contrary to s 61M(2) of the Crimes Act. The Crown alleged that the applicant touched Christopher's penis.
7. The third count was that between 1 January and 31 December 2014 at Emerton the applicant committed an act of indecency towards Thomas, a person then under the age of 10 years, namely seven years. The offence charged was an offence against s 61O(2) of the Crimes Act. The act relied upon was that the applicant masturbated himself in front of Thomas.
8. Counts 4-7 were described by the Crown as having arisen from a "Weekend Bedroom Incident".
9. Count 4 charged that between 6 June 2014 and 28 February 2015 at Emerton the applicant had sexual intercourse with Thomas, then aged seven, in circumstances of aggravation, namely Thomas was at the time under the applicant's authority. The charge was laid under s 66A(2) of the Crimes Act. The act relied on was that the applicant allegedly made Thomas suck his penis. The applicant was acquitted on this count.
10. Count 5 was in the same terms as count 4. The act relied upon was that the applicant sucked Thomas' penis.
11. Count 6 charged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant made Thomas masturbate him.
12. Count 7 alleged an offence against s 66B of the Crimes Act that the applicant attempted to have sexual intercourse with Thomas. The act alleged was that the applicant attempted to put his penis into Thomas' anus.
13. Counts 8-11 concerned offences alleged to have occurred on 2 March 2015 at Thomas' home.
14. Count 8 alleged an act of indecency contrary to s 61O(2) of the Crimes Act. The act alleged was that the applicant masturbated himself in front of Thomas.
15. Count 9 alleged an offence against s 61M(2) of the Crimes Act. The act alleged was that the applicant assaulted Thomas and at the time of the assault committed an act of indecency upon him. The act alleged was that the applicant masturbated Thomas.
16. Count 10 alleged a further offence against s 61O(2) that the applicant committed an act of indecency with Thomas. The act alleged was that the applicant made Thomas masturbate him.
17. Count 11 alleged an act of attempted sexual intercourse contrary to s 66B of the Crimes Act. The act alleged was that the applicant attempted to put his penis into Thomas' anus.

The complaint

1. The charges arose following a complaint made by Thomas to his mother on 2 March 2015. That day was a Monday. It was a school day, but Thomas did not go to school. It was also a day upon which Thomas played in a grand final for his indoor soccer team. In the evidence it was also called the grand final day. After the game the children, their mother, the applicant and a friend of the mother's called Alex returned to the mother's house. The applicant went to the shops to buy dinner so that the mother would not have to cook . Thomas called the applicant "Dave". The child's mother gave evidence that: "... I just remember him just looking at me back and forth and then he said, 'Does Dave have to come back?' and I kind of looked at him and - and I was like, 'What do you mean? Why - why - what do you mean? You know, he's gone to get dinner. Dave's coming back.' He said, 'I don't want him to come back,' and got quite anxious and - Q. What do you mean? What did you notice about-- A. So when [Thomas] gets nervous he kind of - like when he was younger he would use his hands a lot like just - yeah - and he - he then said to me, 'I don't want Dave to come back, mum,' and I was like, 'Why, why don't you want Dave to come back?' and he said, 'I didn't like the games,' and I was like, 'What do you - what do you mean, what games?' and he said, 'I didn't like the games, especially this morning,' and I said, 'What games, [Thomas]?' and he pointed to his-- Q. Would you like to have a cup of water? There's some water next to you. Why don't you pour yourself a cup of water. HIS HONOUR: I think that's a good idea. Would you like a break? WITNESS: No, I'm okay, thank you. CROWN PROSECUTOR Q. Did you say anything to him about whether he could talk to you? A. Yeah, I - I told him - sorry, before that, I did tell him that he can tell me and-- Q. Try and say it as though you're talking to him now. Try to do it in the first person. A. Yeah, I said to [Thomas], 'You can tell me, buddy,' or something like that, like, 'You won't be in trouble but what do you mean? I don't know what you mean,' and he pointed to his groin area and he said, 'I didn't like those games.' From what I can recall, it's so long ago, he said, 'I didn't like the taste.' Q. Did you say anything in response to that? A. I - I - at this stage I had paused the TV and I looked over to Alex and I kind of just looked at him and he could see I was getting a bit worked up. Q. Just try and keep to the words. Did you respond when he said, 'The taste'? A. I said, 'The taste of what?' or something like that. He used to call his private part a woo-woo, and he said, 'My woo-woo and his woo-woo,' or something like that, yeah, and I just looked at Alex and he just looked at me and I don't know what he heard or anything like that and I just broke down. Q. Did you say anything else? Did you ask him anything else at that point? A. I asked him - from what I can recall, I think I asked him, like, 'You know you can tell me. Is that all that happened? What games? Was [Christopher] there?' Yeah. Q. What else did [Thomas] say to you, if anything else, at that stage? A. He was more concerned, and said, 'Is Dave coming back? Dave's coming back, am I in trouble?' Yeah."
2. The mother gave evidence that when the applicant returned Alex told him that he needed to leave. She said: "And he was like, 'What are you talking about?' And then, from what I can remember, I yelled out a thing like, 'How could you do that? That's my children, how could you touch them?' All I could remember was words of Alex saying, 'You need to go, you need to go.' At this stage, I think Alex went outside and shut the door because [Thomas] was, like, 'He's going to come in.' He was getting quite frantic, like, [Christopher] was sitting on the lounge, like 'What's going on?' And then I remember Dave saying to Alex, 'What do you know? What does she know? What has he said?' That's all I can remember from that part, and then at this stage Dave went down the driveway towards his car and yelled out to Alex. Alex just kept saying, 'You need to go, you need to go, you need to go, [the mother's] called the police,' et cetera. And Dave was, like, 'Is she still going to be my friend?' And then I flew out the door over Alex's shoulder, and, I don't know, I just went off and yelled."
3. The police were called. Senior Constable Oxford provided a statement of attending at the house in Emerton with Constable Taylor and having a conversation with the child's mother as follows: "At-the location I was introduced to [the mother] who appeared extremely distressed. Constable Taylor and I had a brief conversation with her while Constable Taylor recorded details: Taylor - 'What happened tonight?' [Mother] - 'David minded the boys while I was at work today. When I got home they were all here. David went to go out and get some dinner for us all. When he left [Thomas] wanted to know if David was coming back. I said yes and he went funny. I asked what was wrong and he went all shy. He told me David made him play a game and touched his penis.' Taylor - 'Did [Thomas] say those words?' [Mother] - 'He said his 'rude part'" Taylor - 'When did this happen?' [Mother] 'Today' Taylor- 'Where did it happen?' [Mother] - 'My bedroom. [Thomas] said he and David were having a nap in [my] bed and when they woke up that's when it happened.' Taylor - 'Where was [Christopher] when this was going on?' [Mother] - 'Playing in the lounge room.' Taylor - 'Do you know if David ejaculated? So we can establish a crime scene and potentially get some DNA' [Mother] - I don't know if he did. But he sleeps in my bed all the time and he is at my house all the time so his DNA will be there.' Taylor - 'What happened when David came back with the dinner?' [Mother] - 'I confronted him outside. I told him what [Thomas] told me. At first he was shocked and then he was angry. He denied everything and got in his car and sped off. I didn't know what to do.'
4. In cross-examination Thomas' mother said she had no recollection of the applicant denying the allegation.
5. Senior Constable Oxford also spoke to Thomas. His statement included the following: "I Said: Hi [Thomas], my names Brendan. I'm a Police Officer. I have to speak to you about what's happened today. Can you tell me what happened? He Said: 'I had a nap in mum's bed with David. When we woke up he asked if we could play a game.' [Thomas] placed his hands over his face and appeared embarrassed. I Said: 'It's ok mate. You're not in any trouble.' He Said: 'He said to take my pants off and all my clothes and he took his pants off.' I Said: 'You're doing good, keep going.' He Said: 'He made me touch his rude bit (indicating to his groin area). Then he touched mine (indicating to his groin).' I Said: 'What happened next?' He Said: 'And then we put our clothes on and went to play with [Christopher]' I Said: 'Did anything come out of his rude bit when you touched it.' He Said: 'No'"
6. Thomas was interviewed by a police officer attached to the Penrith Joint Investigation Response Team (JIRT) on 12 March 2015. The video recording of that interview was part of the complainant's evidence-in-chief. It formed the basis of counts 1-3, and 8 and 9.
7. Thomas was interviewed a second time by a police officer associated with Penrith JIRT on 2 September 2015. The video recording of that interview was also part of the complainant's evidence-in-chief. It formed the basis of counts 4-7, and 10 and 11. It was in the second interview, but not in the first interview, that Thomas said that the applicant made Thomas suck the applicant's penis, that he sucked Thomas penis and that he attempted to put his penis into Thomas' anus.
8. Thomas was interviewed a third time on 3 February 2017 and a fourth time on 13 February 2017. The video recordings were also part of his evidence-in-chief. The trial commenced on 14 February 2017. Thomas gave evidence at the trial.

Summary of applicant's contentions

1. One of the grounds upon which the applicant contends that his convictions were unreasonable or cannot be supported having regard to the evidence are the inconsistencies in Thomas' record of interviews as to where the offences alleged in counts 1-3 occurred. The applicant says that further inconsistent evidence was given in relation to that matter in his evidence in cross-examination at the trial.
2. In his first interview Thomas stated that the events he described that led to the laying of counts 1, 2 and 3 took place at Parramatta pool. During the second interview he stated that the acts occurred at Penrith or Mount Druitt pools. He could not say which. In the third interview when asked to describe the swimming pool he said that "I think it was Emerton pools". He confirmed that in answer to Q135. The transcript records the interviewer's question "But you think now it was Emerton. Is that right?" and there being no audible reply. The video recording shows that Thomas nodded in answer to that question. In the fourth interview he identified the pool where the alleged offences occurred as being a five-minute walk or two-minute drive from where he used to live. This would be the Emerton pool.
3. Secondly, the applicant relied upon the verdict of acquittal on count 4 and submitted that this gave rise to an inconsistency between verdicts. Referring to R v Lee (Unreported, 27 June 1991, BC9101839), Jones v The Queen (1997) 191 CLR 439, R v Carbone [2000] NSWCCA 387, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Norris v Regina [2007] NSWCCA 235, TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 and TA v R [2015] NSWCCA 151, the applicant submitted that the only reasonable explanation for the acquittal on count 4 could have been doubt about the complainant's veracity in his statements in the second record of interview, which should have led to the jury's having a reasonable doubt in respect of the other counts which also depended upon Thomas' uncorroborated evidence.
4. Thirdly, the applicant relied on evidence given by Thomas in cross-examination in which he conceded that the acts the subject of counts 2 and 5 did not occur. In his summing up to the jury the primary judge noted that Thomas conceded that "Dave never tried to touch his rude part and that Dave had never touched Christopher's rude part." The Crown told the jury that it would be very difficult for the jury not to have a reasonable doubt about counts 2, 4 and 5. Nonetheless, the jury convicted the applicant on counts 2 and 5.
5. Fourthly, it was common ground at the trial, and the jury was so directed, that it was an essential element of the Crown's case that the offences charged in counts 8-11 occurred on 2 March 2015. In cross-examination Thomas conceded that none of the acts charged occurred on that day. The applicant says that the jury ought to have had a reasonable doubt as to an essential ingredient of the offence.
6. Fifthly, the applicant submitted that as the jury was not satisfied that the acts the subject of count 4 occurred and Thomas gave evidence in which he denied that the acts the subject of count 5 occurred, the jury could not be reasonably satisfied that the acts the subject of counts 6 and 7 occurred. They were not referred to in the first record of interview. The applicant also submitted that Thomas' evidence as to how the acts the subject of count 7 occurred (attempted anal/penile penetration) and Thomas' statement in the second interview as to what it felt like and whether it hurt were not credible.
7. Sixthly, the applicant submitted that a reasonable doubt should be held as to Thomas' credibility by reason of evidence he gave in the absence of the jury when the primary judge was asked to determine whether Thomas should or should not give evidence on oath or affirmation. The sentencing judge concluded that Thomas was not capable of giving sworn evidence. He was nine years old at the time of the trial. Thomas gave the following evidence on the voir dire: "Q. ... Now, do you know why you're here today? A. Yes. Q. Why are you here today? A. To put someone in gaol. Q. For what? A. Doing bad things to me. ... Q. ... Now, if, I, a judge, was to say to you that it's important to tell the truth, and only the truth, do you know what that means? A. No. Q. Well, if I say to you, it's really important that when you're giving your evidence you only say things that are true and don't say any things that aren't true or are lies. Do you know what I mean by saying that? A. Yes. Q. Do you know why it's important? A. Yes. Q. Why is it important? A. To try to put Dave in gaol. Q. Well, if you say things that aren't true, and then Dave gets put in gaol because of things you say that aren't true, that wouldn't be good, would it? A. Yes."
8. The applicant relies upon the cumulative effect of these matters.
9. It is convenient to address the relevant topics in the following order: 1. the significance of Thomas' statement on the voir dire that it was important to try to put the applicant in gaol; 2. whether the acquittal of the applicant on count 4 should mean that there is a reasonable doubt as to the applicant's guilt on the other counts; 3. the conviction of the applicant on counts 2 and 5, notwithstanding Thomas' evidence in cross-examination that the acts the subject of those charges never took place; 4. the convictions on counts 8-11, notwithstanding Thomas' evidence in cross-examination that the acts the subject of those counts did not take place on 2 March 2015, being the date alleged in the indictment; 5. the convictions on counts 1-3 having regard to the different statements made by Thomas from time to time as to the locality of the swimming pool at which the acts the subject of those counts took place; 6. the applicant's contention that Thomas' description of the acts involved in counts 6 and 7 was implausible; and 7. whether doubts about convictions on some counts should result in an acquittal on all counts.

Preliminary issue: video evidence

1. Thomas' evidence-in-chief substantially consisted of the video recordings of his four interviews by police officers with the JIRT on 12 March 2015, 2 September 2015, 3 February 2017 and 13 February 2017. Thomas' evidence at the trial was given from a remote location and was seen by the jury by video. The video recordings of his interviews by the JIRT interviewers and his evidence at the trial were tendered on appeal.
2. I considered it necessary to watch and listen to Thomas' four records of interview that substantially comprise his evidence-in-chief and to watch the video recordings of his evidence at the trial, rather than attempting to reach a conclusion as to whether the verdicts were unsafe or unsatisfactory based only on a review of the transcripts.
3. In determining an appeal that relies on s 6(1) of the Criminal Appeal Act, (that the verdict was unreasonable or cannot be supported having regard to the evidence or there was a miscarriage of justice) a court of criminal appeal is required to make its independent assessment of the whole of the evidence (M v The Queen at 493; MFA v The Queen (2002) 213 CLR 606; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [22]; R v Baden-Clay at 331 [71]; GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 at [20]).
4. This is the starting point. In SKA v The Queen the plurality (French CJ, Gummow and Kiefel JJ) approved a reservation expressed by Simpson J in the Court of Criminal Appeal in that case (SKA v R [2009] NSWCCA 186 at [108]) that caution should be exercised in viewing a recording of the complainant's evidence if to do so might create an imbalance given that the Court would not be viewing the evidence of other witnesses. The plurality noted an additional consideration that the recording in that case was of only the complainant's evidence-in-chief and might not have been a fair representation of her evidence as a whole (at [29]).
5. There is no such imbalance in the present case. The applicant did not give evidence and the whole of the evidence of the complainant was available to be reviewed in this Court in the same form as it was seen by the jury.
6. In SKA v The Queen the plurality observed (at [31]) that the account given and the language used by witnesses which were available by way of transcript are usually sufficient for review of the evidence and that: "It is to be expected that if there is something which may affect a court's view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that the Court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach." (at [31])
7. That necessity is present in the current case. The Crown submitted that it was necessary for this Court to view the video recordings of the JIRT interviews to appreciate fully the complaints of Thomas in 2015 about events that had occurred only days or weeks earlier when he was seven, and his further interview in September 2015 when he was eight, which added additional complaints. The Crown submitted that Thomas responded to questions not just by oral answers but expressively with nods, shakes of the head, shrugs or hand movements. Sometimes his non-verbal responses were captured by the interviewer's next question. This was not always the case. I have referred to an example of this at para [33] above.
8. The Crown also submitted that insofar as the applicant relies upon the fact that serious allegations were only raised for the first time in the second interview in September 2015, it was necessary for this Court to view the first interview for itself to observe when Thomas became very tired and uncommunicative. The video recordings demonstrate the correctness of this submission.
9. The Crown submitted that concessions made by Thomas in cross-examination could be explained by confusion or exhaustion. In submissions on appeal the issue was raised as to whether Thomas might have given answers because he wanted to end a cross-examination that he found traumatic.
10. Because Thomas' evidence was given by video the jury saw the same images and heard the same intonations of voice as are available to this Court. Once it is accepted, as it should be, that the recordings of the complainant's JIRT interviews should be watched, it also follows that his evidence, including his cross-examination, should be watched so as to maintain balance, even if the Court were not otherwise persuaded (as I am) that the video recording of Thomas' evidence given at trial should be watched to assess the significance of the concessions made in cross-examination.
11. In CLC v R [2015] NSWCCA 248 Basten JA said: "[77] The joint reasons in the High Court recognised that it is "usually sufficient for a review of the evidence" to be conducted on the papers. [SKA (HCA) a [31].] The concern expressed in relation to viewing a video recording focused on potential unfairness to the applicant. That is, of course, an important factor. But if reason can be identified to suggest that a viewing may be of assistance in forming the opinion required of the appellate court, the court should not be precluded from viewing the video recording, nor did the High Court (or Simpson J) suggest otherwise. The purpose must be identified and the court must take seriously the risk of imbalance based on the viewing of part only of the evidence. On the other hand, it is not in the interests of justice to allow an applicant whose only ground of appeal requires the appellate court to form a view as to the effect of the whole of the evidence to deny the appellate court access to part of the record of that evidence. [78] There are, of course, practical implications of taking such a step. While it appeared appropriate in the circumstances of this case, the burden caused by viewing the video recordings did not give rise to a practical burden. They were, in total, about one hour in length. Where the court is invited to view lengthy video recordings, other considerations may arise. That was not so in this case and it is appropriate, in the absence of direction by way of standard practice, that these aspects should be considered on a case by case basis."
12. In CLC v R Wilson J and R S Hulme AJ elected not to view the video recordings of the complainant's interviews with the police. Wilson J said: "[94] There are obvious and probably significant ramifications for the workload of any appellate court asked routinely to view such material but, equally, there may be significant jurisprudential consequences for both the manner in which an appellate court approaches the determination of appeals, and for long established notions of the primacy of the jury. [95] Suffice to say that, unless some compelling reason is advanced by an appellant as to why an appellate court should view recorded evidence from the original proceedings, I would not ordinarily regard it as necessary or even desirable that such a course be adopted."
13. In the present case, in my view, there are compelling reasons as to why this Court should review the recorded evidence. It is necessary to do so: 1. to observe Thomas' non-verbal responses in the JIRT interviews; 2. to observe his tiredness at the end of the first JIRT interview; and 3. to assess whether his concessions in cross-examination might be due to tiredness or confusion or some other aspect of the cross-examination that might have produced concessions that did not truly represent his state of mind.
14. I acknowledge the burden on the Court of viewing the videos. The four JIRT interviews lasted almost four hours and the additional evidence at trial about another one and a half hours. But the burden is imposed by the requirement that in determining an appeal under s 6(1) the Court must independently assess the whole of the evidence. The relationship between the role of the jury and the role of this Court in determining an appeal under s 6(1) is determined by the "authoritative guidance" in M v The Queen quoted at [5] above. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt entertained by a court of criminal appeal that the Court of Criminal Appeal can refrain from setting aside the conviction. For the critical part of the evidence the jury in this case does not have such an advantage.
15. Accordingly, I have watched the four records of interview and Thomas' evidence at the trial. As appears in more detail below, I accept the Crown's submission that in the first JIRT interview that took place only 10 days after his complaint to his mother, Thomas illustrated his answers with hand movements that need to be seen to obtain a full appreciation of the answers on the transcript. It is also clear from the video that by the end of the interview Thomas was very tired.
16. By contrast, the recording of Thomas' evidence given at the trial does not suggest that his concessions in cross-examination were the product of confusion, or tiredness, or of being overborne by the questioner, or wanting to have the whole thing over.

Complainant's evidence on the voir dire

1. Thomas did not give sworn evidence or evidence on affirmation. That does not affect the weight of his evidence (The Queen v GW (2016) 258 CLR 108; [2016] HCA 6). The applicant submitted that it was significant that the apparent reason that the primary judge decided that Thomas was not capable of giving sworn evidence was his hostility to the applicant that appears from the evidence he gave quoted at para [38] above and his apparent determination to give evidence that would see the applicant sent to gaol. The jury was not privy to that evidence. The applicant submitted that it showed a "potential bias" on the part of Thomas. Thomas did give evidence before the jury that he wanted Dave to get into trouble. This was the same sentiment as had been expressed in the absence of the jury on the voir dire (see [38]. It is consistent with Thomas' giving truthful evidence of the sexual assaults he said that the applicant had committed that he would want the applicant to go to gaol as a result of those assaults.
2. The evidence given on the voir dire does not materially affect the credibility of Thomas' evidence. Thomas gave substantially the same evidence before the jury. This did not cause the jury to doubt his credibility.

Acquittal on count 4

1. The jury's acquittal of the applicant on count 4 is consistent with the jury's accepting Thomas' general credibility.
2. The act relied upon for count 4 was that the applicant made Thomas suck his penis. His evidence at the trial was that the closest the applicant's penis got to his mouth was about a metre away. The acceptance of Thomas' evidence given at trial on this count should, and presumably did, give the jury pause to consider the reliability of his evidence given at the second JIRT interview.
3. Count 4 was laid on the basis of matters raised for the first time in the second interview. In that interview Thomas was asked what he had come to talk to the interviewer about that day. He said "About Dave". He was asked (Q54) "Tell me what you've come to tell me about Dave?". His answer was: "A Um, one time when my mum was away and we were at the pools he, well after we finished we, um, went for a shower at the pools after and, and, um, he said, um, 'You don't have to keep secrets from your mum.' And, um, and he showed me like, to touch [his] rude part and to put he, his rude part in my bottom. And every time my mum was away he kept doing that stuff and, um, like sucking it and that. Q55 Sorry? A He was like sucking my doodle, um, my rude part. He was, he, um, he was sucking my rude part and I said, I, um, he said, 'I'm', um, 'Do you want to do', like suck his and I said, 'No.' Then, and then, um, that's mostly it."
4. Count 4 was that the applicant made Thomas suck his penis, not that the applicant sucked Thomas' penis. The latter allegation was the subject of count 5. The question of whether the applicant made Thomas suck his penis was raised by the interviewer. She asked: "... Has Dave ever asked you to put his rude part in his [sic] mouth?"
5. The answer was "Well, [then after a long pause] well, well, he did do that once but I said I don't, I didn't want to but he did it to me though." The questions then continued: "Q244 Can you tell me about what happened that time? A Well he, like asked ... day or was another day, um, he like, he, he said, I think he said he, um, 'Do you', he, um, he, oh, I can't really remember. Q245 I think you told me before that when we first started talking that Dave asked you to suck his rude part? A Yes Q246 Did that ever happen? A Well he did but I didn't want to do it and then he just said, D, well he just did it to me he opened his mouth and put his mouth on my rude part and did the same thing what I did but I didn't want to be he did. Q247 When did that happen? A I think, I don't, I can't remember."
6. The question noted at [62] above is an accurate transcription of the question asked. It would probably have been understood by Thomas as a question whether Dave ever asked him to put Dave's rude part in Thomas' mouth. The answer to the question was very hesitant as appears from the transcript quoted above.
7. The interviewer was wrong in saying that Thomas had said when they first started talking that Dave had asked Thomas to suck Dave's rude part. Thomas' complaint was that the applicant had sucked his rude part.
8. Later in the interview the interviewer said: "Q300 ... You also told me about a time on that same day where Dave asked you to suck his rude part. A Ah-huh. Q301 Tell me more about that? A Well he, he sucked my rude part and then, um, he ..... he mostly he just sucked it. Q302 Sorry? A And, well he sucked it and then he said, 'Do you like that?' And I said, 'Not really.' And then he just said, 'Do you want to stop?' And I said, 'Yes.' That's it." Q303 O.K. Tell me everything that happened from beginning to the end when Dave sucked your penis? A Um, um, well, um, how do I do it again? Q304 Just from the beginning to the end, so when Dave, Dave, Dave sucked your penis, what happened just before that? A Um, he, he told me to suck his --- Q305 So before Dave sucked your, your rude part, you sucked Dave's rude part. Is that right? A yes. Q306 Tell me about when you sucked Dave's rude part? A Um, um --- Q307 Tell me about what happened? A About what again? Q308 What happened when you sucked Dave's rude part? A Um, um --- Q309 Were your clothes on, off or something else? A Well I had a shirt on but my ..... that's all I had my shirt on. Q310 [10.42] Ah hmm. A And Dave had his shirt on. Q311 O.K. So when you sucked Dave's penis what part of your body touched his body? A Um, what did you say again? Q312 What part of your body touched D's body when you sucked his rude part? A Um, I, what touched --- Q313 So when you sucked Dave, D's rude part --- A Mmm. Q333 [sic] --- what part of your body touched his rude part? A Um, my hands. Q314 Your hands. When you say suck, what do you mean? A Like, well I ..... like, like he, when he sucked mine he like, he was like, doing something like a fish or something. Q315 Like a fish? A yeah, I don't know. Q316 So what part of his body touched your rude part when he was sucking it? A Um, his mouth. Q317 His mouth. And what did he do with his mouth? What was his mouth doing? A This (CHILD DEMONSTRATES) I think." (Emphasis added.)
9. The jury could properly have considered that in these circumstances the answers given by Thomas in his record of interview from which he resiled in his evidence-in-chief did not reflect adversely on his credibility. I do not consider that his evidence-in-chief at the trial, that departed from his hesitant acceptance of what was put to him as a leading question in his second record of interview, on which he could not or did not elaborate, adversely affects his credibility on other issues. The applicant's acquittal on count 4 is not inconsistent with his convictions on the other counts.

Conviction on counts 2 and 5

1. Count 2 was that the applicant touched Christopher's penis at Emerton pool. Count 5 was that the applicant sucked Thomas' penis at his home.
2. The evidence on count 2 that the applicant assaulted Christopher was based on the first JIRT interview in which Thomas said: "Q359 But you said to me before that the first time that it happened --- A Yeah. Q360 --- was at the pools. A Yeah. Q361 Yeah. So --- A He did the same thing. Q362 [09:34:01] He did the same thing? OK. So --- A That was last year. I can't really think about all in there. Q363 That's OK. We'll just see what you can remember. So the first time you were at the pools? A Yeah. Q364 And where are the pools at? A It was in Parramatta. Q365 Parramatta? A Yeah. Q366 And it was last year? A Yes. Q367 OK. Do you remember which part of last year? A Like, when it's, I think it was, it was the end of the year. Q368 Near the end of the year? OK. All right. So the pools at Parramatta ----- A Yeah. Q369 --- are they pools that are inside or are they pools that are outside? A Kind of both. Q370 Both? OK. So what happened when you were at the pools at Parramatta last year? A We were, we went in, we, well we got dressed but he didn't do anything. But then we went into pool, pools and we played but then we went out and then, and then he wanted it, like, that's when I know the game and then he did it to me and [Christopher]. And that's it. ... Q 419 OK. And you said that you learnt the game. Where were you when you learnt the game? A In the dressing room. Q420 Dressing room? A Where the shower is. Q421 So were you in the shower still? A Yes. ... Q425 ... So how did you learn the game? ... A He taught us. ... Q428 Yep. So when we go back, we'll go back to the day in the showers at the pools. A. Yeah. Q429 What, what happened in the shower? A Same thing I told you, like, when it started. Q430 Yeah. So what happened? A ..... Q431 So what happened? A He had all of his clothes off. Q432 [09:42:28] Yep. A Because he's in the shower. And me and [Christopher] did. And then he start touching mine and [Christopher's] and his. And then he showed us some other stuff but I forgot it. And that's it. Q433 OK. A Are we done now?"
3. As noted above, Thomas later said that this occurred not at a pool at Parramatta, but at Emerton.
4. In cross-examination Thomas gave the following evidence in which I interpolate my observations from the video recording: "Q. You say you've told the police that Dave touched you on the rude part at Emerton Pool? A. Yes. [Um, long pause.] Q. That didn't happen, did it? A. I can't remember. Q. It may not have happened, is that right? A. Yeah. Q. And Dave didn't touch [Christopher] at the pool, at Emerton Pool, did he? A. No, he didn't."
5. Shortly after this evidence and at the conclusion of the cross-examination the following evidence was given in which I interpolate my observations from the video recording: "Q: Dave has never touched your rude part, has he? [pause] A: He has Q: Dave has never tried to suck your rude part, has he? [longer pause] A: No Q: And Dave has never sucked your rude part, has he? [pause] A: No, he hasn't. Q: And Dave has never made you touch his rude part? A: He has. Q: And Dave has never tried to put his rude part in your bottom, has he? A: He has Q: Dave has never touched Christopher's rude part? A: No, he hasn't."
6. During the pauses noted above Thomas appears to be considering the questions. From my watching of the video recording and listening to the evidence that was given, I do not think that Thomas was confused, tired or overborne. His evidence that Dave had touched his rude part, had made him touch Dave's rude part and had tried to put his rude part in Thomas' bottom is inconsistent with the notion that at this point in his cross-examination he was willing to go along with the cross-examiner's suggestions.
7. It is unsurprising that the Crown prosecutor told the jury that: "It is hard to get around that positive concession about [Christopher] as a mere loss of memory. It might be. It might be that it is not a contradiction of what he previously remembered and has simply forgotten, but as a Crown prosecutor, I think it proper to concede that such a positive statement didn't happen might inevitably make you have doubt about whether count 2 could be made out ..."
8. The Crown submitted that the jury was entitled to accept parts of Thomas' evidence and reject others. As a general proposition that is no doubt true. But there are limits to which it is true and past which a conviction will be unsafe. In Cross on Evidence (11th ed, 2017) J. D. Heydon states at p. 703 [17565]: "It has been said that it will almost inevitably be the case that a conviction cannot safely be entered when the only evidence to support it was a prior statement of a prosecution witness contradicted on oath by that witness at the trial."
9. The authority cited for that proposition is R v Parkinson [1990] 1 Qd R 382; (1990) 44 A Crim R 177. Parkinson concerned allegations of sexual assault by the applicant's 12-year-old nephew. During the course of the trial the complainant denied he had been abused by the accused, withdrawing from various statements made out of court. Ryan J (Kelly SPJ agreeing) and Macrossan CJ held that the jury's verdict of guilty was unsafe and unsatisfactory and quashed it accordingly. Ryan J said (at 183): "It would in my opinion be unsafe to convict on the uncorroborated evidence of a boy who gave different accounts of the events in a statement and in testimony before the court. The jury could reasonably accept the evidence of the police officer as to the circumstances in which the boy's statement was produced and conclude that his oral testimony should be rejected. But in the absence of any evidence which suggested that he had been induced to change his story so as to protect the accused or that for any other reason he should be accepted as having told the truth on one occasion but lied on another, it would be unsafe to convict solely on his evidence."
10. Macrossan CJ stated (at 180): "It will almost inevitably be the case (I find it hard to visualise an exception) that a conviction cannot safely be entered when the only real evidence to support it consists of a prior statement of a prosecution witness which is steadfastly contradicted and declared to be false by that witness on oath at the trial. It is one thing to entertain doubts about the veracity of a purported withdrawal of an earlier statement and to entertain suspicions that the earlier account may be the truthful one yet have been withdrawn from motives which may be detectable, but it is another thing to say that the repudiated version, ... can safely be taken, beyond reasonable doubt, to establish guilt. ... When the sole basis to support a conviction is a prior statement, repudiated at the trial by the witness who made it, the Crown would be wise not to continue to press the prosecution and, if it does continue, the trial judge should not only be full and clear in his directions as Morris v. The Queen suggests, but he should be robust in condemning the statement as a basis for a safe conviction."
11. In this case the trial judge summarised the Crown's submission and said: "The Crown said that on this basis, it would be very difficult not to have a reasonable doubt about counts 2, 4 and 5."
12. Consistently with The Queen v GW it is the fact that the prior statement of the complainant was contradicted at the trial that raises the doubt. The fact that the contradiction was not on oath does not lessen its effect. There was no suggestion of any inducement to Thomas to change his story.
13. Reviewing the video recording of the first interview and his evidence at the trial, I have the doubt that the Crown prosecutor suggested the jury should have as to the applicant's guilt on this count.
14. Likewise, in relation to count 5, the Crown prosecutor said to the jury that Thomas' evidence that Dave had never tried to suck Thomas' rude part and had never done so did not appear to be just a lapse of memory, but an acceptance that Dave never tried to suck his rude part. The Crown prosecutor told the jury that in relation to count 5 the jury might have a reasonable doubt .
15. As noted above, the facts alleged in relation to count 5 were that on a weekend in Thomas' mother's bedroom, the applicant sucked Thomas' penis. The allegation was first raised in the second JIRT interview. It was raised in the same series of questions and answers dealing with what became count 4. These are set out below. It must be remembered that the jury acquitted the applicant of count 4 that alleged that the applicant made Thomas suck his penis, but convicted him on count 5 that alleged that the applicant sucked Thomas' penis, even though in his evidence at the trial Thomas did not maintain either allegation. In assessing the reliability of the questions and answers in the second interview it is relevant that Thomas was able to resist suggestions put to him. The transcript is as follows: "Q241 I just want to ask you --- A Yeah. Q251 [sic] ... somebody told me that Dave taught you to wank and touch yourself. Is that true? A What did you say? Q242 That Dave told, taught you how to touch yourself so to touch your rude part and wank your rude parts. A No. Q243 No, O.K. Has Dave ever asked you to put his rude part in his mouth? A Well, well, well he did do that once but I said I don't, I didn't want to but he did it to me though. Q244 Can you tell me about what happened that time? A Well he, like asked ..... day or was another day, um, he like, he, he said, I think he said he, um, 'Do you', he, um, he, oh, I can't really remember. Q245 I think you told me before that when we first started talking that Dave asked you to suck his rude part? A Yes Q246 Did that ever happen? A Well he did but I didn't want to do it and then he just said, D, well he just did it to me he opened his mouth and put his mouth on my rude part and did the same thing what I did but I didn't want to but he did. Q247 When did that happen? A I think, I don't, I can't remember. Q248 Do you remember how old you were? A Seven again. Q249 And where did it happen? A Mum's bed again. Q250 [10.17] Who was there? A I think it was [Christopher], me and Dave again. Q251 Was it a weekday, a weekend or something else? A Well, a weekend. Q252 What makes you think that it was a weekend? A Because I didn't go to school or the next day --- Q253 You didn't --- A --- but I went to school the day after ..... --- Q254 The day after --- A --- the ..... there's only like two days .... weekend. Q255 Ah hmm. So was it the morning, afternoon, at night? A It was almost dark, after it was getting lunchtime but it was still morning."
16. The last answer indicates that Thomas was uncertain as to the time of day the acts occurred but that does not necessarily detract from the credibility of his evidence that the acts he described did occur (Cabot (a pseudonym) v R [2018] NSWCA 265 at [63]-[64]). The interviewer asked Thomas to tell her everything that happened from the beginning to the end. Thomas asked for and was given a break. On resumption the interviewer reminded Thomas of what he had said and the questions continued as follows: "Q267 Just before we had a break you told me about a time when you were seven at your old house --- A Ah hmmm. Q277 [sic] --- in your mum's bed on weekend when Dave and [Christopher] were there about a time where Dave asked you to suck his rude part --- A Ah hmm. Q277 [sic] --- and Dave sucked your rude part. A Ah hmm. Q268 I need you to tell me everything that happened from the beginning to the end. A Um, well, I woke up --- Q269 Yeah. A --- and Dave, we, we woke, Dave got ..... well [Christopher] woke up and then I woke up and then I woke Dave up and he said, um, um, um, 'Let's do that' --- Q270 [10.32] He said what, sorry? A 'Let's do that', like thing, like 'what we did at the pools.' And so we did it and then like, well, and then he told me to, um, suck his rude part and then I only did it once and I said, 'I don't want to do it.' So he said, 'O.K.' Then, 'Do you want to', um, touch his rude --- Q271 Sorry? A He, 'Do you want to touch', like his rude part and, um, he, and then I did and then he said, 'Can you put that ..... put two hands on and go faster and go up and down.' And then I did it and then I said, 'I don't want to do it anymore.' So, and then he, and then he tried to put his rude part in my bottom but he couldn't so, and then he then did it so, and then we went to have lunch. That's mostly it."
17. The interview then continued as quoted at [66] above.
18. In cross-examination Mr Burke, who appeared for the applicant, asked the following questions: Q. [Thomas], it's the case that at no time either on 2 March or at any time did Dave touch you on the rude part, did he? A. Yes. Q. And at no time did Dave - HIS HONOUR: Perhaps - BURKE: I put a double negative, your Honour. HIS HONOUR: The answer is ambiguous is the problem. BURKE: I understood him to be disagreeing with me, your Honour. HIS HONOUR: If you put to the witness, 'It's not true, is it, that X, Y, Z,' or something like that, and then if he says yes to that. You just put it as clearly as possible. BURKE: I'm trying to simplify it. HIS HONOUR: I know you are, and it's hard with a young witness. I'm just concerned that the answers are going to be ambiguous that's all, yes. BURKE Q. Dave has never touched your rude part, has he? A. He has. Q. Dave has never tried to suck your rude part, has he? A. No. Q. And Dave has never sucked your rude part, has he? A. No, he hasn't. Q. And Dave has never made you touch his rude part? A. He has. Q. And Dave has never tried to put his rude part in your bottom, has he? A. He has. Q. Dave has never touched [Christopher's] rude part? A. No, he hasn't." (AB 467-468)
19. At no part of his cross-examination did Thomas appear confused or tired or overborne. As noted above (at [72]) Thomas paused before answering the question "Q: Dave has never touched your rude part, has he?" before answering "He has". He again paused and appeared to be thinking hard after the question "Q: Dave has never tried to suck your rude part, has he?" before answering "No" and saying clearly in the answer to the next question that the applicant had never sucked his rude part. He rejected the cross-examiner's next two suggestions before agreeing that the applicant had never touched Christopher's rude part.
20. The concessions in cross-examination go beyond the kind of inconsistencies in evidence as to details of events that are to be expected (M v The Queen per McHugh J at 534; Cabot v R at [59]-[60]). They were a clear acceptance by Thomas that some of the acts charged never took place. They stand in contrast to the inconsistencies in evidence in relation to counts 1 and 3 addressed at [121] and following below.
21. Walton and Wilson JJ have emphasised the importance of the fact that the jury is the body entrusted with the primary responsibility of determining the applicant's guilt or innocence and have observed (at [149]) that the jury's advantage in being present at the whole of the trial is of considerable importance in determining a ground of appeal under s 6(1). Their Honours refer to the observations members of the jury will make during the course of the trial, including not only the jury's observations of witnesses and their demeanour, but the jury's observation of the accused when particular evidence is given and throughout the trial (at [148]). The Crown did not submit that the jury's opportunity to observe the applicant whilst Thomas and Thomas' mother gave evidence or at other stages of the trial, was a factor that could lead this Court to conclude that no miscarriage of justice occurred even if this Court had doubt about the applicant's guilt. The jury's task was to decide on the applicant's guilt or innocence on the basis of the evidence adduced. Nothing in the authoritative guidance given to courts of criminal appeal in M v The Queen permits this Court to address its task on the basis of anything other than the evidence adduced.
22. Here, the only relevant advantage the jury had was in seeing and hearing the evidence given by Thomas' mother. Whilst she gave evidence in chief quoted (at [25]) that would be consistent with the applicant's having a consciousness of guilt of some indecent acts committed upon Thomas, it would not support an inference that the applicant had a consciousness of guilt of the particular offences with which he was charged. Further, her evidence must be weighed against the fact that she told Senior Constable Oxford and Constable Taylor that she told the applicant what she was told by Thomas and he was shocked and then angry and then denied everything (at [26]).
23. The issue arising from the inconsistency between statements made by Thomas in the JIRT interviews in relation to counts 2 and 5 and his evidence in cross-examination at the trial is not whether his statements in the JIRT interviews should be preferred to the evidence that he gave at trial; whether on the basis that the first two JIRT interviews were closer in time to the matters about which he complained, or were in a more informal setting, or were conducted by interviewers who might have appeared to Thomas to be more sympathetic or less threatening than counsel at the trial. The issue rather is whether the concessions made in cross-examination give rise to a doubt as to the accuracy of what was said in the JIRT interviews.
24. In the first JIRT interview (less so in the second JIRT interview) Thomas was asked open-ended questions. In both interviews the interviewer would take up a particular topic and then ask Thomas to give more details of his complaint. There was nothing improper about the questioning, but its nature was such as to confirm and then seek elaboration of the complaint. Naturally enough, the JIRT interviews proceeded on the basis that the interviewer accepted Thomas' complaint and then sought further details of it. Understandably, his account was not challenged.
25. There was no opportunity for the applicant to challenge or otherwise test Thomas' version of events prior to the trial. Although there was some scope for confusion in the framing of some questions (as set out in the first part of the cross-examination extracted at [85] above), there was no ambiguity or other difficulty with the questions extracted at [72] above that are repeated at [85]. There is no indication that Thomas was intimidated by a person (the barrister) in apparent authority. As noted above, he did not appear confused or tired. He paused before answering the questions and resisted some of the suggestions put to him. The questioning was measured and polite.
26. The Crown prosecutor told the jury that it could have a reasonable doubt about the applicant's guilt on count 5. I have that doubt. It is a doubt the jury should have shared. The applicant should be acquitted of count 5.

Counts 8-11

1. The act of indecency alleged in count 8 was that the applicant masturbated himself in front of Thomas. In his first JIRT interview Thomas gave the following answers to the interviewer's questions that became part of his evidence-in-chief: "Q63 ... So tell me what you've come to talk to me about today. A Well, one time, like, when I, when it was my grand final soccer game, after that we went home because my mum's friend was gunna go get dinner. Q64 Yep. A But I, but in the morning when my mum was at work and I didn't go to school we, we played this, well, it's, this kind of a little game. Q65 Yeah. A And it's a game where you touch here. [Thomas pointed to his groin.] Q66 Touch here? A Yeah. Q67 Yep. A And after that, well, I'm starting from the morning, we went to the shops and then we grabbed this stuff for my soccer game because I don't, my head to get hurt. Q68 Mmm hmm. A And then, and then we went to my soccer game. Q69 [08:55:25] Mmm hmm. A And then we lost and that. And then we went home and, and then we were all hungry and then he wanted to go have dinner. That's when I tell my mum what happened. Q70 OK. A And there was these other days when mum was at work at he did it here and that, well, I mean, at home and that. Q71 OK. A And that's it. ... Q109 ... so in the morning when you were just in your Mum's bed with Dave and you were playing a little game can you tell me everything that happened from the start to the finish? A Well, for, I'll try and remember 'cause it has been a couple of days. Q110 Mmm hmm. A Well, well, he took the pants off and that, but only shirt and he, he put his hand on the rude part and he went up and down and that. And he did it to mine and, and then, and then he, I don't think that I remember. I think that was it, I think. Q111 That was it? A That's all I can remember."
2. In giving the answer to question 110, Thomas avoided looking at the interviewer. That might be because of embarrassment. Another possibility is that he was making it up.
3. Later in the interview, Thomas responded to the questions he was asked as follows: "Q152 OK. And so you said he put his hand on the rude part? A (NO AUDIBLE REPLY) [At this point Thomas nodded.] Q 153 Was the rude part on his body or your body or something else? A He did it to mine and his. Q154 So he did it to his and yours? OK. So whose did he do it to first? A His. Q155 His? OK. So he put his hand on his rude part and then you said he moved his hand up and down and that. A (NO AUDIBLE REPLY) [Nodding] Q156 So when he was moving his hand up and down where was his hand? A On the rude part. Q157 On the rude part. OK. And what did that look like? A (NO AUDIBLE ANSWER) [At this point Thomas shrugged with raised arms.] Q158 Don't know? No? That's OK. Was he saying anything? A No. Q159 [09:06:30] Were you saying anything? A No. Q160 No? OK. And then you said that he did it to mine. A Who's mine? Q161 You. A Yeah. Q162 So when he did it to you, so he put his hand on your rude part? A (NO AUDIBLE REPLY) [At this point Thomas nodded.]"
4. Thomas was asked how long all this lasted for and said, "Like half an hour, something."
5. Count 9 was that on this occasion in his mother's bedroom on the grand final day the applicant masturbated Thomas. In addition to the questions and answers quoted at para [96] above, Thomas said the following: "Q164 So you said before that he, he put his hand on your rude part as well? How did he do that? A He just put his hand down my pants and the he done it. Q165 Yeah? OK. So you said he put his hand down your pants. Which part of your pants did he put his hand in? A Like here. Q166 So the top of your pants? A (NO AUDIBLE REPLY) Q167 And then was his hand on the inside of your undies or the outside of your undies? A The inside. Q168 The inside of your undies? OK. And then, so he put his hand on your rude part. And then what did he do? A He went up and down. Q169 [09:07:41] And what did he use to go up and down? A His hand. ... Q174 OK. And so then what happened after that? A We didn't went, we finished and then we got dressed and then we went to the shops and that and then we went to a soccer game and that's when, when, that's when mum called the cops and that."
6. Count 10 was that on grand final day the applicant made Thomas masturbate him and this took place in Thomas' mother's bedroom. The same evidence as set out above was relied upon by the Crown. In addition, in his second JIRT interview, Thomas answered questions as follows: "Q157 So tell me everything from the very beginning to the very end everything that happened when you're in bed, in your mum's bed with Dave? A Well I was with, well I woke up and, and, and [Christopher], and ..... we woke up and, um, and then Dave, D said, 'Do you want to do that thing again?' And --- Q158 [09.53] 'Do you want to do that thing again?'? A I didn't really wanted to but he said, 'Yes.' Well he just did it anyways. And then [Christopher] came in and said ..... 'Can I do it too?' And he said, 'Yes.' And then [Christopher] didn't want to do it and then he seen the rude part ..... he said, 'Go watch TV.' And he did and the he just said, 'Do you want to', can you --- Q159 Can you just keep your voice up for me we're just having a little bit of trouble hearing you? A 'Can you touch', him, like ..... but his rude part and he, and then I, I, I did it because he ..... said, yes or something. Q160 Ah hmm. A And, and then, and then he told me to, he told ..... I touched his rude part with this hand and then he told me to go up and down and said, um, 'Can you put the other hand on it and go faster?' And then we went out for lunch and then we went to my soccer game and my mum came."
7. Count 11 was that on grand final day in Thomas' mother's bedroom the applicant attempted to put his penis in Thomas' anus.
8. Thomas described this alleged conduct in his second interview. Thomas gave the following answers to the questions he was asked: "Q148 [09.50] No, O.K. O.K. You mentioned two other things to me. You talked about a time where Dave tried to put his rude part in your bum. Can you tell me about that time? A Um, that was in my mum's bed. ... Q150 O.K. And who was there at your old house when Dave tried to put his rude part in your bottom? A Him, me and [Christopher]. Q151 Was [Christopher] in the room, out of the room or something else? A He was out. Q152 Do you know where [Christopher] was? A He was in the lounge room, well he was in mum's bed but Dave told him go watch, um, Mickey Mouse. Q153 Do you remember when this happened? A Um, well it was on a Monday I think and but I didn't...and he, he .... Q154 What makes you think it was a Monday in March? A Well it was on my soccer game grand final and I play on Mondays. ... Q164 You told me as well that while you were in your mum's bed before that Dave, that Dave tried to put his rude part in your [b]um. Can you tell me all about that? A Well ..... told me like, um, um, I had to, I had to do put my hand on his ..... but I said, 'No.' Then, um, and then he tried to put his in mine but it didn't work and, and that's it. ... Q166 What about Dave, what was Dave wearing? A He, he did the same thing. Q167 So he was naked? A Well he had his shirt on too. ... Q169 Tell me about how, how Dave tried to put his rude part in your bum? A Well he told me to stand up and I did and then he tried to put it, put his rude part like inside my bum ..... ---"
9. Thomas was then asked to describe the events. He said that he was standing on the bed and that the applicant was standing on the floor. The questioning continued as follows: "Q183 So when Dave tried to put his rude part in your bum, how did that feel? A It feel, um ..... I can't remember how it feel. Q184 Did it hurt? A No. Q185 Which part of his rude part touched your bum? A ..... Q186 Or which part of his body touched your, your bottom? A His, his rude part. Q187 So whereabouts on your bottom was it the inside or the outside? A Inside. Well he tried to put in the inside but he couldn't. Q188 [10.02] When you say the inside. What do you mean? A Like where, where you, where you poo out. Q189 Yeah. So when, when Dave put his, tried to put his rude part in the part where the poo comes out of, did it go inside, outside or something else? A It just touched like, the, the like, next to the hole like where the poo comes out of or like in the, it was touching the ..... but it didn't go in. Q190 So it was touching the outside but it didn't go inside? A Yeah?"
10. In cross-examination Thomas was taken through what it can be inferred were counsel's instructions as to the events that took place after Thomas' mother had left for work on the morning of the grand final day up to the time the applicant, Thomas and Christopher left the house to visit the shops. He was asleep in his mother's bed, but at some stage became aware that the applicant was there because he heard him talking to his mother. The applicant was meant to drive him to school that morning, but he told his mother that he wanted to stay home from school. He went back to sleep. Christopher was watching television in the lounge room. He was asked: "Q. Did you wake up around 10am that morning? A. Yes. Q. And how did you know the time, was there a clock there or? A. No. Q. You don't have to agree with me just because I put a proposition or put something to you. Do you understand? A. Yes. Q. So do you know it's around 10am? A. No."
11. This indicates a degree of suggestibility.
12. Thomas and the applicant and Christopher spoke about what they were going to do that day to get ready for the grand final. The applicant was going to get some bandages for Thomas' knee and head and someone had suggested headgear. The applicant said something to Thomas about shopping for his mother's birthday and he was going to take Thomas to the shops. They left the house before lunchtime and were going to have lunch at the shops. They did have lunch at the shops. He woke up and got dressed and then the applicant, he and Christopher left for the shops.
13. Thomas was then asked, "That's all that happened in the room that day, isn't it?" The video shows a long pause before Thomas answered, "Yes."
14. Thomas was then asked about visiting his mother where she was working at a promotional stand at the shopping centre. He agreed that he and Christopher ran up and spoke to her. He later changed that evidence saying that he did not visit his mother on that day, but on another day. Thomas' mother said that he did visit on that day.
15. Thomas gave the following evidence: "Q. Did you then go to another shopping centre, one at Westfield, Mount Druitt, before you went home? A. Yes. Q. Because Dave was looking for another gift for your mum? A. Yes. Q. And then you dropped the shopping off at home --- A. Yes. Q. --and then Dave got your soccer gear and bag? A. Yes. Q. That was to go to the grand final? A. Yes. Q. Are you okay? Do you need a break? A. No. Q. Okay. You see, [Thomas], Dave didn't touch you that day, did he? A. No, he didn't."
16. The question "Are you okay? Do you need a break?" was evidently prompted by Thomas' behaviour. At the time the question was asked he had a big smile and was lolling on the seat but did not appear tired.
17. The cross-examination continued about the soccer grand final. Thomas noticed that at some stage the applicant was not sitting watching the game. He was asked some questions about the applicant's telling him that he had had a phone call. He denied he was upset with the applicant for not watching. He asked to take a break. At that point Thomas was laughing as if at a private joke.
18. A short adjournment was taken. In the absence of the jury, the primary judge said: "Mr Crown, I thought I would use the opportunity to ask you what is in the Crown case after the complainant. ..."
19. The question was not completed nor answered and the topic was not pursued.
20. After the short adjournment Thomas was asked questions about events when he got home after the soccer grand final. He again said that he was not upset about the applicant not watching the game. He agreed that he had an argument at home with the applicant. He agreed that he told his mother what the applicant had bought for her as a birthday present and that upset the applicant who got a bit angry with him. He told the applicant that he wanted McDonalds for dinner and the applicant, who had got upset with him for talking about his mother's present, said he would not get Thomas food from McDonalds. The applicant said he would get Christopher food from McDonalds and that made Thomas a little bit angry with the applicant.
21. Thomas then gave the following evidence: "Q. Then Dave left to get dinner, didn't he? A. Yes. Q. While Dave was out you told your mum that Dave had touched you that day. A. Yes. Q. And had touched you on the rude part. A. Yes. Q. But that didn't happen that day, did it? A. No, but I told her about the other days that he did it. Q. So are you now saying that it didn't happen on the grand final day? A. Yes. ... Q. Dave touching you on the rude part on your grand final day, that wasn't true? A. Yes, it wasn't. Q. And Dave touching his rude part on your grand final day, that wasn't true, was it? A. No, it wasn't. Q. And Dave saying for you to touch your own rude part, that wasn't true on grand final day. A. No, it wasn't. Yes, you're correct. Q. And Dave trying to put his rude part in your backside, that wasn't true, was it? A. No, it wasn't. BURKE: I left 'on grand final day,' your Honour. HIS HONOUR: You need to be careful because submissions are going to be made later and you need to make sure that what you put grounds the submission, if you know what I mean. BURKE: Yes. Q. On your grand final day, you saying that Dave tried to put his rude part into your bottom, that wasn't true? A. It wasn't. ... Q. Did you tell your mum that Dave had touched you that day because you were angry at Dave? A. No. Q. And you knew that if you told her that Dave would be in trouble? A. Yes. Q. And you wanted Dave to get into trouble. A. Yes."
22. In re-examination Thomas was asked to take his mind back to when he was first talking to his mother about what the applicant had done. The Crown asked: "How long before that was the last time he touched you or made you touch him?"
23. Thomas asked him to repeat the question. He said he could not remember. He was then asked whether he told his mother or Alex any lies that night, and said "No".
24. Thomas' answer [at T116] referred to at [114] above that he told his mother "about the other days that he did it" is consistent with Thomas' not regarding the actual day he said the events occurred as being important, but rather that it was the sexual assaults themselves rather than their date that was important. This would be perfectly understandable. It was not the basis on which the trial was run.
25. As noted above, Thomas gave evidence at the conclusion of his cross-examination quoted above at [85] that the applicant had touched his rude part and had made him touch the applicant's rude part, and had tried to put his rude part in Thomas' bottom. But the clear effect of his evidence extracted above, was that these things did not happen on grand final day.
26. It was common ground at trial and on appeal that the date on which the offences alleged in counts 8-11 occurred was an essential part of the Crown case that needed to be proved beyond reasonable doubt. The primary judge told the jury that: "If you accept what the complainant says in cross-examination that they did not occur on the date of the soccer grand final, then you will not be able to find them proved. Time is of the essence here. The only way - says the Crown - that you might convict on these charges, is if you accept that his recall was honest and accurate at the time he first made the allegation in both March and September 2015."
27. Thomas' unequivocal evidence in cross-examination that the acts the subject of counts 8-11 did not take place on grand final day does give rise to a reasonable doubt as to whether the events took place on that day. Contrary to the submissions of the Crown, his answers were not ambiguous, and it is not open to infer that he was confused. The questioning was not repetitive or confusing. Nor was he dismayed at the manner of questioning. The questioning bore no similarity to the questioning that was the subject of comment in this Court in Abbott (a pseudonym) v R [2017] NSWCCA 149 to which the Crown referred. One can accept the Crown's submission that Thomas gave vivid and age-appropriate descriptions of the incidents that were the subject of the charges and that he credibly described the applicant telling him every time he "did it" to keep "the game" a secret. Thomas never resiled from his evidence that the acts the subject of counts 8-11 occurred. He did resile from his evidence that they occurred on grand final day. The day on which those acts occurred was accepted to be an essential ingredient of the offences. I have a doubt as to whether the acts took place on that day in the light of Thomas' clear evidence that they did not take place on that day.

Counts 1 and 3

1. As noted above, I have held that the conviction on count 2 should be quashed. Further submissions were made as to why the convictions on it and counts 1 and 3 should be quashed.
2. As noted at [32] above, the applicant submitted that there was a particular reason to doubt his conviction on counts 1-3 because of the discrepancies in Thomas' evidence as to where the pools at which the conduct allegedly took place were situated. In his first interview Thomas said that the conduct occurred at pools at Parramatta. In his second interview he said that the conduct took place at pools at either Mount Druitt or Penrith. It was not until his third interview that he suggested, and initially tentatively, that it took place at the pool at Emerton. He confirmed this in his fourth interview.
3. There was a complication in the laying of the indictment in that Thomas' mother suggested to the police that the events would not have occurred at a pool in Parramatta but could have occurred at a pool at Stanhope Gardens. This is a red herring. Thomas did not say that the offences occurred at a pool in Stanhope Gardens and the indictment ultimately did not so charge.
4. Thomas' mother gave evidence that prior to 2 March 2015 she had regularly taken her children to the Emerton pool.
5. Thomas said in oral examination in chief that from the age of six to seven he had been to about three pools with his mother. He had not been to the pool at Parramatta. Towards the end of the cross-examination Thomas gave the following evidence: "Q. I'm going to ask you now about the Emerton Pool. A. Okay. Q. [Thomas], is it the case - I'll talk about Emerton Pool, okay? A. Okay. Q. You say you've told the police that Dave touched you on the rude part at Emerton Pool? A. Yes. Q. That didn't happen, did it? A. I can't remember. Q. It may not have happened, is that right? A. Yeah. Q. And Dave didn't touch [Christopher] at the pool, at Emerton Pool, did he? A. No, he didn't. Q. And Dave didn't touch his own rude part at Emerton Pool, did he? A. No, he didn't. Q. And Dave didn't touch his own rude part with you at any pool, did he? A. Yes. Q. I put to you that Dave didn't touch your rude part at any pool. A. He did. Q. You say it's not Emerton Pool, is that right, where that - A. No. Q. --touching happened? A. It did happen at Emerton Pool. Q. Are you saying now it did happen at Emerton Pool? A. Yes. Q. You understand you agreed earlier that it didn't happen? HIS HONOUR: Perhaps complete the sentence. BURKE: I will, your Honour, sorry. Q. You know you just said that it didn't happen at Emerton Pool? Do you remember that? A. Yes. Q. Was that the truth? A. No."
6. Counsel was wrong in putting to Thomas that he had "just said that it didn't happen at Emerton Pool". Thomas said he couldn't remember and it might not have happened.
7. There was a long pause between the question "That didn't happen, did it?" and the answer "I can't remember." The answer "He did" to the question "Dave didn't touch his own rude part with you at any pool did he?" was unequivocal.
8. Thomas' evidence that he could not remember whether Dave touched him on the rude part at Emerton Pool and that might not have happened was immediately qualified by his asserting that that did happen at Emerton Pool.
9. Again, the Crown accepted that it was an essential ingredient of its case that the conduct the subject of counts 1-3 took place at Emerton Pool and not at some other pool.
10. Thomas was seven at the time of the first interview. He was vague as to matters of locality. He could not tell the interviewer what street in Emerton he lived in. When asked where the pools were and after his saying it was in Parramatta, Thomas leant back, stretched and yawned.
11. In the second interview Thomas said that in the showers at the pool the applicant made him touch the applicant's penis "and it was all gooey". . He volunteered that the shower had curtains. In his closing address to the jury the Crown prosecutor acknowledged that there was no curtain at the Emerton Pool, but said that the incident described by Thomas could be a separate event from the events the subject of counts 1-3. The Crown said that the offences were part of a wider pattern of conduct. Thomas' evidence was that he went to three pools with the applicant. The "gooey" incident did not occur at Emerton Pool.
12. Thomas' confusion in identifying the location of the pool the subject of counts 1 and 3 does not cause me to have any real doubt that the events he described as having taken place at Emerton Pool did take place, and did take place at the Emerton Pool.

Counts 6 and 7

1. Thomas' evidence that the applicant made Thomas masturbate the applicant was given in the second interview. Part of his evidence is quoted at [83] above (answers to questions 270 and 271). He was also asked questions and gave answers as follows: "Q286 And tell me about this time when you're in mum's bed and when Dave asked you to touch his rude part, tell me everything that happened about that? A Well he told, he said, 'Can you touch my rude part?' And so I did it and then for like after like a minute he, um, he said, um, 'Can you use two fingers and go up and down?' Q287 Ah hmm. A Well he said, 'Can you go up and down', first and then like, couple of minutes later he said, um, said, um, um, said, um --- Q288 It's O.K. to take your time. A 'Do you want to', um, with the, um, like, 'put one, two, your other hand on it and put, and go faster.' Q289 Ah hmm. A And that's what he said. Q290 [10.37] Yeah. So did you put two hands on his rude part and go faster? A Yes. Q291 And what made it stop? A Um, um, he, I just said, 'Can we stop?' Q292 And what did Dave say? A He said, 'O.K.'"
2. In cross-examination he adhered to that evidence and asserted that the applicant had made him touch the applicant's rude part. I accept Thomas' evidence in relation to count 6.
3. Similarly, I accept Thomas' evidence in relation to count 7. Thomas was adamant in cross-examination that the applicant had tried to put his rude part in Thomas' bottom. Thomas' answer to Question 271 in the second record of interview (quoted at [83] above) was part of his evidence-in-chief on this count. He answered further questions as follows. The questions follow immediately after those quoted at [133] above: "Q293 And what happened next? A Um, we, and then he said, 'Can I put', um, his rude part --- Q294 No one's going to come in. A His rude, um, rude part in my bottom and then I said, 'No', but he just did it anyways. He told me to turn around and then, um, then, and then he couldn't fit it in so, and then he said ..... like the thing we did at the pools and then we went and had lunch. Q295 O.K. So how was your body when Dave tried to put his, his rude part into your bum? A It was like, I was facing the wall on the bed and he was standing on the floor facing the same way and he's trying to put it in, um, and like ..... bum, in my bum but he couldn't. Q296 Was it just on the outside of your bum or the inside of your bum? A It was on the outside he tried to put it inside but he couldn't. Q297 How did it feel when he was trying to put it inside your bum? A Um, I for, I don't, I can't, I don't, I forgot. I can't really remember that part. Q298 Did it hurt, not hurt or something else? A Um, it, um, it didn't, it didn't hurt. Q299 It didn't hurt. So do you think it went, it just stayed on the outside of where the poo comes out or did it go in the inside or something else? A It, he tried to put it inside but he couldn't."
4. The applicant submitted that if this had happened then it could not have been the case that it did not hurt when the applicant tried to penetrate Thomas and it was not believable that Thomas could not remember how it felt. This submission assumes that the applicant had obtained an erection. Thomas' evidence that the applicant tried, but failed, to penetrate him and he did not experience pain would indicate that the applicant did not obtain an erection. On that basis, Thomas' evidence is not incongruous.

Effect of reasonable doubt on charges 2, 5 and 8-11

1. For the above reasons I consider that a verdict of acquittal should be entered on counts 2, 5 and 8-11. The question then is whether the reasonable doubt on those questions should occasion reasonable doubt in relation to counts 1, 3, 6 and 7. Whether a reasonable doubt in relation to some matters must occasion a reasonable doubt in relation to others depends upon the full range of circumstances (Markuleski at [65]).
2. I consider that Thomas' concessions in cross-examination raise a reasonable doubt as to the applicant's guilt in relation to counts 2, 5 and 8-11. By the same token, his discrimination between the acts he conceded did not occur and those acts he maintained did occur have the ring of credibility. His concession that the acts the subject of counts 8-11 did not occur on grand final day does not itself affect the credibility of his evidence that the acts he described did occur, although not on that day.
3. The qualification to this is that his evidence in cross-examination affects the credibility of some of his evidence in the JIRT interviews. But allowance must be made for the fact that he told his mother that the games and touching occurred that morning, when in fact, according to his evidence at the trial, they had occurred on earlier occasions. The interviews proceeded on the basis of his initial complaint. In my view that does not materially affect the credibility of his evidence as to the substance of the acts he described in the first interview, as distinct from the date of their occurrence.
4. Thomas' evidence at the trial calls into question the reliability of his records of interview. But making full allowance for the contradictions between the records of interview and his evidence at the trial and the doubt to which they give rise in relation to the specific counts 2, 5, 8, 9, 10 and 11, I do not have doubt as to the convictions on counts 1, 3, 6 and 7.

Proposed orders

1. For these reasons I propose the following orders: 1. Grant leave to the applicant to appeal from the convictions on 7 March 2017 on counts 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 on the indictment. 2. Appeal allowed in part. 3. Order that the verdicts and convictions on counts 2, 5, 8, 9, 10 and 11 be set aside, and in lieu thereof that the applicant be acquitted on those counts. 4. Order that the sentence imposed on the applicant on 10 April 2017 be quashed. 5. Remit proceedings to the District Court for the applicant to be resentenced on counts 1, 3, 6 and 7 on the indictment.
2. WALTON AND WILSON JJ: White JA has set out the evidence and circumstances relevant to this application. His Honour has also referred to his observations of the recorded evidence, which the Court was urged to view. Although we have concerns about the increasing frequency with which this Court is asked to take that course, and as to the absence of necessity to do so in most cases, for the reasons recorded by the presiding judge, it was appropriate in this case to view the material.
3. White JA has dealt with the applicant's contentions as to Thomas' evidence (adopting the pseudonym used by the presiding judge) on the voir dire at [57] - [58], and we agree generally with what has there been said.
4. As to the asserted inconsistency between the acquittal returned with respect to count 4, and the verdicts of guilty returned by the jury with respect to the remaining counts, as his Honour has observed, there is a rational basis for the difference. Distinguishing this count from the remaining counts was the qualitative difference in the complainant's evidence with respect to it, both in the Joint Investigation Response Team ("JIRT") interviews, and in additional evidence in chief at trial. That is, even without turning to evidence given in cross-examination, there were difficulties with this count, in the jury being satisfied beyond a reasonable doubt as to whether penetration had actually occurred. The complainant's evidence in chief on the remaining counts did not suffer from the same uncertainty. It was thus entirely rational for the jury to arrive at the verdict that it did with respect to count 4, and points to the care with which the jurors approached their task. We otherwise agree with the observations and conclusions of White JA at [59] - [67] with respect to this issue.
5. As to the disposition of the remaining arguments of the applicant, although we too would grant him leave to appeal, we have reached a different conclusion overall to that of White JA. His Honour would dismiss the appeal against conviction for counts 1 and 3, but otherwise allow it. We would dismiss the appeal.
6. In those circumstances, without intending to repeat evidence already referred to, it is appropriate to set out our reasons for our differing conclusions.
7. Initially, it is worth making a few general observations about the nature of a criminal trial and, in particular, a trial conducted before a jury. Such trials have a very particular environment, impossible to replicate in transcript, or by any later viewing of recordings of evidence.
8. Again, as a general statement, the trial environment is informed by every aspect of the trial: the opening proceedings and what the jury is told by the trial judge then and during the trial about its task; the observations of the interchange between counsel and witness; the observations of witnesses and the demeanour of each, and the differing observations that may be made at different stages of the evidence of the same witness; and the presence before the jury of the accused person, and the opportunity the jury has to observe him or her when particular evidence is given, and throughout the trial. All of those aspects of a jury trial have a bearing on the verdicts ultimately returned by the tribunal of fact.
9. The environment of the trial provides the context to the jury's observations of evidence, and decisions made by jurors as to what evidence should be accepted and what rejected; and to their receptiveness or otherwise to arguments placed before them. The jury's advantage in being present at the whole of the trial is of considerable importance in determining a ground of appeal that contends that the verdict or verdicts returned by a jury were unreasonable and not supported by evidence.
10. The High Court gave particular emphasis to the fundamental role of the jury in determining questions of fact in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, at [65] - [66] where it said, 65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [footnotes omitted].
11. In making that statement, the High Court referred to and was informed by a history of twentieth century Australian jurisprudence that has consistently given primacy to the responsibility of the jury to determine matters of fact, and rejected the notion that an appellate court should or could substitute its view of such matters for that of the jury.
12. In Hocking v Bell (1945) 71 CLR 430, one of the decisions referred to in Baden-Clay, Latham CJ said, at 440, In a trial by jury the jury is the constitutional tribunal for deciding issues of fact. As Lord Wright said in Mechanical and General Inventions Co. Ltd. v. Austin: "The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury." Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury. If a verdict is against evidence and the weight of evidence a new trial may be ordered. If the evidence on one side so greatly preponderates over the evidence on the other side that it can be said that the verdict is such as reasonable jurors, understanding their responsibility, could not reach, a verdict may be set aside and a new trial may be ordered. Caution is necessary in applying the principle that a verdict may be set aside if it is against evidence and the weight of evidence. That principle must not be interpreted in such a manner as to deprive the jury of its right of believing one witness on one side against twenty (or any number) of witnesses on the other side. [footnotes omitted].
13. Part of the importance of the role of the jury in the operation of the criminal justice system is the participation of the community through twelve of its members, and the significance of that participation in maintaining confidence in the administration of justice. The advantage of involving the community in the judicial process was described as "inestimable" by French CJ in Alqudsi v The Queen (2016) 90 ALJR 211 at 715 [2]; [2016] HCA 24.
14. In Kingswell v The Queen (1985) 159 CLR 264 Deane J said, at 301 - 302, The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob.
15. Considerations such as these are of importance when considering whether a verdict returned by the representatives of the community in the form of the jury is unreasonable or unsupported by the evidence.
16. Ultimately, the question for this Court is whether, upon the whole of the evidence, it was open to the jury to reach the verdicts it did. In a trial such as the present, examination of the evidence of the complainant will be of greatest importance to answering that question, but that does not detract from the necessity of examining the whole of the evidence, and assessing the whole taken together. Whilst, in common with the jury, the Court could view the recorded evidence of the complainant, there remains to the jury the advantage of participating in the whole of the trial, and observing all of the witnesses give evidence, in the particular environment of a trial court.
17. The complainant's evidence was given principally by way of previously recorded interviews with JIRT officers (pursuant to s 306S of the Criminal Procedure Act 1986 (NSW)), supplemented by some limited examination in chief at trial, and tested by cross-examination at trial. The evidence given by means of the recorded interviews may have been regarded by the jury as compelling; that is my assessment of it. However, there were inconsistencies and concessions in the evidence given by Thomas at trial. The applicant relies upon these inconsistencies and concessions to argue that the verdicts for counts 1 - 3 and 5 - 11 were unreasonable and unsupported by the evidence.
18. In assessing that contention, not only should the evidence of Thomas be taken as a whole and not piecemeal, but the evidence given at trial more broadly must be taken as a whole. It was, of course, entirely open to the jury to accept part of Thomas' evidence, and not other parts.
19. The evidence of the complainant in his JIRT interviews was, in our assessment, visceral and utterly believable. The chronology, the content, the language used, the physical demonstrations given on occasion, and the demeanour of the complainant, all point ineluctably to his credibility and reliability. In his cross-examination, the complainant appeared less reliable and retracted some parts of the allegations earlier made by him. The tribunal of fact, having regard to Thomas' apparent uncertainty at times, and the concessions he made at trial, could have concluded that his evidence did not establish the charges to the very high criminal standard. However, that conclusion was not, in our assessment, the only conclusion reasonably available. Considering the whole of Thomas' evidence, and placing it with the whole of the evidence given at trial, there was a clear and persuasive basis for the verdicts reached by the jury which, in our view, rebuts the assertion of unreasonableness, or that the verdicts were unsupported by the evidence.
20. The JIRT interviews formed a significant part of the evidence. The interviews had what the jury may have regarded as an advantage over the complainant's evidence at trial of immediacy relevant to the offences alleged by him, a not unimportant consideration when the witness is a young child.
21. Unlike adults, the memories and thus the evidence of young children may be expected to deteriorate with the passage of even a relatively short period of time, a matter that a jury, taking into account its members' experience of life and understanding of people, would be entitled to have regard to.
22. The first of the JIRT interviews was recorded on 12 March 2015, only ten days after the conduct the subject of counts 8 and 9 was alleged to have occurred. The second interview was conducted on 2 September 2015, about 6 months after the conduct the subject of counts 9, 10, and 11. The third, which contained little about the alleged offences, was rather later, being recorded on 3 February 2017 (less than a fortnight before the commencement of the trial). The timeliness of the JIRT interviews no doubt posed something of a contrast to the evidence of the complainant at trial, evidence given years rather than days or months, after the conduct described had taken place.
23. In the interviews the complainant was asked open ended questions, as is required, and the interviewers clearly endeavoured to ask questions in a straightforward way, appropriate for a young child. The environment in which Thomas was questioned was intended to be one which did not intimidate or overawe a child. What Thomas said in response came, the jury may have thought, from his memory of real events, and perhaps transparently so.
24. This is to be contrasted with evidence in chief at trial and, more particularly, in cross-examination. The evidence at trial was taken from the complainant as he sat in a remote witness room of a court house, an environment which, whilst less formal than that of a witness box in a court room, is still one liable to give rise to some level of anxiety in a child. The questions asked of Thomas in his evidence often gave or suggested the answer, and were frequently asked in a way that a young child may have struggled to comprehend (such as questions framed with a double negative).
25. Adults may be able to interpret the meaning of a question asked with a double negative or in a circuitous way; they may be able to maintain a truthful assertion even where an adult in a position of apparent responsibility, such as a bewigged barrister, asks questions that suggest that he or she did not accept the answers previously given; that is a much more difficult task for a young child. The comments of Fagan J in Abbott (a pseudonym) v R [2017] NSWCCA 149 at [78] are in our opinion apposite.
26. There can be no criticism of an accused person who seeks to fully test the evidence of a child or any witness; that is our system of justice and cross-examination is one of the best means available to an accused to test the case presented against him or her.
27. The fact that there is a contradiction or concession by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness. Such concessions do not necessarily dictate that a jury must have held a reasonable doubt; much less should they dictate that an appellate court must overturn the verdicts returned by the jury.
28. The question turns on a careful examination of the whole of the evidence placed before the tribunal of fact, to determine whether it was open to the jury to be satisfied of an appellant's guilt beyond reasonable doubt, bearing in mind the jury's advantage of having sat in the jury box, and observed the proceedings as they took place.
29. The content of Thomas' evidence in chief in the interviews and his demeanour when giving it, were available to the jury to inform its assessment of the reliability of his allegations against the applicant. At the time of the JIRT interviews Thomas was aged 7 - 8 years, a very young child to be describing sexual matters. Given his young age, the language he used of itself underlines the veracity of what he said. He described the applicant playing "the game" with him in a way that presents a vivid account of an actual memory. The language used emphasises both the complainant's lack of sophistication and, pointing to truthfulness, his knowledge of sexual matters, knowledge that a child of that age should not legitimately have. He described the part of his body that the applicant touched as "where you wee"; the orifice the applicant was alleged to attempt to penetrate with his penis was "where the poo comes out of". When describing the applicant urging Thomas to masturbate him, Thomas said the applicant told him to "put two hands on and go faster"; he was instructed to "go up and down" and to "go faster". What seems to have been ejaculate was "gooey" and felt like "mud"; the goo smelt "yucky", and Thomas said he didn't like the taste of the applicant's rude part. This is the sort of language, and the type of descriptions, that might be expected from a young child recounting real events of a sexual nature.
30. Having examined the whole of the complainant's evidence, and giving due regard to the concessions extracted by questioning at trial, we are left with no doubt as to the availability of the jury's verdicts with respect to the offences the subject of counts 1 - 3 and 5 - 11. Both the content of the allegations the complainant made, and his manner of expressing them are, in our opinion, indicative of credibility.
31. This was not the only evidence, however, relevant to the jury's determinations and the verdicts ultimately returned. There was other evidence available to the jury that gave powerful support for the evidence given by Thomas in his JIRT interviews, and which operated to reduce the significance of the apparent concessions and uncertainties that arose in cross-examination. This was the evidence of complaint, which was admissible to prove both the truth of what was said (at least for the counts of 12 March 2015) pursuant to s 66 of the Evidence Act 1995 (NSW), and to buttress the complainant's credit, pursuant to s 108(3) of that Act. Not only were the terms of the complaint compelling, but so too were the circumstances in which it arose.
32. Thomas made complaint to his mother on the day on which it was alleged that counts 8 - 11 had been committed, at what seems to have been the first reasonable opportunity the complainant had to speak to his mother in the absence of the applicant. At a time when the applicant had left the family home to get some food, but was due to return, the complainant asked his mother, "Does [the applicant] have to come back?". When told he would return, the complainant became anxious and said that he did not want the applicant to come back. He was asked why, and referred to not liking "the games, especially this morning". It will be recalled that the "games" of that morning included acts of masturbation and attempted anal penetration, acts that Thomas said in evidence that he didn't like, and had told the applicant previously (at the time of the commission of counts 5 - 7) that he didn't want to do. It was open to the jury to regard that chronology, and the circumstances in which disclosure was made, as significant, and consistent with a real experience.
33. The contents of the complaint are available to support such a conclusion. Thomas' disclosure has the air of something told with embarrassment and reluctance, as might be expected of a young boy, but with particular reference to and emphasis on aspects of experience that tend to be those that linger strongly in memory - those of smell and taste. Having been assured by his mother that he would not get into trouble if he told her about the games, the complainant pointed to his genital area and said he didn't like "the games", and didn't like "the taste". He told his mother he "didn't like the taste and the gooeyness of [the applicant's] woo-woo", the "woo-woo" being the 7 year old complainant's word for penis. He also told his mother "it smells". He was anxious about the applicant's return to the family home, and anxious that he would get into trouble for telling about the games. Thomas said that the applicant had told him to keep the games a secret.
34. This evidence, in our view, provides very strong support for the veracity of the complainant's evidence. It is exactly what might be expected of such a disclosure made by a young child, and reinforces the credibility of the complainant's account of the assaults upon him.
35. The jury may have regarded the applicant's response to news of the disclosure as providing some further support for the verdicts ultimately returned. On his return to the house, the applicant was denied admittance by the mother's friend, Alex who asked him to leave, telling the applicant it was not a good time. The complainant's mother was behind Alex, also telling the applicant to leave. In her evidence, she said that the applicant responded, to Alex and her, "What do you know, what does she know, what has he said". If the jury accepted (as was open to it) that this was the applicant's response to being unexpectedly denied admittance to a house where he had previously been welcome, this evidence also would have pointed to the reliability of the complainant's allegations. The fact that the complainant's mother agreed in cross-examination that the applicant had seemed shocked by the allegations and denied them need not have detracted from the probative value of the applicant's questions. That is a matter best assessed by a jury, in the context of the whole of the evidence.
36. One further piece of evidence may have been regarded by the jury as providing support for the complainant's assertions, being the disclosure made by Thomas to two uniformed police officers after police were called to attend the family home on 2 March 2015. When asked by Senior Constable Oxford what had happened that day, the complainant gave an account of the applicant asking him to "play the game" and touching his "rude bit" that morning, consistent with what he had said to his mother. It was open to the jury to have regard to what its members may have considered to be the unlikelihood of a 7 year old child giving a uniformed police officer anything other than an account of something that actually happened to him that day.
37. All of this evidence is supportive of the reliability of the complainant's accounts of the applicant's conduct towards him.
38. The only other feature of this matter that requires some comment is the concession made by the Crown Prosecutor in closing address, referred to in the judgment of White JA.
39. A Crown Prosecutor has a role which is unlike that of other counsel. In the discharge of his or her duties the Crown Prosecutor is obliged to comply not just with the Bar Rules, but also with the Guidelines laid down from time to time by the Director of Public Prosecutions, and with pronouncements of the superior courts, such as those made in Whitehorn v The Queen (1983) 152 CLR 657 R v Apostilides [1984] HCA 38; and R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.
40. In circumstances where there is no evidence available to support a charged offence, it will be appropriate for a Crown Prosecutor to raise the issue with the court, and invite the trial judge to direct that a verdict of not guilty is returned. Where there is some evidence to support a charged count, but notwithstanding that there is some obvious and very serious defect in the Crown case, a Crown Prosecutor may invite the trial judge to give the jury a Prasad direction: R v Prasad (1979) 2 A Crim R 45. Where, however, there is conflicting evidence relevant to a charged count, a Crown Prosecutor may point out the conflict in address to the jury, but should in our opinion avoid straying into the jury's function of assessing the reliability of disputed evidence.
41. It is noted that the concessions made at trial were not maintained by counsel for the Crown before this Court. In this Court the Crown strongly argued that the complainant's evidence was reliable with respect to those counts where the jury returned verdicts of guilty, and this Court should so conclude.
42. However, the Crown having made the concessions at trial, it was a matter for the jury to consider the submissions made to it. The jury was not bound by anything said by counsel in closing address. As the jury was directed by the trial judge more than once, counsels' submissions were not evidence, and should be given the weight the jury thought they deserved.
43. The submissions of the Crown Prosecutor were not determinative before the jury, and are no more determinative before this Court. The Crown's concessions at trial are a feature to be closely considered, and which point to a need for a careful examination of the evidence of the complainant, and of the evidence placed before the jury as a whole. They are of no greater weight.
44. Having carefully considered the trial transcript and the recorded evidence, that being the whole of the evidence, we have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of those counts where verdicts of guilty were returned: M v The Queen (1994) 181 CLR 487 at 494 - 495; The Queen v Baden Clay at [66].
45. The orders we propose are: 1. Leave to appeal is granted. 2. Appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018