Hoeben CJ, Hulme J, Campbell J, McCallum J, Gleeson JA
Catchwords
181 CLR 487
MFA v R [2002] HCA 53
64 NSWLR 527
R v Wilson [2005] NSWCCA 20
62 NSWLR 346
SKA v R [2011] HCA 13
Source
Original judgment source is linked above.
Catchwords
181 CLR 487
MFA v R [2002] HCA 5364 NSWLR 527
R v Wilson [2005] NSWCCA 2062 NSWLR 346
SKA v R [2011] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/277671
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 15 October 2013
Before: Wells SC DCJ
File Number(s): 2012/277671
[2]
Judgment
HOEBEN CJ at CL:
The applicant BA was tried on an indictment containing seven counts:
Count 1: Aggravated indecent assault of a child under 16 years (s 61M(2) Crimes Act 1900 (NSW) (the Act).
Count 2: Aggravated indecent assault of a child under 16 years (s 61M(2)) of the Act.
Count 3: Aggravated act of indecency towards a child under 10 years (s 61O(2)) of the Act.
Count 4: Aggravated act of indecency towards a child under 10 years (s 61O(2)) of the Act.
Count 5: Aggravated sexual intercourse with a child under 10 years (s 66A(2)) of the Act.
Count 6: Aggravated indecent assault of a child under 16 years (s 61M(2)) of the Act.
Count 7: Aggravated indecent assault of a child under 16 years (s 61M(2)) of the Act.
The trial took place before Wells SC DCJ and a jury at the Lismore District Court between 8 and 15 October 2013. On 15 October the jury returned verdicts of guilty in relation to each of the seven counts on the indictment.
On 12 December 2013 the applicant was sentenced to a total term of imprisonment with a non-parole period of 12 months and a balance of term of 18 months. That sentence was for count 5. The sentences imposed for the other counts were of lesser duration and were subsumed by the sentence for count 5.
The Crown appealed to the Court of Criminal Appeal on the basis that the sentence imposed for count 5 was manifestly inadequate. On 30 July 2014 the Crown appeal was allowed and the sentence imposed for count 5 was varied to a total term of imprisonment with a non-parole period of 4 years and a balance of term of 2 years. The term of imprisonment was to commence on 16 October 2013 and expire 14 October 2019, with the applicant being eligible for parole on 15 October 2017 (R v BA [2014] NSWCCA 148 (McCallum J with Gleeson JA and Fullerton J agreeing)).
This application is for leave to appeal against the applicant's conviction on count 5. In order to understand the issues before the Court, it is useful to set out the provisions of s 66A of the Act.
"66A Sexual intercourse - child under 10
(1) Child under 10
Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2) Child under 10 - aggravated offence
Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence.
Maximum penalty: imprisonment for life.
(3) In this section, circumstances of aggravation means circumstances in which:
…
(d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender …"
There was no issue at trial or in the appeal that the child was aged 6 at the time and that she was under the authority of the applicant. The issue in the appeal relates to whether sexual intercourse, as defined, took place.
Section 61H of the Act defines "sexual intercourse" as follows:
"61H Definition of "sexual intercourse" and other terms
(1) For the purposes of this Division, sexual intercourse means:
(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
(c) cunnilingus, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
…"
The sexual intercourse relied upon by the prosecution at trial was that "an act of cunnilingus" had taken place. The appeal concerns the meaning of "cunnilingus" as defined in s 61H(1)(c) and the reasonableness of the verdict on this basis.
The interpretation of "cunnilingus", which was accepted in the appeal, was that given by McCallum J in the Crown appeal and by Mildren J in R v NLR [2008] NTSC 10; 181 A Crim R 146. In the Crown appeal McCallum J held:
"37 … The Crimes Act defines sexual intercourse in several ways. Penetration of the vagina is one form of sexual intercourse, as defined in s 61H(1)(a). Cunnilingus is defined as a separate kind of sexual intercourse, in s 61H(1)(c). It does not entail penetration as an element. The term cunnilingus refers to oral stimulation of the female genitals with the mouth or tongue. Penetration during an act of cunnilingus could be an aggravating factor, but I am unable to accept that the absence of penetration during such an act is a factor which supports an assessment that the conduct falls towards the lower end of the range of seriousness. …"
In R v NLR Mildren J considered the meaning of cunnilingus, which is also defined as sexual intercourse in s 1 of the Criminal Code (NT). His Honour held that because the term was not defined, it should bear its ordinary meaning:
"[4] I have been referred to a number of dictionary definitions of the word. According to Collins English Dictionary, 3rd edn, the definition is "a sexual activity in which the female genitalia are stimulated by the partner's lips and tongue". The Concise Oxford Dictionary defines it as "stimulation of vulva or clitoris by licking". The Macquarie Dictionary, 3rd edn, defines it to mean "oral stimulation of the female genitals". The Shorter Oxford English Dictionary definition is "oral stimulation of the vulva or clitoris"."
His Honour reviewed the cases and held that the licking or sucking of the vagina or vulva, including the labia majora or clitoris all amounted to cunnilingus and was satisfied that the kissing of the mons pubis involved oral stimulation of the vulva and was also cunnilingus (R v NLR at [5] - [10]).
The grounds of appeal relied upon by the applicant are:
Ground 1: The verdict on count 5 is unreasonable and cannot be supported having regard to the evidence.
Ground 2: The trial judge erred in law in her directions as to what was necessary to satisfy the element of the offence of "sexual intercourse", to wit, "cunnilingus".
Ground 3: The trial miscarried on account of the erroneous direction in relation to count 5 given by the trial judge.
FACTUAL BACKGROUND
The applicant was the de facto partner of the complainant's mother. At the time of the offences the complainant was six years old (d.o.b. February 2006) and the applicant and the complainant's mother had been in a relationship for about two and a half years. They were planning to get married. The complainant referred to the applicant as "daddy". The applicant resided with the complainant, her mother and their one year old son, M, in East Lismore. The complainant and M each had their own bedroom. The applicant had been diagnosed with agoraphobia and spent most of his time at home.
The complainant's evidence in chief comprised her video recorded interview with police on 2 September 2012 (MFI's 2 and 4) and some short evidence at trial. The complainant's evidence was that the incidents occurred "a couple of days ago" on a day "in between Sunday and Saturday" when her mother was out shopping for a new mattress. The complainant was home alone with the applicant and M had been dropped home from day care by the applicant's mother and was playing in his bedroom.
The complainant's mother, RM, gave evidence that she was out purchasing a new futon mattress on Wednesday 29 August 2012. At about 3pm she travelled alone to Byron Bay for a 4pm appointment to collect the mattress at the futon shop. It was a normal school day and the complainant had caught the bus home from school as she usually did. The school bus normally arrived at the driveway between 3.50pm and 4pm.
Count 1
The complainant gave evidence that the incident started in the lounge room when the applicant asked her '"Do you want to kiss me on the lips?" and I was not so sure I said "I'm not really sure" and he kissed me on the lips" (Q&A 133). The kiss lasted for "a little bit and I wasn't really sure" (Q&A 137). The complainant said that this kiss was the first of three kisses on the lips by the applicant.
Count 2
The complainant gave evidence that after the first kiss on the lips by the applicant, she went into her bedroom "trying to get away from him" and "trying to get a lay down", however, the applicant followed her and "kissed me on the lips again" (Q&A 138-143). When the applicant did this, the complainant was "not quite sure" and "really not very, very happy about it" (Q&A 144-145).
Count 3
The complainant gave evidence that after the applicant kissed her on the lips for the second time he "took off his shorts and his undies and then I, then he showed it [his penis] to me" (Q&A 154-157). "He showed his penis to me" (Q&A 78) and "I felt disgusting" (Q&A 79). The complainant observed that the applicant's penis "looked like a big, big bone"; "but it was just a big muscle"; "it looked like, it just looked like a big bone but was it was a big muscle and that's all I can remember about the penis" (Q&A 158-160). She said that the applicant's shorts were silver and his underpants were blue. He "took them off totally. He put them on the ground". The applicant did not remove his shirt (Q&A 161-167).
When the applicant exposed his penis to the complainant he told the complainant to "lick it" (Q&A 306). The complainant then said:
"A.308 But I didn't. I wasn't that sure and he also said "Put your mouth around it" but I didn't.
Q.309 So lick it and put your mouth around it?
A. Yeah and I didn't.
Q.310 And you didn't?
A. Yeah."
Count 4
When the complainant was questioned about being asked by the applicant to lick his penis and put her mouth around it, she gave evidence that the applicant also asked her to lick his bottom.
"Q.311 And what, did you tell him that you didn't want to do it [lick his penis and put her mouth around it]?
A. Yeah.
Q.312 And what did he say to that?
A. He said "I'm gonna do it".
Q.313 He said "I'm gonna do it"?
A. Mmm.
Q.314 What did he mean by that?
A. He was wanting to do what he what I just said that he did by … to and he said "do it to me" to put my mouth in and kiss his bum and I said "no way. His butt and his penis" but I didn't.
Q. 315 Yeah?
A. Because I didn't want to and he wanted me to do it."
Count 5
Earlier in the complainant's interview the following was said:
"Q.78 Yeah. Okay. Now what did he do?
A. He showed his penis to me.
Q.79 Yeah.
A. And I felt disgusting.
Q.80 Yeah.
A. And I was, and then he asked me to actually kiss him on the lips and I was saying, no way.
Q.81 Yeah.
A. And then he asked me another silly question, show me your bagina.
Q.82 Yeah.
A. Yeah. And I sort of did.
Q.83 Yeah.
A. And then I just [demonstrates] felt like that.
Q.84 Yeah.
A. And I go tried to get away from him.
Q.85 Right.
A. And then he licked and kissed my bottom.
Q.86 So licked and kissed your bottom?
A. Mmm, mmm. And that's all I can remember from last night."
Later in the interview, the complainant said that after the applicant took his pants off and she saw his penis:
"Q.168 Left it on. Okay so, can you tell us in more detail what happened after your dad took his pants off and you saw his penis?
A. He asked me to take my undies off and I didn't really want to and then he pulled them down off me, off my feet and, and then he licked it and kissed it.
Q.169 What was it that he licked and kissed?
A. My bum [count 6]."
The complainant was in her bedroom at the time, standing up near her bed and the applicant was on her bed. The applicant took the complainant's underpants "right off" as opposed to pulling them down (Q&A 170-182). Later in the interview when the complainant was asked questions in relation to the act of kissing her bottom [count 6], she said that the applicant also kissed her near the "bagina" and used a diagram to clarify what she meant:
"Q.287 … So when your daddy kissed you on the bottom, what, did you have your back to him or your front to him?
A. My back.
Q.288 Your back?
A. No, my front to him and then he um twisted me round.
Q.289 So what, do you know what this part of your body's called here? [As he asks the question, the interviewer uncovers a diagram of the front of a girl and points with his pen to the crotch area of the diagram]
A. Your bagina.
Q.290 Bagina. And did your daddy kiss you anywhere near your bagina? [Interviewer points with his pen to the crotch area of the diagram]
A. Um, yeah.
Q.291 Yeah.
A. Yeah he kissed me at first near my bagina.
Q.292 Yeah and anywhere else?
A. And on the butt as well.
Q.293 And on -
A. The bagina and the butt.
Q.294 Now can you draw on there where he kissed you on the front?
A. [Drawing] [The complainant points with the pen to the crotch area of the diagram without touching it and then draws an arrow on the outer right side of the diagram, pointing to the hip]
Q.295 And put a circle round?
A. In this area [the complainant draws a rectangular shape enclosing an area from across the hips to across the upper thighs].
Q.296 Yeah. Okay. Thank you. All right now when your dad was doing that, kissing around your bum and your vagina, did you say anything to him?
A. I said "stop" but he didn't.
Q.297 He didn't?
A. Stop when I said stop."
The diagram of the front of a girl's body marked by the complainant was tendered at trial as Exhibit 1. After the complainant's interview had been played for the jury, the complainant was referred by the Crown's trial advocate to Exhibit 1 during further evidence in chief:
"Q. … Do you remember that that is the picture that you drew on when Michael was asking you some questions and he asked you to show, mark on that picture where it was that Daddy [the applicant] was licking you on your front bottom or your vagina?
A. Yes. (T.23.32)
…
Q. … I know it's a bit embarrassing but what were you showing in the first one where you can see the eyes and the face of the little girl?
A. The front of the little girl.
Q. And where you drew something on it, what were you showing Michael by the bit that you drew?
A. The other place where [the applicant] licked." (T.24.4)
Count 6
The complainant gave evidence that the applicant "licked and kissed my bottom" (Q&A 85). Having removed the complainant's underpants:
"A.168 … He licked it and kissed it.
Q.169 What was it that he licked and kissed?
A. My bum."
Following the complainant's evidence that the applicant licked and kissed her bottom, the interviewer showed her two diagrams of a girl:
"Q.204 … So if I was to show you this picture here [interviewer shows the complainant two diagrams, one of the front of a girl's body and one of the back of a girl's body], right and I'll just let the camera have a look at that, can you tell me what that's a picture of? [Referring the complainant to the diagram of the front of the body].
A. A girl.
Q.205 A girl? And what's that a picture of? [Referring the complainant to the diagram of the back of the body]?
A. A girl's bottom.
Q.206 A girl's back. Okay. So if I was to put those down here [interviewer places both diagrams down side by side in front of the complainant] are you able to draw on there with this pen whereabouts your dad licked you?
A. [drawing] [on the diagram of the back of a girl's body, the complainant draws an arrow on the outer right side pointing to the bottom].
Q.207 So you've drawn a little arrow pointing to your bottom, so can you put a circle around where you think his tongue touched you?
A. [Drawing] [The complainant marks the diagram of the back of a girl's body with a circle around the bottom]."
The diagram of the back of a girl's body, marked by the complainant, was tendered at the trial as Exhibit 2. After the complainant's interview had been played for the jury, the complainant was referred by the Crown's trial advocate to Exhibit 2 during further evidence in chief:
"Q. Can I ask you to look at the other picture, the picture that shows the little girl from behind so you can see her bottom?
A. Yes.
Q. Did you also draw something on that picture?
A. Yes.
Q. Is the bit that you drew the bit that's not quite a circle but it's like a circle around the girl's bottom?
A. Yes.
Q. What were you indicating to Michael when you drew that?
A. To show where he licked.
Q. Near your bum or your butt?
A. Mm." (T.23-24)
The complainant was asked during the interview what the bottom is used for:
"Q.284 … Now when you told us about your bottom, what do you use your bottom for?
A. Um, weeing and pooing.
Q.285 Yeah. Weeing and pooing and what else?
A. You can birth babies from your bottom.
Q.286 You can birth babies from your bottom and anything else?
A. Nothing else."
Count 7
The complainant said that she "quickly put my undies back on" before the applicant "got a chance to actually grab my undies" and ran away from the applicant up the hall. She went into the lounge room to watch some television (Q&A 187-189, 217-218):
"A.218 And then I just got away for a while and then he, then he found me and then he wants, wanted to kiss me again and I was not quite sure and I was lying down and he came and kissed me on the lips again.
Q.219 So he wanted to kiss you again on the lips and did he do that?
A. Yeah.
Q.220 Yeah.
A. And I was not quite sure and then he did it.
Q.221 Did he say why he wanted to kiss you on the lips?
A. No.
Q.222 No?
A. He … "I like you".
Q.223 He said "I like you"?
A. He really said that.
Q.224 Did he say anything else?
A. No.
Q.225 All right. Just "I like you"?
Q.226 So that last kiss was in the lounge-room was it?
A. Mm.
Q.227 And did anything happen after that?
A. He wanted to lie down with me and I, and I said I wanted to have, I lay down on my own but he said no and then he laid down with me.
Q.228 Yep. Where was that?
A. In the lounge room.
Q.229 And where did you lay on the lounge or on the floor or somewhere else?
A. I lay on the lounge with - there was a big blanket."
In cross-examination at the trial the complainant agreed that some of the things which she had said to the interviewer were not true. Instances of this were:
She told the interviewer that the applicant had asked her to ring a seven year old "boyfriend" of hers, C, to come over and watch what they were doing. She agreed that this was not true.
She told the interviewer that her mother had told her that if she found out that the applicant had kissed her [the complainant] on the lips, that she [the mother] would not marry the applicant and that he would not live with them. At the trial, the complainant agreed that her mother had not said that to her, but that it was something that she had thought of herself, "after the time it happened".
During the interview when the complainant was asked how she knew that what the applicant had done was bad, when giving her answers the complainant said that her mother had said to her "Don't ever do it with, with um my husband". In cross-examination she agreed that her mother did not say those words to her.
It was in that context, that the following questions and answers were given by the complainant in cross-examination:
"Q. Why did you tell the police officer in the interview that she said those words to you?
A. I don't know.
Q. Did you say it because you wanted the police officer to believe you when you said that [the applicant] had licked you on the bum and the vagina?
A. That bit is true.
Q. If it was, why did you say bits that were untrue?
A. I'm not so sure.
Q. I suggest to you you said things that were untrue because when you said [the applicant] licked you on the bum and the vagina that was untrue too, what do you say to that?
A. That's true.
Q. That is true isn't it?
A. Mm, that's a true bit about it." (T.46.7)
The complainant's mother in cross-examination said that she had had several conversations with the complainant about "stranger danger" but that she never said to the complainant words to the effect of "don't ever do it with my husband" or "we might have to move away".
The complainant told the interviewer that when she went to school, she told two friends of hers (MG and JB) what happened:
"Q.340 And did you tell them together or separately?
A. Together.
Q.341 And can you remember what you told them?
A. What my dad licked me on the bum and, and the bagina.
Q.342 Yes and what did they say?
A. They won't tell anybody but …."
When it was put to the complainant in cross-examination that she did not tell her school friends that "daddy licked you on the bum and the vagina", the complainant responded "not really". What she told them was "something bad happened". The complainant agreed that what she had told the interviewer was not "right" and was a "lie" (T.35.29-36.18).
There was other background evidence in the trial relating to conversations which the applicant had with a male friend and the complainant's grandmother on the evening of 29 August. They are not relevant to the issues raised in the appeal and it is not necessary to set them out.
When the two school friends, MG and JB, gave evidence, their evidence did not include any complaint by the complainant concerning any actions of the applicant.
The complainant told the interviewer that the first person she told about what happened with the applicant was her "nanna". The complainant's maternal grandmother (MH) gave evidence of what the complainant told her on Saturday 1 September 2012:
"Q. Take your time and tell us as best you can what - exactly what it was that she said to you?
A. She said that [the applicant] had kissed her on her bagina and her vagina - she used the word "bagina" instead of vagina.
Q. "Bagina"?
A. "Bagina".
Q. With a B?
A. With a B. Kissed her on her bagina, licked her on her bottom and sucked his penis. I was very shocked by this --
Q. If I can just stop you. You say that she used the word "bagina", was that something that you were already familiar with?
A. She often - she - when she talked about that part of her anatomy she always called it a "bagina", yes.
Q. So it was a word that she had previously used in discussion - in conversation with yourself?
A. Yes.
Q. And you understood by "bagina" that she was talking about her vagina?
A. Yes that's correct.
Q. Do you remember anything else that she said to you at that time?
A. I asked her to - I said "Can you tell me again what had happened?" So she repeated what had happened again. I said "Are you telling me the truth?" and she said "Yes I am telling you the truth. She then told me that when someone was - sucked someone's penis then they could not get pregnant.
…
Q. I think you've told us already that you asked her on more than one occasion if what she was telling you was the truth?
A. That's right.
Q. On each occasion she said that it was the truth?
A. Yes.
Q. Was that the full extent of the conversation as you recollect it that evening?
A. She did talk about other acts and other things that she had seen or heard on that night, yes." (T.77.9 - 78.10)
In cross-examination MH said:
"Q. Did she say to you that in effect, [the applicant] had made her suck his penis?
A. That's what she indicated to me yes.
Q. As far as you were concerned, she was telling you that she had sucked his penis?
A. That's what was indicated yes." (T.85.2)
MH was taken to the statement which she made to the police on 19 September 2012 which was to similar effect and which included the complainant saying to her "when you suck a penis semen comes out and you can't get pregnant" (T.86.49).
The Crown did not pursue the response of MH to the last question in her evidence at [36] hereof.
Subsequently, defence counsel explored that issue in cross-examination:
"Q. Was it about other things that she had seen or heard, other than what she was purporting had happened between her and [the applicant] on the Wednesday afternoon?
A. Yes.
Q. Were these other things sexual things?
A. Yes.
Q. Were they things that had occurred on times other than that Wednesday afternoon?
A. They weren't things that had happened to her, they were things that she was telling me about of a sexual nature.
Q. Did you tell the DOCS or the police about them?
A. No.
Q. Is there any reason why not?
A. I didn't think it was - it wasn't relevant to what had happened that night.
Q. Did it involve her saying things similar to the, "if you suck on a penis, semen comes out and you can't get pregnant", style statements?
A. Not exactly specific, they weren't specific things no.
Q. But it was her talking about sexual matters?
A. Yes it was.
Q. And it had nothing to do with the accused [the applicant]?
A. Not at all.
Q. Were they things that seemed to you to be a bit incredible or a bit upsetting - or what were they?
A. A bit of both - both incredible and upsetting, yes." (T.91.13)
After the complainant had told her what she said the applicant had done, MH called the DOCS helpline that Saturday night. She was contacted by the police the following morning. Thereafter investigations commenced and statements were taken. The complainant's mother RM said that the DOCS officers had emphasised to her the importance of validating the complainant by telling her that she believed her. RM agreed that at the time she had considerable difficulty in knowing who to believe and who to support.
Ms Morrison, an officer from DOCS, spoke to the applicant on the Sunday afternoon and advised him of what the complainant had said. She made a note of his response at the time as follows:
"On Wednesday I was asleep on the lounge. [The complainant] came home and I asked her to put her lunchbox away and change her uniform. She came out and wanted the TV on and asked if we could have a cuddle and we did. We watched TV and I was lying behind her. She reached back to give me a kiss on the cheek and gave it to me on the lips. I told her it was inappropriate. We watched some more TV. She got a snack and sat next to me. She had a dress on and she pulled down her undies and showed me her vagina and asked me to touch it and I told her no for it was inappropriate. She told me it feels good and she told me she likes to touch herself on the vagina because it feels good. I told her it was wrong. I asked her about the lip kissing. She said she kisses Nanna on the lips. I asked if anything else has happened and she told me Nanna has kissed her on the bum and the vagina". (T.126.1)
THE DEFENCE CASE
The defence case can be briefly stated. This is because it was clearly rejected by the jury and played little part in the appeal. The applicant gave evidence in the trial. The effect of his evidence was largely in accordance with the note made by Ms Morrison. He said that after the complainant had kissed him on the lips, he requested that she kiss him on the cheek and the forehead, but not the lips in future. He said that shortly after that the complainant was lying on the lounge and he asked her to move to a different part of the lounge which she did. As she was sitting, she lifted her legs in the air, pulled her underpants down and "flashed her vagina at me … and said "touch it"" (T.152.34). The complainant said "it feels good to touch myself". The applicant told the complainant that the way she was behaving was wrong and that she should put her underpants back on.
The applicant gave evidence that the complainant told him that her nanna had kissed her on the lips and "on the bum and on the bagina" (T.153.45 - T.154.9). He said that he had heard the complainant use the word "bagina" to refer to her vagina. He said that the allegations which the complainant made were wholly untrue and that he did not kiss or lick her around the front area of her genitalia in the region of her vagina, or at all.
EXTENSION OF TIME
Before considering the merits of the appeal, there is a preliminary matter. This involves an extension of time for the applicant to seek leave to appeal against his conviction. There has undoubtedly been a considerable delay between the applicant's conviction for count 5 on 15 October 2013 and the bringing of this appeal. The circumstances giving rise to the delay are set out in an affidavit of Jasmine Stanton of 13 April 2015 and an affidavit of Peter Allport of the same date. Without going into the detail of those affidavits, it is clear that the applicant sought to appeal against his conviction at an early point in time but because of circumstances for which he was not responsible, that did not take place.
Since the delay which has occurred has not been due to fault on the part of the applicant, I would grant an extension of time to enable the applicant to seek leave to appeal against his conviction for the offence in count 5.
Ground 1: The verdict on count 5 is unreasonable and cannot be supported having regard to the evidence.
The applicant submitted that in order for count 5 to be proved beyond reasonable doubt, it was necessary for the jury to be satisfied that he had kissed or licked the complainant's vagina. It was not sufficient for the jury to be satisfied that he had kissed or licked the complainant's "bagina", given the diagram which was Exhibit 1, or "near my bagina". He submitted that it was significant that at no time did the complainant in terms, or otherwise, say that he had "licked" her "bagina". The use of the word "licked" was restricted to her "bum" or "butt". The only exception was at Q&A.341, which concerned whether the complainant had made any complaint to her school friends:
"Q.341 And can you remember what you told them?
A. What my dad licked me on the bum and, and the bagina."
He submitted that this evidence was given in summary form, referred specifically to "licked me on the bum" before any reference was made to the "bagina", and was not supported by the evidence of the two school friends when they made statements and gave evidence.
The applicant submitted that the evidence could not establish beyond reasonable doubt that the complainant had been kissed on the genitalia. Even if one were to accept that the complainant was kissed in the area marked on Exhibit 1, the most that this could prove was the possibility of an indecent assault although such was neither charged nor alleged as an alternative to count 5 at trial.
The applicant submitted that the act alleged by the complainant of kissing her "near my bagina" could not amount to cunnilingus. The allegation depended on what the complainant meant by "near my bagina". The complainant was never asked to explain what she meant when she used that phrase. When asked in her recorded interview "where he kissed you on the front" (Q&A. 294) the result was the drawing firstly of an arrow, which pointed to a location other than the vagina, and the drawing of a rectangle (Exhibit 1) while saying "in this area". The area of anatomy within the rectangle extended from the waist to the upper thighs. On the basis of that material, the applicant submitted that cunnilingus did not extend to a kissing or licking of the upper legs, upper or inner thighs, or the area indicated by the arrow. He submitted that proof of kissing "near to" or even "on" or "in" this area (which was large and extended beyond the area to which the definition of cunnilingus applied), could not sustain proof beyond reasonable doubt of an offence under s 66A(2) of the Act.
In making that submission the applicant accepted that this point had not been taken at trial. Although her Honour had dealt with the issue in her directions to the jury, it had not been a matter specifically raised by defence counsel. The applicant accepted that the primary issue argued for the defence at trial was whether the charged events had occurred at all, not whether count 5 was capable of being established on the evidence.
The applicant accepted that for this point to be argued, he required leave under r 4 of the Criminal Appeal Rules. The applicant submitted that leave should be granted by the Court in this case because the failure to raise this issue at trial had resulted in a miscarriage of justice (R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20 at [20]; 62 NSWLR 346; Picken v R [2007] NSWCCA 319 at [20]; R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [99]).
The Crown submitted that the applicant's submissions failed to acknowledge that the vagina was one part of the female genitalia and that kissing near the vagina could also be on the genitalia. It submitted that her Honour's directions were clear about what matters the jury had to be satisfied and that the jury's verdict meant that they were so satisfied. The Crown submitted that experienced trial counsel did not take this point from which it could be inferred that he was satisfied that the evidence was sufficient to support count 5 provided the jury were satisfied that the events had occurred as described by the complainant.
The Crown submitted that the evidence to establish count 5 was that of the complainant being her interview and further examination and cross-examination at the trial, together with the complaint made to MH and the surrounding circumstances immediately before and after the acts relied upon for count 5. By reference to that last consideration, the Crown relied upon the fact that counts 1 - 4 and 6 - 7 had been proved and that these were indicative of the applicant being sexually aroused and having an interest in the complainant's vagina for his own sexual purposes.
The Crown submitted that if there were any doubt as to the meaning of the complainant's evidence when she made her videoed statement to the police, this was removed during cross-examination at trial as follows:
"Q. Did you say it because you wanted the police officer to believe you when you said that [the applicant] had licked you on the bum and the vagina?
A. That bit is true.
Q. If it was, why did you say bits that were untrue?
A. I'm not so sure.
Q. I suggest to you, you said things that were untrue because when you said [the applicant] licked you on the bum and the vagina that was untrue too, what do you say to that?
A. That's true.
Q. That is true isn't it?
A. Mm, that's a true bit about it." (T.46.11)
The Crown submitted that the first mention of the word "bagina" was volunteered by the complainant at Q&A.81-82 where she said:
"Q.81 Yeah.
A. And, then he asked me another silly question, show me your bagina.
Q.82 Yeah.
A. Yeah and I sort of did."
The Crown submitted that the reference to "bagina" was made by the complainant before the interviewer pointed to the crotch of the figure in Exhibit 1 and that the inference could be drawn that the complainant clearly understood what part of her body was the vagina, because she exposed it to the applicant at his request.
In support of that proposition, the Crown noted that a viewing of the videoed statement showed that when asked to draw where the applicant kissed her on the front (Q&A.294), the complainant initially pointed to the crotch area with the pen and then drew the arrow at the side of the figure. The Crown submitted that because of that evidence, the jury could readily discount the suggestion that the complainant intended to indicate the entire area within the rectangle was that to which she was referring when she used the word "bagina".
CONSIDERATION
It is true, as both the applicant and Crown noted, that the point raised by this ground of appeal was not taken by the defence at trial and if it is now to be relied upon, the leave of the Court is required by the Criminal Appeal Rules. In my opinion, leave should be given. This is because it relates to an element of the offence. The question of whether the evidence was capable of establishing count 5 is fundamental to whether the offence was made out. If the evidence were not so capable, then the applicant's conviction on that count has given rise to a miscarriage of justice of the kind requiring this Court to intervene.
In R v Kanaan the Court (Hunt AJA, Buddin and Hoeben JJ) said in relation to rule 4:
"99 ... That Rule provides that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken by the appellant at the trial to the direction or omission challenged. Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice: Regina v Abusafiah (1991) 25 NSWLR 531 at 536; Regina v Wilson [2005] NSWCCA 20 at [20]. There is a miscarriage of justice where, by reason of the error made, the appellant may have lost a real chance (or a chance fairly open to him) of being acquitted."
It follows that leave to rely upon this ground of appeal should be granted to the applicant.
The Court was invited by both sides to view the videoed statement of the complainant, which made up most of her evidence in chief. The Court did so before the hearing of the appeal so as to better appreciate not only the written submissions before it but the oral submissions. The exercise was useful because it was clear that there were some errors in the transcription of the recorded interview. It was also important to observe the gestures of the interviewer and the complainant at various times during the interview.
Fundamental to the Crown case in relation to count 5 was the evidence of the complainant in the videoed statement of 2 September 2012, five days after the offence was said to have occurred. It is correct, as the Crown submitted, that the complainant mentioned the word "bagina" without prompting for the first time in the interview at Q&A.81. It is, however, also of significance that shortly thereafter the complainant said: "And then he licked and kissed my bottom" (Q&A.85). Nothing was volunteered by the complainant concerning any actions by the applicant directed towards her vagina. Similarly, when the issue of the applicant kissing and licking her bottom was raised again by the interviewer (Q&A.197 and Q&A.243-244) no mention was made by the complainant of the applicant doing anything in relation to her vagina. On the contrary, the question and answer at 244 was:
"Q.244 … and licking, licking your bum and then laying on the lounge with you in the lounge room and kissing you again in the lounge room, did he do anything else that was naughty?
A. No, he did do other thing."
The "other thing" had nothing to do with the complainant's vagina.
The next mention of "vagina" did not occur until Q&A.289-296 of the interview. This evidence is important because it represents the high point of the Crown case in respect of count 5.
"Q.289 So what, do you know what this part of your body's called here? [As he asked the question the interviewer uncovers a diagram of the front of a girl and points with his pen to the crotch area of the diagram]
A. Your bagina.
Q.290 Bagina. And did your daddy kiss you anywhere near your bagina? [Interviewer points pen to the crotch area of the diagram]
A. Mm yeah.
Q.291 Yeah.
A. Yeah. He kissed me, at first near my bagina.
Q.292 Yeah and anywhere else?
A. And on the butt as well.
Q.293 And on -
A. The bagina and the butt.
Q.294 Now can you draw on there we he kissed you on the front (drawing). [The complainant points with the pen to the crotch area of the diagram and then draws an arrow on the outer right side of the diagram, pointing to the hip.]
Q.295 And put a circle around.
A. In this area [the complainant draws a rectangular shape enclosing an area from across the hips to across the upper thighs.]
Q.296 Yeah, okay, thank you. All right, now when your dad was doing that kissing around your bum and your vagina, did you say anything to him?
A. I said "stop" but he didn't."
It is important to note that on this occasion the complainant did not volunteer anything about her vagina. On the contrary a leading question was put to her directed to the vagina, with the interviewer twice pointing with his pen to the crotch area of the diagram, Exhibit 1. What followed was the complainant not volunteering that the applicant kissed her "on" the vagina but responding to the question by saying "at first near my bagina". In answer to the interviewer's follow up question, "Anywhere else?" the complainant said nothing further about the vagina, but referred to being kissed on the butt as well. The next question (Q&A.293) was interrupted and the complainant volunteered "the bagina and the butt". The issue was further complicated by the leading question (Q&A.296) which referred to "kissing around your bum and your vagina".
Putting that evidence at its highest, from the Crown's point of view, it amounts to evidence that the complainant said that the applicant kissed her on or near her vagina. Those answers may be mutually exclusive. Near the vagina was never explained. The complainant could have been referring to the genitalia or she could have been referring to "near" the vagina but not on the genitalia. Even if the interrupted question at Q&A.293 is interpreted as evidence that the applicant kissed the complainant on the vagina, that response remains ambiguous because of the marking by the complainant of Exhibit 1.
Exhibit 1 shows an arrow pointing towards the hip, not the vagina. It also shows an area within a rectangle extending from the hips to the top of the thighs. Little assistance is provided by the fact that the complainant initially pointed with the pen to the crotch area because five questions earlier the interviewer pointed twice at the crotch area of the diagram when asking Q.289 and Q.290.
I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt on that evidence that the applicant committed the offence which gave rise to count 5. The next issue is whether the other evidence upon which the Crown relied, satisfies that test.
The evidence of the complainant's grandmother does not have that effect. There are a number of reasons why this is so. Firstly it was not direct evidence but a hearsay report of what MH remembered having been told by the complainant. Secondly, the evidence was subject to the interpretation which an adult would normally place on what a child of such tender years meant when she spoke about what the applicant had done. Put another way, the evidence went no higher than setting out what the grandmother understood the complainant to mean when she described what happened. An example of the difficulties arising from such evidence is the apparent incorrect assertion that the complainant said that she sucked the applicant's penis, or as was set out in her police statement, "[The applicant] made me kiss him on the penis". Thirdly, these complaints were made in a context of the complainant making a number of other apparently sexualised statements which did not involve the applicant but which the complainant had heard about.
The grandmother's understanding of what the applicant meant when she used the word "bagina" does not take the matter further. By saying that when she used the word "bagina" the complainant meant the vagina is subject to the same imprecision that exists in relation to the videoed interview of the complainant. It remains unclear what she [i.e. the complainant] meant by the word "bagina".
The further evidence in chief and cross examination of the complainant at trial did not take the evidence further. Her evidence was given on 8 and 9 October 2013, more than a year after the events of 29 August 2012. By reference to Exhibit 1, the complainant gave this evidence:
"Q. And where you drew something on it, what were you showing Michael by the bit that you drew?
A. The other place where [the applicant] licked."
This was the first time in terms that the complainant had used the word "licked" in relation to the front part of her body. That evidence, however, was significantly qualified because it was given in relation to the rectangular area drawn on the diagram which extended from the hips to the upper thighs. It does not resolve the lack of precision arising from the videoed interview. This is particularly so in view of the following evidence:
"Q. Do you have any of your own memories, separate from the video that you've just watched, about this day?
A. No." (T.26.35)
At T.35.24-34 the complainant agreed that she had not told her two friends at school any detail of what had happened between the applicant and her, other than to say "something bad happened". Similar responses were made by the complainant at T.46.11-.24 to leading questions. In any event, the responses by the complainant were at best ambiguous and she did not volunteer any extra detail by her using her own words. Accordingly, it cannot be said that the Crown case was advanced by the evidence in chief and cross-examination of the complainant at trial. This is particularly so when she appears to have had no independent recollection (about the video) of that day.
The Crown submission that the applicant's conviction for counts 1 - 4, 6 - 7 showed that he was sexually aroused and had a sexual interest in the complainant's vagina should not be accepted. The evidence of the offences giving rise to those counts was not relied on in the trial as tendency evidence, nor as evidence establishing a sexual interest in gaining access to the complainant's exposed vagina, or an interest in her vagina generally. It was common ground that no tendency notice was given. At most, the evidence relating to these offences provides a context or the surrounding circumstances against which to consider the evidence relating to count 5. Most particularly there was no account given by the complainant which involved cunnilingus or any licking or kissing of the vagina or in that area until the leading question by the interviewer at Q&A 290. It follows that the evidence of the surrounding circumstances did not support an interest in the complainant's vagina on the part of the applicant. Moreover, the evidence of the surrounding circumstances was not relied on at trial by the prosecution for such a purpose.
The question raised by this ground of appeal is 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 applicant committed the offence giving rise to count 5. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v R [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said:
"7 Where, notwithstanding that as a matter of law there is evidence
to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty but in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. …"
This test has been restated to reflect of terms of s 6(1) of the Criminal Appeal Act 1912 (NSW) in MFA v R [2002] HCA 53; 213 CLR 606 at [58]. McHugh, Kirby and Gummow JJ said that the reference to "unsafe or unsatisfactory" in M v R is to be taken as "equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported having regard to the evidence"". These principles were more recently re-affirmed by the majority of the High Court in SKA v R [2011] HCA 13; 243 CLR 400. SKA v R made it clear that this ground of appeal requires the Court to consider for itself the sufficiency of all the evidence led at trial on the particular issue under consideration.
Applying those principles, and having fully reviewed the evidence for myself, I am not satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant engaged in sexual intercourse (i.e. cunnilingus) with the complainant as alleged in count 5. This ground of appeal has been made out.
In view of my conclusion in relation to ground 1, it is not necessary to deal with the remaining grounds of appeal. In deference to the comprehensive submissions of the parties, however, I wish to say something about the remaining grounds.
Ground 2: The trial judge erred in law in her directions as to what was necessary to satisfy the element of the offence of "sexual intercourse", to wit, "cunnilingus".
Ground 3: The trial miscarried on account of the erroneous direction in relation to count 5 given by the trial judge.
In order to understand the submissions, it is necessary to set out the directions of the trial judge which have been criticised. Count 5 was addressed by her Honour in the summing up in the following terms:
"Now finally with respect to count 5, this is a charge of aggravated sexual intercourse with a child. If you would turn to your elements document, you will find this on the second page:
"The Crown must establish beyond reasonable doubt each and everyone of the following elements that the accused had sexual intercourse with [the complainant]. Secondly that she was under the age of ten, namely six and thirdly that she was under his authority."
Sexual intercourse means and includes a range of acts - it is quite broadly defined in the law - it includes cunnilingus, which is contact between the mouth of the accused and female genitalia and may include kissing, licking or sucking.
The Crown does not have to prove that full penetration occurred or that the accused ejaculated or that the sexual intercourse was for the accused's sexual gratification. So here in short, the Crown relies upon her evidence that the accused kissed her on or near her vagina. The Crown says that is evidence that there was contact between his mouth and her genitalia.
Secondly, the Crown in relation to this charge, must prove her age. Again, that is not in dispute and that she was under his authority, the third element.
…
Now you might members of the jury, give very close consideration to the evidence in this regard. Again, there was not a significant line of questioning with her about the particulars of the various acts that she says took place. The questioning was more directed at whether any of this took place at all or whether it happened in the way she said. You must though, when you're considering the elements of a particular charge and in particular this charge, you need to give careful consideration to whether you accept there is sufficient evidence that would amount to the particular act of sexual intercourse.
Here, the Crown relies on that part of the definition of sexual intercourse that includes cunnilingus, that is contact between the mouth of the accused and the female genitalia. I say that because in her evidence in this trial, [the complainant] had this to say, if I can just turn up the correct part.
I have already mentioned it, but I want to mention this evidence again in the context of this particular charge. She said (at 168) that she had been asked to take her undies off, she did not want to do it and he pulled them off, off her feet and he licked it and he kissed it. She was asked:
"Q. What was it that he licked and kissed?
A. My bum."
Then later (at 197):
"Q. You told us right at the start that he kissed and licked your bottom?
A. After he pulled off my undies in my bedroom, standing near my bed",
which she was not sure about. Then (at 284) she said, this is the part where she was asked to just describe what she used her bum for and she said "weeing and pooing". And she was asked:
"Q. So when your daddy kissed you on the bottom, what did you have your back to him or your front to him?
A. My back.
Q. Your back?
A. No my front to him and then he untwisted me around."
Then she was asked this question:
"Q. So what, do you know what this part of your body is called here?
A. Your bagina.
Q. Your vagina and did your daddy kiss anywhere near your vagina?
A. Yeah."
And the question reads:
"Q. He kissed me at first near my vagina?
A. Yeah",
confirming what he had said and she was asked:
"Q. And anywhere else, on the butt as well?
A. The vagina and the butt."
Now there, that is reiterating the evidence in respect to this aggravated sexual intercourse, that is, the contact between the accused's mouth and what she described as her vagina and the evidence for (count 6) the kissing of her bum.
In order to prove this particular charge, you would need to be satisfied that she was kissed, not on her anus or her bum, but on her "bagina" - vagina or that part of her genitalia. Her bum or anus is not a part of the genitalia. It is, in order for the kissing of the genitalia to be established for this count, you would need to be satisfied of her evidence that she was kissed on the vagina and not the bum. Because if it is just the bum, then that is not part of her genitalia, that is not part of her reproductive system.
So you would need to scrutinise carefully that evidence about whether or not the Crown has proven that she was kissed on the vagina and indeed, you would need to bear in mind that as a young child at the time, whether she appreciated the difference and that the Crown has established that she was as she says, kissed in that area of her anatomy.
To that extent, the Crown relies on her ability to distinguish between the back, the diagram where she indicated the bottom and the front where she indicated her vagina. You might think as I said, there was little challenge about that, but it is something about which you would need to be satisfied beyond reasonable doubt.
The real challenge as I have already said, was as to whether you could accept what she says as to these things happening at all; happening beyond reasonable doubt.
In this case the Crown really does rely wholly on the evidence of the complainant child, there being only herself and the accused present at the time that these alleged events occurred. Because that is so members of the jury, you would need to scrutinise her evidence carefully.
There is evidence, and I will come to this shortly, that she complained to her grandmother that she told the police what had occurred and that is evidence - it is a matter for you - that is the complaint to her grandmother that supports her account.
But it is not evidence that is independent of the complainant. She is the only person, aside from the accused, she is the only person who can give an account of what took place. An account that the Crown relies on to prove these charges beyond reasonable doubt.
Accordingly, you would need to carefully scrutinise her evidence to determine whether it is reliable - that is, whether you are satisfied that she has given not only an honest account, but an accurate account about the essential matters in this particular trial." (SU 14.10.2013 - p 20.5 - 24.4)
The applicant submitted that her Honour had misstated the evidence in that she had referred to the complainant's evidence that she had been kissed "on or near her bagina" when it was the complainant's evidence that she had been kissed "near her bagina". He submitted that her Honour substituted the complainant's term "bagina" for "vagina" in restating for the jury the relevant portion of the complainant's interview. The applicant said that her Honour misquoted some of the complainant's answers in her interview which might well have confused the jury. The applicant submitted that her Honour's direction to the jury that the question was "whether the Crown has established that she was as she says kissed in that area of her anatomy" lacked any real precision and might have misled the jury.
CONSIDERATION
It is true, as the applicant submitted, that her Honour did misquote some of the evidence and read to them Q&A.291 which had been incorrectly transcribed on MFI 2, being the transcript of the videoed interview with the complainant. The small part of the evidence which her Honour misquoted would not have been of significance given that the jury had seen the transcript when the video was played and could have called for it in the course of their deliberations if they needed it, rather than relying upon their recollection of what her Honour had quoted. The error in transcription, in the circumstances of this case, did not disadvantage the applicant since it placed an important piece of evidence as part of a question rather than as part of an answer. In any event, it was no fault of her Honour that there had been an error in transcription.
It was not an error on the part of her Honour to summarise the complainant's evidence to the effect that she had been kissed "on or near her vagina". That was the effect of her evidence if one accepted that her use of the word "bagina" meant "vagina". The problem was, as her Honour identified, what precisely was meant by the complainant when she used the expression "near my vagina". It is for that reason that her Honour specifically raised the issue of whether the complainant appreciated the difference between being kissed on or near the vagina, in the sense of on her genitalia, as distinct from other parts of her body.
It mattered not that her Honour on occasions used the term "bagina" for "vagina" in her summing up. The real issue was what the complainant understood or meant by the terms "bagina" or "vagina".
Given the way in which this matter was run at trial, with the emphasis being on whether conduct of the type described by the complainant occurred at all, as distinct from whether that conduct gave rise to the offence, her Honour's summing up on count 5 was quite unexceptionable. Her Honour, unlike either counsel in their addresses to the jury, was careful to set out what needed to be proved to establish that sexual intercourse had taken place and she identified the evidence which was relevant to that question. On more than one occasion, her Honour directed the jury that to establish an act of sexual intercourse they had to be satisfied beyond reasonable doubt that the applicant had kissed the complainant on her genitalia being part of her reproductive system. Nothing more needed to be said by her Honour.
It was not necessary for her Honour to do more than correctly state what had to be proved by the Crown to establish the offence when the real issue before the jury was whether the events, as alleged by the Crown, had occurred not whether that conduct gave rise to the offence. It is not without significance that her Honour was not asked by the defence at the conclusion of her summing up to give any further directions.
It follows that these grounds of appeal have not been made out.
CONCLUSION
Since ground of appeal 1 has been made out, a verdict of acquittal should be entered in favour of the applicant in respect of count 5. No alternative count was relied on by the Crown and the possibility of a lesser offence being made out was expressly eschewed by the Crown in the appeal. The verdict of acquittal has considerable implications. As indicated earlier in this judgment, the sentences for the other counts of which the applicant was found guilty have been served and his present imprisonment is due entirely to the sentence imposed for count 5. In those circumstances, because the conviction for this count cannot stand, the applicant should be released from custody forthwith.
The orders which I propose are as follows:
1. Leave should be granted to the applicant to bring this application for leave to appeal against conviction in respect of count 5.
2. Leave to appeal against conviction in respect of count 5 should be granted and the appeal allowed.
3. The applicant's conviction for count 5 should be quashed and a verdict of acquittal entered.
4. The applicant should be immediately released from custody.
R A HULME J: I agree with Hoeben CJ at CL.
CAMPBELL J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 20 July 2015