Barney v R

A general attack on the complainant's reliability and credibility

1. The applicant made submissions directed to particular counts but also made a general attack on the complainant's reliability and credibility. It is useful to address the broader critique at the outset.
2. As noted above at [15], in the end the applicant's arguments were largely directed to the complainant's reliability (in the narrower sense). As explained, a difficulty facing this line of argument is that doubts about reliability are less likely to lead to the conclusion that all of a complainant's evidence should not be accepted.
3. The applicant contended that the complainant's evidence was unreliable because of her "poor memory" of the alleged assaults, which he said "could be seen in the delay in the initial disclosure of the complaints and the subsequent piecemeal disclosure", along with her failure to give evidence with respect to four of the allegations. The applicant referred specifically to the first delay between the original disclosure to police in December 2014 and the JIRT interview in August 2015, and to the second delay between the JIRT interview and the later statement in February 2018.
4. After the first disclosure, as noted, the complainant indicated that she was not yet ready to talk about the matter. She indicated that later she "felt … ready to go through it".
5. As to the second delay, the complainant accepted in cross-examination that she could have given the information disclosed in February 2018 in the earlier JIRT interview but chose not to. She accepted the cross-examiner's suggestion that she "chose to withhold information", but said that this was "[b]ecause it is my story to tell and I'll tell it when I'm ready and I wasn't ready to tell it". She agreed that that meant she had been "ready to talk about some things but not everything". That was said by the applicant to be inconsistent with the fact that the JIRT interview was "ostensibly … exhaustive".
6. It was entirely open to the jury to accept the complainant's explanations. With respect to the first delay, the context was that the complainant's disclosure to her mother occurred only after an attempt to run away from home, and her mother promptly taking her to the police. Engaging in a formal interview with police to accuse her stepfather of extended sexual abuse was a rapid escalation of events for her. It is hardly surprising that a child about to turn 13 may hesitate before taking that step. As the complainant's mother said, "[i]t was all very intimidating". That is all the more so in circumstances where the complainant gave evidence that she had not told her mother earlier than she did because her mother was happy and she did not want to get in the way of her happiness; she was frightened of what would happen after she told her mother; and her mother had had a child with her stepfather.
7. With respect to the second delay, the applicant did not describe any statement made by the complainant in the JIRT interview as a lie. And it is an overstatement to say that the complainant suggested that the JIRT interview was exhaustive. On the one hand, for example, when asked if she "ha[d] anything … else" she did say "not really that I can remember extremely clearly" and "that's all I can really think of at the moment". But shortly after that, when asked if there were other times that she could not remember, she said "[l]ike there's definitely been times where … I've been asleep, and not woken up to it, or something like that".
8. There is some force in the applicant's suggestion that that type of lack of certainty as to recollection is different from the complainant's evidence in cross-examination that she had chosen not to reveal these things in the JIRT interview. However, it was reasonably open to the jury to take a benign view of that evidence. They may have considered that the suggestion of deliberate withholding - as opposed to not remembering every incident at the time of the interview - was a somewhat exaggerated response from a teenage girl to being challenged in cross-examination. Or, if they accepted that evidence, they may reasonably have considered that it was understandable for a then 13 year old child to choose not to reveal, in a recorded police interview, every detail of abuse she alleged against her stepfather occurring over a six year period. Such a choice could reasonably be seen as casting no significant doubt over her credibility or reliability.
9. The applicant also said the complainant was unreliable because of "her failure to give any sworn evidence at all about four of the allegations", being the counts the subject of the directed acquittals. As a matter of common human experience some memories are clearer than others. And witnesses will not necessarily remember all parts of their story unprompted. So much is reflected in s 32 of the Evidence Act, which allows an application to be made to permit a witness to revive their memory "about a fact or opinion" by reference to a document. The complainant's failure to provide details of all of the 21 distinct complaints - in response to non-leading questions and where no application was made to seek to revive her memory by reference to her statement - does not provide a plausible basis for arguing that the jury should have rejected her evidence in toto.
10. The applicant also sought to make something of the fact that the Crown amended the indictment in the course of the trial, after the complainant had given evidence, so as significantly to expand the time periods in which certain offences were alleged to have occurred (for Counts 3, 4, 11, 14, 16-18 and 21). For example, the period in which Count 3 was said to have occurred was altered from the initial dates of 1 January 2011 to 25 December 2011, to the date of the complainant's birthday in January 2010 to the same date in 2013. The amendments reflect the fact that the evidence the complainant gave in court differed somewhat, as to dates, from the evidence she had been expected to give. That gave defence counsel an opportunity to seek to undermine the complainant's evidence, which was taken. But the fact that somewhat different accounts are given at different times by any witness, let alone a teenager seeking to recall details of extended alleged sexual abuse, is neither surprising nor uncommon. The complainant gave evidence that she was unsure when various incidents occurred (see eg below at [51]-[52] and [64]). The significance of those variations were a matter for the jury to assess. As discussed below, some of those variations seem to explain some of the acquittals. The existence of such variations does not necessarily - and does not in this case - cause general damage to the credibility or reliability of the witness.
11. Neither of the two delays, nor the failure to give evidence in court of four of the allegations, nor the inconsistency as to dates, requires a conclusion that the jury must have or should have considered the complainant to be a generally untruthful or unreliable witness.
12. It is necessary, then, to turn to consider whether each of the five non-directed acquittals can be reconciled with the convictions as a matter of logic and reasonableness.

Count 3 - one of the swing incidents

1. Count 3 was a count of indecent assault. The allegation was that, while the complainant was playing on a swing set in the backyard of the family home the applicant touched her breasts, stomach and vagina, on the outside of her clothes. The complainant said in examination-in-chief that "there were two incidents on the swing. One where I did fall off and I hit my head and another where he just poked and prodded me until I cried." The incident when she fell off the swing was apparently the subject of Count 2, although no further evidence was given about that particular incident, and hence an acquittal was directed on that charge. The applicant denied touching the complainant in the manner the applicant described.
2. As the Crown submitted, a rational explanation for the acquittal on Count 3 concerns the timing of the alleged offence. It was originally alleged to have occurred in the course of 2011, but after the applicant's evidence the indictment was amended to cover the period between the applicant's 8th and 11th birthdays (January 2010 to January 2013). In examination-in-chief, the complainant explained that she was "eight - nine - ten at the absolute most" when the incident occurred. When asked what made her think she was that age she said: It was around that period of time where a lot of the incidents happened. I wasn't quite old enough to understand that everything was, everything that was happening shouldn't be happening. That's why I didn't vocalise a lot of my negative answers so yeah, it's a bit of a grey area. A lot happens to me in those couple of years but yeah.
3. In cross-examination she was asked about her written statement in which she said "I think it would have been around the time I was in grade 4 at school which was 2011" (recalling that this allegation had not been raised in the JIRT interview). When challenged about the wider span of dates which she eventually gave in evidence, she said: "in between those three years, it is a very grey area for me. It's a time that I'd preferably don't - don't remember so a lot gets jumbled up." When asked whether she was "absolutely sure" that the incident occurred, but whether she was "muddled as to dates", she agreed.
4. The complainant's mother, who gave evidence, was asked about when the family had a swing set. She said that the complainant's grandparents "gave it to us when we were at - living at [the first house]; we may have only had it for about six months to a year after we moved into [the second house]. Not long." She went on to explain that the swing set rusted very quickly, so they disposed of it. She said there was nothing else in the backyard after the swing set was removed. She also earlier gave evidence that the family moved to their new residence in October 2008. That would mean that, on her evidence, the swing set was removed by the end of 2009 at the latest. The accused similarly gave evidence that the swing set was removed after six months or a year because of rust.
5. It is quite possible, then, that the jury were of the view that the offence did occur but prior to January 2010. There is thus a rational - indeed, compelling - explanation as to why they may have had a reasonable doubt that the particular offence was committed within the date range alleged in the amended indictment. This would accord with the careful directions which the trial judge gave as to the need to focus on the specific charges (emphasis added): [Y]ou must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charged on the indictment. The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising out of what the complainant says was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in each charge and you will recall that earlier in this summing up, I took you through all of those 17 counts, identifying the date range and the allegation. You must not reason that, just because the accused may have done something wrong to the complainant on some or other occasion, he must have done so on the occasions alleged in the indictment. You cannot punish the accused for other acts attributed to him by finding him guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.
6. Having a doubt as to whether the incident occurred within the period alleged does not undermine the credibility or reliability of the complainant more generally.

Count 8 - the "smoothie incident"

1. Count 8 was a count of indecent assault involving an allegation that the applicant, while clothed, rubbed his penis against the complainant while she was having difficulty operating a blender, making a smoothie, at the kitchen bench at home. It was the only one of the five non-directed acquittals that arose from allegations first raised in the JIRT interview.
2. The Crown identified two possible rational explanations for the acquittal on Count 8 other than a doubt about the complainant's credibility. The first related to timing. The offence was particularised as having occurred in 2013 when the complainant was in Year 5, which is what some of her answers in the JIRT interview indicated, although she also said in that interview, "Um, 14, 13, 12, yeah, um, 2013, or 2012. Sorry, my memory, and my math is really terrible". The complainant's mother said in cross-examination that she had no recollection of the complainant making smoothies before starting high school in 2015. The mother also explained that she first purchased a blender about two months prior to the birth of her first child with the accused in 2014, which places the purchase of the blender in February or March 2014. Just as for Count 3, the jury may well have believed the applicant but, for good reason, doubted whether the offence occurred in 2013 as alleged in the indictment.
3. The second possible explanation for the acquittal identified by the Crown concerned a component of the indecency element of the offence. In his summing up the trial judge explained: the Crown must prove beyond reasonable doubt that the assault was indecent. The word "indecent" means contrary to the ordinary standards of respectable people in the community. … For an assault to be indecent it must have a sexual connotation or overtone. If the accused touches the complainant's body or uses his body to touch the complainant in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent. … If you find the assault does not carry a clear sexual connotation or overtone, the Crown must prove beyond reasonable doubt that the accused's conduct was accompanied by, or went hand in hand with his intention to obtain sexual gratification.
4. As the Crown submits, the jury may have found that there was a reasonable possibility that "while the complainant was not mistaken that the applicant put his arms around her, she was mistaken that he intentionally rubbed his penis against her bottom for sexual gratification". There was some basis for such a view in the evidence. The complainant gave evidence that the applicant "kind of rubbed his penis against my butt, um, like, it was discretely" (emphasis added). This evidence from the complainant herself could have provided a basis for the jury to have had a doubt about the applicant's state of mind.
5. Both of these points provide a rational explanation for the jury acquitting the applicant on Count 8. Neither implies a general conclusion that the complainant was untruthful or fundamentally unreliable.

Counts 16, 17 and 18 - the allegations as to attempted fellatio

1. Counts 16, 17 and 18 all relate to the one incident. The complainant gave evidence that on one occasion at night, and whilst she was sleeping, the applicant attempted to insert his penis into her mouth. Her evidence was that she woke up when he pushed his penis through her lips, and that she clenched her teeth so as not to "let him get past my teeth". In examination-in-chief she said she kept her eyes closed and that she was pretending to be asleep most of the time. She said one of the applicant's hands was on her chin and the other on his penis, and that at one point he guided her hand to his penis.
2. Count 16 alleged sexual intercourse without consent. Count 17, in the alternative to Count 16, alleged attempted sexual intercourse without consent. Count 18 was for indecent assault and concerned the alleged action by the applicant of placing the complainant's hand on his penis.
3. In cross-examination she was challenged about some inconsistencies between the February 2018 statement which she gave to police and her evidence. She said that she did in fact open her eyes briefly. She accepted that there was some inconsistency between her two accounts as to what the applicant had done with his hands. She accepted that in her police statement she said he made her hand rub his penis but she had not described such a motion in her evidence-in-chief. She accepted that she had not mentioned in her court evidence him ejaculating, but in her statement had said that she thought with the benefit of hindsight that he had done so, although she did not necessarily know what ejaculation was at the time.
4. Again, the Crown suggests that a rational explanation for the acquittal lies in a doubt about the timing of the offences. Counts 16, 17 and 18 were particularised (after amendment) as having occurred between 1 January 2012 and 31 December 2013, when the complainant was in Years 5 and 6. Her evidence in cross-examination as to when the offending occurred was as follows: Q. I now want to ask you some questions about the time when you say you were in bed asleep and the accused, you say, attempted to put his penis into your mouth. A. Yes. Q. Remember telling us about that yesterday in your evidence? A. Yes Q. Just remind me, when did that occur? A. I'm unable to tell you. Q. Unable to tell me the year? A. Yes. Q. Season? A. Yes. Q. What age you were? A. I'm unable to tell you all of the above. Q Including what year you were in, correct? A. Yes. Q. Was it before or after [your half-brother] was born? A. Before.
5. The complainant's half-brother was born in May 2014. The Crown suggests that the jury may have considered it reasonably possible that the offence occurred before 2012 or in early 2014, before the complainant's half-brother was born. Whilst not as clear a basis for a doubt as the bases identified in respect of Counts 3 and 8, this is a rational basis to explain the acquittal. That is especially so given the earliest offending on the indictment was in 2009, and the complainant was unable to recall in what year the offending the subject of Counts 16, 17 and 18 occurred.
6. More generally, the concessions made by the complainant about inconsistencies between her police statement and her evidence could have led the jury to have given the applicant the benefit of the doubt on these charges, even if they were inclined to believe her. Those inconsistencies - which were in fact not that substantial - could have been seen as going to the reliability of the recollection. By no means were they so significant as to suggest she was fundamentally an untruthful or unreliable witness.

Reconciling the acquittals with the guilty verdicts

1. The analysis above illustrates that for each of the non-directed acquittals there was an entirely plausible explanation for the jury's verdict specific to the evidence relating to those allegations. As discussed above, the applicant's critique mainly related to issues of reliability (in the narrower sense). The issues addressed above were specific to the particular counts. There is no sound basis to suggest that those issues damaged the complainant's credibility, nor the reliability of other parts of her evidence. The applicant did not suggest that, leaving aside the claimed significance of the acquittals, it was not open to the jury to be satisfied beyond reasonable doubt on the guilty counts.
2. The verdicts are reconcilable as suggesting that the jury approached the task of assessing the evidence on each count with care, as they were directed to do. That the jury was attentive to the need to address each count is supported by the fact that, during a short break immediately after the Crown had finished addressing, the jury sent the judge a note asking if Count 13 was "still valid as no evidence was discussed in the Crown summary". Counsel for the Crown then explained that she had overlooked that count, which she then addressed.
3. Senior counsel for the applicant did suggest in this Court that if the basis for the acquittals was the temporal issues identified above then several of the guilty verdicts ought to have been acquittals for the same reason. Counsel referred to Count 1, which concerned an allegation that the applicant committed an act of indecency while driving the complainant to school in 2009 or 2010. He pointed to the fact that the complainant had said that the applicant had been driven in the applicant's ute on that occasion, but the applicant had not bought such a ute until the end of 2009 (although in 2009 he did drive a Jeep). Yet that still left 2010 in which the offence might have occurred. Any inconsistency was one which fell within the two-year period for which the offence had been particularised, in contrast to the position with respect to Counts 3 and 8 and potentially 16-18.
4. Other temporal arguments made by the applicant with respect to various of the counts on which guilt was found related to the fact that the complainant's evidence led to the indictment having to be amended to expand the date range captured. That argument was addressed above at [47].
5. The applicant made some other attacks on the credibility or reliability of the complainant, but none of any significance. For example, some criticism was made of the fact that the complainant had given inconsistent accounts of how she had disposed of a large soft toy monkey that she had been given by the applicant, and which she had at times used to protect herself from the applicant's advances, being whether she had burned it or had instead mutilated it and thrown it out. The significance of such minor inconsistencies was a quintessential matter for the jury.
6. The applicant also submitted that the complainant's evidence with respect to Counts 10 and 14 was no stronger than the evidence for Counts 16-18. But assessing the evidence on the different counts was a matter for the jury, and, as noted, it was not submitted that it was not open to the jury on the evidence to be persuaded of the applicant's guilt on those counts beyond reasonable doubt.
7. In the analysis above I have addressed general arguments of the applicant relating to the two delays in complaints, the lack of evidence on four counts, and the need to expand the time periods alleged in the indictment for various offences. I have also addressed the five non-directed acquittals. For the avoidance of doubt, consideration of all of the applicant's arguments together, and taking account of all the evidence in the case, does not lead to a different conclusion. That the complainant's evidence contained some inconsistencies and omissions is a common feature of trials. It is even less surprising here given the lengthy period in which the events in question occurred, the significance of what occurred, and the age of the complainant at the time they were said to have occurred. As senior counsel for the applicant himself accepted, "any person in the position of the complainant may well be considered to remember some things better than others".
8. In sum, the applicant has not established that the nine acquittals, individually or cumulatively, can only reasonably be explained by concluding that the jury must have had a general doubt about the complainant's credibility or reliability, or that the jury otherwise failed properly to perform its role. His ground of appeal has thus not been made out.

Orders

1. The orders of the Court should be as follows: 1. Time for filing the application for leave to appeal is extended to permit the application to be made. 2. Grant leave to appeal. 3. Dismiss the appeal.
2. N ADAMS J: I have had the significant advantage of reading the judgment of Kirk JA in draft. Having considered the evidence at trial and the arguments put in this Court I am not satisfied that the guilty verdicts were inconsistent with the acquittals such as to lead to a conclusion that the convictions were unreasonable.
3. McNAUGHTON J: I have had the advantage of reading in draft the judgment of Kirk JA. Having considered the evidence myself, for the reasons given by his Honour I agree that the verdicts are reconcilable and that the applicant's ground of appeal is not made out. I agree with the orders his Honour proposes.

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