Button v The King [2025] NTCCA 8

[4]

Whether evidence of investigating officer's experience and opinion was inadmissible bolster and opinion evidence - Evidence was inadmissible bolster - Opinion evidence was not admitted - Bolster evidence would have been admissible in re-examination - Admission of bolster evidence was not material - No miscarriage of justice

Button v The King [2025] NTCCA 8 | Case summary | Zoe

[15]

[5] On 16 March 2021, the applicant was charged on indictment with indecently dealing with a child who was under the age of 16 years, contrary to s 132 of the Criminal Code 1983 (NT) ('Criminal Code'), with the circumstance of aggravation that the child was under the age of 10.
[6] The applicant pleaded not guilty.
[7] On 10 December 2021, the evidence of the child complainant and her sister was given at a special sitting and recorded.[1]
[8] The trial commenced on 27 February 2023 and on 3 March 2023, the jury returned a guilty verdict by majority.
[9] On 24 June 2024, the applicant filed an application for leave to appeal and an application for an extension of time within which to file the application for leave to appeal, the appeal period having expired on 3 April 2023. Four grounds of appeal were proposed. The proposed grounds of appeal were amended on 28 March 2025.
[10] Leave to appeal was required because the proposed grounds of appeal, particularly the fourth ground, involve questions of mixed law and fact.[2]
[11] The Crown did not oppose the application for an extension of time to apply for leave to appeal. Consequently, that application was granted at the hearing.
[12] Pursuant to s 429(2) of the Criminal Code, the applicant applied for leave to appeal to this Court constituted by three Judges. The application for leave to appeal and the substantive issues were heard together.
[13] The respondent opposed the grant of leave to appeal on the basis that the proposed grounds of appeal had no merit. In the alternative, but for essentially the same reasons, the respondent argued that if leave to appeal was granted the appeal should be dismissed.
[14] Given the matters raised by the applicant, particularly relating to the conduct of the trial and matters that arose leading up to the trial, the respondent relied upon an affidavit read in the appeal made by a prosecutor employed by the Director of Public Prosecutions.[3] The applicant did not object to the receipt of that affidavit and it was taken as read.

[16]

[15] The Crown case at trial was that in 2015, the applicant was about 47 years old. He lived at an Aboriginal town camp ('Camp') in Alice Springs with his wife, MB.
[16] The child complainant, SR, was five or six years old. Her biological father was deceased and her mother was absent. SR and her sister, RA, were cared for by a woman, SG, and that woman's partner, PA. They lived at the Camp.
[17] Sometime in 2015, SR was playing outside near the applicant's house. He asked her to come over to his house for ice cream. She went with him to the house, sat down on the lounge and started watching television. The applicant took her by the hand to a bedroom at the back of the house and sat her on the bed. He used his finger to rub her vagina. It was not clear whether that was over clothing or underneath clothing. MB saw what was happening and intervened, telling the applicant to stop touching PA's daughter. The applicant responded by attacking MB. He then gave SR ice cream outside the house on the road. SR did not disclose the offending immediately.
[18] In November 2015, a woman, LC, visited Alice Springs to attend a funeral. While visiting the Camp, she observed that SR and RA were not looking well. She offered to take them back to her home in Queensland to look after them. The family agreed. When she arrived home, LC took SR and RA to the doctor for a check-up, that being her usual practice when she took a child into care. A few days later, LC was told by the doctor that SR's blood test had returned a positive result for genital herpes.
[19] LC spoke to SR about the results. SR had lots of blistery spots around her vagina. RA was present during this conversation. LC asked SR: 'How would you get this?'. SR replied: '[The applicant]. He used to take me by the hand and take me to his house.' LC asked: 'What happened?' and SR told her the applicant touched her and pointed to her vagina. LC then called SG and told her about the conversation.
[20] In October 2017, SR and RA returned to Alice Springs. Shortly thereafter, RA told SG that 'SR told LC what happened to her, that someone touched her'. SG called SR into the house and asked who had touched her and what had happened. SR was afraid at first and asked whether the applicant was around. When SG said he was not at the Camp, SR told SG that the applicant had touched her. SR elaborated, saying that the applicant told her he had ice cream for her, she followed him into his house, she followed him into the room to get ice cream, he closed the door behind her and had started touching her, pointing to her private parts. SR had her head down and was shaking when she said these things.
[21] SG reported the matter to Police. On 17 January 2018, SR participated in a child forensic interview ('CFI') during which she told Police what is set out in paragraph [17] above. Following a Police investigation, the applicant was arrested and charged on 16 March 2021. He declined to participate in a recorded interview.

[17]

[22] A woman who lived in Alice Springs, RJ, was involved in voluntary work which included taking children into her care from time to time. She knew LC and also knew SR, but did not know her well.
[23] On 29 March 2015, RJ received text messages from a friend, NV, who was at the Camp. NV expressed to RJ concerns for SR. NV said she had seen PA walk out of the bushes with SR and a beer in his hand, following which SR sat on NV's lap. NV said PA was drunk and SR's grandmother, IG, and SG had started screaming at him. RJ then remembered a phone call she had had with LC in February 2015 in which LC had said that SR's grandfather, RG, had expressed concern about PA being alone with SR when he was drunk.
[24] RJ became concerned for SR and went to the Camp. On arriving, she spoke to IG and offered to have SR stay with her for a while. RJ took SR to the hospital to be examined due to the possibility that something had happened to SR. RJ told hospital staff that SR may have been sexually abused and to contact Police. After arriving at the hospital, RJ called RG and RG said to her that SR had been 'sexually abused'.
[25] A Police officer, Constable Williams, went to the hospital and took a written statement from RJ. During the completion of that statement, RJ received a call from RG and put Constable Williams on the phone. When Constable Williams told RG that her understanding was that SR had said that she had been sexually abused some weeks before, RG refused to answer Constable Williams' questions so she handed the phone back to RJ. A short time later, Constable Williams returned to hear RJ talking to RG and understood that he was recanting what he had originally said about SR being sexually abused.
[26] Another Police officer, Detective Butcher, investigated the matter further. On 10 April 2025, she produced a 'completion of investigation' report for the Department of Families and Children, concluding there was 'insufficient information to suggest that any sexual assault has occurred, however, neglect issues have been raised'. Her report stated:

[20]

[27] On 29 April 2021, whilst the proceedings were at the committal stage, the Crown sent the brief of evidence to the applicant's legal representatives.[4] That brief included a statement by SG made on 7 February 2018.[5] SG attested to the disclosure made to her by SR as set out in paragraph [20] above, which she said happened two or three years ago, during the same period when Police had talked to PA as part of the investigation into him. SG stated that maybe SR was talking about the same event, but she only mentioned the applicant.
[28] The prosecution brief also included a statement from a girl, PK, made on 11 June 2019.[6] PK was some seven years older than SR. PK was the applicant's granddaughter, knew SR and RA and had lived at the Camp. PK described a conversation she had with RA when they were walking to school during which RA told her that PA had been touching SR and putting his hand in her trousers. PK stated that later that day, SR told her that PA had put his hand down her trousers and had sexually assaulted her. PK stated that SR told her grandmother, MiB, (the applicant's mother) when they were all sitting around a fire at MiB's house.
[29] On 10 December 2021, at the time of the special sitting to record SR's and RA's evidence, the statements of SG and PK were the only material in the possession of the applicant's legal representatives that made any reference to a possible investigation into PA or that he had possibly engaged in sexual misconduct against SR. The prosecution had not disclosed to the applicant's legal representatives the statements of RJ and Constable Williams and Detective Butcher's report. The Defence had not made any request (whether by subpoena or otherwise) for further material relating to any investigation into possible sexual misconduct by PA against SR.
[30] During cross-examination of SR at the special sitting, without notice to the Crown or any application for leave pursuant to s 4(1) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT), counsel for the applicant asked SR whether she had told RA a few years before that PA touched her. SR denied that. Counsel for the applicant also asked SR if she knew PK and she said she did not. During cross-examination of RA at the special sitting, counsel for the applicant asked RA if she told PK about 'these things'. She denied that. Counsel asked if RA remembered telling PK that SR had told her that PA had touched her and RA said: 'No because [PA] is the one who grew us up. He wouldn't do that.'
[31] On 8 February 2023, one year and two months after the special sitting and nine days before the trial, the Defence emailed the prosecutor seeking material concerning the investigation into PA, referring to the statement of SG.[7] Later that day, at the prosecutor's request, Police located the statement of RJ, the statement of Constable Williams and the completion of investigation report of Detective Butcher and sent them to the prosecutor. The responding Police officer said he had not found this 'job' on previous searches because the parties were listed on the Police database as the people spoken to, not as a victim, offender or witness. The prosecutor forwarded the documents to the Defence on 10 February 2023.[8]

[22]

[32] On 21 February 2023, a pre-trial mention was held before the trial Judge.[9] The applicant raised his intention to apply to have SR and RA recalled for further cross-examination. The application was adjourned to 23 February 2023.
[33] The application to recall SR and RA was to conduct 'further, limited cross-examination' founded on the material disclosed on 10 February 2023. The applicant's counsel argued in writing that a key aspect of the Defence case theory was that SR was sexually abused by PA at the time the applicant was accused of indecently dealing with her. It was put that, at the time of the special sitting, the Defence had only limited knowledge of 'a complaint' against PA, being the statement of SG. The need for leave under s 4 of the Sexual Offences (Evidence and Procedure) Act was acknowledged. The scope of the proposed cross-examination was on the topics: (a) whether SR was sexually or physically abused by PA in the past; (b) whether SR had fabricated her complaint against the applicant to avoid accusing her step-father, PA, of a serious offence; and (c) whether RA had fabricated her version of events in relation to the applicant to avoid accusing her father, PA, of a serious offence.
[34] The Crown opposed the recall of SR and RA and the granting of leave under s 4 on the basis that it was difficult to see what probative value the proposed cross-examination would have when the fact in issue was whether the applicant indecently assaulted SR, not whether PA had done so, and it had already been put to SR that she had complained about PA touching her, which she denied. The Crown proposed that if leave were to be granted under s 4, the need to recall SR and RA could be obviated by the parties agreeing a set of facts.
[35] Shortly before the initial hearing of the application on 23 February 2023, the Defence handed the Crown a short affidavit provided by RJ signed that day.[10] RJ said that on 30 March 2015 (the day after the hospital visit with SR), while SR was at her house, she took two dolls to SR and asked her to demonstrate what PA had done. SR used the dolls to represent PA being behind her and touching her on her genital region. SR also drew a picture with PA touching her genital region. RJ had immediately sent a text to Detective Butcher to inform her about 'the sexual assault'. That day or the next day, RJ took SR back to the Camp. RG and IG shouted at RJ for getting the Police involved. IG called SR over and asked her if she told 'that woman that man touch you wrong way' and SR replied: 'Yep'. When RJ made enquiries with Police later, she was told that they were not able to obtain statements from anyone at the Camp about PA sexually assaulting SR.
[36] At the initial hearing of the application on 23 February 2023, short oral submissions were made but the Defence asked that the matter be stood down to see if an agreed position could be reached. The application was adjourned part-heard to enable that to occur.
[37] At 6.31pm on Sunday, 26 February 2023, Defence counsel emailed the prosecutor asking it to reconsider its position in relation to s 4 leave being granted in respect of 'witnesses generally', indicating that the Defence was not seeking to recall SR (or RA) on the issue, the Defence only sought to cross-examine the Crown's witnesses on the issue and to call RJ.[11]
[38] At the resumption of the hearing of the application on 27 February 2023, counsel for the applicant confirmed that the application to recall SR and RA was no longer pressed. The parties made submissions regarding the grant of leave under s 4. Counsel for the Defence submitted that the Defence case was that the incident about which SR had complained to RJ was the same incident for which the applicant was charged. On that basis, the trial Judge granted leave.

[28]

[43] By s 411(1) of the Criminal Code, the Court would be obliged to allow the appeal if of the opinion that the jury's finding of guilt should be set aside on the grounds (relevantly) firstly, that the verdict is unreasonable, or cannot be supported having regard to the evidence; and secondly, that there was a miscarriage of justice.
[44] These grounds are, respectively, the first and third limbs of the common form of criminal appeal provision in s 411(1) of the Criminal Code. Those limbs are followed by 'the proviso' in s 411(2), which provides that the Court may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[45] As is clear from the grounds of appeal set out above, Grounds 1, 2 and 3 seek to invoke the third limb and Ground 4 seeks to invoke the first limb.
[46] The third limb of s 411(1) encompasses errors or irregularities affecting an applicant's trial which are either fundamental, in which case there will be a substantial miscarriage of justice, and other errors or irregularities.[12] The applicant did not raise any fundamental error or irregularity in the appeal.
[47] For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred, where 'could' means 'having the capacity to' and 'realistically' distinguishes assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.[13] This threshold of materiality is for the appellant to establish, but the burden is not onerous, and it does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.[14] This assessment is qualitatively different from the assessment to be made in applying the proviso, namely whether the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.[15]
[48] The first limb of s 411(1) involves a question of fact which the appeal court must decide by making its own independent assessment of the whole of the evidence, weighing any competing evidence that might tend against the guilty verdict, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant.[16] The question for the appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, that is, whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[17]
[49] In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant's evidence as credible and reliable, there may be counter-veiling evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt, such as inconsistencies, discrepancies, inadequacies or other evidence.[18]
[50] The matters which an appeal court may take into account cannot be exhaustively catalogued, but matters which might give rise to a reasonable doubt include whether a lengthy delay in making complaint requires particular caution; whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether the surrounding circumstances suggest some ulterior purpose for a complainant's account; whether a complainant's testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; whether there is a real possibility that the complainant's account was a reconstruction; whether collusion between a complainant and some other interested party cannot be excluded beyond reasonable doubt; or whether there are internal inconsistencies in the complainant's evidence, or inconsistencies with other evidence, which necessarily give rise to a reasonable doubt.[19]
[51] Where it is asserted on appeal that a complainant's evidence contained discrepancies, displayed inaccuracies, and otherwise lacked probative force that should lead to the conclusion, after making full allowance for the advantages enjoyed by the jury, that a jury, acting rationally, must have entertained a reasonable doubt as to guilt, the determination involves a two stage process.[20] The first stage involves determining whether each of the discrepancies or inaccuracies asserted by the applicant were in fact present in the evidence. The second stage involves determining whether such discrepancies and inaccuracies as there were, when taken either individually or in combination, go to the essential features of the complainant's account of the offences; and, if so, whether they necessarily give rise to reasonable doubt or whether they 'were explicable in a manner that did not provide a basis for them to reflect on [the complainant's] credit'.[21]

[30]

[52] On the first day of the trial, LC gave evidence in chief. She was asked what happened after she took SR and RA interstate with her and she said she took them straight to the doctor, which she did with most of the girls she has had in her care, the doctor took blood tests from SR and the results were that SR had genital herpes. LC said there was no reason other than her general practice to take SR to the doctor. She confirmed the results were genital herpes. LC was asked if she spoke to SR after she received the results and she confirmed that she did. She said both SR and RA were present and she asked SR how she got the blistery spots from her vagina and going down on her legs. In response, SR had told her the applicant used to take her by the hand and take her to his house. LC asked what happened and SR pointed to her vagina and said that the applicant touched her. SR shut down straight away, and didn't talk after that.
[53] Counsel for the applicant took no objection to this evidence. Indeed, in cross-examination, he asked LC about the time between arrival interstate and taking SR to the doctor, how soon after that she had the conversation with SR about 'how she became sick', and how long the results took to return.
[54] Later that day, the prosecutor raised with the trial Judge in the absence of the jury that the evidence may be a matter the jury could draw an impermissible inference from. The trial Judge suggested that the parties try to reach an agreed fact about the inability to contract genital herpes from touching and the parties agreed to consider it. The trial Judge was concerned that repeated directions not to draw an adverse inference from evidence might cause the jury to start drawing adverse inferences. The prosecutor indicated it was not part of the Crown case to allege that SR had contracted genital herpes from the applicant. The trial Judge urged him to make that very clear to the jury. The prosecutor offered to do so then and there, but Defence counsel took issue with that.
[55] On the third day of the trial, the trial Judge received a note from the jury asking: (1) whether there was any medical evidence that SR in fact had herpes; and (2) whether there was any evidence that either the applicant or PA had ever had herpes. Her Honour told the jury that the simple answers were 'no and no', there was no evidence of either of those things and said: 'I'm presuming that it's not relevant to either the Crown case or the defence case'. Her Honour reminded the jury to listen carefully to the evidence that was before them and decide the case on the basis of that evidence and nothing else.
[56] In closing, the prosecutor referred to LC's evidence by saying that, on arrival interstate, there were some issues with SR's health, so LC took her to the doctor and this is what prompted LC to speak to SR for the first time about this issue. The Defence made no reference to this evidence in closing.
[57] In her summing up, the trial Judge said that LC took SR and RA to the doctor and, after that, she questioned SR and asked how she had genital herpes and how that could have happened. Her Honour said that, about the genital herpes, the jury were not to speculate, there was no evidence about its origin or anything like that and it does not form part of the Crown case that this was somehow given to her as a result of an offence committed by the applicant, so they should 'just leave that on one side'.

[32]

[60] Counsel for the applicant argued that the evidence was 'obviously prejudicial', citing A v The Queen.[22] In that case, the Court found there was a miscarriage of justice because evidence was admitted at the trial that both the appellant and the complainant had the same sexually transmitted protozoa, but the evidence did not establish that the appellant had that infection when he last was alleged to have had sexual intercourse with the complainant, and the trial Judge had failed to direct the jury to disregard the evidence. The Crown had sought to rely on the evidence about the protozoa as circumstantial evidence which independently supported the complainant's allegations that the accused had penile/vaginal sexual intercourse with her. It was the Crown case that the probability of both the accused and the complainant having the protozoa at the same time was so slight that it could not be a coincidence. Southwood J (Mildren and Blokland JJ agreeing) held (at [19]) that the problem with the Crown case was that there was no evidence that the accused was infected with the protozoa at the relevant time, so the evidence lacked the necessary nexus. Southwood J held (at [22]) that the trial Judge erred in directing the jury about the evidence and the positions of the Crown and the Defence in relation to it. His Honour held (at [23]) that the trial Judge's direction was inadequate because there was no evidence to establish that the appellant had the protozoa when he was last alleged to have had sexual intercourse with the complainant or before that. His Honour held (at [24]) that the evidence was highly prejudicial and had very little or no probative value, so the jury should have been directed to disregard the evidence. His Honour held (at [25]) that the evidence was prejudicial because the jury were likely to have given it considerable weight and the appellant was in no position to prove a positive case that the complainant had sex with someone else, meaning (at [26]) that there was a real risk that the complainant's evidence was unfairly bolstered by the evidence.
[61] That case is nothing like the present case. In the present case, the Crown did not seek to rely on the evidence about SR having genital herpes as coincidence evidence. The Crown's closing address did not directly refer to this evidence, but only to 'issues with SR's health' which prompted LC to speak to her. This was consistent with the basis for the admissibility of the evidence and it was referred to in neutral terms. In response to the jury note, the trial Judge made clear to the jury that there was no evidence that SR did have genital herpes and no evidence that either the applicant or PA had it. In her summing up, the trial Judge reiterated to the jury that there was no evidence that the genital herpes was given to SR by the applicant and directed the jury to put the evidence aside, i.e., to disregard it.
[62] Notwithstanding the evidence that, in April 2015 after the allegations against PA were investigated, SR did not have any sexually transmitted infections,[23] we do not consider there to be any risk that the jury were left with the impression that the applicant could have caused SR to have genital herpes because the trial Judge's directions to the jury were adequate to remove that risk.
[63] Unlike the case of Orreal v The Queen,[24] the jury were not left free to make of this evidence what they would with the benefit of their life experience.[25] They were told by the trial Judge, effectively, to disregard the evidence. Kiefel CJ and Keane J concluded in that case (at [23]) that such a direction would almost certainly have overcome the prejudice of the jury reasoning that it was no coincidence that both the appellant and the complainant had genital herpes. If such a direction would do so in a case where the impugned evidence was that both the accused and the complainant had genital herpes and the charges involved penile/vaginal intercourse without consent, it would undoubtedly do so in this case where there was no evidence about the applicant having genital herpes and the charge involved indecent touching.
[64] We do not accept that the trial Judge's direction was not firm or clear enough. We see no relevant difference between directing the jury to disregard the evidence and directing the jury to put the evidence to the side.
[65] In oral submissions, the applicant submitted that the evidence was also prejudicial because it would have enlivened the jury's sympathy for the complainant, thereby resulting in prejudice to the applicant. In both her opening address and her summing up, the trial Judge directed the jury that they are to approach the evidence with a purely objective and impartial mind, and they are to judge the facts acting impartially, dispassionately and not letting either sympathy or other emotion sway their judgment, but purely according to reason.[26] Consequently, we reject this submission.

[35]

[67] Initially, the applicant had argued in writing that the Crown's failure to recall SR to permit the Defence to cross-examine her about the allegations against PA, which were only disclosed 'late', gave rise to a miscarriage of justice.
[68] At the hearing, given the evidence set out in paragraphs [37] to [38] above, the applicant conceded that the Crown and the Defence came to 'a pretty fair alternative resolution' in relation to the recalling of SR. This was argued, however, to raise a problem which was not adequately addressed by the trial Judge.
[69] The problem the applicant pointed to was that the trial Judge did not adequately explain to the jury the 'forensic disadvantage' to the Defence arising from its inability to cross-examine SR about her allegations against PA.
[70] Contrary to the submissions of the applicant, the inability to cross-examine SR about these allegations cannot be described as a 'forensic disadvantage' when that inability arose from an election on the part of the applicant's trial counsel not to press the application for SR to be recalled for cross-examination. The application had been made and argued, but was abandoned for 'various reasons'.[27]
[71] As a legitimate forensic choice made by competent counsel, it cannot, without something exceptional, have given rise to a miscarriage of justice.[28] We are not persuaded that no rational forensic justification can be discerned for that decision.[29] It is readily apparent that the forensic choice was made by counsel for the applicant not to cross-examine SR further about having made an allegation against PA because she had already denied having done so and the Defence had decided upon a course which permitted a case to be made that SR had wrongly named the applicant, by eliciting evidence from RJ. That course avoided any risk that SR would either continue to deny that she had made a complaint about PA or would accept that she had done so but would confirm that both the applicant and PA had offended against her. Consistent with that course, the Defence was permitted to elicit evidence from SG, RJ and anyone else about SR disclosing to RJ that she had been abused by PA without SR being recalled and given the opportunity to address the matter further.[30]
[72] There was no warrant for any forensic disadvantage direction to be given about an 'inability' of the Defence to cross-examine SR further about the allegations against PA.
[73] Counsel for the applicant further argued that the trial Judge had made some criticism of the Defence for not putting these matters to SR in cross-examination.
[74] In his closing address, Defence counsel submitted to the jury that SR's complaint to RJ was not put to SR in December 2021 when her evidence was recorded for the simple reason that the Defence then had no knowledge about RJ or the report to police, and the prosecution had only disclosed those details to the Defence 18 days before the trial.[31]
[75] In her summing up, the trial Judge referred to the evidence of RJ that SR had told her that she had been touched by PA.[32] Her Honour said that was never put to SR, so she was never given the opportunity to comment on whether she had said that or not. Her Honour said that Defence counsel had explained that the Defence did not know about that, 'which is fair enough', but it still meant SR did not have an opportunity to comment, and the same applied to the evidence given by PK.
[76] With that context, it is clear that what the trial Judge said in her summing up was not a criticism of the Defence, it was simply an endorsement of the explanation the Defence had given for the fact that SR's evidence did not include anything about her complaint to RJ about PA. Nothing that the trial Judge said in relation to this matter gave rise to a miscarriage of justice.

[44]

[88] We do not accept that the admission of Detective Butcher's evidence gave rise to a miscarriage of justice.
[89] Counsel for the applicant did not object to the admissibility of Detective Butcher's evidence, and did not seek any direction from the trial Judge for the jury to disregard it. The reasons for that are obvious. The Defence intended to and did challenge Detective Butcher in cross-examination in the way her evidence anticipated. Consequently, her evidence would have been admissible in re-examination and would properly have been given then. Its admission in evidence-in-chief was not material.
[90] Further, Detective Butcher's opinion that SR's complaint against PA was not relevant to her complaint against the applicant was clearly identified by the trial Judge as inadmissible, confirming that it was for the jury to determine whether it was relevant or not. The evidence was elicited by counsel for the applicant in cross-examination, who elicited that opinion twice. No exceptional circumstance was identified which would preclude the applicant being bound by the conduct of his case at the trial.[41] The obvious forensic purpose for eliciting this evidence from Detective Butcher was to attempt to discredit her, an effort which did actually yield a result because one of her reasons for considering the complaint against PA as irrelevant was that it was three years before the complaint against the applicant. This was factually incorrect. The allegations against PA were made in the same year as the allegations made against the applicant.
[91] His counsel having elicited the evidence with that rational forensic justification, the applicant cannot now complain that it was inadmissible, prejudicial and gave rise to a miscarriage of justice.[42]
[92] The applicant also argued that the prosecution had not put to RJ that she was not telling the truth, that it was incongruous that SR would make the complaint about PA to her when RJ did not know SR well, that she had 'bribed' SR (being the perception SG expressed about how SR came to make this disclosure), or that she had 'engaged [SR] for a confession'. These arguments were said to contribute to the miscarriage of justice resulting from the admission of Detective Butcher's evidence.
[93] There are two responses to this argument. First, the prosecutor did not submit to the jury that RJ was untruthful, he submitted that she believed she was telling the truth and she had the best of intentions. Further, the other matters were largely the subject of either RJ's evidence-in-chief or cross-examination.[43] Secondly, for the reasons already referred to above, Detective Butcher's evidence could have been elicited in re-examination, so its admission in her evidence-in-chief is of little moment in this trial.

[56]

[103] Neither the applicant's nor MB's evidence denying the offending, the presence of a television, ice cream or SR's presence at their house other than with family raises a reasonable doubt. All of that evidence effectively comprises no more than a denial of the offending, given that it relates to the circumstances in which SR said the offending occurred. The applicant's evidence did not give rise to a choice between SR's version of events and the applicant's version of events.[44] The applicant did not give a version of events. In substance, he denied that the alleged offending ever happened.
[104] In any event, the applicant's evidence was not credible because he denied that SR had ever been to his house, whether by herself or with family. It was only when he was referred to MB's evidence that SR had been to his house that he accepted that she had been, then saying it was only once with her parents. His evidence was internally inconsistent and inconsistent with that of MB.
[105] MB was the applicant's wife of many years. MB declined to give a statement to Police at the time of the applicant's arrest and subsequently, but went back to Police later on (about three weeks before the trial) and said she did wish to make a statement.[45] On SR's version of events, the applicant had struck MB with a stick when MB told him not to touch SR. Although it was not put to MB directly that she was lying to protect the applicant, the failure to do so does not significantly detract from the relevance of those matters to the assessment of MB's credibility.[46]
[106] MB's evidence was not credible because she denied emphatically that SR had ever been to the house, even though she had stated otherwise a few weeks before she gave her evidence. After being referred to her statement about that, MB accepted that SR did come to the house sometimes with PA or SG. She then denied ever being at the house with SR and SR's family members. That evidence was internally inconsistent (knowing that SR did come to the house sometimes but denying that MB was there when SR came to the house with her family). It was also inconsistent with the applicant's evidence that SR had only been there once with her parents.
[107] The applicant submitted that the prosecutor's failure to put to the applicant and MB that they did, in fact, have a television and ice cream bears upon their credibility and the capacity to disbelieve them. The same was said to follow from the fact that there was no 'full puttage' to either of them of each aspect of SR's complaint. It was said that these failures denied the jury, and this Court, the opportunity to assess their credibility.
[108] Reliance was placed on the decision of Bailey J in The Queen v Ingram.[47] In that case, his Honour decided to discharge the jury after the Crown's closing address. What occurred was that the prosecutor had led evidence about a conversation between the accused and a Police officer shortly after the alleged offending, in which the accused had admitted to having sexual intercourse with the complainant. The Crown had also relied on a recorded interview by the accused in which he had stated he had had consensual sexual intercourse with the complainant. The details of the complainant's version of events had been put to the accused in that recorded interview and he denied that he had had intercourse without her consent and denied having assaulted her. The accused gave evidence at the trial confirming that what he said in the recorded interview was true and accurate and denying that the intercourse was without consent. The accused was cross-examined about a few peripheral issues (such as the complainant's state of intoxication), but it was not put to him that he had raped the complainant or that his version of events in the recorded interview was untrue. The prosecutor had then invited the jury to accept the complainant's version of events and to reject the accused's version of events as a lie on the essential issues in the case.
[109] Bailey J referred to the decision of the United Kingdom Court of Criminal Appeal in The Queen v Hart.[48] His Honour held that the prosecutor did ask some questions in cross-examination but none going to the essential issue of consent, and none suggesting the accused's version of events was a lie. His Honour held that the jury had been asked to find the accused to be a liar when that was never put to him in the witness box and there was unchallenged exculpatory material led in the Crown case and adopted on oath in the Defence case. His Honour noted that the case was one of 'oath against oath' with no corroboration of events on the key issue of consent. His Honour held:

[60]

[110] In The Queen v Hart, the Court of Criminal Appeal held (at 207) that if, on a crucial part of the case, the prosecution intended to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain, while the witness is in the box, that their evidence is not accepted. In that case, no questions were asked in cross-examination of three witnesses called by the accused. The Court noted (at 206) that if the jury accepted the evidence of these witnesses, it would have been physically impossible for the appellant to have been at the location where the assault with which he was charged was alleged to have occurred. That is what the Court meant by 'a crucial part of the case'.
[111] Here, acceptance by the jury of the accused's and MB's evidence that they did not have a television or ice cream would not have made it impossible for the alleged offending to have occurred. SR's evidence about watching television before the applicant indecently touched her and receiving an ice cream afterwards is not of that calibre. Unlike the situation in Ingram, those matters are not matters involving an element of the alleged offence.
[112] Further, MB was called by the Crown, not the Defence. With leave, she was cross-examined by the prosecutor about the conduct comprising the alleged offending, i.e., she was cross-examined about the key issue of whether the alleged offending occurred when she was present. She was cross-examined by the Defence about whether or not there was a television or ice cream in the house. From that cross-examination, even though it was not directly put to her that she was lying, it would have been plain to both the applicant and the jury that the Crown position was that her evidence was not to be believed.[49]
[113] Further, the accused was cross-examined, albeit in a single question, about the substance of the alleged offending. He was also cross-examined about having a clear recollection that, back in 2015, there was no television and no ice cream. Again, even though it was not directly put to him that he was lying, it would have been plain to both the applicant and the jury that the Crown position was that his evidence was not to be believed.
[114] Further, as already referred to in paragraphs [105] and [106] above, the evidence of both MB and the applicant about SR coming to their house was internally inconsistent and inconsistent between them. There was sufficient cross-examination to permit an assessment of their credibility.
[115] Further, unlike the situation in Ingram, this is not a case where there was no support for SR's version of events on the key issue. There was support in the form of complaint evidence from a number of witnesses.
[116] Neither the applicant's nor MB's evidence leads us to have a reasonable doubt about the applicant's guilt. It does not comprise counter-veiling evidence which required the jury, acting rationally, to have entertained a reasonable doubt as to guilt.

[65]

[123] RJ's evidence was that on 29 March 2015, RJ took SR to the hospital. She did not know SR very well. RJ had received a text from a friend who was at the Camp saying that SR had just been abused by PA. At the hospital, RJ told the Emergency Department nurse that SR had just been sexually abused, she needed to be tested and the Police called. RJ gave a statement to a constable at the hospital. RJ spoke to Detective Butcher that night. Detective Butcher then spoke to SR on her own. The following day, RJ took SR to RJ's home. RJ asked SR to show her, with a couple of dolls, what had happened the night before. RJ mentioned PA's name to SR from the outset. SR got the dolls, put one doll behind the other and the hands of the doll behind down towards the genital area of the doll in front. SR said one doll was her 'stepdad' and one was her. RJ then asked SR to draw what happened. SR drew the same scenario. RJ looked for that drawing but could not find it. RJ wrote a journal, but could not find it. The drawing was of a big person behind a little person and the hands were in front of the little person down towards the genital area. SR said the big figure was her step-dad, PA, and it was her in the front. RJ said she messaged Detective Butcher telling her that SR had shown her with the dolls and did the drawing. RJ did not have a copy of that text message. RJ said she received no reply to the text. A while later, RJ spoke to Detective Butcher who said no one at the Camp had said anything and it was not being pursued further. That conversation confirmed to RJ that Detective Butcher had received the text. RJ did not pursue the matter with Police further. RJ took SR back to the Camp the next day. When RJ got to the Camp, IG, RG and SG started yelling at her, angry that she got the Police involved. Finally, IG said to SR: 'Did you tell that woman that man touch you wrong way?' and SR looked at her and said 'yes'. After that, all the fight went out of them and they stopped being angry. RJ walked away. SR never went to RJ's house after that.
[124] Detective Butcher's evidence was that she had investigated RJ's report about PA sexually abusing SR in March 2015. She wrote her completion of investigation report. In that report, Detective Butcher recorded that RJ had told her that RG had told her SR disclosed to him about a month earlier that she had been abused by PA. Detective Butcher spoke to SR who disclosed lots of drinking and getting hit, but made no disclosures of any touching or sexual abuse. RG told Detective Butcher he had been talking about abuse by hitting and drinking. Detective Butcher concluded that there was insufficient information to suggest sexual assault, including negative results for all STIs. Detective Butcher said she did not put allegations about PA to SR at the hospital, as it would be inappropriate to put leading questions, but she spoke to SR in a general way and no disclosures were made.
[125] LC's evidence was that prior to November 2015, LC had known SR and RA for a number of years, and had cared for them at various times. A few days prior to 13 November 2015, LC went to the Camp and visited IG. SR did not look well. LC asked if she could take SR and RA home with her to care for them. She took them back with her to Queensland. That was when she took them to the doctor, they had blood tests and SR's test said she had genital herpes. With RA present, LC asked SR how she got this, referring to the blistery spots and SR said: 'The applicant. He used to take me by the hand and take me to his house'. LC asked SR what happened and SR pointed to her vagina and said the applicant touched her. SR then shut down and did not talk after that. LC rang IG and SG and then rang the Police. SR only ever said the applicant's name to LC.
[126] RA's evidence about this conversation was that SR seemed scared and said the applicant was being rude to her, telling her to come to the green house at the Camp, he was showing her lollies or something and telling her to come to him. SR did not explain it properly, she just said the applicant was drunk, being rude, the rude thing happened in the end room or back room and the applicant had bashed MB. SR said she was probably six or seven at the time.
[127] PK was 20 years old. PK said the applicant was her grandfather and she had known him since she was a child. In 2014 or 2015, SR and RA were at PK's grandmother's, MiB's, house and SR told MiB that she had been touched by PA. Asked if it could have been someone other than SR who said this, PK said that was all she could remember and she has memory loss. She later confirmed her belief that it was SR. PK also said that, on a walk to school with RA, RA had told her that SR had been sexually assaulted by PA, who had pulled her trousers down and assaulted her. PK had never spoken directly to SR about these things. She could not remember SR telling her directly that PA had put his hands down her trousers. RA denied talking to PK about SR's disclosures and denied telling PK that PA had touched SR. She denied PA had told her to come to court and talk about these things.
[128] MiB said SR had never disclosed anything to her. She said that RA had told her PA was trying to get funny with her (RA), trying to touch her wrong. MiB denied that it was possible that SR had told her something similar about PA. She denied any memory of SR, with PK, telling her that PA had been getting funny with her. She confirmed she was telling the truth that SR had never told her that PA had touched her the wrong way.
[129] SG's evidence was that in around October 2017, when SR and RA came back from Queensland, RA asked SG if SR had told her what had happened to SR. RA told SG that SR had told LC that someone had touched her. SG called SR inside and asked her what happened. At first, SR was afraid to tell her and asked if the applicant was around. SG said he was not, after which SR told SG that the applicant had touched her. SR said that the applicant told her he had ice cream for her, she had followed him to his house, she followed him into the room, he closed the door behind her and started touching her inappropriately and SR pointed to her private parts. SR said the applicant's wife was present, she walked in and found him doing that to SR and the applicant chased his wife out of the house. When SR was telling SG, SR was sitting with her head down and shaking. SG asked SR if anyone else had touched her and SR kept saying the applicant touched her. Asked why she had asked SR about anyone else, SG said it was because she recalled the investigation into PA, but SR kept saying it was the applicant, even though SG asked a few times. SR had never said to SG that PA had touched her inappropriately. SG agreed that, in November 2015, LC had called her and told her about her conversation with SR. SG did not call the Police after getting LC's call because LC had called the Police. SR repeatedly told SG that PA had not done anything to her. SG had also confronted PA, who said he would not do that to his own granddaughter.
[130] SG said that around the time of the Police investigation into PA, SG had shouted at RJ, asking how she found out what happened to SR. RJ said she had given SR a lolly and that was when SR told her what happened. SG's view was that RJ had bribed SR. SG did not recall a conversation in which IG had asked SR whether she had told RJ that PA had touched her. SG denied she was being untruthful. She denied she failed to report SR's complaint against the applicant to Police because it was possible that PA had done it.
[131] Detective Butcher's evidence was that she conducted the CFI with SR in 2018.
[132] The applicant argued that the nature of the complaint evidence 'created real difficulties in assessing its reliability'. We do not accept that. The evidence of PK about SR disclosing touching by PA was not supported by RA or MiB. Nor was it supported by the evidence of SG, who directly asked SR if anyone else had touched her, or Constable Butcher, who had interviewed SR in March 2015. On the basis of its inconsistency with the other evidence, PK's evidence can be put to one side.
[133] Otherwise, the complaint evidence is largely consistent with the direct evidence of SR in the CFI when she was eight years old and in her recorded evidence when she was 12 years old.

[67]

[134] Part of the Defence case was that there was a reasonable possibility that SR had been indecently touched by PA and had either mistakenly or deliberately falsely identified the applicant as the perpetrator. This case was founded on RJ's evidence about SR's disclosure to her in March 2015 that PA had indecently touched her.
[135] We do not accept that there is any reasonable possibility that SR, at the age of eight when she spoke to LC and was interviewed by Detective Butcher, had mistakenly identified the applicant, a man with whom she was not close, who lived at the Camp but not in the same house, when the perpetrator was actually PA, her step-father who had grown her up. SR's evidence about who did it was unequivocal and confirmed by LC's, RA's and SG's complaint evidence.
[136] Nor do we accept that there is any reasonable possibility that SR had, at the age of eight, deliberately falsely identified the applicant as the perpetrator, whether as a result of coercion or otherwise. This aspect of the Defence case was founded upon RJ's evidence that the family was unhappy and angry about her involving the Police, and SG's evidence that, in SG's and RA's presence, she had confronted PA about touching SR and PA had denied it, saying he would not do that to his granddaughter and if he did he would hand himself in to Police. The applicant argued that it is reasonably possible that these confrontations caused SR to retract the allegation against PA and 'suggest' the applicant.
[137] It is well settled that, in a criminal trial, counsel may suggest an innocent hypothesis to the jury which is not supported by evidence and the only requirement is that the suggested hypothesis is consistent with the evidence.[53]
[138] RJ's was the only evidence that SR had made an allegation against PA. When RJ's March 2015 complaint to Police was investigated, SR made no disclosures of any sexual abuse against anyone. RJ's understanding of SR's doll demonstration and drawing may well have been influenced by her preconception that SR had been sexually abused by PA, and RJ had mentioned PA's name to SR at the outset of the doll demonstration. Furthermore, RJ's evidence about SR repeating her allegation in front of the family was not specific to PA. RJ's evidence was that IG said to SR: 'Did you tell that woman that man touch you wrong way?', and SR said 'yes'. This evidence was not supported by SG and, in any event, was not evidence of SR confirming PA as the perpetrator.
[139] From November 2015, SR consistently nominated the applicant as the perpetrator. SR gave a consistent narrative about the offending against her by the applicant to LC (confirmed by RA) and to Detective Butcher when she was eight years old, to SG when she was 10 years old, and in Court when she was 12 years old. That narrative contained details as to the location of the offending (in the applicant's house), its context (being told to come for ice cream, being taken by the hand and pulled into the bedroom), who was present (the applicant and MB) and what was done to her.
[140] The applicant argued that there was forensic disadvantage to the applicant resulting from the delay in reporting the complaint because, if the allegation had been reported and investigated when SR told LC about it, and a CFI had been conducted earlier, Police could have searched the applicant's house to ascertain if there was a television, a working fridge or ice cream in the house, investigated the applicant's or his wife's purchases, and investigated whether MB had an injury to her head. We do not accept that an earlier investigation of SR's complaint would have yielded such information. Such enquiries are highly unlikely to have formed part of the investigation into the alleged offending. The applicant and MB gave evidence that they did not have a television or ice cream and MB denied that any of SR's CFI was true. There is no real possibility that an earlier complaint could have yielded any better evidence than that provided.
[141] On the evidence as a whole, we consider there is no reasonable possibility that SR has deliberately falsely identified the applicant as the offender.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (105 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (11)