Cabot (a pseudonym) v R

Court of Criminal Appeal (NSW)|2018-09-12|Before: Leeming JA, McCallum J, Bellew J

Judgment

LEEMING JA: The applicant cannot be named, by reason of s 578A of the Crimes Act 1900 (NSW); "Cabot" is a pseudonym. He stood trial in the District Court on an indictment containing 11 counts. Nine of those counts were charges of committing an act of indecency on a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act. The remaining two counts were charges of sexual intercourse with a child under the age of 10 years, and under his authority, contrary to s 66A(2) of the Crimes Act. The child was the applicant's stepson, and was aged between 5-8 years at the time of the events in question.
The trial took place in August and early September 2017. On 4 September 2017, the jury returned verdicts of not guilty on counts 4, 10 and 11. On 5 September, the jury returned guilty verdicts on counts 3 and 5. The jury failed to reach a verdict in respect of all other counts. This Court was told that the prosecution for the undetermined counts would take place in October 2018. In the meantime, the applicant has not been sentenced, and continues to be on bail.
A notice of appeal was only filed some nine months later, on 12 July 2018, but it was accompanied by an affidavit by the applicant's solicitor explaining that he had received instructions to file a notice of intention to appeal but through oversight had failed to do so. An application for extending the time within which to appeal was not opposed by the Crown, and the hearing in this Court proceeded on the basis that the extension would be given.
Count 5 charged an offence of indecent assault based on an allegation of a touching of the child's penis. Count 3 charged an offence of indecent assault based on the applicant grabbing the child's hand and placing it on the applicant's penis. Each of those accounts was associated with a picture drawn by the child during the child's video-recorded interviews which were played to the jury. The child's picture became exhibit 3 in the case of count 5, and exhibit 7 in the case of count 3.

The evidence given by the child

The child participated in two video recorded interviews with a member of the Kogarah child abuse squad. Those interviews took place on 1 July 2016 and 10 May 2017, and may conveniently be described as the first and second JIRT interviews.
Following the original reporting of the matter to authorities in late June 2016, and the child's first JIRT interview on 1 July 2016, the applicant was charged with 5 offences, including the offence which became count 5 on the indictment. The matter was committed for trial and the complainant's evidence was pre-recorded on 6 February 2017, before a judge other than the primary judge. However, on 4 May 2017, the child made a further complaint to his mother and was interviewed by police again on 10 May 2017. In this second interview, which was also recorded, the child made allegations for the first time of fellatio as well as other allegations of indecent assault. That gave rise to charges including count 3 on the indictment.
The child's evidence at trial (including cross-examination) was pre-recorded with the assistance of a witness intermediary, pursuant to the provisions of Part 6 of the Criminal Procedure Act 1986 (NSW), immediately before the commencement of the trial, on 21 and 22 August 2017. (There is some scope for confusion concerning the second day, which comprises pp 100-148 of the transcript, because each page is dated, incorrectly, "07/08/17".)
Thus, the child participated in two recorded JIRT interviews on 1 July 2016 and 10 May 2017, and gave pre-recorded evidence on 6 February 2017 and 21 and 22 August 2017. As will be summarised below, save in relation to two short extracts of the JIRT interviews, this Court was not asked to listen to or view any of those recordings.
Mr Dhanji SC, who with Ms Hutchinson appeared for the applicant in this Court (but not at trial) dealt first with count 5 and then count 3. It will be convenient to follow the same order.
There were inconsistencies in the child's evidence relating to both of counts 3 and 5, and the submissions in this Court focussed upon those inconsistencies. It should be said at the outset that those inconsistencies were at the forefront of the defence at trial, and were squarely placed before the jury. I set out the evidence of the child below, which is addressed to the primary evidence of the elements of the offence, and the inconsistencies in the child's evidence, as to time of day, how old he was, whether the child's stepbrother was in the house, and whether he reported the incident to his mother.

Count 5

In his first JIRT interview, at questions 383-462, the child described something that happened when his mother went to the gym. He said that he felt like sleeping and just went into his bedroom, and "then he just came in and done it". The child was asked to draw a picture of his bedroom, and did so, the picture becoming part of exhibit 3. The picture showed the child lying on his side and a picture of another person standing with a line representing his arm extended to the child's penis. This was explained in the interview as follows: Q397 So when he done it, when you said he came in and done it - - - A Mmm. Q398 --- what did he come in and do? A He just did the same thing as those other ones. Q399 [10:19] Oh. Can I ask you what that was --- A Yeah, he did --- Q400 --- in your words? A Well, he just went like, just pulling it up like that. Q401 What did he do? Oh, OK. A Just keeped, um, just pretend those were his fingers and just pulling it up. Q402 And what's he pulling it up with? A Fingers. Q403 And what position is he in? A He's just, um, he's just like, straight. Q404 Is he, um, standing, lying down? A Standing 'cause he wouldn't reach me. Q405 So where is he standing? A He's standing on the, where you come in and then you stop and then, yeah. Q406 OK. A So he's like over here. Q407 So is his feet on the floor or on the bed or something else? A On the floor. Q408 So his feet's on the floor. A So this is the floor --- Q409 [10:20] Yeah. A --- and then that's my bunk bed, so he will be up there. Q410 OK. A So I will draw him. Q411 OK. A Um, mmm. Oh his head's a little bit higher up, but --- Q412 OK. A --- he just lifted his hand up and did it. Q413 So, OK. So what was the first thing he did, do you remember, when he came into your room? A He just started doin' it. Q414 OK. Um, and when you said he just started doing it, you said before he pulled it up. What would --- A Yeah. Q415 --- what was it that he pulled up? A My rude part. Q416 Your rude part. And do you remember what you were wearing? A Yeah, shorts. Q417 So --- A But he didn't put them down. Q418 OK. So when he pulled up your rude part, was he touching your rude part over the clothes or under the clothes or some --- A Over my clothes. Q419 [10:22] And, and how long was he pulling up over your clothes for on your rude part? A Oh, um, just for, like, 3 minutes. Ah, yeah, 3 minutes and that's all the time that he's done it.
He added that the incident was at night time, but then gave this evidence: Q429 [10:23] Do you know about what time, night-time it was? A Mmm, it was, it was about, it was like in, in the, in the morning or something. No, not in the morning. Um, at, like, I don't know. I forget. Q430 That's OK. You said night-time when your mum went. Do you know, um, ah, when it happened? A No.
He also said that his stepbrother was in his bedroom at the time, playing on his iPad, and that he had told nobody about it other than his mother. He gave this evidence: Q452 OK. Tell me about that. When did you tell your mum? A Ah, it was, it was a long time ago. Q453 Uh-huh. A It was, um, like, I think it was last weekend. Q454 Uh-huh. A Um, well, she did cry and that. Q455 But do you remember what happened when you, when you told your mum? A No. Q456 Do you remember the words you said when you told your mum? A No, I forget.
In his pre-recorded evidence given on 6 February 2017, the child stated that he had watched the JIRT video on the previous Friday, 3 February 2017. On this occasion, his evidence was that the incident occurred in the morning. He gave the following evidence in cross-examination: Q. Did [Cabot] touch you on the doodle in that bed when you were already in that bed? A. Mm-hmm when I was sleeping. Q. You were asleep? A. Yeah I was - I was about to go to sleep. Q. Was Mum at the gym? A. No. Q. Where was Mum? A. In bed about to wake up. Q. That's her and [Cabot's] bed? A. Mm-hmm. Well Mum was about to wake up before he - when he stop it then he went. Because sometimes he goes to bed like at he wakes - he sometimes he wakes up late and then he goes to work and sometimes he wakes up early and then goes to work." [Note this and the previous two answers accord with the corrected transcript, agreed to at trial: see transcript 24 August 2017 p 200] Q. [Cabot] touched you on the doodle in your --- A. My bed. Q. My bed that's your bed? A. Yes. Q. Early in the morning, is that right? A. Yes. Q. And your mum was in her bed? A. Yes just about to wake up. Q. And [your stepbrother] was in his bed? A. Yes he was just about to wake up to go in Mum's room. Q. Lee-Anne asked you when the bed, this is the bed in your room happened right? A. Yes. Q. And you said I think it was after school? A. No it was in the morning - I - yeah it was in the morning. Q. You said about 6 o'clock um something? A. Um, I think, I don't know I forget but it might been then. Q. It might have been then? A. Mm-hmm. It might have been then or I don't really know. Q. At 6 o'clock [your stepbrother] he was awake? A. Yeah he was about to - he was awake to go in Mum's room when [Cabot] stopped and then he went and said goodbye to [my stepbrother] and then to Mum and then he went. Q. When you told your mum about [Cabot] what he did to you do you remember what you told her? A. Yes I do. Q. What did you tell her? A. Who did you say? Q. Your mum? A. Oh. When I told her it was like when he - when it was really like the time to tell her because he was just keep on going and doing it. Because I didn't tell her straight away after it after like a few days because he keeps on doing it sometimes and then I got - and then I just had to tell mum because I knew it was the wrong thing.
Later in his evidence, in re-examination, he said the following: Q. This time that you were lying in your bed and [Cabot] came in and he touched your doodle, do you remember telling Lee-Anne that you were trying to get to sleep? A. Mm-hmm. Q. Do you know what time of the day that was, morning or night? A. In the morning. Q. Do you know where your mum was? A. My mum was where - can you resay that, please? Q. Do you know where your mum was when this happened? A. I think she was at work. Q. You were in your bed, is that right? A. Yeah, in my bed. Q. [Cabot] came into your room? A. Yeah, in my bed. Q. Was anyone else in the room? A. Nope. Q. Where did [your stepbrother] sleep? A. He sleeps in his room, in his own room.

Count 3

At the second JIRT interview, the complainant said that "there was another thing, there's two things what actually, there's a few things what popped up in my head, and some things what I forgot last time when we did the, um, interview". He also said that he "was a little bit shy to say it, 'cause I didn't feel right to say it. But now I, I'm older and I know what to do and I … feel good to say it".
At the time of this interview, the child's mother and the applicant had separated.
In evidence was a page of a notebook, signed by the child's mother and dated 15 May 2017, which contained two entries. One was in the child's handwriting and related to another count. The other was in the mother's handwriting and stated: "([child] asked to write) he grabbed my hand and forced my hand to go on his doodle".
The child was asked about that note, and gave unclear evidence as to when it happened. He then gave this evidence: Q420 OK. Um, where were you when this happened? A Um, when this happened I was still at the same house, but we were in the living room, Like, the same room. And the one I just told you what was the last time, the first time, that was in, that was the, when I didn't have the Xbox. This is the, this is the, a day, this is the next year. Q421 This is the next year. OK. So, you had the Xbox. A Yeah, at that time. And I was playing it, and then he just, I went into the bedroom to jump on the bed, 'cause it's always nice and bouncy, me and [my stepbrother] goes in there. And then [my stepbrother] went out, and then I laid down, 'cause it's nice and comfortable, and then I just, and then he just started doing it. Q422 So, you said you went in, you were playing the Xbox and you went into what room? A Mum's room. Or, and his room. Q423 And you were jumping on, what? A Mum's room. Q424 And what were you doing in Mum's room? A Oh, I was jumping on the bed. Q425 OK. A 'Cause it's nice and bouncy. Q426 All right. And then what happened? A Um, we, um, we, then what else happened was --- Q 427 After you, you were jumping on the bed. A And then he, I went into the room, and then he for, he just grabbed my hand, 'cause then when [my stepbrother] went out, he grabbed my hand and actually forced it to go on his doodle. But that was only for, like, 1 second. Q428 [10:53] Sorry. [Your stepbrother] went out and he --- A He grabbed my hand and force --- Q429 When did he come into, or was he already in the room when you went in? A Yeah. He was already in the room. Q430 What was he doing in the room? A He just got changed from work. Q431 OK. And you said he forced. What, what did you say? He forced - A He forced my hand to go on his doodle. Q432 What position was he in when he did that? A Oh, he was standing up. And I had to stand up, 'cause he forced my hand to stand up. Q433 Where was he standing? A He was standing in the room. In the, in that, in the bedroom.
Once again, the child was asked to draw a picture, which he did. The picture shows images of two people, each labelled in the child's handwriting with a line representing the child's arm outstretched to the applicant's penis. This became exhibit 7.
After describing the picture, the child gave these answers: Q452 Is that what you said? Um, so, what did you, what did your hand when you forced it on his, on his doodle? What was your hand doing? A Um, he actually, like, grabbed it. Q453 Yeah. A And then I, and he actually spread my hand out to go on it. Q454 And, and, and what part of your body is touching his body? A My hand is touching his thingy. Doodle. Q455 To his doodle. And is that over his clothes or under his clothes? A Over. No, under, under. Like 'cause he pulled 'em down while I wasn't looking. Q456 OK. What did he pull down? A His pants. Q457 OK. A Or his underwear. Q458 [10:59] So, how long did he force your hand on his doodle for? A 6 minutes. Q459 How do you know it was 6 minutes? A Or 7 minutes. Q460 Right. A I dunno. Just say I don't know.
The picture also included an image of his younger stepbrother and the word "running" after the stepbrother's name. The child said that his stepbrother had left the room and then returned to what the applicant had done: Q463 If you want to draw. Um, so, you said he pulled down his pants and he forced his hand, his hand on your hand. A Yep. Q464 And, and, um, your hand was on his doodle for 6 minutes. A Yeah. Q465 And it was under his clothes. A Yeah. Q466 So, was his doodle hard, or soft, or something else? A It was, like, weird. Weird. Q467 What, like, what --- A Hard. Hard. Weird and hard. Q468 [11:00] And what was his, what was he forcing your hand to do? A Go on his doodle. Q469 And, and what was it doing there on his doodle? A There's two pieces. Q470 Sorry? A There's two pieces. Q471 Oh, OK. What was your hand doing while it was on his doodle? A Oh, he, like, my other hand was just droopy? Q472 No, the hand that was on the doodle. What was that doing? A Like that (MOTIONING HAND MOVEMENT) Q473 OK. A Pretend this was his doodle. Q474 Mmm. A With my hand. Q475 Mmm. A And then he just pulled it, and then I, he, I just grabbed it off and ran out. Q476 OK. A And told Mum. 'Cause Mum was out of the bedroom. But that was, like, the second time. But I don't think Mum believed me. Oh, no, Mum was, I didn't tell Mum, 'cause I was too shy, actually. I forgot.
The child said that the applicant "warned me, if you do tell Mum, I'll be disgraced in you".

The applicant's submissions

The applicant advanced two grounds of appeal. The first and principal ground was that the jury's verdict with respect to counts 3 and 5 was unreasonable having regard to the evidence. Secondly, and in the alternative, and confined to count 5, it was submitted that there had been a miscarriage of justice occasioned by the trial judge's failure to direct the jury that they must be unanimous as to the particular occasion of the indecent assault. The applicant was granted leave to amend the notice of appeal to include the alternative ground. Leave was granted on the basis that Mr Dhanji would address the whole of the alternative ground orally and that the Crown would be given time to make supplementary submissions. That occurred, promptly following the hearing.

Count 5

The applicant's primary submission was that the inconsistencies in the child's evidence with respect to (a) the timing of the incident, (b) the whereabouts of his mother, (c) the whereabouts of his stepbrother and (d) whether the child told his mother about the assault, cast doubt as to whether the incident occurred at all.
The applicant's written and oral submissions emphasised the inconsistencies in the child's evidence as to when the incident took place and whether his mother was in the house at the time. The child had said in the first JIRT interview that the applicant assaulted him in the evening when the child's mother was at the gym. Later, in the pre-recorded evidence, in cross-examination and re-examination, the child said that the assault took place in the morning and gave contradictory evidence as to whether his mother was still in the house at the time. The applicant submitted that the child's evidence was problematic and difficult to reconcile with evidence of the family's morning and evening routines. The applicant contended that if one were to accept the child's evidence that the incident happened in the morning, and not in the evening when his mother was at the gym, then one ought to accept, for example, the high likelihood that the applicant was at work at the time of the incident. In oral argument it was submitted that the inconsistencies in the child's evidence were significant and, in essence, amounted to not coming up to proof (by analogy with a witness whose evidence in chief fails to adhere to a statement previously made by the witness).

Count 3

Once again, the applicant submitted that having regard to a number of inconsistencies in the child's evidence, this Court could not be satisfied beyond reasonable doubt that the applicant indecently assaulted the complainant on the occasion in count 3. The applicant pointed to inconsistences in the child's evidence with respect to (a) the duration of the incident, (b) his age at the time of the incident, (c) whether his stepbrother was in the house at the time, (d) whether he told his mother about the assault and (e) the time of day when the incident occurred. It was submitted that when all of the inconsistencies are considered together, it could not be said that the Crown had discharged its burden of proving the assault beyond reasonable doubt.
The child initially said in the second JIRT interview that the applicant had forced his hand to touch the applicant's penis for 1 second but later in the same interview said that the incident took 6 to 7 minutes. It was submitted that the inconsistency in the child's evidence was significant. It was also said that the child's inconsistent statement as to whether he told his mother about the assault was a further indication that the child's account of the incident was unreliable.
It was submitted that it was a "concerning feature of the evidence" that the child could not remember whether he was 6 or 8 years of age when the incident took place. It was said that there was a big difference between the ages of 6 and 8, and that the child should have been well aware of his age at the time of the incident.
The child had said initially that his stepbrother was leaving the room when the assault took place. The child had also drawn a picture of the incident in which his stepbrother was depicted as running out of the room. Later, on cross-examination, the child said his stepbrother was in day care at the time. It was submitted that this inconsistency, when considered with the other inconsistencies in the child's account, was integral to the reliability of the child's evidence.
It was also submitted that the child's delay in raising the incident in count 3 until after the first JIRT interview was another factor that contributed to the overall unreliability of the child's evidence. The child explained that he was reticent to report the incident because he was shy and that the applicant had warned him not to tell his mother. It was contended that the child's explanation of being too shy to report the incident was unsatisfactory as count 3 was not significantly different from the other counts, which the child readily reported, and it was noted that the child had made no mention of being pressured into secrecy by the applicant in the first JIRT interview.

Inconsistency of verdicts

It was submitted that the different verdicts of the 11 counts in this case, comprising both not guilty and non-verdicts, needed to be considered when determining whether the guilty verdicts for counts 3 and 5 were reasonable. However, Mr Dhanji disavowed the proposition that the different verdicts were directly inconsistent, as was the case in MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, but sought to diminish the deference which this Court would ordinarily give to the jury's verdict. He said: "[U]ltimately the mixture of verdicts and non-verdicts is such that our final point really becomes, to the extent that the jury had an advantage it's very difficult to give significant weight to that advantage because you do have this mixture. It's not a case where they were able to see the particular witness and say well all right there were these deficiencies or these difficulties but ultimately we accept that that witness is a witness of truth. So it works in a sense to close the gap between where your Honours sit and where a jury might sit which in other circumstances might be, particularly in cases like this might be quite wide."

Ground 1A

Ground 1A, for which there was a grant of leave to amend during the hearing of the appeal, without prejudice to the need to obtain leave pursuant to r 4, was that there had been a miscarriage of justice in relation to count 5 because the jury had not been directed that they must be unanimous as to the particular occasion on which the child was indecently assaulted.
The applicant submitted that the inconsistencies in the child's evidence gave rise to the possibility that the child was describing two separate incidents in relation to count 5. Mr Dhanji contended this was an "insurmountable problem with respect to the verdict" on the basis that the trial judge failed to direct the jury that they must be unanimous as to the particular occasion that the applicant indecently assaulted the complainant. It was contended that the trial judge's failure to give a unanimity direction was a miscarriage of justice: Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689, although it was acknowledged that no such direction had been sought. It was also contended that neither r 4 of the Criminal Appeal Rules nor the proviso stood in the way of the verdict being set aside on this ground.
Later in his oral submissions, the applicant referred to the fact that some of the child's evidence had been expressed in general terms. For example, in answer to a question as to when the applicant had first touched him on the doodle, the child said "Normally when I go in and just lay down - I just - he just starts it" and then later that "It happened in bed or out in the lounge room when Mum's gone to the gym or work". Counsel very fairly noted that when the primary judge summed up, she gave an extensive direction as to context evidence, reinforcing that that evidence could not be used as part of a reasoning based on tendency, or substituted for the specific allegations contained in the indictment. Her Honour confirmed that the jury had to "be satisfied beyond reasonable doubt that the particular allegations alleged in each count occurred."
The submission was made that it was a reasonable possibility that the questioner and the child were at cross-purposes, a submission made by Mr Dhanji which was based on the following considerations: "identifying a possible cause of the child's confusion in relation to his evidence on that point, the element of imprecision in the questioning, the failure to clearly draw attention to the child, the inconsistencies between his earlier evidence in the JIRT interview and/or to confine the incident".
Reliance was also placed on the cross-examination (reproduced in full above) recorded in the transcript as follows: "Q. Did [Cabot] touch you on the doodle in that bed when you were already in that bed? A. Mm-hmm when I was sleeping. Q. You were asleep? A. Yeah I was - I was about to go to sleep. Q. Was Mum at the gym? A. No. Q. Where was Mum? A. In bed about to wake up. Q. That's her and [Cabot's] bed? A. Mm-hmm. Well Mum was about to wake up before he - when he stop it then he went. Because sometimes he goes to bed like at he wakes - he sometimes he wakes up late and then he goes to work and sometimes he wakes up early and then goes to work."
The submission was that the vagueness and inconsistency of the child's evidence as to time left open the possibility that different members of the jury might have reached a verdict on count 5 based on acceptance that the indecent assault occurred at different times.

Count 5

The Crown submitted that the inconsistencies in the child's evidence should not be overstated, and that the child generally had difficulty placing incidents within a particular time frame. The inconsistencies in the child's evidence with respect to the timing of count 5 were not addressed with the child in any detail during cross-examination. In spite of those inconsistencies, both parties at trial had no difficulty treating the child's evidence as describing the same incident. The Crown also sought to distinguish R v Kennedy [2000] NSWCCA 487 on the basis that time was not of the essence or critical to the proof of the charge alleged in this case.
The Crown was permitted to play two extracted clips of the JIRT interviews where the child made certain hand gestures to describe the sexual conduct of counts 3 and 5. Mr Dhanji did not object to the clips being played. The Crown described the actions made by the child's in relation to count 5 thus: "… initially, the child taking a pen and drawing something on the piece of paper and then when asked again putting the pen down and using his fingers in a grabbing or pinching motion coming from vertically above down to the page in an up and down motion …" The Crown then directed the Court to a picture that the child had drawn of count 5 which, in the Crown's submission, was consistent with child's description of the indecent assault.

Count 3

The Crown submitted that the child's account of the incident should be regarded as credible given the natural way in which the narrative unfolded. The detail in the child's account that the applicant had grabbed his hand and "actually spread my hand out to go on it" suggested the child was remembering an incident that had occurred. The Crown pointed to the child's description of the applicant's penis as "Hard. Hard. Weird and hard" as strong indication that the child had experienced the incident. The Crown also submitted that the child's gestures in describing count 3 were consistent with the sexual conduct alleged. A clip of the child describing count 3 was played and the Crown summarised the child's actions thus: "… an initial gesture using the pen with the hand wrapped with the fingers around the pen lightly and then a second gesture that … holds the pen away from the fingers as a prop held in a horizontal position and then the fingers going towards the tip of the pen being held out from the top in a grabbing or clawing type motion".
The Crown submitted that little weight should be given to the inconsistencies in the child's evidence as to the duration of the assault or the time of the day when the assault took place. The child had demonstrated a lack of capacity to estimate the time and did not have regard to a clock. The Crown submitted that due regard should be given to the child's recollection that the incident took place when he had an Xbox, which places the incident after 2013.
In relation to the child's inconsistent statements as to whether his stepbrother was in the room at the time of the incident, the Crown submitted that the evidence was drawn to the child's attention during the second pre-recorded evidence, and the child confirmed that his stepbrother was in fact running out of the room. This evidence was also consistent with the child's drawing of the incident in exhibit 7 (which showed his stepbrother running). In relation to the child's delay in disclosing the assault, the Crown submitted that the questions asked during the first JIRT interview were not framed in a manner that would necessarily elicit a response, and that the interview had ended abruptly without the child's memory being exhausted. The Crown submitted that the child's explanation that he did not tell his mother about the incident because he felt shy and because the applicant had warned him not to tell ought to be accepted.

Inconsistency of verdicts

The Crown submitted that the different verdicts reached in this case were not inconsistent with the jury's finding of guilt for counts 3 and 5. The Crown submitted that the jury had come to the logical and rational conclusion that there was insufficient evidence to convict for each of those counts.

Ground 1A

In response to the alternative ground of appeal, the Crown submitted that the Crown Prosecutor in his closing address had made clear that count 5 was anchored in the single incident that occurred in the child's loft bed when his mother was at the gym. The trial judge in her summing up gave the direction that the jury "must not substitute the evidence of the other acts for the specific allegations contained in the charges on indictment". The jury could not have understood the inconsistencies in the child's evidence as representing some other factual basis upon which to convict the applicant. The Crown thus distinguished the facts of this case from Lane v The Queen. It was submitted that: "Quite unlike the circumstances in Lane, the Crown did not go to the jury on the basis that there were two possible factual bases upon which the jury could convict. Rather, the Crown treated the evidence of the complainant as having described a single incident, albeit that the Crown acknowledged that the complainant had given different descriptions of the time of day at which the incident had occurred."
The Crown added that the failure to take the point at trial indicated that the point was not considered to be important, supporting the absence of any miscarriage of justice. The Crown submitted that there was nothing to suggest that the jury might have regarded it as open to them to convict on count 5 other than on the basis described in the first JIRT interview. Further, insofar as the complainant's evidence could be regarded as identifying a second incident on the loft bed, the primary judge's directions on context evidence were sufficient to prevent that evidence from being used impermissibly.

This Court's jurisdiction

At the time of hearing this appeal, and so far as I am aware to date, a conviction has not been entered in respect of counts 3 and 5. The right of appeal conferred by s 5 of the Criminal Appeal Act 1912 (NSW) provides that "a person convicted on indictment may appeal under this Act to the court … with the leave of the court".
The jury's verdict is distinct from the conviction. In NH v DPP (SA) (2016) 260 CLR 546; [2016] HCA 33, French CJ, Kiefel and Bell JJ explained the distinction at [76]-[78]: "The verdict of a jury in a criminal case is not the judgment of the court. The judgment of the court is that of conviction or acquittal entered upon acceptance of the verdict. … The juristic character of a verdict is a collective act of the jury as a decision-making body even when their decision is not unanimous but by majority. It can only be done by the jury assembled as such. A guilty verdict reflects a collective finding that all the facts necessary to establish the guilt of the accused, according to the law as directed by the trial judge, have been proven beyond reasonable doubt. Taken by itself, the verdict imposes no liability. It has, however, a legal consequence, which is a judgment of conviction. That is the legally effective act of the trial judge."
This Court held in R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407 that there was jurisdiction to hear and determine a question of law submitted by the trial judge under s 5A of the Criminal Appeal Act, which provided for the submission of "any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal". A jury had returned guilty verdicts but the trial judge was unwilling to sentence because he took the view that the counts on the indictment did not disclose an offence at law. This Court rejected the submission that there had been no "conviction" for the purposes of s 5A. James J, with whom in this respect Rothman and Harrison JJ agreed, referred to the multiple meanings of "conviction". His Honour noted that Barwick CJ had said in Griffiths v The Queen (1977) 137 CLR 293 at 301-302; [1977] HCA 44 that generally "the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction", and that Aickin J had written to the same effect at 334. In reaching that view, James J was quite conscious that when a person has been "convicted" turns very much on the context in which the statement is made. His Honour cited the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, where the point was made at 507: "The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur: 'The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.'" (emphasis added)" (footnotes omitted).
I am satisfied that this Court should apply the same approach to s 5 as was applied in R v MAJW to s 5A(1). No submissions were put to the contrary, but naturally it remains necessary for the Court to be satisfied of its jurisdiction: Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [9]. In order to explain why, it is convenient to reproduce s 5(1)(a), 5(1)(b) and s 5A(1): "5 Right of appeal in criminal cases 5(1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal ... ... 5A Point of law stated by judge (1) The judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination, and such submission shall be dealt with as if it were an appeal under section 5."
There is a close correlation between the right of appeal "against the person's conviction on any ground which involves a question of law alone" in s 5(1)(a) and the power to submit a question of law arising at or in reference to such trial or conviction in s 5A(1), not only textually, but also because the latter subsection provides that "such submission shall be dealt with as if it were an appeal under section 5". It would be strange if only s 5A(1) but not s 5(1)(a) were available following a verdict and in the absence of a formal conviction. It would also be strange if a jury's verdict were sufficient for s 5(1)(a) but not sufficient for s 5(1)(b), since those two paragraphs are together intended to cover the field. Constructions which yield improbable or capricious results are to be avoided on settled principles of statutory interpretation: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26. Finally, I am far from being persuaded that any aspect of the reasoning in R v MAJW is plainly wrong, and I note that the same conclusion has also been reached (although once again, without the benefit of submissions) in Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 at [3] and Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [11] and [118].
Hence I conclude that the right to appeal "against the person's conviction" in s 5(1)(a) and (b) of the Criminal Appeal Act 1912 is available when the jury has returned a guilty verdict, even if no further steps have been taken to record a conviction or sentence the person. Accordingly, this Court has jurisdiction to hear and determine the appeal.

Ground 1 - applicable principles

The importance of the jury in determining guilt has been consistently emphasised and recently confirmed in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53. The High Court said at [65]: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ... Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (Footnotes omitted)
It is uncontroversial that an appellate court in determining whether a verdict is unreasonable must first give due weight to the advantage of the jury before independently assessing the sufficiency and quality of the evidence: M v The Queen (1994) 181 CLR 487 at 493, 494-5; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]. That said, the court must carry out its own independent assessment of the evidence, as the High Court said in M v The Queen at 492.
The class of case into which, on the applicant's submissions, the jury's guilty verdicts fell, was described in Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56 by Gaudron, McHugh and Gummow JJ: "It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
It has been said that an appellate court will not readily set aside a guilty verdict on account of inconsistent verdicts: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]-[219] and [224] (Wood CJ at CL); R v NEK [2001] NSWCCA 392 at [24]; R v Bonat [2004] NSWCCA 240 at [106]; McCann v R [2014] NSWCCA 79 at [19], and that it should not immediately be assumed that a difference in verdicts inevitable demonstrates a want of credibility in the complainant's evidence: Allan v R [2017] NSWCCA 6 at [84].
An appellate court faced with inconsistent verdicts must attempt to reconcile the verdicts, allowing it to conclude that the jury had adequately performed its functions: Mackenzie at 367. In this exercise, "the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals": R v TK (2009) 74 NSWLR 299 at [128] per Simpson J (McClellan CJ at CL and Latham J agreeing). If a rational explanation for the acquittals can be found, without casting doubt over the complainant's credibility, then the verdicts are not unreasonable: R v TK at [128], [130].

Consideration of ground 1

In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness's testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred.
Thus, it has commonly been stated that there is no necessary unreasonableness for the jury to accept some inconsistencies in the complainant's evidence. As McHugh J observed in M v The Queen at 534, "[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events". Recently, in Palmer v R [2018] NSWCCA 205, Basten JA said (with the agreement of McCallum and Bellew JJ) at [51]: "At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another."
In the particular case of sexual offences, Johnson J said in Tonari v R at [192]: "victims of sexual assault do not necessarily respond in ways that accord with some mechanical or pre-determined view as to how a victim should respond."
There were many inconsistencies in the child's evidence. They were prominent in the series of "worrying features" which Mr Walsh (who appeared for the applicant at trial) enumerated in his closing address to the jury. And they were acknowledged and addressed by the Crown. In short, the inconsistencies relied upon in support of the applicant's appeal were not only obvious on the face of the child's evidence, but they were also emphasised to the jury in closing address by both Crown and defence. This is a case where the jury in discharging their function could not but have evaluated the inconsistencies which had been drawn to their attention in order to determine whether the Crown has established the elements of the offences to the criminal standard.
Take for example the inconsistency at the forefront of the applicant's challenge to the verdict on count 5, namely, whether the incident occurred in the morning or the evening. The child was unsure when it occurred. As noted above, his evidence in the first JIRT interview was: "Q429 Do you know about what time, night-time it was? A Mmm, it was, it was about, it was like in, in the, in the morning or something. No, not in the morning. Um, at, like, I don't know. I forget."
Of course, the members of the jury were entitled to assess the child's evidence in light of his acknowledged uncertainty as to whether the incident took place in the morning or the evening. He plainly did not have a clear and distinct recollection of when he remembered the incident had occurred. But the fact that a witness is uncertain as to the time at which an event occurs does not necessarily detract from his or her recollection that the event did indeed occur. Indeed, it is a matter of common experience that sometimes a witness who candidly accepts that he or she has a poor memory of one or more details is, for that reason, all the more compelling and convincing as to what he or she can recall.
The position would be different if the child had originally claimed a clear recollection of time, only later to withdraw to uncertainty. But that was not this case.
These matters, which are matters of ordinary experience, was laid out before the jury. For example, the Crown addressed the jury on one aspect of the child's uncertainty as to time as follows, in connection with count 5. The jury was referred to the evidence that the child was trying to sleep, but added: "But then he says that he thought it was - his mother was at the gym but then he thought it was in the morning. So there is some confusion about the time. And he said: 'In the morning or something. No, not in the morning. Um I don't know, I forget.' So members of the jury, he is confused about the time. But the Crown submits that you could accept [the child] knows these things about this incident. He knows he was alone in that bedroom with the accused and no one else was in there. He knows he was in his bed trying to go to sleep. That is what you do in a bed, you might think. He knows what happened in that bedroom, that is that the accused was pulling up his penis over his clothes. He has not wavered from that. From what the accused says the accused did. So the Crown says you could accept that that incident occurred as he said it did."
The defence likewise drew attention to the discrepancy. After repeating the evidence, counsel said: "Yet when I asked him in cross-examination, she is not in the gym she is in bed just about to wake up. So is this at night time or is it in the morning?"
The trial judge's summing up makes it plain how obvious the inconsistencies must have been at trial: "And you recall how sometimes he did have difficulty understanding questions because it was obvious he did not understand time and some concepts like that. The Crown says that you consider the way he gave evidence, the questions he has asked, his level of understanding those questions and that a child of eight or nine has not fully developed his understanding of the concept of time."
I see no difficulty in the jury accepting the evidence of a witness who was uncertain as to timing but clear as to the fact of the indecent assault. The child gave what I would regard as clear testimony of the two indecent assaults occurring, and drew pictures describing himself and the indecent assaults made by the applicant. In that respect, there is a ready explanation for the acquittals on counts 4, 10 and 11, which were not the subject of such pictures. It was open to the jury to accept to the criminal standard the child's recollection of the events he described in words and pictures, notwithstanding the applicant's testimony to the contrary, and there is no inconsistency with the jury's guilty verdict on counts 3 and 5 and what was entirely plain, namely, that the child had a poor comprehension and recollection of time.
Understandable prominence was given during the applicant's submissions to the inconsistent evidence as to time because the other matters (such as the location of the child's stepbrother) were, with one exception, more peripheral.
Insofar as the applicant relied on the inconsistent evidence as to whether the child's mother was in the house or at the gym, this goes no further than the child's uncertainty as to the timing.
Insofar as the child had a very limited and inconsistent recollection of when he told his mother, once again I see no reason why that prevented the jury from accepting his evidence that the events described in fact occurred. The same is true of the location of the child's stepbrother.
As the applicant submitted, part of the child's pre-recorded evidence diverged from what he had said in his JIRT interviews, so that, in a sense, the child did not "come up to proof" when giving his sworn evidence. But for the reasons already given, that way of putting the submission takes the matter no further.
One aspect of the evidence relating to count 3 falls into a different category. The applicant emphasised the inconsistent evidence as to how long the child's hand was touching the applicant's penis. It will be recalled that the child originally said "he grabbed my hand and actually forced it to go on his doodle. But that was only for, like 1 second" (A 427 in the second JIRT interview at 10.52am) but then, when he was asked "how long did he force your hand on his doodle for" the child answered first "6 minutes" and then "7 minutes" and then "I dunno. Just say I don't know" (A 458 at 11.00am).
This evidence went directly to an element of the indecent assault charged in count 3. However, I would not conclude that it detracts from the jury's verdict. Telling against the applicant's submissions are the following matters. 1. First, the discrepancy was highlighted in the defence closing address: "Duration of the incident. He then says at page 45 that the accused had his hand on his penis for six or seven minutes. So it goes from a second to six or seven minutes." 1. Secondly, as the Crown submitted there was on the face of the child's evidence an obvious reconciliation between the times, because they were directed to two quite different things: the one second referred to the actual forcing of the child's hand onto the applicant's penis, while the 6 minutes or 7 minutes related to the time during which his hand was on the applicant's penis. 2. Thirdly, the jury was required to assess the child's evidence as a whole. Immediately after giving the answers of "6 minutes", "7 minutes" and "Just say I don't know", the child drew a picture of what occurred on which unequivocally showed his hand on the applicant's penis, which he described as "Hard. Hard. Weird and hard", and he then described using his own hand and a pen what was described by the Crown as: "an initial gesture using the pen with the hand wrapped with the fingers around the pen lightly and then a second gesture that uses - holds the pen away from the fingers as a prop held in a horizontal position and then the fingers going towards the tip of the pen being held out from the top in a grabbing or clawing type motion".
This portion of the video-recorded interview was shown to the Court, because the transcript could not disclose the child's gestures. It was open to the jury to accept the child was giving an accurate account of what the applicant had done.
The ultimate submission, as framed by the applicant, was that this Court when it looked closely at the evidence and formed its own independent assessment of it would have some doubt, being a doubt which was not capable of being resolved by the advantage enjoyed by the jury. That submission is not made out. The child had described the applicant doing the acts which comprised counts 3 and 5, including using language which is inherently plausible, and he had drawn diagrams of what he was describing. The jury had the benefit of seeing the child give that evidence over some hours. Neither the fact that the jury was not satisfied beyond reasonable doubt of the other counts, nor the inconsistencies in the child's evidence, stands in the way of the jury's acceptance of the applicant's guilt on counts 3 and 5. I do not accept that the matters advanced by the applicant give rise to a doubt which cannot be resolved by the advantage enjoyed by the jury. I also agree with McCallum J's comment about the quality of the child's evidence.
While there should be the requisite extension of time and grant of leave, this ground is not made out.

Consideration of ground 1A

I do not accept that there was a real prospect that the jury reached a guilty verdict on count 5 on a basis which may have involved some being persuaded that the incident occurred in the morning, and others in the evening. That is because, as the Crown submitted, this was simply not how the trial was run.
In closing address on ground 5, the Crown accepted that the child was confused about the time. But there was no good reason to understand that the jury might have been confused as to which incident the child was speaking, which was anchored in the Crown's submission to the diagram which became exhibit 3. The question for the jury was whether they were satisfied to the criminal standard that the child was to be believed that the applicant did what the child described, by reference to exhibit 3.
The trial judge summed up count 5 as follows: "In relation to Count 5 was the second diagram in your bundle Exhibit 3 and that relates to when his mum was in the gym and the accused came in and pulled his penis over his clothes for three minutes. So that is the touching on the outside of the clothes, and if you accept what [the child] says then it was a deliberate touching because he described it for you. You might think three minutes is a long time. It was not an accident and it was indecent and it was pulling the child's penis. Then she took you through some more of the interview but I will not go through all that. Again Madam Crown submits that he may be confused about times but if you accept [the child] knows these things about the incident, he knows he was alone in the bedroom with the accused and no one else was in there, he knows he was in his bed trying to go to sleep. And he knows what happened in the bedroom."
Although there was uncertainty as to time, there was no suggestion that there were two incidents. Understandably, it was not put on behalf of the defence that the child might have been referring to two separate incidents, one in the morning and the other in the evening. Indeed, to the contrary, at trial, Mr Walsh emphasised the child's inconsistent answers as to whether his mother was at the gym and whether it was at night time or in the morning. His point in doing so was that this was another "worrying feature" which, in his submission, would lead to an acquittal. The force of that submission turned on there being a single incident, as to which the jury could not be satisfied to the criminal standard based on the child's evidence.
Further, the fact that no such direction was sought by the experienced solicitor who conducted the defence, and indeed the fact that this ground was only formulated shortly before the appeal was heard, tend to confirm its unreality.
The foregoing is sufficient to lead me to reject the applicant's submissions on this ground. There is however one final matter on this ground, which was not the subject of submissions. It is that there may have been good reasons for the applicant not to seek a unanimity direction from the primary judge. The premise of such a direction would be that there was evidence capable of leading the jury to find that there had been an indecent assault in the morning and in the evening. That would have been antithetical to the main thrust of the defence, which was that the evidence was so uncertain and inconsistent that the jury could not be satisfied to the criminal standard that any of the indecent assaults or sexual assaults had occurred. However, in light of the absence of submissions on this point, I have not relied on it.
I am not persuaded that there has been shown to have been any real prospect of a miscarriage of justice in the primary judge failing to give a unanimity direction which had not been sought and for which there was no need. I would not grant leave under r 4 to advance this ground.

Orders

For those reasons, although there should be a grant of leave I would dismiss the appeal. I propose the following orders:
Extend the time for the filing of a notice of appeal until 12 July 2018.
Grant leave to appeal on ground 1.
Refuse leave to appeal on ground 1A pursuant to r 4 of the Criminal Appeal Rules.
Dismiss the appeal.
McCALLUM J: I agree with the orders proposed by Leeming JA, for the reasons his Honour has stated. The only comment I would add is that the child's account of the two offences was inherently plausible for the additional reason that a child of that age could not readily explain acts of that kind from imagination; he gave every impression of describing acts he did not fully understand but which he had actually experienced. In my assessment, that is a more compelling indication of reliability than the existence of inconsistencies as to surrounding detail.
BELLEW J: I agree with Leeming JA and with the orders his Honour proposes.

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