CLC v R

Court of Criminal Appeal (NSW)|2015-08-21|Before: Basten JA, Wilson J, Hulme AJ, Ms J

Judgment

BASTEN JA: In November 2013 the applicant was convicted of four offences involving one complainant, being his step-granddaughter. The four charges arose out of two incidents which were alleged to have occurred between 1 January 2009 and 4 September 2009. The applicant sought leave to appeal from those convictions on the sole ground that the verdict of the jury in respect of each charge was unreasonable and cannot be supported, having regard to the evidence. [1]
The application was not limited to a ground which involves a question of law alone and hence leave was required. [2] Leave was not opposed and should properly be granted. The grant of leave depends not only upon the concession by the Director of Public Prosecutions, but also on two further factors. First, a charge of aggravated indecent assault against a young child can (and did in the present case) raise serious questions as to whether the evidence of the child alone was sufficient to support a conviction on the criminal standard of proof. Secondly, the case raised a procedural question as to whether it was necessary or appropriate for this Court to view the video recording of two police interviews with the complainant which constituted her evidence in chief.
In these reasons the applicant has been anonymised and the name of the complainant and family members omitted to ensure compliance with the prohibition on the publication of information identifying persons who are, or were at the time of the offending, under 18 years of age. [3]

Hearing of appeal

The applicant's written submissions filed prior to the hearing of the appeal included a detailed analysis of the evidence of the complainant in her first interview, inconsistencies between her first and second interviews and references to the explanations given by her in cross-examination at trial, which were said to be unpersuasive. In the course of argument, the Court noted that it might have a difficulty in assessing the evidence of the complainant, based solely on the transcript in order to determine whether the jury could and should have accepted her evidence as sufficient to establish the charges beyond reasonable doubt. Counsel was asked whether the Court should view the video recordings of the interviews. [7]
Although counsel did invite the Court to view the video recordings, he expressed some hesitation with respect to the cross-examination of the complainant. Forensically, that hesitation was understandable: by the time she gave evidence at the trial she was well into her fourteenth year and the transcript suggested a degree of care and maturity which were not apparent from the first interview. The Court also raised with counsel the discussion as to the appropriateness of viewing video recordings in the judgment of Simpson J in SKA v The Queen, [8] together with the observations of the High Court on a further appeal in the same matter. [9]
Following the hearing, counsel for the applicant filed a short note in effect withdrawing from his position in the course of argument and stating that he did not seek to have the Court view either of the interviews or the recorded cross-examination of the complainant. Counsel for the Director adopted the same position, submitting that the appeal could be determined by reference to the transcript of the interviews and the trial.
It is appropriate in the first instance to deal with the appeal on the basis proposed, namely by reference to the transcript alone. However, for reasons which will be explained below, I do not think that, at least in the circumstances of this case, the matter should be allowed to rest there.

Challenge to complainant's evidence

The written submissions identified the grounds of complaint as falling within seven separate categories, described as follows: 1. the inconsistencies within the first JIRT interview; 2. the general nature of the complainant's response to questions about specific incidents during the first JIRT interview; 3. the inconsistencies between the first and second JIRT interviews; 4. the apparent ability of the complainant to remember things at trial in 2013, which the complainant claimed to be unable to remember in 2009 or 2010; 5. the nature of the complainant's responses to questions at trial which bring into doubt the reliability of her evidence at trial more generally; 6. the claims made by the claimant which were proven to be inaccurate, and 7. the inconsistencies between the evidence of the [claimant] and that of her mother and her adult neighbour, Rachel, concerning what the complainant told her.
It is convenient to deal with the matters in the order in which they were raised, dealing separately with (a) the first interview, (b) the second interview, (c) the trial and (d) other alleged inconsistencies and inaccuracies.

(a) the first interview

Forensically, it was convenient for the applicant to isolate and, to an extent, compartmentalise the different aspects of the evidence. That course was not entirely artificial: it reflected the order in which things occurred at the trial. Nevertheless, the jury must ultimately have seen each part in context. Thus, quite properly, they would have considered the evidence given by the complainant in the first interview having regard to her mother's evidence as to how the interview came about. The interview took place on Tuesday, 8 September 2009. The mother's evidence was that the complainant told her on the morning of Friday, 4 September 2009 as they were preparing to go to school the substance of what had happened with her grandfather. She also gave evidence that she spoke to her ex-husband on that day and they both went to the police station. She gave evidence of her distress.
The prosecutor then took her to the following Monday (7 September) and elicited evidence that she had spoken on that day with her neighbour, Rachel, and also again with the complainant, who had told her "a little bit more about what happened" and "said that she told Rachel that she hates it when he goes on her." [10] The next day she took her daughter to the police station.
The cross-examination of the mother focused on a statement that she had made to police on 9 September 2009 in which it was suggested that in the first conversation the complainant had told her that "her grandfather touched her rude part, but nothing about [the complainant] telling you her grandfather kissed or put his mouth on her rude part". [11] It was also put to her that, in her statement on Wednesday, 9 September, she had said she had overheard a conversation between the complainant and Rachel two days earlier in which the complainant had said to Rachel "I hate it when Gang-gang goes down on me." [12] The cross-examiner suggested that it was most unlikely that she had ever heard the complainant use the expression "go down on me". It was also put to her that, as regards the initial complaint, she had had to "tease it out of her" and yet the complainant had allegedly blurted a similar statement out to their neighbour. [13]
The mother was also cross-examined to the effect that she had had drug-related illnesses in 2008 and was continuing to receive treatment through 2009, with which she agreed. [14] She also agreed that she had been worried "at that time" that she might lose her children and that the complainant might wind up living with her step-father and mother. She agreed that her step-father had said something to her to the effect that if she did not "clean up [her] act" she might lose the children for good. [15] It was also suggested to her that the complainant was missing "a lot of days of school." [16] She ultimately agreed that the complainant had missed four days, being on average one day a week, in the month before the complaints to the police.
Neither party troubled to place before the Court the transcript of the addresses which might have indicated how this evidence was left to the jury. On one view counsel was hinting at a possible motive for the mother to concoct a story with her daughter in order to falsely allege sexual misconduct by the mother's step-father, so that the complainant would not be sent to live with the child's grandmother and step-grandfather. However, no express suggestion to that effect was put to either witness. In the summing up, the trial judge stated: [17] "There is one other matter, going to the possible motivation of the complainant's mother. That was dealt with just before lunch by Mr Gartelmann [counsel for the accused], and he pointed to the evidence of the psychotic episode, her illness, the worry that she might have that her daughter be taken away from her. Those matters are suggested as a possible motivation for her having her daughter make these allegations to police and explains why nine months later she has forgotten all about them."
On the appeal there was no criticism of the summing up in any respect and it may therefore be assumed that the matter was left by counsel for the accused in the way explained by the trial judge. The reference in that context to forgetting the allegations nine months later was a reference to the second police interview with the complainant. For reasons which will be explained shortly, it is quite unlikely that the jury would have treated the second interview as demonstrating such forgetfulness. The jury were correctly advised by the judge, following the passage set out above, that it was not for the accused to prove motivation. The direction continued: "It is not for the accused to establish why any complainant or indeed anybody else - including the complainant's mother - would lie or make up stories. There is no onus on the accused at all to establish such a motivation or to prove that the complainant lied. It is for the Crown to prove to you, beyond reasonable doubt, that you would accept [the complainant's] account of what happened and that account itself establishes the offences charged."
The neighbour Rachel also gave evidence. She said that she had been a neighbour of the complainant and her mother for about a year prior to September 2009, had known the children well and had babysat them and had them to stay at her place. Her daughter had played with the complainant. [18] She gave evidence that she knew the complainant's step-grandfather as "Gang-gang" because, when she was young, she could not say "grandpa" properly. Rachel stated that the complainant had said to her "Gang-gang … went down on her." [19] She agreed that the complainant appeared nervous at that time, appeared to be rubbing her hands together or wringing her hands, that her mother was not present and that she had later told the complainant's mother. She agreed that she had never heard the complainant use that language before, nor had she heard anybody say similar words in the complainant's presence. She agreed that "it seemed something out of the blue". [20]
Although it might have been open to counsel to suggest that this was a fabrication, or that other words were used, neither proposition was put to the neighbour. Despite the mother's apparent confusion as to how she came to know of that complaint, there is nothing in the transcript to suggest that the jury would have had any reasonable doubt that such a complaint was made at that time.
The first interview with the police undoubtedly involved internal inconsistencies, key aspects of which will be mentioned shortly. However, the description of the conduct complained of was consistent throughout. It was that the applicant had placed his fingers on the complainant's vagina and had placed his mouth on her vagina. There was no prevarication in that regard. She was asked whether she knew the difference between inside and outside her vagina, agreed that she did and stated that he put his fingers "outside not in my hole." She was also asked whether she had ever touched his clothing; she agreed that his clothing always remained on. [21]
The main inconsistencies related to how often these events had occurred. The officer attempted to have the complainant identify both the period in which the conduct had occurred and also particular occasions. Thus, the first exchange was in the following terms: "Q76 Now, when was the last time something happened? A About, he, he's done it, like, for weeks. Q77 Mmm. A Weeks and weeks. He, he always does it at, when we go to nan's house, at Saturday. Every Saturdays. Q78 So you go to nan's house every Saturday? A Yeah. … Q82 … So you said this has been happening for a number of weeks. OK. A Yes. Q83 So, so why don't you tell me the first time that it happened? A I don't really get it. Q84 OK. Do you remember the first time something happened? A Nuh. Q85 Can you tell me about the last time something happened? A I don't want, I don't know what you mean? Q86 OK. How many times has something happened with your grandfather? A Heaps of times. Q87 Heaps. OK. So why don't you tell me about one of the times that you remember? A I don't remember."
After inviting the complainant to go back over the circumstances in which it occurred (her playing on the computer at her grandmother's house and her grandfather coming in, telling her to place her legs wide apart and touching her rude part), the following questioning took place: "Q113 Only Gang-Gang and you. Did this happen this year or last year or something else? A Every year. Q114 It happened every year? A Yeah. Q115 So this time, this one time that we're talking about that I want to think about because I know it happened a lot of times and I want to talk to you about all the times that this has happened to you - A I don't think it's every year I just don't understand. [Some further questions involved a degree of confusion or upset on the part of the complainant.] Q120 That's OK darling. Do you remember, has this happened, these things happened this year, what year are you in [at] school? A Year 3. Q121 You're in year 3. … Did things happen when you were in year 2. A No. Q122 No. So it's happened you've always been in year 3? A Yeah. Q123 OK. What school do you go to? A Dawson Public School."
The officer then asked further questions about where the complainant would sit, the taking off of clothes, spreading her legs and touching her, with moving fingers. She got the complainant to confirm that "the rude part" was her vagina. The questioning then continued: "Q165 Your vagina. How does, how many times has he put his mouth on your vagina? A Once. Q 166 Once. A Yeah. Q167 He's done it once? A Yeah. Q168 OK. Tell me about that time, what does he do? A I don't know. Q169 That's OK. The time that he put his mouth, his mouth on your rude part, on your vagina was it before or after he touched you with his fingers? A Before. Q170 Before. …. … A And he does it for a long time. Q173 Yep. And what about the time that he used his mouth on your rude part. Tell me about that? A He sometimes does it after when he puts his hand, sometimes he does it after. … Q183 So, how, so has he put his mouth on your vagina once or more times? A More times. Q184 More times. A Yeah. Q185 OK. Now, and you said that it can happen before or after he puts his fingers on your rude part. A Yeah. Q186 … I need to know how many times do you think he has put his lips on your rude part? A Twice. Q187 Twice. A Yeah. Q188 Twice or more [than] twice? A I think more than twice. Q189 Don't really remember? A Yeah. Q190 But it's been more [than] once?"
There was more of this uncertainty, to similar effect. Nevertheless, the complainant clearly described separate incidents, when she was playing on her computer and when she was watching television in her grandmother's bedroom. It was these which were the subject of the four charges which resulted in guilty verdicts.
The applicant submitted that the complainant "did not have any real recollection of the number of alleged incidents." That proposition may be accepted: however, the language used overall in what was a reasonably lengthy interview (for an eight year old) was consistent with there being multiple incidents. On my reading of the transcript of the interview, the real difficulty that the complainant had was in isolating one particular occasion in her mind and focusing upon it. The confusion appeared to result from her description of the conduct as repetitious, which led to the questioner seeking to have her identify one particular occasion. That she had difficulty in separating out one specific occasion did not suggest to me (on a reading of the whole transcript) that there was any doubt that the conduct as described occurred on a number of occasions.
The complainant had been told by the applicant that it was a secret between them and that she should tell no one, not even her mother. (That was evidence which was not challenged in cross-examination.) The neighbour gave evidence in cross-examination that the complainant was nervous when she spoke to her about what her grandfather did to her; her mother gave evidence, also unchallenged as to the detail, that when her daughter revealed her secret, she was worried that she would not be believed, [22] and that she might get into trouble. [23]
Towards the end of the first interview, the questioner asked a number of general questions about the circumstances in which the conduct had arisen, including where other people were in the house. She then returned to a very general question which resulted in the following evidence: "Q271 Has Gang-Gang ever done anything else? A No but sometimes Mitchell [a 13 year old son of the applicant] comes in and Gang-Gang, Gang-Gang tackles me and Mitchell and we're playing and sometimes Gang-Gang and Mitchell's gone and Gang-Gang comes and Gang-Gang still like on me and then he sometimes goes into my rude part while no one's looking. Q272 OK. When did that happen? Do you remember a time when that happened? A Nuh. … Q276 OK. And you were tackling and where were you, where were you - A We were tackling on the bed. Q277 Which bed? A My nan's bed. … Q279 Yeah and then what happened? A And then, and then Gang-Gang tackles us. He takes his glasses off and he tackles me and Mitchell and sometimes tickle us. Then Mitchell goes and shuts the door and then Gang-Gang goes, I'm here and he's on me tackling me and then he touches my rude part. … Q281 … Does he touch you on top of your clothing or underneath your clothing or something else? A Underneath. Q282 Underneath. So what did he do this time, did he pull your pants down - A Yeah. Q283 - or did you pull them down. A He didn't put my pants down he just, just went inside."
This evidence constituted the third incident, the subject of the fifth count. It was the evidence which was not accepted beyond reasonable doubt by the jury, which unanimously acquitted of this charge. There were reasons, noted below, which would be sufficient in themselves to explain such a doubt; however, I would have entertained a reasonable doubt, on the basis of the transcript alone, the incident being quite different from others described by the complainant in the previous questioning and coming, almost as an afterthought, at the end of a long interview. In addition, the conduct, which appeared to describe a passing episode which may have been quite short, did not necessarily entail a deliberate offence of the kind described elsewhere.

(b) the second interview

The second interview took place some 10 months after the first; it was conducted by a different police officer, Constable Justine Wilson, although Senior Constable Greig was in the recording room and able to communicate with the officer undertaking the questioning. Having due regard to the proper limits on leading questions in the course of a police interview with a complainant, it is nevertheless difficult from reading the transcript to identify the purpose of the interview. The applicant relied upon the fact that the complainant, at the trial, agreed with the proposition: "You knew that you were going there to talk about what you say your grandfather did to you, didn't you?" No doubt that was true, but what she would actually expect to say would depend upon what questions were asked of her. There is no evidence that she was given any clear indication as to the purpose of the interview, nor, for example, whether (and if so why) she was expected to repeat what she had already told the police in some detail and which had, to her knowledge, been recorded.
There were two occasions where the questions appeared to invite attention to specific matters which had arisen in the first interview, and it will be necessary to refer to them shortly. However, the primary focus of the applicant's case was the failure of the complainant to repeat the allegations which she had made during the first interview. This was said to be revealed by the evidence she gave at trial.
In cross-examination counsel for the applicant explored in some little detail the questions which had been asked by Constable Greig at the first interview. She was then taken to the second interview and, having identified that she had watched and listened to the recording, the following exchange took place: [24] "Q. You heard that Justine asked you about when you were in your Aunt Jesse's room and on the computer, didn't you? A. Yeah. Q. You didn't say anything to Justine about your grandfather touching you when you were in Jesse's room on the computer to Justine, did you? A. No. Q. Did you forget what you'd told Emma about what your grandfather did in Jesse's room? A. I think so. Q. But if your grandfather had touched you on your rude part as you called it in Jesse's room when you were on the computer, you wouldn't forget about that, would you? A. No."
The precision of those questions did not properly reflect the meandering nature of the questioning in the second interview. There simply was no question which would readily have given rise to a repetition of the complaints about her grandfather. The nature of the questioning at the second interview can be inferred from the following exchange: "Q32 … So when you spoke to Emma [Constable Greig] last time, you said that you were in at your grandfather and grandmother's place, where's that? A Um, Mt Druitt. … Q34 O.K. So you were playing the computer. A Yep. Q35 Where were you playing the computer? A Um, in my auntie's room, Jess, my auntie's room, Jess. Q36 O.K. And what were you playing on the computer? A Ah, this will kind of be embarrassing but playhouse …. … Q39 O.K. Is that on your auntie's computer or is it on the internet through your auntie's computer or something else? A Yeah, yeah, internet. … Q42 … So when was that? A Um, ages ago but I don't really remember and I always go, um, to my Nan's house on Saturdays. Q43 O.K. So you always go to your Nan's house on Saturdays. So that day when you were in your auntie's room playing the computer - - - A Yeah. Q43 --- who else was in the house? A Um, my mum and my little baby brother, …. was talking to my Nan and [the applicant], he was at work, he was at work - - - … Q47 … So what sort of time of day was this? A Um, I think it might have been in the, yeah, it was in the afternoon. … Q52 … So that day you were playing the computer - - - A Yeah. Q52 --- before you went to Grandmother's house and played the computer - - - A Yeah, yeah. Q 52 - - - what were you doing that morning? A Um, I [was] at my mum's house and I was having breakfast and Daniel was having Weetbix …. Q55 So is this what usually happens or what you remember happening that morning? A Yeah, that's what I remember was happening in the morning. … Q59 … Emma, do you want me to try and get closer or O.K., all right. So that was that day. O.K. So there was a second time that you told Emma about, O.K., and you were watching television. A Mmm. Q60 Do you remember that incident? A Um, no. Q61 No. O.K. So whereabouts at your, are they grandma and grandpa …"
The questioning then led into the time she had spoken in her first interview about watching television in her nan's room. The idea that any of the foregoing questioning would have reasonably led the complainant to think she was being invited to repeat what she had said in the first interview would be fanciful. Her failure to do so did not diminish the cogency of her descriptions in the first interview.
Returning to the trial, counsel for the applicant then raised a different topic: [25] "Q. I want to ask you now about when you talked to Emma about when you were in your nan's room watching The Simpsons on TV. Do you understand that? A. Yeah. … Q. You told Emma that your grandfather touched you when you were in your nan's room watching The Simpsons on TV four or five times, didn't you? A. Yes, I think so. Q. I want to ask you now about what you told Justine about when you were watching TV at your grandfather's house. Do you understand that? A. Yeah. … Q. You heard Justine ask you whether you watched The Simpsons on the TV in your nan's room. You heard her say that? A. Yes. Q. Did you hear yourself say you didn't think you watched the TV in Nan's room? A. Yes. Q. You said you watched The Simpsons on TV in the lounge room, didn't you? A. Yes. Q. So when you spoke to Justine and she asked you about watching The Simpsons on TV in your nan's room did you forget what you'd told Emma about that? A. Yes. Q. But if your grandfather had touched you while you were watching The Simpsons on TV in your nan's room some four or five times, surely you wouldn't have forgotten about that. A. Yeah."
The questioning in the second interview on this topic went as follows: "Q59 … So there was a second time that you told Emma about, O.K., and you were watching television. A Mmm. Q60 Do you remember that incident? A Um, no. Q61 No. O.K. So whereabouts at your [sic], are they grandma and grandpas, grandfather, grandmother, Nan and pop? A My, um, Nan and grandpa. Q62 … So at your Nan and grandpa's place - - - A Yeah. Q62 - - - where are the TVs? A Ah, the um, [t]he lounge, these are the, um, that's the lounge room and the TV will be just right there …. … Q65 Are there TVs anywhere else? A Um, there's on, my, uncle's room that's - - - … Q67 All right. Any other TVs? A Ah, I don't think so, no. Q68 No. Is there a TV in your Nan and grandpa's room? A No. Q69 No. A Ah, actually, yes, there's one, yeah, there's just a small one near, um, their desk. … Q71 So last year you told Emma that you were in your Nan and grandpa's room watching television. A No, no, not in my Nan's room. Q72 No, not in your Nan's room. What do you mean by that? A I, I don't think I was my Nan's room, I don't think so. … A 'Cause there's lots of TVs and I don't know, I just don't remember very much. Q74 … You told Emma that you were watching the Simpsons. A Yep. Q75 Yep. Do you remember where you were watching the Simpsons? A I was watching the Simpsons in the lounge room where that TV was I told you. … A And then after the Simpsons I would like have, um, dinner at 7.00, I, I think I have dinner at 7 o'clock and sometimes we have dinner there and sometimes we don't. And, um, after dinner, I might ask my Nan if it's all right to play in Jessie's, on Jessie's computer. Q77 Ah hmmm. A And I'll play lots of games."
This questioning was a little more likely to have elicited a repetition of the description of her grandfather's conduct, but it did not do so. It is apparent that, by this stage of the questioning, the complainant appeared to think that the questioner was seeking general background information about practices and places. There was no reason apparent from the transcript why she would think otherwise and even if there were such a reason, it can hardly be said that her credibility was significantly affected by her failure to understand what was being sought, a failure which was entirely excusable.
The second interview turned to two matters which were identified with some specificity and on which significant reliance is placed by the applicant. In the first interview, when seeking further detail, Constable Greig had elicited that the applicant would put his finger on the complainant's lips (presumably to indicate that she was not to tell anyone), the questioning continuing: "Q293 OK. So he doesn't do anything else? A Nuh. … Q295 OK. So he only stops because you tell him to stop? A And he, and he does, and he does, Wanna have a little tickle one, he says that. Q296 What does he say? A Little mouse, he says, Want a mousey, mousey. That means like a mousey call like pretending that he's a mouse and crawling up my vagina. Q297 OK. So that's how he says to you, is that, Mousey, mousey. Is that what he calls it, does he say that every time? A Yep. … Q300 And you know what that means. A Yeah. Q301 What does it mean? A It means do you want a tickle up your, up, down your rude part."
In the course of the second interview, immediately following the passage extracted at [37] above, the questioning continued: "Q78 … There was a time that you told Emma about when you were playing mousey mousey. A Yeah. Q79 And you'd just watched the Simpsons or you were watching the Simpsons or something like that. A Yeah. Q80 Do you remember that time? A I don't think I was playing, what, what was mousey mousey, I don't think I was playing that. Q81 You don't think you were playing that. O.K. All right. One of the times that, so, all right, last year when you came in and spoke to, get myself comfortable, when you spoke to Emma - - - A Yeah. Q81 - - - do you remember the sorts of things that you talked to her about? A Um, not much."
In the course of cross-examination, counsel for the applicant noted her failure to connect the phrase "playing mousey mousey" with what she had said in her first interview. The same point was made on appeal by way of a submission that there was a significant inconsistency, suggesting that what she had said in her first interview was untrue.
It might be inferred from the transcript of the second interview that she had not seen or heard the recording of the first interview, or seen a transcript of the interview. One problem with the second interview was that the questions were directed to her recollection of what she had said in the first interview: it would have taken a significant jump on her part to appreciate that what was sought (if it were indeed being sought) was a description of her grandfather's conduct. Secondly, the questioning would often switch from recollection of what had been said in the first interview to the present tense - "are there TVs anywhere else?" Thirdly, and with respect to "mousey mousey", it is tolerably clear from her answer that she thought it was a computer game. At the very least, the question asked about a game "you were playing", not a game her grandfather was playing. If, as seems palpably clear, the questioner and the complainant were at cross-purposes, her failure to connect with the earlier statement in her first interview did little damage to her credit.
The fourth and final passage in the second interview on which reliance was placed was more explicit. After some questions asked in the present tense about watching television, the questioning switched to the following topic: "Q89 … So you also told Emma about an incident when you were wrestling with your grandpa and Mitchell. A Yeah. Q90 And where were you guys wrestling? A Um, on, um, his bed and my Nan's bed. …. Q93 O.K. And what time were you guys wrestling on the - - - A I didn't, I didn't know, I don't know. Q94 You didn't know. O.K. So do you guys often wrestle, sometimes wrestle or something else? A Um, sometimes, um, I think my, my uncle and, um, grandpa always sometimes wrestles without me when I go and, and sometimes it's, it's the door shut and, um, and I would hear them and, and sometimes join in."
Again without leading, the questioner invited her to say whether she remembered anything else that happened. The answer is quite confusing, and it is far from clear whether she was still addressing her mind to wrestling. The answer related to something that occurred in her uncle's room (not her Nan's room) when she had accidently come close to a fan and almost hit it.
Her attention having been specifically drawn to an incident involving wrestling, of which she had spoken in the singular in the first interview, without her recalling her complaint about her grandfather putting his hand inside her pants on that occasion, might well have raised a reasonable doubt in the minds of the jury about the veracity of her evidence in regard to that incident. In any event, the applicant was acquitted on that charge. That verdict suggests that the jury was attentive to the differences in evidence with respect to the different incidents.
Not having entertained a reasonable doubt as to the veracity, reliability or cogency of her evidence in the first interview, except with regard to the third occasion of wrestling, there was nothing in the second interview which would have led me to change my assessment of the evidence as to the first two occasions.

The thrust of the cross-examination at trial was that if the incidents which she recounted in her first interview had occurred she would not be likely to have forgotten them 10 months later at the time of her second interview. The fact that she did not mention them in the course of the second interview meant that she had forgotten them. If she had forgotten them at the time of the second interview, that was because they did not occur. The cross-examiner also invited an explanation as to the inconsistencies noted above within the second interview. The cross-examination was partly as follows: [26] "Q. If your grandfather had kissed you or put his lips on your rude part you would remember if it was only once or a number of times, wouldn't you? A. I think I forgot when I was eight. … Q. When you were talking to Emma about it had you forgotten how many times it happened? A. Not sure. I think so. Q. Is it possible you had forgotten how many times it happened because it never really happened? A. It did happen, but I forgot. Q. Is it possible that when you spoke to Justine, she asked you about wrestling with Mitchell and you didn't say anything about your grandfather touching you, you forgot to say anything because it didn't really happen? A. I think it did happen and I forgot. Q. Is it possible that when Justine asked you about watching The Simpsons on TV in your nan's room and you said you didn't think you did watch TV in your nan's room, is it possible you didn't say anything about your grandfather doing anything to you there because he didn't? A. He did but I forgot."
The complainant's answers read persuasively. When asked whether she forgot things she said, "I think I forgot", or words to that effect. When asked whether things had never really happened, except for the wrestling incident, she was emphatic in her answer "it did happen" and "he did". In relation to the wrestling, she was less certain, saying "I think it did happen". This element of uncertainty with respect to the wrestling may have been the third element in the jury's reasoning in entering a verdict of not guilty on that count. In respect of the other evidence, the jury would undoubtedly have taken into account the affirmative answers as to whether the conduct occurred.
In substance, the gravamen of the contention that the evidence at trial was implausible depended upon the assumption that, at the time of the second interview, the complainant had indeed forgotten the substance of her complaints. For reasons outlined above, it is the assumption that is implausible.
Finally, there were submissions that the complainant's evidence should be seen as unreliable because of particular matters which arose in the course of the trial. The first passage relied upon related to her age, the submission set out the following evidence elicited by the judge on 5 November 2013: [27] "Q. And how old are you now? A. I'm 12 years old. Q. And when was your last birthday? A. Last year. Q. What date? A. 10 May 2001. Q. Right. So you're turning 13 next May, is that right? A. Yes."
It was said to be "immediately obvious that the answer to the second and third questions above cannot be right." Although that submission purported to make allowance for her age and nervousness, the fact was that she had stated both her birthday and her date of birth correctly. She may not have listened to the questions carefully, but that is all one can say. More importantly, the challenge has nothing to do with the jury's assessment of the complainant's credibility: the evidence was given on a voir dire, conducted for the purpose of determining whether the complainant was able to give sworn evidence.
A second passage related to the complainant's school. In her first interview she said she was attending Dawson Public School, and gave the name of her teacher. At trial, the cross-examiner, for reasons which are undisclosed, suggested that "[a]t about the time you went to talk to the police the first time you were going to a school called Colyton Public School." [28] She agreed. Shortly thereafter, counsel corrected himself and asked if it was in fact Dawson School, to which she also said yes.
The submission based on this evidence was that "the complainant may have been prepared to agree with the proposition that was put to her, simply because it was put". However, an alternative possibility was that the complainant had in fact changed schools and had forgotten which school she was attending at a particular time in 2009.
Either way, the submission was curious. The first possibility, if accepted, would remove any advantage obtained by the applicant by way of concessions she made in the course of her cross-examination. The alternative possibility might have formed the basis for some questioning about her recollection of time, but nothing was made of it and there was nothing before the jury from which the jury could draw any such inference. The challenge was without substance.
Finally, reference was made to a passage in which she was asked if she recalled what she had told the neighbour, Rachel, to which she had replied, "I think so." She was then asked to give the best of her recollection of what she told Rachel and said: "I don't know. I don't remember."
No doubt, as it was submitted, the first question was "very straightforward": however, a very straightforward question, especially one about recollection, can be difficult or even impossible to answer with precision. Her answer revealed uncertainty, which was sought to be exposed by the next question, successfully. In any event, the cross-examiner did not press further and nothing can be made of this exchange in terms of the complainant's credibility.

(d) claims proven to be inaccurate

The only claim which was said to have been disproved related to the last weekend in August 2009 (namely 29 and 30 August), which was the weekend before Friday, September 4, being the date of the first complaint to her mother. It was accepted that the applicant had an alibi for the whole of that weekend.
As has been stated earlier, the best efforts of Constable Greig had failed to identify with any precision the times that particular events occurred, other than that they occurred during the then current school year.
The final questions and answers in the first interview commenced at Q310 when the complainant was asked, "What made you decide to tell mum after such a time?" The answers given were to the effect that she no longer wanted to keep the "secret" and that she felt obliged to tell her mother and felt better for having done so. The officer returned to the question of timing, asking about the last time something happened with the applicant, "did that happen a little time before" she told her mother. [29] She agreed with that but then suggested that the reason for disclosing the secret on the Friday was that she was expecting to go back to her grandparents' place the following day. The next questions and answers, upon which the submission of inaccuracy depended, were as follows: "Q322 Did you go to Gang-Gang's and nan's the Saturday before? A Yep. Q323 Did something happen the Saturday before? A Nuh I just done what I just told you like, he put his face and - - - Q324 Yeah but did something happen, something did happen on the Saturday before last week? A Nuh. Q325 Yeah. So you told mum on the Friday, did you go to nan's the weekend before? A Yes. Q326 You did? Did, do, did, did Gang-Gang play mousey, mousey on Saturday, the Saturday before? A (No audible reply) Q327 Yeah. OK. A Every time he does it. Q328 Every time. There wasn't one weekend that something didn't happen that you didn't play mousey, mousey. A (No audible reply)"
The form of Q327 suggests that, although there was no audible reply to the previous question, there may have been an indication by way of a visible response. (I will return to that possibility below.) The final question, again to which there was no reply recorded, although nothing seems to have followed, indicated a possible degree of scepticism about whether the answer to the previous question was to be taken as literally true.
Given the previous 321 questions, and the answers thereto, and based solely on reading the transcript, I would infer that the complainant was saying that this was "always" happening, meaning, in a common colloquial form, it had had happened often. To her it was of little consequence whether it had happened two Saturdays before the interview or not. In any event, I would not read the exchange as demonstrating any intention to affirm that it happened on the last weekend in August. The charge was not directed specifically to that weekend, nor did the prosecutor contend (understandably given the alibi) that her evidence established an offence on that weekend. Relevantly, however, I would not accept the submission that an affirmative answer with respect to that weekend was intended, so as to demonstrate that the complainant was untruthful or unreliable in the rest of her statement. Apart from the evidence of the applicant to which it will be necessary to turn, and partly because of the imprecision of the complainant's first interview, there was nothing which proved any particular to be objectively erroneous.

(e) inconsistencies with the evidence of her mother and her neighbour

The inconsistent accounts given by the complainant's mother, and inconsistencies between her accounts and that of the neighbour Rachel, have already been identified. Unless, as the applicant submitted, the whole account was invented, it was clear that there had been a complaint prior to the complainant's attendance at the police station on Tuesday, 8 September 2009. The complainant stated that she had told her mother of what had happened on the Friday preceding, whilst she was making her lunch for school. She did so, in substance, because she feared going to her grandparents' the following day. It was not put to her in cross-examination that that was a lie or inaccurate. Accordingly, whatever the jury made of the discrepancies between the account given by the mother and that given by her neighbour, none of this evidence reflected poorly on the credibility of the complainant.
As has been noted, the cross-examination of Rachel did not suggest that there was no complaint, nor even that their relationship was such that the complainant was unlikely to make a complaint to her. The focus of the cross-examination was on the actual words said to have been used, namely "goes down on me". The cross-examination of the complainant's mother was to the effect that she had gone to the police on Friday, 4 September, alleging that the complainant had said that the applicant had put his hand on her rude part, but that there had been no reference to putting his mouth or his lips there. There was also some cross-examination as to precisely when the mother spoke to Rachel, whether the complainant was with her at the time or not and the content of the conversation. Again, none of this suggested that the complainant had not complained either to her or to Rachel, nor was the complainant's credibility affected.

(f) combined effect

The final submission put by the applicant was that the combined effect of all the difficulties identified previously was sufficient to taint each verdict of guilty on the basis that the jury should not have been satisfied beyond reasonable doubt on the basis of the complainant's evidence. However, that submission depended on acceptance of the individual challenges.
In support of that conclusion, no analysis was undertaken of the applicant's own evidence, but attention should be directed to it.

Evidence of applicant

The evidence of the accused was to the following effect: 1. he worked most Saturday's between 7am and midday; [30] 2. the complainant had stayed at their home for a period of days or weeks in September 2008; 3. the complainant and her mother and brother visited most Saturdays and stayed until teatime or dinnertime and sometimes for dinner; 4. at some stage (no date was given) he had a conversation with the complainant's mother to the effect that "if she doesn't pull her act together you're going to lose your children"; 5. when the complainant visited, she sometimes watched television; 6. there were five televisions in the house, including one in the lounge room, one in each of the three bedrooms and one on the back deck; 7. the complainant watched The Simpsons on television and when asked where said, "lounge room and we'll say, my bedroom or Nan's bedroom"; 8. he had entered the room when the complainant was watching The Simpsons but did not think he had closed the door; 9. he had on occasion entered Jessica's room when the complainant was playing on her computer, but did not think he had ever closed the door; 10. on occasions he would wrestle with his son, Mitchell, but did not recall an occasion when Mitchell had left the room and he had closed the door; 11. he denied ever touching or putting his lips to or kissing the complainant's genitals; 12. he had heard her evidence of "mousey mousey" which meant pretending to be like a mouse crawling up towards the complainant's genital area and denied he had ever played such a game with the complainant; 13. his mother's 80th birthday had occurred on 30 August 2009 and he had left for Yamba in northern New South Wales to be with her on that occasion and was away for the whole weekend of 29 and 30 August.
In cross-examination he: 1. agreed that the conversation about the complainant staying with them would have occurred "around September 2008"; 2. agreed that the complainant had on occasion joined in the wrestling with his son and him; 3. was not able to say whether there were occasions when his wife, the complainant's mother and his children were all out of the house on a Saturday and he was alone with the complainant; 4. agreed that there may have been occasions when he spoke to the complainant about problems she was facing at school; 5. agreed that there may have been occasion when he was alone with the complainant in Jessica's room, when she wanted to show him something on the computer; 6. denied, or did not think, that he had been with the complainant in Jessica's room or in his room (also referred to as Nan's bedroom) alone, with the door closed; 7. agreed that the complainant and Mitchell (and possibly the complainant alone) may have been banished from the lounge room to watch The Simpsons in the bedroom because he did not like the program; 8. in answer to a series of questions setting out the complainant's evidence as to specific aspects of the offending, simply denied each aspect of the conduct with a simple, "No."

Assessment of evidence

For reasons already recounted, a reading of the transcript, assuming no assessment of the witness giving evidence can be undertaken, would persuade me that the complainant's evidence as to the conduct of the applicant in respect of the four charges which were found proven was truthful, reliable and cogent. The second interview would not have raised a reasonable doubt in my mind as to the state of satisfaction formed on the basis of the first interview.
So far as the other evidence was concerned, there was clearly some complaint made both to the complainant's mother, on Friday 4 September, and to her neighbour, during the period 4-7 September 2009. I would not accept that there was a reasonable basis for thinking that either the complaints to the mother and the neighbour or the detailed account to Constable Greig were concocted or untrue.
There remains a question as to whether a different view might be formed on the basis of the applicant's evidence. Although the applicant conceded opportunity and relationship, he denied each element of the complainant's account, including, for example, ever having heard the phrase "mousey mousey" before the charges were laid. [31]
It is, of course, entirely possible that his demeanour and appearance in the witness box might have given a force to his bland denials which does not appear from the transcript.
It is also possible that viewing the evidence of the complainant might persuade me that she was not to be believed, or was unreliable. The jury had those benefits, but did not form such a view. The applicant's submissions do not persuade me that there was any reason why the jury, on the material before it, should have entertained a reasonable doubt (which I have not formed) as to the truth of the complaints. Accordingly, on the basis of the case as presented, I would dismiss the appeal.

Viewing the video recording

Having reached that conclusion, I was troubled by the possibility that the video recording of the complainant's first interview might cast it in a different light. I was also concerned that the flow of the answers and questions, in some cases where there was no audible reply recorded in the transcript, suggested that there were visual clues which were not recorded. Further, the apparent confusion between questioner and complainant in the second interview might, on viewing a video recording, have demonstrated that the complainant was not confused, but evasive.
In order to resolve these uncertainties, I took the view that it was appropriate to view the video recordings of each interview. (The recording of her cross-examination was not provided to the Court.) In taking that step I was fully conscious of the fact that it would not assist me to assess the evidence of the applicant. That the exercise would therefore be unbalanced was a factor which carried little weight because the purpose of viewing the video recording was to ascertain whether there might be any reason for not accepting the complainant at face value, on the transcript.
In SKA in this Court, Simpson J noted that "[a]ppellate judges are not immune from the subtle (or not so subtle) influence of evidence given in videotaped form." [32] I appreciate the force of that proposition in relation to the question of balance, which has already been addressed. Otherwise, as a reason for not viewing a video recording, I would not be dissuaded on that basis. Placing the evidence before the jury in that form is in accordance with the statutory scheme for the presentation of evidence in such cases. [33] If the jury can be trusted with such material, it must be the case that an appellate judge should be conceded an equivalent capacity for careful assessment. Indeed, the question of subtle influence was, as Simpson J said in the next paragraph, "really no more than a recognition of the long established recognition … that observation of witnesses can affect the impact of the evidence given." [34] That must be so: it is the foundation of a judicial system in which evidence is (for the most part) presented orally and where, in both civil and criminal proceedings, the appellate case law is replete with references to the advantages enjoyed by a trial judge (or jury) in assessing demeanour, credibility and reliability.
The joint reasons in the High Court recognised that it is "usually sufficient for a review of the evidence" to be conducted on the papers. [35] The concern expressed in relation to viewing a video recording focused on potential unfairness to the applicant. That is, of course, an important factor. But if reason can be identified to suggest that a viewing may be of assistance in forming the opinion required of the appellate court, the court should not be precluded from viewing the video recording, nor did the High Court (or Simpson J) suggest otherwise. The purpose must be identified and the Court must take seriously the risk of imbalance based on the viewing of part only of the evidence. On the other hand, it is not in the interests of justice to allow an applicant whose only ground of appeal requires the appellate court to form a view as to the effect of the whole of the evidence to deny the appellate court access to part of the record of that evidence.
There are, of course, practical implications of taking such a step. While it appeared appropriate in the circumstances of this case, the burden caused by viewing the video recordings did not give rise to a practical burden. They were, in total, about one hour in length. Where the Court is invited to view lengthy video recordings, other considerations may arise. That was not so in this case and it is appropriate, in the absence of direction by way of standard practice, that these aspects should be considered on a case by case basis.
Having undertaken a careful assessment of the written transcript, viewing the video recordings of the interviews was predictably revealing. For example, at Q154-Q163 in the transcript of the first interview, Constable Grieg had the complainant explain what the applicant did with his fingers when touching her vagina. When she stated at Q162 that "he moves those two fingers", she was describing an action demonstrated by the complainant.
When the officer was seeking an explanation of how he put his mouth on her vagina, [36] ending with the comment, "He's like that, OK," [37] the video recording demonstrated that the complainant slid to a kneeling position on the floor at that point.
In the following questions, Constable Greg attempted to have the complainant identify how often he had put his lips on her vagina. There was said to be no audible reply to the question, "but it's been more than once?" but the video recording indicated the complainant nodding.
There are a number of other examples, some of which might be inferred from the transcript, but in other cases that would not have been safe.
More importantly, the complainant's appearance was significant. She was clearly nervous and played with the zip on her jacket almost constantly through the interview, sometimes giving the appearance of wringing her hands, which may have explained why counsel for the accused suggested she might have been doing that when speaking to the neighbour, Rachel. More importantly, it would have been possible for the jury to resolve what appeared to be points of confusion in her evidence, but which might possibly have been evasion or even concoction. In this respect the video recording did not assist the applicant. It is sufficient to conclude that there was nothing in the video recording which would have supported a conclusion that the jury should have had a reasonable doubt as to the truthfulness and reliability of the evidence she gave.
A similar conclusion flowed from the video recording of the second interview. There were passages in which it was quite unclear whether the questioner was speaking to the complainant or to the officer out of sight and hearing, in the recording room. The video recording demonstrated long gaps in which it was clear that the interrogating officer was listening to instructions or gaining other assistance. It also became clear that points of hesitation and uncertainty which appeared in the transcript of the answers were the product of the questioning.
Although the second interview took place only 10 months after the first, there was a remarkable change in the appearance of the complainant. Instead of having longish hair falling across her face, she had her hair pulled back from her face. She presented much more confidently. Again, however, the inferences drawn above as to the explanations for the form of the answers were confirmed in most respects. In particular, after viewing the video recording, I would not have drawn any inference favourable to the applicant's case as to the doubt cast on the complainant's credibility by the second interview.
Because I have not viewed the cross-examination of the complainant (although I would have been happy to do so in the circumstances of this case) and because I have not seen (nor presumably is there) a video recording of the accused giving evidence, it is not appropriate to draw any further inferences from viewing the video recordings of the police interviews with the complainant. It is sufficient to conclude that they did not assist the applicant.

Conclusions

I would propose that the Court grant leave to appeal, but dismiss the appeal.
WILSON J: I have had the advantage of reading in draft the judgment of Basten JA and I agree with his Honour's analysis of the evidence of the complainant at trial, and with his conclusions.
Unlike the presiding judge, I did not view the recordings of the two interviews conducted by police with the complainant. Having read the transcript of the evidence, including that of the two interviews, I was left with no doubt as to the guilt of the applicant.
Whilst the applicant pointed to purported inconsistencies between the complainant's account of the offences in her first interview and that given in her second, I regard those matters highlighted by the applicant (and set out by Basten JA above) as saying more about the manner in which the complainant was questioned than about her credibility.
Similarly, whilst some (minor) concessions were obtained from the complainant in cross-examination at trial, such concessions as were obtained principally arose from questions directed to what the complainant may have said on other occasions, and her memory of what she had said, rather than to what had happened. Her evidence as to what had happened was both consistent and persuasive.
The verdicts returned by the jury were well open and I could not and do not conclude that it would be dangerous in all of the circumstances to allow the verdicts of guilty to stand: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493.
Counsel for the applicant ultimately withdrew his invitation to the Court to view the recording of the complainant's evidence (being both the two police interviews with her and the recording of the evidence given by her at trial, made for the purposes set out in Divisions 3 and 4 of Part 5 of the Criminal Procedure Act 1986). In those circumstances, although I do not wish to address this aspect of the matter at length, I do wish to note my concern that it could become common for this Court to be asked to view recorded evidence from the original proceedings.
There are obvious and probably significant ramifications for the workload of any appellate court asked routinely to view such material but, equally, there may be significant jurisprudential consequences for both the manner in which an appellate court approaches the determination of appeals, and for long established notions of the primacy of the jury.
Suffice to say that, unless some compelling reason is advanced by an appellant as to why an appellate court should view recorded evidence from the original proceedings, I would not ordinarily regard it as necessary or even desirable that such a course be adopted.
I agree with the orders proposed by the presiding judge.
R S HULME AJ: I have had the advantage of reading the reasons for judgment of Basten JA and Wilson J. As the judgment of Basten JA demonstrates there were significant inconsistences in the complainant's account of what had occurred. Probably the most striking of these lay in the number of times she alleged the Applicant had interfered with her in one way or another although not insignificant were the differences in the Applicant's account of the incident she originally said occurred in her grandmother's bedroom.
On the other hand, the complainant adhered firmly to her story of being abused in the ways that were the subject of the charges. Her evidence derived very considerable support from the evidence of complaint that her mother and the next door neighbour gave, evidence which, though it also contained inconsistencies was, in matters central to the prosecution, firmly adhered to.
Furthermore a number of the complaints of inconsistency founded on the second interview are more apparent than real once one recognises that answers said to be inconsistent were commonly in respect of different topics - the complainant's recollection of what she had said in the first interview and, on the other hand, her recollection of what had occurred.
In the result, while there was undoubtedly material upon which the jury may have been persuaded not to accept the complainant, the fact remains that they did accept her. Her youth may well have been reasonably regarded as an explanation for the inconsistencies and I am not persuaded that the jury was not reasonably entitled to accept the substance of her evidence. Accepting that the grounds of appeal require this Court to make its own assessment of the sufficiency and quality of the evidence, I am not persuaded that this Court should interfere - M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606; SKA v R (2011) 243 CLR 400.
I have also elected not to view the video recordings of the complainant's interviews with police which constituted her evidence in chief. Consideration of the transcripts has led me to the view that I did not need to see those recordings. I also have reservations about the appropriateness of doing so when, as ultimately occurred, both parties urged that the recordings not be viewed and I had seen nothing to indicate that thereby any miscarriage of justice would result.
I agree with the orders proposed by Basten JA.

Endnotes

Criminal Appeal Act 1912 (NSW), s 6(1).
Criminal Appeal Act, s 5(1).
Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Tcpt, first interview, Q43.
Tcpt, first interview, Q99.
The notice of appeal was not filed until 29 May 2015.
Tcpt, 21/08/15, p 4(10)-(15).
[2009] NSWCCA 186.
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [26]-[35] (French CJ, Gummow and Kiefel JJ); [116] (Crennan J, Heydon J agreeing).
Tcpt, 07/11/13, p 94(5).
Tcpt, p 97(30).
Tcpt, p 98(42).
Tcpt, p 100(10)-(15).
Tcpt, p 103.
Tcpt, p 104(20).
Tcpt, p 104(33).
Summing up, 12/11/3, p 29.
Tcpt, p 108(30)-(35).
Tcpt, p 108(43).
Tcpt, p 110(48).
First interview, Q292, 302 and 303.
Tcpt, p 91(28).
Tcpt, p 91(32).
Tcpt, 06/11/13, p 40.
Tcpt, pp 39-41.
Tcpt, pp 43-44.
Tcpt, 05/11/13, p 1.
Tcpt, 06/11/13, p 46.
Q319.
Tcpt, 11/11/13, p 163.
Tcpt, p 184(12).
SKA at [106].
Criminal Procedure Act 1986 (NSW), ss 306U and 306V.
SKA at [107].
SKA (HCA) a [31].
Q174-Q182.
Q182. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2015

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Judgment (15 paragraphs)

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