Conway v R

Conway v R - [2010] NSWCCA 31 - NSWCCA 2010 case summary — Zoe

[11]

The Crown case 4 What immediately follows is an account of the case, stripped to its essentials, sought to be made on behalf of the Crown (which may, by reason of the verdicts of guilty, be taken to have been essentially accepted by the jury). 5 Despite the brevity of the following account, it will be necessary in due to course to deal in some detail with the evidence. 6 The complainant was born in June 1994. She had a mild or moderate intellectual disability. She lived with her mother (LA) in Warwick Farm. In 2006 she attended the Miller Public School, enrolled in a special class. In 2007 she attended Lurnea High School. It may be that LA also had some intellectual impairment, although the evidence is not clear on that. 7 In 2006 LA had commenced a relationship with the appellant. From time to time the appellant stayed overnight or for weekends at the home occupied by LA and the complainant. On other occasions LA and the complainant stayed overnight at the appellant's home. 8 On an occasion between 1 November 2006 and 15 December 2006, while the complainant was in the bath at her home, the appellant digitally penetrated her vagina. Using two hands, he parted the labia and inserted a finger that touched the complainant's clitoris. This constituted the offence of sexual intercourse without consent, the second count on the indictment. 9 On another occasion during the same period the appellant used his fingers to touch the complainant's nipple and squeeze her breast. This constituted the offence of indecent assault, the first count on the indictment. 10 The complainant told her mother that the appellant had said to her that he wanted "to lick her out". She did not report to her mother the conduct the subject of the charges. 11 The Department of Community Services and police became involved (in circumstances that were not elucidated in the evidence). The complainant was twice interviewed by Senior Constable Lainie Shipway, then of the Joint Investigation Response Team, commonly known as JIRT, Liverpool. The first interview took place at the Miller Public School on 12 December 2006, the second at Lurnea High School on 26 April 2007. Each interview was audio recorded, but not video recorded. The first interview was recorded on two tapes, the second of which was at least partially inaudible. 12 On 19 December 2006 Constable Shipway spoke to the appellant. He declined to be interviewed, saying: "I didn't do nothing, so I have nothing to say of the matter."

[14]

(The jury note was not included in the papers provided to the Court. Whether the transcript accurately records the reference, in each question, to "the incident" in the singular is not clear.) 18 Very fairly, Coorey DCJ decided that the transcript of the audio recordings (which was the complainant's evidence in chief) ought to be accompanied by the transcript of the cross-examination of her. This was done. 19 Unfortunately, the transcripts of the interviews provided to the jury were not identified, either by being marked for identification, or as exhibits. That has created a complication, because the original transcripts appear to have been subjected to some editing. One rather odd feature, which is said in some way to have resulted from the editing, is that the numbering of the questions and answers is not always sequential. 20 The Court was not convinced that the copies of the transcripts of the interviews contained in the appeal papers were in fact the same as the copies given to the jury. Those actually given to the jury had been destroyed. Eventually the parties provided the Court with documents that they agreed were copies of documents identical with those that had been made available to the jury. It is apparent, however, that these were not identical with those from which the complainant was cross-examined, and it is likely that they did not coincide entirely with the audio recordings that had been played. 21 After discussion with counsel about other matters, his Honour told the jury that there was no evidence of the complainant having reported "the incident" to anybody; and that, on the evidence of LA, the complainant must have met the appellant some time in 2006, on a date that was not specified. The first of these was not quite accurate; there was some evidence in the first interview of the complainant having made a report to her mother. The error is inconsequential, and, in any event, favoured the appellant. 22 The jury not having reached a verdict by 4.00pm on that day, his Honour released them for the evening. They resumed deliberations the following morning and returned the verdicts of guilty at 12.05pm.

[17]

The first interview 28 After some preliminary questions, Senior Constable Shipway asked the complainant about the appellant. She asked firstly, what the complainant liked about the appellant; then about anything she did not like about him. To this she said "that's easy". She then said that she did not like his language, because "he swears a lot"; then she said: "Well, what I don't like about him is his behaviour …" (A 159) 29 Asked for more information about this, she said: "He touches me on the, the rude part whatever …" (A 161) 30 Senior Constable Shipway asked for more information about that, to which the complainant replied: "… like he touches me on my rude part when my mum isn't around or when my brother's around (sic) and that's it." (A 164) 31 There followed a lengthy part of the interview in which Senior Constable Shipway asked the complainant about what she meant when she referred to "the rude part". Initially the complainant said she did not know the name of it. Constable Shipway showed her a frontal drawing of a naked female figure and asked her to put a red cross on "the rude part". The complainant marked the drawing in the area of the vagina, but then said: "I think it's there, but I don't know … I'm not quite sure" (A's 178-179) 32 Constable Shipway then asked if the appellant touched her anywhere else. She said that he did. Constable Shipway asked the complainant to mark on the drawing in blue the areas of this touching. The complainant placed two blue crosses on the breast area on the drawing, which she identified as "the boobs". 33 Constable Shipway then asked more about the red crosses. The complainant said that that was the part of the body used "to do your wee or something"; Constable Shipway asked if she had a name for that place and the complainant said: "I think it's called a pussy but I don't know" (A 200) 34 Constable Shipway then asked about what happened when the appellant touched her "pussy". The complainant replied (I reproduce the answer as transcribed): "O.K. First off he opens whatever … the sides. I think it's called the lips but I don't know. And then he looks inside at it my, do you know the hole? … whatever that is. I think it's called a vagina, yeah it's called a vagina hole … he show me and then he touched me and I said, Don't touch me there. I told him that I was going to have a bath so I went into the bathroom and he turned the water on, first he put the plug in and then put the water on both of them, the hot and cold. And then he, then I hopped in - the bath. Afterwards I got … I'm remembering. Got it. I went into the bathroom … Yeah, I was in the bathroom. I think it's called a bathroom. I'm not sure - where the toilet is … I went into the bathroom and then I hopped in where the plug is and the water was … then he opened it again and he looked inside and he said, you know what the round circle is and I said, No, and he told me it was a vagina hole, whatever that is. And after I … because I thought it was cold so I got out, put my top on and I asked mummy if I could watch a DVD …" (A's 203-208) 35 A little later, in answer to a question from Senior Constable Shipway about anything else that the appellant might have said while he was touching her, the complainant said: "He said that, When you get older can I lick it … and I said, No, and he said, Why, and I said, Because you can't do it now because I'm just a little girl, I'm at (sic) 12 year old, and he said, Well I do it to your mum, and I said, yeah but mum's not a kid anymore, she's grown up, and that's all I said." (A 259) 36 Constable Shipway then asked about any other occasions and the complainant referred to an occasion in her brother's room when her brother was not present (A 264). She said: "Well I … was in my brother's room and I was sitting down and dry my, my legs because my top part was all dry. I putted my top on, I, I was wiping my legs and all those places … and then he came in, [the appellant] came in and said, do you, when I get older do you want to have sex, and I said, No because I might find another man …" (A 268) 37 Constable Shipway then asked the complainant if she had told anybody. She said that she had told her mother (A 281). When asked what she had said, the transcript records that she replied: "I said, Mum [the appellant] was touching me on my rude part, and then my [sic; "mum" omitted] said to him, You shouldn't be doing that because you should've told me first, she said that to him and that's it." (A 282) 38 The complainant then said that her mother had told her that she had told the appellant not to do it again, and if he did he would not be coming to their house anymore. When asked about staying overnight at the appellant's home with her mother, the complainant said that she and her mother went to sleep on the floor there.

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Judgment (128 paragraphs)

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